Criminal Appeal No.732 -DB of 2004 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Appeal No.732 -DB of 2004 Date of decision:12.12.2008 Gurmej Singh and another ......Appellants Versus State of Punjab .......Respondent CORAM: HON'BLE MR.JUSTICE S.S.SARON HON'BLE MRS. JUSTICE SABINA Present: Ms.Tanu Bedi, Advocate and Mr. D.S.Sandhu, Advocate, for the appellants. Mr.S.S.Gill, Addl.A.G, Punjab. **** JUDGMENT SABINA, J. Gurmej Singh and Gurjit Singh have filed this appeal challenging judgment and order dated 27.7.2004 passed by Sessions Judge, Jalandhar, whereby they were convicted and sentenced under Section 302/34 and 392 IPC . Prosecution story in brief is that on 26.8.2000 at about 7.00 a.m. complainant Shankar Singh had gone to answer the call of Criminal Appeal No.732 -DB of 2004 2 nature. When he reached near the bushes towards G.T.Road, Jalandhar/Ludhiana, which was about ½ k.m. from his village, he saw a de-composed dead body lying inside the bushes. The dead body was of a person aged about 50 years supporting beard and long hair. The dead body was having signs of injuries on its face and head. When the complainant was about to take a step forward he saw two more dead bodies lying at a distance of about 15/20 feet. Out of them one was of a Hindu gentleman aged about 45-50 years having signs of injuries on his face and head. The other dead body was of a cut beard Hindu man aged 50-52 years having signs of injuries on his mouth, head and other parts of the body. The dead bodies were emitting foul smell. On the basis of the statement of the complainant formal FIR No.157 dated 26.8.2000 was registered by the police of police Station Phillaur. DSP Jasdip Singh visited the spot along with the complainant and prepared the inquest reports with regard to dead bodies of unknown persons. The rough site plan of the spot was prepared. From the place of occurrence a chit was recovered from the pocket of the shirt worn by one of the deceased and the same was taken in possession. The dead bodies were sent for postmortem examination. Dr. Jai Krishan conducted the postmortem examination on the dead body of unknown person aged about 50 years male on Criminal Appeal No.732 -DB of 2004 3 27.8.2000 at 12.00 noon and found that body was badly decomposed and mature maggots were present all over the body. The skin was peeled of at places. He found following injuries on his person:- 1. An incised wound 10 cm x 3 cm on the top of the head. On dissection underlying bone was fractured. On further dissection, blood was present in the cranial cavity and brain matter liquified. 2. Lacerated wound 8 cm x 5 cm on the temporal (right side). On dissection, crushed injury of the underlying bone was present. 3. Lacerated wound 5 cm x 4 cm on the right side of the cheek. In his opinion the cause of death was due to shock and haemorrhage due to injuries described which were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem in nature. Probable time between injuries and death was within few minutes and between death and postmortem was more than four days. On the same day at about 12.30 p.m. he conducted the postmortem examination on the dead body of another unknown person (male) aged about 45 years and found that body was badly decomposed and mature maggots were present all over the body. The skin was peeled of at places. He found following injuries on his person:- Criminal Appeal No.732 -DB of 2004 4 1. An incised wound 15 cm x 3 cm on the right side of the head starting from just behind the anterior hair line. On dissection underlying bone was fractured. On further dissection, blood was present in the cranial cavity, brain matter liquified. 2. Visible deformity of the left side of the face. On dissection, mandible fractured. 3. An incised wound on the right eye and right side of the face. In his opinion the cause of death was due to shock and haemorrhage due to injuries described which were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem in nature. Probable time between injuries and death was within few minutes and between death and postmortem was more than four days. On the same day at about 1.15 p.m. he also conducted the postmortem examination on the dead body of another unknown person aged about 45/50 years male and found that the body was badly decomposed and mature maggots were present all over the body. The skin was peeled of at places. He found following injuries on his person:- 1. Lacerated wound 17 cm x 5 cm on the left side of the head. On dissection underlying bone was fractured. On further dissection, blood was present in the cranial Criminal Appeal No.732 -DB of 2004 5 cavity and brain matter was liquified. 