Crl. Appeal No.541-DB of 2005 --1-- IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Crl. Appeal No.541-DB of 2005 Date of decision. 14.01.2009 1. Sonu son of Surjit Singh 2. Sahib Singh @ Saba son of Surjit Singh, Both residents of village Rangarh, Tehsil & District, Amritsar. ....... Appellants Versus The State of Punjab ........ Respondent CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. S.P.S.Sidhu, Advocate for the appellants. Mr. N.D.S. Mann,Additional Advocate General,Punjab for the respondent. **** Sham Sunder, J. This appeal is directed against the judgment of conviction, and the order of sentence dated 11.06.2005, rendered by the Court of Sessions Judge, Amritsar, vide which it convicted and sentenced the accused ( now appellants ), as under: Crl. Appeal No.541-DB of 2005 --2-- Name of the accused (now appellants) The offence for which conviction was recorded. Sentence awarded Sonu U/S. 302 IPC Life Imprisonment. Fine of Rs.5000/-.In default of payment of fine to undergo rigorous imprisonment for two years. U/S 201 IPC Rigorous imprisonment for three years. Fine of Rs.1000/-. In default of payment of fine to undergo rigorous imprisonment for three months. Sahib Singh U/S 302/34 IPC Life Imprisonment. Fine of Rs.5000/-.In default of payment of fine to undergo rigorous imprisonment for two years. U/S 201 IPC Rigorous imprisonment for three years. Fine of Rs.1000/-. In default of payment of fine to undergo rigorous imprisonment for three months. 2. The facts, in brief, are that Baldev Singh alias Deba son of Jodha Singh, had been plying a taxi. Subsequently, he sold the same. He started working as Taxi driver at Attari. He developed illicit relations, with Raj Kaur, mother of Sonu and Sahib Singh alias Sabha, accused. He started residing with her, in her house, and used to spend all his earnings upon her. He started casting an evil eye, on the Crl. Appeal No.541-DB of 2005 --3-- daughter and daughter-in-law of Raj Kaur, about which she made a complaint, to his father, who tried to make him understand, but to no avail. On 10.2.2003 Sajjan Singh,(PW-1) Chowkidar of village Boparai Baj Singh, was going from his house towards the fields, and when, at about 7.30 AM, he reached near the bus stand, he found a dead body, lying on the eastern side of Ram Tirath- Khasa Road. Both the arms of that dead-body were tied, on the back side, with the help of a muffler. He identified the dead body,as that of Baldev Singh alias Deba son of Jodha Singh, who had been known to him, for the last 15 years, as taxi driver. He went to the village of his parents, in order to inform them, but no one met him there. Thereafter, he proceeded to the Police Station, to lodge a report, when Balwinder Singh, Sub Inspector,(PW-8), alongwith other police officials, met him at bus stand, Kohali. He made his statement Ex.PA, before Balwinder Singh, Sub Inspector, who appended his endorsement Ex.PA/2, upon the same, on the basis whereof, formal FIR Ex.PA/3, was recorded, under Section 302 of the Indian Penal Code. Thereafter, accompanied by the complainant, Balwinder Singh, Sub Inspector, went to the place, where the dead body was lying. After inspecting the same, he prepared the rough site plan Ex.PF, with correct marginal notes. He prepared the inquest Crl. Appeal No.541-DB of 2005 --4-- report Ex.PD, in respect of the dead body. The dead body was sent for post-mortem examination, to the Forensic Medicine Department of Medical College, Amritsar, through Mukhtiar Singh, Head Constable and Balraj Singh, Constable, alongwith application Ex.PE. The post-mortem, on the dead body was performed by Dr. Rama Kant Nadda ( PW- 10 ), who found a ligature mark, on the neck, and ante-mortem injuries on different parts of the dead body. He deferred his opinion, regarding the cause of death, till the receipt of report of the Chemical Examiner, to whom viscera and blood sample were sent. After the post-mortem examination, the wearing apparels, found on the dead body, were produced on 11.02.2003, by Mukhtiar Singh, Head Constable ( PW-2 ) before Kulwinder Singh, Moharrir Head Constable ( PW- 7 ). On 13.02.2003 those wearing apparels, were produced by the said Moharrir Head Constable, before Balwinder Singh, Sub Inspector, who converted the same into parcels, sealed the same with the seal bearing impression 'PS', and took the same into possession, vide memo Ex.PG. After the receipt of report of the Chemical Examiner, Ex.PK, it was opined by Dr. R.K. Nadda, vide report Ex.PJ/2, that cause of death was asphyxia, as a result of ligature strangulation, which was sufficient, to cause death, in the ordinary course of nature. Crl. Appeal No.541-DB of 2005 --5-- 3. On 14.02.2003, the