IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. (1) Crl. A. No. 253-DB of 2004 DATE OF DECISION : 20.07.2011 Deepak .... APPELLANT Versus State of Punjab ..... RESPONDENT (2) Crl. A. No. 359-DB of 2004 DATE OF DECISION : 20.07.2011 Raj Kumar alias Sema .... APPELLANT Versus State of Punjab ..... RESPONDENT (3) Crl. A. No. 441-DB of 2006 DATE OF DECISION : 20.07.2011 Balauri alias Balour .... APPELLANT Versus State of Punjab ..... RESPONDENT (4) Crl. A. No. 462-DB of 2004 DATE OF DECISION : 20.07.2011 Manjinder Singh alias Billa and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT Crl. A. No. 253-DB of 2004 -2- CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE A.N. JINDAL Present: Mr. P.P.S. Duggal, Advocate, for the appellants (in Crl. A. 253-DB of 2004 & 441-DB of 2006) Mr. Vikas Kumar, Advocate, for the appellant (in Crl. A. No. 359-DB of 2004) Mr. Sant Pal Singh Sidhu, Advocate, for the appellants (in Crl. A. No. 462-DB of 2004) Mr. Pavit Singh Mattewal, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. This judgment shall dispose of Criminal Appeals No. 253-DB of 2004; 359-DB of 2004; 441-DB of 2006; and 462-DB of 2004, filed by Deepak; Raj Kumar alias Sema; Balauri alias Balour; and Manjinder Singh alias Billa and Ashok Kumar alias Pammi, respectively. All the appellants were tried by the court of Additional Sessions Judge, Ferozepur, for kidnapping and murder of Shekhar, aged about 25 years. Vide judgment and order dated 19.2.2004, passed by the trial court, appellants Deepak, Raj Kumar alias Sema and Balauri alias Balour have been convicted and sentenced to undergo life imprisonment and to pay a fine of ` 3,000/- each, in default to further undergo rigorous imprisonment for a period of two years under Section 302 IPC; to undergo rigorous imprisonment for a period of five years and to pay a fine of Crl. A. No. 253-DB of 2004 -3- ` 2,000/- each, in default to further undergo rigorous imprisonment for a period of one year under Section 364 IPC; and to undergo rigorous imprisonment for a period of one year under Section 148 IPC, whereas appellants Manjinder Singh alias Billa and Ashok Kumar alias Pammi have been convicted and sentenced to undergo life imprisonment and to pay a fine of ` 3,000/- each, in default to further undergo rigorous imprisonment for a period of two years under Section 302/149 IPC; and to undergo rigorous imprisonment for a period of five years and to pay a fine of ` 2,000/- each, in default to further undergo rigorous imprisonment for a period of one year under Section 364 IPC. As per the prosecution version, Shekhar (deceased) was plying three-wheeler in Fazilka. On 5.2.1999 at about 11 PM, all the five accused hired his three-wheeler from near Railway Station, Fazilka, for dropping them to Sanjeev Chowk, from where they had to board a bus for Delhi. When Shekhar did not return for two days, Rakesh Kumar Bawa (PW.1), President of three-wheeler Union, reported the matter to the police, expressing his apprehension that the aforesaid five accused had abducted Shekhar with intention to kill him and to usurp his three-wheeler. On the basis of his statement (Ex.P1), recorded by SI Beant Singh (PW.16), SHO Police Station City Fazilka, on 7.2.1999 at 5 PM, at Malout Chowk, Fazilka, FIR (Ex.P1/A) was registered against all the five accused under Sections 364/148/149 IPC. During investigation of the case, on 8.2.1999, an information was received by the police that a dead body was lying near the Crl. A. No. 253-DB of 2004 -4- road side of Abohar-Ganganagar bypass. On receiving the said information, SI Sulakhan Singh (PW.12), SHO, Police Station City Fazilka, along with other police officials, Tarsem Lal (PW.3) and Des Raj went to Abohar- Ganganagar bypass road, where on search, they found that dead body of a young person, aged about 25 years, was lying in the pits by the side of the metalled road near the dhani of mosque. Tarsem Lal and Des Raj identified the dead body as the body of Shekhar. Thereupon, the offence under Section 302 IPC was added in the FIR, inquest report (Ex.P5) was prepared and the dead body was sent to Civil Hospital, Fazilka for post mortem examination. On 8.2.1999, Dr. V.K. Mujral, SMO Incharge, Civil Hospital, Fazilka, vide his endorsement (Ex.P6/A), referred the said body to Forensic Science Laboratory, Govt. Medical College, Faridkot, as the same was in mutilated condition. On 8.2.1999 itself, at 4.30 PM, Dr. Sarabjit Singh Sandhu (PW.5), Senior Lecturer, Govt. Medical College, Faridkot, along with Dr. K.K. Aggarwal, Assistant Professor Forensic Medicine, conducted post mortem examination on the dead body of Shekhar and found seventeen injuries, out of which sixteen were incised wounds of different size on different parts of the body and one was linear scratch mark on the right lateral side of abdomen. Marbling of veins were prominent in front of chest and both the upper limbs. Right eye ball was missing. Left eye was open. Mouth was open. Gnawing was present over the face and neck. Soft tissues on both sides of mouth and neck were absent due to gnawing. Both ears were missing. Scalp hair were easily pulled out. The body was wearing Crl. A. No. 253-DB of 2004 -5- jacket, kameej, banian, pent, kachha, socks in both feet, ring in left ring finger and a ring in left middle finger. In the opinion of the doctors, cause of death of the deceased was due to laceration of brain and its membranes, as a result of injuries No.1 to 5, which were individually sufficient to cause death in the ordinary course of nature. All the injuries were found ante- mortem in nature. The probable time between death and post mortem was within 36 to 72 hours. On 8.2.1999, accused Manjinder Singh alias Billa, Ashok Kumar