2. An incised wound 8 cm x 2.5 cm over the right temporal region. On dissection, underlying bone was cut. 3. Lacerated wound on the left side of the face. On dissection underlying maxilla fractured. Semi digested material was present in the stomach. In his opinion the cause of death was due to shock and haemorrhage due to injuries described which were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem in nature. Probable time between injuries and death was within few minutes and between death and postmortem was more than four days. On 27.8.2000, ASI Sukhbir Singh joined DSP Upinderjit Singh Ghuman and visited the office of Punjab Transport Company at Saharanpur. Statements of drivers Dhir Singh and Resham Singh were recorded. On 30.8.2000, ASI Sukhbir Singh learnt that truck No.UP- 11-A-1966 was standing in front of Dhaba of Anand Kishore at Sanauli. When he reached the spot, he came to know that police of Police Sation Panipat had already taken away the said truck. He reached the said police station and took the truck in possession after obtaining permission from Deputy Commissioner, Panipat. On 31.8.2000, Inspector Balkar Singh visited the place of Criminal Appeal No.732 -DB of 2004 6 occurrence and verified the investigation which had already been conducted. He recorded the statements of Pws Kashmira Singh and Gurdeep Singh Bawa on 3.9.2000. Accused were produced before him by Kashmira Singh and Gurdeep Singh Bawa on 4.9.2000. On interrogation, accused Gurjit Singh @ Gag suffered a disclosure statement that he had kept the looted material in the dera of Taro and offered to get the same recovered. On the basis of his disclosure statement, bundles of cloth and one 12 bore gun were recovered at his instance and were taken in possession. On 7.9.2000, on interrogation by DSP Jasdip Singh, accused Gurmej Singh and Gurjit Singh suffered disclosure statements that they had kept concealed an iron rod each and offered to get the same recovered. On the basis of their separate disclosure statements they got recovered iron rods from the disclosed place, which were taken in possession. On 11.11.2000, Manager of Punjab Transport i.e. Adarsh Kumar produced before DSP Jasdip Singh form No.23 i.e. Registration Certificate of truck No.UP-11A-1966, driving licence of Amarjit Singh, route permit and a copy of insurance policy of the said truck. All the documents were taken in possession. After completion of investigation and necessary formalities challan was presented against the appellants and their co- accused Amir Singh, Dilawar Singh and Charanjit Singh. Charge against the accused was framed under Sections 120-B, 302/34, Criminal Appeal No.732 -DB of 2004 7 392/397, 411 and 414 IPC on 23.12.2000. Accused did not plead guilty to the charge and claimed trial. Prosecution in order to prove its case at the trial examined 20 witnesses. After the close of prosecution evidence accused, when examined under Section 313 Cr.P.C. prayed that they were innocent and had been falsely involved in this case on the basis of suspicion. Police had concocted false statements and fabricated self belying documents. Police had wrongly detained them and kept them in wrongful confinement for some days. On 2.9.2000, after their detailed interrogation in the presence of Sudhir Rana, they were set free as they were found innocent. Police Officer then demanded illegal gratification from them for setting them free and when they could not oblige them, subsequently, after 2/3 days they were again arrested and were falsely involved in this case. Learned trial Judge believed the prosecution version so far as appellants are concerned vide impugned judgment and order and convicted them under Section 302/34 IPC and sentenced them to undergo imprisonment for life and a fine of Rs.1,000/-each and they were also convicted under Section 392 IPC and were sentenced to undergo rigorous imprisonment for ten years and a fine of Rs.1,000/- each. Their co-accused Amir Singh, Dilawar Singh and Charanjit Singh were acquitted of the charge framed against them. Hence, the present appeal. In appeal, learned counsel for the appellants have argued Criminal Appeal No.732 -DB of 2004 8 that the prosecution had failed to prove its case. The dead bodies had not been duly identified to be that of Amarjit Singh @ Laddu, Dharam Singh @ Dhamma and Phool Chand. Medical evidence did not support the prosecution case. As per Dr.Jai Krishan, who had conducted the postmortem examination on the dead bodies, the time between death and postmortem was more than four days. Postmortem examination was conducted on 27.8.2000, whereas, the occurrence is alleged to have taken place in the early hours of 25.8.2000. As per the Investigating Officer Inspector Balkar Singh, appellants