statement of Majhail Singh,(PW-4) was recorded by Balwinder Singh, Sub Inspector, under Section 161 of the Code of Criminal Procedure. He stated that on 10.02.2003, at about 3 AM, when he was going from village Boparai, towards village Vernaili, on his bicycle, and was still, at some distance from the Bus Stand, Boparai Baj Singh, one truck bearing registration No. PB-02-S/9875 crossed him, and the same was stopped near that bus stand. He also stated that both the accused and driver of that truck, Sartaj Singh, who was already known to him, alighted therefrom, and asked him, as to which place he was proceeding. According to him, lateron, he came to know that the truck was parked, at that very place, from where the dead- body was recovered. On that very day, the statement of Lakhwinder Singh, under Section 161 Cr.P.C., was recorded by the Investigating Officer, who stated that on 12.02.2003, at about 6 PM, both the accused accompanied by Sartaj Singh, came to his house, and told him, that they were to talk to him. He took those persons, to a separate room, where first of all Sahib Singh alias Saba, accused made an extra judicial confession, that he alongwith his co-accused committed the murder of Baldev Singh, by strangulation, with the help of muffler. Sartaj Singh also made a similar extra judicial Crl. Appeal No.541-DB of 2005 --6-- confession, before Lakhwinder Singh. On 20.02.2003 Balwinder Singh, Sub Inspector arrested accused Sonu and on 05.03.2003, he arrested Sahib Singh, accused. During the course of investigation, Sartaj Singh, accused, was not arrested, as he was found innocent. After the completion of investigation, the accused were challaned. 4. On their appearance, in the Committing Court, the accused were supplied the copies of all the documents, relied upon by the prosecution. 5. After the case was received by commitment, charge under Sections 302/34 and 201 of the Indian Penal Code was framed against the accused, to which they pleaded not guilty, and claimed judicial trial. 6. The prosecution, in support of its case, examined Sajjan Singh son of Chuni Lal, ( PW-1 ), Mukhtiar Singh, Head Constable, ( PW- 2 ), Lakhwinder Singh son of Jagir Singh, ( PW-3 ), Majail Singh son of Sunder Singh, ( PW- 4 ), Salwant Singh son of Kashmir Singh, ( PW-5 ), Balwinder Singh son of Wariam Singh, ( PW-6 ), Kulwinder Singh, Head Constable, ( PW-7 ), Balwinder Singh, Sub Inspector, ( PW- 8 ), Yogi Raj, Sub Inspector, ( PW-9 ), and Dr. Rama Kant Nadda, Medical Officer, Civil Hospital, Anandpur Sahib, ( PW- 10 ). Thereafter, the Public Crl. Appeal No.541-DB of 2005 --7-- Prosecutor for the State, tendered into evidence report of Chemical Examiner, Ex.PK, and closed the same. 7. The statements of the accused, under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. They , however, did not lead any evidence in their defence. 8. After hearing the Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated hereinbefore. 9. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed. 10. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The case of the prosecution, is based on the circumstantial evidence. When a case is based, on the circumstantial evidence, the Court is bound to be extra- cautious, because the circumstantial evidence, has its own limitations. Before acting, on that evidence, the Court must Crl. Appeal No.541-DB of 2005 --8-- first see, whether the circumstances, put forward, are satisfactorily proved, and whether the proved circumstances, are sufficient to bring home satisfactorily, the guilt to the accused. The established circumstances, must not only be consistent with the guilt of the accused, but at the same time, they must be inconsistent with his innocence. While appreciating the circumstantial evidence, the Court should not view, in isolation, the various circumstances. On the other hand, it is necessary to take an overall view of the matter, but without substituting conjectures for legal inferences. Incompatibility with the innocence, besides compatibility with guilt, is called for, in such cases, because incriminating circumstances, can also be introduced, during the investigation, and it is a matter of common knowledge, that at times, they are falsely introduced, by way of padding, by the investigating Agency. The acid tests, laid down, by the Apex Court in Gambir V. State of Maharashtra, AIR 1982 (Supreme Court) 1157, Tarsem Kumar V. Delhi Administration, 1994(3) Recent Criminal Reports 587 (Supreme Court) and Sharad Birdhichand Sarda V. State of Maharashtra, 1984 CAR 263 (Supreme Court), for basing conviction, on the strength of circumstantial evidence alone, are enumerated as under : Crl. Appeal No.541-DB of 2005 --9-- 1. The circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established: 2. Those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; 3. The circumstances, taken cumulatively should form a chain, so complete, that there is no escape, from the conclusion, that within all human probabilities, the crime was committed by the accused and none else; and 4. The circumstantial evidence, in order to sustain conviction, must be complete and incapable of explanation of any other hypothesis, than that of the guilt of the accused, and such evidence should not only be consistent with the guilt of the accused, but should be inconsistent with his innocence. 12. It is settled principle of Criminal Jurisprudence, that the prosecution is required to prove its case, against the accused, beyond a reasonable doubt. The Court is not required to act on mere suspicion, conjectures or surmises or suspicious circumstances, to bring home the guilt to the accused. In Datar Singh V. State of Punjab AIR 1971 (Supreme Court) 1193, the principle of law, laid down, was to the effect, that it is often difficult, for the Courts of Law,to arrive at the actual truth, in criminal cases. The Judicial process can only operate on firm foundation of actual Crl. Appeal No.541-DB of 2005 --10-- and credible evidence, on record. The mere suspicion or suspicious circumstances, cannot relieve the prosecution of its primary duty, to prove its case, against an accused person, beyond a reasonable doubt. The Courts of justice cannot be swayed by sentiments or prejudice, against a person accused of the very reprehensible crime. They even cannot act on some conviction that the accused persons have committed a crime, unless their offence, is proved by satisfactory evidence of it, on record. If the pieces of evidence, on which the prosecution, choses to rest its case, are so brittle, that they can crumble, when subjected to close and critical examination, so that whole superstructure, build on such insecure basis collapses, proof of some incriminating circumstances, which might have given support to mere defective evidence, cannot avert failure of the prosecution evidence. In K.M. Nanawati V.State of Maharashtra A.I.R. 1962 (Supreme Court) 605, the principle of law, laid down, was to the effect, that it is the cardinal principle of Criminal Jurisprudence, that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution, to prove his guilt, beyond a reasonable doubt. The prosecution,is under legal obligation, to prove each and every ingredient of the offence, beyond any doubt unless, otherwise so provided by any Statute. This Crl. Appeal No.541-DB of 2005 --11-- general burden never shifts and it always rests on the prosecution. At the conclusion of the trial, the prosecution, can succeed only, on discharging its burden of proving the case, against the accused. Strongest of suspicion, does not constitute the proof required. 13. Keeping in view the principle of law, laid down, in the cases, referred hereinbefore, now let us see, as to whether, the prosecution, has been able to prove its case, against the accused, beyond a reasonable doubt. The first circumstance, on which, reliance was placed by the prosecution, was that Sahib Singh @ Saba, accused made an extra judicial confession before, Lakhwinder Singh, PW-3, on 12.02.2003, confessing that they committed the murder of Baldev Singh, by strangulating him, by putting a piece of cloth, around his neck, as he was having an evil eye, on his mother and sister. Before touching the extra judicial confession, allegedly made by the accused, before Lakhwinder Singh, PW-3, the principle of law relating, to the same, and the circumstances, in which the reliance can be placed thereon are required to be enumerated. In Kavita V.State of Tamil Nadu 1998(3) RCR (Criminal) 535 (SC), the principle of law, laid down, was to the effect, that there is, no doubt, that conviction can be based, on an extra Crl. Appeal No.541-DB of 2005 --12-- judicial confession, but it is well settled, that in the very nature of things, it is a weak piece of evidence. It is to be proved, just like any other fact, and the value there of depends upon the veracity of the witness, to whom it is made. In Jaspal Singh alias Pali V. State of Punjab 1977(2) RCR 70 (SC), it was observed, that the accused had no reason to go to the witness,and confess his guilt, by reposing confidence, in a person, who is inimically disposed towards him. In Jagtar Singh and Jagraj Singh V. State of Punjab 1998(3) CRR(Crl.)517, it was held that normally one could confess, before a person, in authority, or someone close to him, so that the said person may be able to render some help, and not before the close relation