Gurmej Singh and Gurjit Singh were interrogated by him on 2.9.2000 and he found them innocent and had handed over both of them to Sudhir Rana, their relative. In these circumstances, there was no occasion for the appellants to suffer an extra judicial confession before Kashmira Singh and Gurdeep Singh Bawa (PW-9 and PW-14 respectively) on 2.9.2000 itself. A chit (Exhibit P-1), which was allegedly recovered from the pocket of the shirt worn by one of the deceased, was not mentioned in the inquest report and hence, the possibility that it had been created at a later stage to falsely connect the dead bodies of un-known persons with Amarjit Singh @ Laddu, Dharam Singh @ Dhamma and Phool Chand could not be ruled out. The recoveries had been falsely planted on the accused. All the witnesses, who belonged to Punjab Transport Company at Saharanpur, had been falsely introduced in this case. Hence, testimony of Dhir Singh (PW-16) regarding his having 'last Criminal Appeal No.732 -DB of 2004 9 seen' the accused and deceased together can not be relied upon. The said witness is none other than the brother of one of the deceased. Injuries on the person of the deceased could not have been caused with an iron rod as there were incised wounds on the person of the deceased. Recovery of truck was also doubtful as no complaint had been made by owner of the truck regarding disappearance of his loaded truck. Statement of Resham Singh (PW- 7) can also not be relied upon as it was not believable as he could have identify the driver and other occupants of the truck coming from the opposite direction at night time. The truck in question had crossed sarsawa barrier (Saharanpur) on 25.8.2000 and the billties were duly stamped at the Sarsawa barrier. This showed that the truck in question had not been recovered as alleged by the prosecution but had crossed the Sarsawa barrier and had reached Saharanpur. The relevant documents in this regard were not recovered from the accused but were produced by the transport company during investigation of this case. Learned State counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. Accused had met the deceased in the evening on 24.8.2000 at about 2.30/3.30 a.m. Then they stopped for tea. Accused drugged the driver and his associates/cleaners of truck No.UP-11-A-1966. They crossed Phillaur and when they reached Village Khaira accused murdered driver Amarjit Singh and his cleaners and threw the dead Criminal Appeal No.732 -DB of 2004 10 bodies in the bushes. Thereafter, they crossed Sarsawa barrier with the truck and then instead of entering Saharanpur they went to Gango and then reached Sangha Theda. They un-loaded the material lying in the truck in the house of Taro, which was in their forcible possession and left the truck on National Highway No.I near Panipat. Thereafter, accused fled away. Accused were employees of Punjab Transport company and had murdered Amarjit Singh, Dharam Singh and Phool Chand with a view to commit robbery of the material lying in the truck. Accused had also managed to sell some of the material lying in the truck. Remaining material was recovered on the basis of the disclosure statement suffered by the accused. Medical evidence duly corroborated the prosecution case. Since it was the month of August and due to rains the de-composition of the dead bodies took lessor time. Due to this reason the doctor might have inadvertently mentioned that the time between death and postmortem examination was more than four days. The accused were arrested on 4.9.2000 and hence, any interrogation of theirs before the said date was not probable. Present case rests on circumstantial evidence. It has been held in Vasa Chandrasekhar Rao v. Ponna Satyanarayana, 2000(3) Recent Criminal Reports 96 (SC) that in a case of circumstantial evidence, in order to establish the guilt of the accused, it was necessary to prove the circumstances fully and it was further held as under:- Criminal Appeal No.732 -DB of 2004 11 (i) “Circumstances should be conclusive in nature. (ii) All facts so established, should be consistent only with hypothesis of the guilt and inconsistent with innocence. (iii) Circumstances should exclude the possibility of guilt of any person other than the accused. (iv) In order to justify an inference of guilt, circumstances must be incompatible with innocence of accused. (v) Cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offence beyond reasonable doubt. (vi) Where accused on being asked, offers no explanation or explanation is found to be false, then that itself forms an additional link in chain of circumstances.” The prosecution case is to be examined in this perspective. The prosecution is required to establish a complete chain of circumstances which leads to the guilt of the accused. We have gone through the entire evidence and have carefully considered the same and are of the opinion that the prosecution has not been able to complete the chain of circumstances which would lead to the conclusion that appellants are guilty of the alleged offence. Firstly, the medical evidence does not support the prosecution case. As per the prosecution version the deceased had Criminal Appeal No.732 -DB of 2004 12 left on truck No.UP-11-A-1966 driven by Amarjit Singh with his associates/cleaners Dharam Singh and Phool Chand from Amritsar. The truck was loaded on 24.8.2000 with 192 bales of cloth. Out of which 188 bales were for Saharanur and four were for Ambala. A Chit (Exhibit P-1) i.e. City pass was issued on 25.8.2000 and time on the chit was mentioned as 2.35 to 3.35. Although it is not mentioned on the chit that it was issued in the morning or in the afternoon but the prosecution case is that it was issued in the morning. From this chit it can be inferred that the occurrence had taken place after issuance of the chit in the early hours of 25.8.2000. The postmortem examination on the dead bodies was conducted on 27.8.2000 from 12.00 noon onwards. Dr.Jai Krishan (PW-1) has categorically deposed that time between death and postmortem examination was more than four days qua all the dead bodies. He opined that the dead bodies were badly de-composed and mature maggots were present all over the bodies. He also found that liver, spleen and kidney of one of the dead bodies were partially de-composed. The bladder was empty and partially de-composed. Qua other two dead bodies the doctor found that mouth, pharynx, esophagus, stomach, small intestine, liver, spleen, kidney were partially de-composed. The doctor was aware that it was the month of August and gave his opinion accordingly with regard to the time which had elapsed between death and postmortem examination. Thus, as per the medical evidence, the dead bodies on which postmortem Criminal Appeal No.732 -DB of 2004 13 examination had been conducted, the death had occurred before 23.8.2000 noon time. Whereas, in the present case the occurrence which resulted in death of Amarjit Singh, Dharam Singh and Phool Chand had taken place in the early hours of 25.8.2000. Even in the inquest report it has been mentioned that the dead bodies were de- composed. Complainant has also deposed that when he saw the dead bodies he found that they were emitting foul smell. This corroborates the opinion of the doctor that the time between death and postmortem examination was not as per the prosecution case. Secondly, the extra judicial confessions allegedly suffered by the accused do not inspire confidence. As per Kashmira Singh (PW-9), appellant Gurjit Singh met him on 2.9.2000 and confessed before him that he along with his colleague Gurmej Singh had committed murder of Amarjit Singh, Dharam Singh and Phool Chand when they were on truck No.UP-11-A-1966 on the night intervening 24/25.8.2000. They had earlier given intoxicating tablets mixed in tea to them and thereafter, brought them down from the truck on the pretext that the tyre of the truck had got punctured and should be checked. Then they killed all of them with the help of iron rods and threw the dead bodies by the side of the road. Then they took the truck to Uttar Pradesh. The appellant requested that he may be produced before the police. He told the appellant that he would think over the matter. He got his statement recorded before the police on 3.9.2000 and produced the appellant before the police on 4.9.2000. Criminal Appeal No.732 -DB of 2004 14 Appellant Gurmej Singh also suffered similar extra judicial confession before Gurdeep Singh Bawa (PW-14) on the same day. Gurdeep Singh Bawa also got recorded his statement before the police on 3.9.2000 and produced appellant Gurmej Singh before the police on 4.9.2000. It is surprising that both the appellants met PW-9 and PW-14 separately on the same day and suffered extra judicial confession before them. Both the witnesses did not bother to produce the appellants before the police on the same day although it was a serious matter involving murder of three persons but allowed the appellants to go after suffering the extra judicial confession. Then conveniently both the said witnesses appeared before the police and got recorded their statements on 3.9.2000 and produced the accused/appellants before the police on the next day i.e. 4.9.2000. As per these witnesses their statements were not recorded by the police on 4.9.2000 when they produced the accused. Another factor common between both the witnesses is that when their statements were