of the deceased, who could not possibly render the accused any help. In Rahim Beg V. State of Uttar Pradesh 1972 (Crl.L.J.), 1260, the principle of law, laid down, was to the effect, that extra judicial confession, is a weak piece of evidence, and it is most dangerous, to rely upon the same, to convict the accused,without corroboration. In Haramba Brahama V. State of Assam 1983 Crl.L.J.149 (SC), the principle of law, laid down, was to the effect, that it was dangerous to rely upon such an extra judicial confession, which did not make out any sense, without exact reproduction of words, spoken Crl. Appeal No.541-DB of 2005 --13-- by the witness. It was also held, that if any extra judicial confession, is made to a person, having no intimacy,with the accused, and no reason is assigned, for making such an extra judicial confession,no reliance, can be placed thereon, for convicting the accused. In Baldev Raj V.State of Haryana 1991 ( Crl. Courts Judgments 197 (SC) no doubt, the principle of law, laid down, was to the effect, that the extra judicial confession, could be relied upon, by the Court, if the same was found to be voluntary. It was further held that the value of the evidence, as to the confession, depends upon the veracity of the witness. It was also held that, if the extra judicial confession, is found to be voluntary, and the evidence of the witness before whom, the same is made, is trustworthy, and he had also no axe to grind, against the accused,then conviction can be based, on the same, without corroboration. In Balbir Singh V. State of Punjab, 1999 (4) Recent Criminal Reports (Criminal),51, the principle of law, laid down was to the effect, that an extra judicial confession, even if believed, is a very weak piece of evidence and ordinarily not accepted, without independent corroboration. Similar principle of law, was laid down, in Surinder Kumar V. State of Punjab 1999 C.L.J. 267 (SC). Keeping in view the principle of law, laid down, and the observations made ,in Crl. Appeal No.541-DB of 2005 --14-- the aforesaid cases, now let us see, as to whether, Sahib Singh @ Saba, accused, made an extra judicial confession, before Lakhwinder Singh, PW3, regarding the alleged murder of Baldev Singh. The statement of Lakhwinder Singh, PW-3, is not at all reliable, as would be discussed hereinafter. Lakhwinder Singh, PW-3, who belongs to a different village, at a distance of 8 Kms from the village of the accused, during the course of cross-examination, stated that the accused were not known to him earlier. Even he did not produce the accused, before the police, when Sahib Singh @ Saba, allegedly made an extra judicial confession, before him. He further stated that, after Sahib Singh @ Saba, allegedly made an extra judicial confession, before him, he told the accused that he would talk to the police. He further stated that he waited for them, till the next day, but they did not turn up. The accused could not be expected to repose confidence and faith, in a person, who did not belong to their village, nor related to them, nor earlier known to them, nor acquainted with them. In case, the accused wanted to allegedly make an extra- judicial confession, they would have certainly chosen a member panchayat or Sarpanch of their own village, to allegedly make a clean breast of their guilt. There is also nothing, on the record, that Lakhwinder Singh, PW-3, told Crl. Appeal No.541-DB of 2005 --15-- the accused that he will save them from the police torture. In Mukesh Busse v. State of Haryana, 1997(3) RCR 553 ( Division Bench ), ( P & H ) extra judicial confession was made, by the accused, before the prosecution witness. The accused was not even earlier known to him. Rather the prosecution witnesses, belonged to the community of the deceased. It was held that the extra judicial confession could not be relied upon for conviction. In Madan Mohan @ David v. State of Haryana, 1997 (1) Recent Criminal Reports, 713 ( DB ) the extra judicial confession was made by the accused to a person, who was neither related to him, nor was thick with him. Such confession, made by the accused, before an unrelated person, was held to be unreliable. In the instant case, it is highly doubtful that Sahib Singh @ Saba, accused, at all made an extra judicial confession before this witness. Had Sahib Singh @ Saba, accused made an extra judicial confession, before this witness, on 12.02.2003, he would have been the first person to produce him and his-co-accused, before the Police. Since, no extra judicial confession,was made by Sahib Singh, accused,before this witness,the question of his production and the production of his co-accused before the Police, did not at all arise. The evidence