recorded by the police i.e. Exhibits DA and DB there is an over writing with regard to the date when the occurrence had taken place. A note in this regard has been given by the Presiding Officer when the statements of these witnesses were recorded and the same were duly encircled by the Presiding Officer. We have also gone through Exhibits DA and DB wherein there is an over writing with regard to date of occurrence i.e. from 23/24.8.2000 Criminal Appeal No.732 -DB of 2004 15 to 24/25.8.2000. There is also an over writing with regard to the date on which appellant Gurjit Singh had come to Kashmira Singh to suffer an extra judicial confession. A perusal of Exhibits DA and DB further reveals that the appellants had allegedly approached the witnesses PW-9 and PW-14 after lunch on 2.9.2000. Balkar Singh (PW-19) on the other hand deposed that on 2.9.2000 appellants were produced before him by ASI Jasbir Singh and it was disclosed to him by ASI Jasbir Singh that the appellants were claiming themselves to be innocent. He also interrogated both the appellants on 2.9.2000 and found them innocent and handed them over to their relative Sudhir Rana. It is not understandable as to why the appellants, who had been declared innocent by the police and had been set free on 2.9.2000 after interrogation, would suffer extra judicial confession on the same day before PW-9 and PW-14. Thirdly, Tarsem Lal, who was Manager of Punjab Transport Company, Amritsar produced on record challan forms Exhibits PW11/A-1 to A-7, wherein the numbers of billties are mentioned. A perusal of the same reveals that these were issued by the Punjab Transport Company (Regd.) Shaheed Bhagat Singh Road, Amritsar on 24.8.2000, wherein all the billty Nos. of the material loaded in the truck No.UP-11-A 1966 are mentioned. Along with these exhibits there is also a challan form issued by octroi post Sarsawa (Saharanpur) dated 25.8.2000 with regard to truck No.UP- 11-A-1966 wherein 188 bales of cloth are described. From this it can Criminal Appeal No.732 -DB of 2004 16 be inferred that 188 bales of cloth scheduled for Saharnpur had crossed octroi post Sarsawa on 25.8.2000. The said challan form was not recovered from the appellants but had been placed on record by the transport company along with Exhibit PW 11 A-1 to A- 7. The said exhibited documents also bear the stamp of octroi post Sarsawa (Saharanpur) dated 25.8.2000. Had these challan forms been recovered from the appellants, an inference could have been drawn that after committing murder of the driver and cleaners of the truck No.UP-11-A-1966 the appellants had driven the truck up to Sarsawa barrier. However, the said challan forms were not recovered from the appellants but have been placed on record by the Manager of the transport company and, as such, it creates a material doubt in the prosecution case that the appellants had driven away with the loaded truck in question after committing the murder of its driver and cleaners. This creates a doubt with regard to recovery of cloth on the basis of disclosure statement suffered by the accused. Taro, from whose house the cloth has been recovered was not examined by the prosecution. This also leads to the inference that appellants had no motive to commit the murders of the deceased. In a case of circumstantial evidence motive gains significance. However, in the present case prosecution has failed to discharge its burden in this regard. Fourthly, the evidence led by the prosecution with regard to 'last seen' of the deceased in the company of the accused also Criminal Appeal No.732 -DB of 2004 17 fails to inspire confidence. Resham Singh (PW-7) deposed that on 23/24.8.2008 he has started on truck No.UP-11-A-1965 with Rakesh Kumar and they had seen truck No.UP-11-A-1966 driven by Gurmej Singh near Rajpura. In his cross-examination he deposed that he had started from Saharanpur at 2.00 a.m. and had reached at Amritsar at 5.p.m. on the same day. This means that PW-7 had seen the truck in the early hours of 23/24.8.2008, whereas, the occurrence in this case had allegedly taken place in the early hours of 25.8.2000. He further deposed in his cross-examination that after crossing Ambala throughout there is four lane with divider in between the road. There are plants on the divider. In these circumstances, it is also not understandable as to how he could have recognised the driver and its cleaner. It appears that the said witness being driver with Punjab Transport Company at Saharanpur has deposed in favour of the prosecution. Dheer Singh (PW-16) is none other than the brother of one of the deceased Amarjit Singh. He allegedly saw the accused and deceased at Sandhu Dhaba while he was coming from Saharanpur