of Lakhwinder Singh,PW-3,to the Crl. Appeal No.541-DB of 2005 --16-- effect, that Sahib Singh, accused, made an extra judicial confession before him, involving him, as also his co-accused, on account of the aforesaid factors, is neither reliable, nor inspires confidence, in the mind of the Court. This circumstance was apparently fabricated, by the investigating agency, to connect the accused with the present case. 14. Not only this, there is another very vital circumstance, which proves that no extra judicial confession was made by Sahib Singh @ Saba, accused. On 21.02.2003, for the first time, Sonu, accused, was produced, before the Court, after having been arrested on 20.02.2003. In the remand request, dated 21.02.2003, the police sought the police remand, for ten days on the ground, that he was to be interrogated, and an inquiry was also to be made, with regard to Sartaj Singh,accused. No mention was made, in this remand paper, that on 12.02.2003, an extra judicial confession was made by the co-accused of Sonu, accused when he ( Sonu ) was present with him, before Lakhwinder Singh, PW- 3, and his statement was recorded on 14.02.2003. Even, in the subsequent remand request, dated 22.02.2003 of this accused, no mention of extra judicial confession was made . Sahib Singh, accused surrendered, in the Court, on 04.03.2003, and permission was granted by the Court to arrest Crl. Appeal No.541-DB of 2005 --17-- him, in this case. He was arrested on 04.03.2003, by the Police of Police Station Lopoke. Thereafter, on that day, Sahib Singh and Sonu, accused, were remanded to police custody. No mention was made, in the remand request, that Sahib Singh made an extra judicial confession,before Lakhwinder Singh, PW-3, on 12.02.2003, to the effect, that he alongwith his co-accused Sonu, committed the murder of Baldev Singh, by strangulation. No mention was also made that the statement of Lakhwinder Singh, PW-3, in this regard, was recorded on 14.02.2003. Had Sahib Singh, accused, made an extra judicial confession, involving him, as also his co-accused, namely Sonu, in the commission of murder of Baldev Singh, by strangulating him on 12.02.2003, before Lakhwinder Singh, PW-3, mention of this very vital fact, would have certainly been made, in the remand paper, referred to above . There is no explanation, on the record, that such a mention, could not be made, by the Investigating Officer, in the remand paper, due to inadvertence. Making of alleged extra-judicial confession by Sahib Singh, accused, to Lakhwinder Singh, PW-3 on 12.02.2003 was a very material circumstance, leading to the proof of the case of the prosecution. It, therefore, could not be forgotten, by the Investigating Officer, in any manner. Non-mentioning of this Crl. Appeal No.541-DB of 2005 --18-- very important and vital fact, in the remand requests, referred to above, clearly proved that no extra judicial confession had come into existence, by that time, allegedly having been made by Sahib Singh, accused involving him and his co-accused, in the commission of murder of Baldev Singh. In Surinder Kumar V. State of Punjab 1999 CLJ,267 (SC), the extra judicial confession was allegedly made on 05.07.1992. An application for remand of the accused, was moved, on 10.07.1992 by PW10. The accused was also produced before the Magistrate concerned, on that day. However, the factum was not disclosed, in the remand paper, that the accused had made an extra-judicial confession before PW-6. The trial Court, however, relied upon the said extra-judicial confession. The matter was also brought to the notice of the High Court, in appeal, that since there was no mention of the extra- judicial confession, in the remand paper dated 10.07.1992, it could be safely held, that no such confession was made by the accused. However, the High Court dismissed the appeal. In appeal, before the Apex Court, the same very point was again highlighted. The Apex Court held that since no mention of the extra-judicial confession dated 5.7.1992 was made, in the remand paper dated 10.07.1992 it could be held that such a circumstance was fabricated. Thus, the observations made in Crl. Appeal No.541-DB of 2005 --19-- Surinder Kumar's case ( supra ) by the Apex Court, are fully applicable to the facts of the instant case. The trial Court was, thus, wrong, in holding that the extra-judicial confession was made by Sahib Singh, accused, before Lakhwinder Singh, prosecution witness. The submission of the Counsel for the appellants, that no extra-judicial confession was made by Sahib Singh, accused, before Lakhwinder Singh, being correct, is accepted. 15. The next circumstance, on which reliance was placed, by the prosecution, was that the