alias Pammi and Raj Kumar alias Sema were arrested by the Rajasthan Police, on the allegation that they were selling the stolen property and three-wheeler of the deceased as well as a gold ring were recovered from them. Accordingly, FIR No. 42 dated 8.2.1999 under Section 411 IPC was registered against them at Police Station Loon Karansar (Rajasthan). On getting this information, the police of Police Station City Fazilka obtained the production warrants of these three accused persons and on 11.2.1999, they were arrested in this case. The three-wheeler and the gold ring were also produced by Jivaraj Singh, MHC of Police Station Loon Karansar (Rajasthan), which were taken into possession vide recovery memos (Ex.P15 and Ex.P2). On 12.2.1999 at about 9.00 PM, accused Deepak and Balauri alias Balour were arrested by ASI Shanta Ram Mathur Rathaur (PW.15) of Police Station Kala Chowki, Mumbai, when they were quarreling with each other in the area of Cotton Green Yard, Bombay Port Trust. They were Crl. A. No. 253-DB of 2004 -6- produced before Inspector Ramesh Suresh Ahiria (PW.14) of the said Police Station. During interrogation, they disclosed that they had committed the offence in question at Fazilka. Thereupon, information regarding detention of these two accused was sent to the police of Police Station City Fazilka. On 16.2.1999, both these accused were arrested in this case from Mumbai. On 17.2.1999, during interrogation, accused Raj Kumar alias Sema suffered the disclosure statement (Ex.P16) that he had kept concealed the kapa, with which he killed the deceased, near the place of occurrence under the ground and thereafter, he got recovered the same, which was taken into possession vide memo (Ex.P18). On 23.2.1999, during interrogation, accused Deepak and Balauri alias Balour suffered separate disclosure statements (Ex.P21 and Ex.P22) and in pursuance of the same, accused Deepak got recovered the kirch (MO-10), with which he caused injuries to the deceased, which was kept concealed by him under the ground near the place of occurrence. The same was taken into possession vide memo (Ex.P23). Similarly, accused Balauri alias Balour got recovered the Kapa (MO-9), the weapon of offence, as well as a wrist watch, which were kept concealed by him under the ground, and the same were taken into possession vide separate memo (Ex.P24). After completion of investigation, the police filed challan against the appellants and charge under Sections 364, 148 and 302 read with Section 149 IPC was framed, to which they did not plead guilty and claimed Crl. A. No. 253-DB of 2004 -7- trial. In support of its case, the prosecution examined 16 witnesses. PW.1 Rakesh Kumar Bawa (complainant), President of the Three-wheeler Union of Fazilka, reiterated his statement (Ex.P1) made to the police to the effect that on 5.2.1999 at about 11 PM, all the five accused hired the three-wheeler of the deceased from near Railway Station, Fazilka, for dropping them to Sanjeev Chowk, from where they had to board a bus for Delhi. When he did not return for two days, this witness reported the matter to the police. He also stated that the deceased had purchased a new three-wheeler and was wearing a gold chain as well as a gold ring. PW.2 Raj Kumar, who is also plying three-wheeler in Fazilka, has corroborated the version of PW.1 Rakesh Kumar Bawa, regarding hiring of three-wheeler of the deceased by the appellants on 5.2.1999 at 11 PM from the Railway Station, Fazilka, and not returning of the deceased. PW.3 Tarsem Lal stated that on 8.2.1999, in his presence, the police recovered the dead body of deceased Shekhar, which was identified by him and Des Raj, because Shekhar was used to ply three-wheeler with both of them in Fazilka. He has also proved the taking into possession of a gold ring and three-wheeler of the deceased by the police in this case from the police of Police Station Loon Karan (Rajasthan). PW.4 Harjit Singh, an alleged eye witness of the occurrence of killing the deceased, has stated that deceased Shekhar was known to him, as he used to take tea from his shop. On 5.2.1999 at about 11 PM, he was Crl. A. No. 253-DB of 2004 -8- present at Malout Chowk, Fazilka, in connection with his private work. In the meantime, Shekhar came there with his three-wheeler, carrying passengers. He further stated that he stopped Shekhar, who on enquiry told that he was going to drop the passengers at Sanjeev Chowk and he (Shekhar) asked him to accompany him, upon which he went along with Shekhar in the three-wheeler. Then he noticed that Balauri, Deepa, Sema and two other persons were sitting in the three-wheeler. He further stated that he knew the accused persons, as they used to come to his tea shop. When they reached Sanjeev Chowk, the accused told them that they were to board the bus to Delhi and they should be taken to Abohar. Then they started for Abohar. When they reached the bypass, outside Abohar, the accused asked Shekhar to drop them outside Abohar, upon which they were taken to Gananagar Road. When they reached Masitan Wali Dhahni, accused Manjinder Singh alias Billa and Ashok Kumar alias Pammi asked Shekhar to stop the three-wheeler, who stopped the vehicle. Accused Balauri alias Balour and Ashok Kumar alias Pammi took Shekhar in their fold, after dragging him outside the three-wheeler. Accused Balauri and Raj Kumar alias Sema caused injuries to Shekhar with kappas and when he (PW.4) tried to intervene, they threatened him to go aside, otherwise he would also be killed. He further stated that accused Deepak caused a kirch blow to deceased Shekhar and he (witness), being frightened, ran away. While running, he saw that the accused were throwing deceased Shekhar into the ditch after causing him injuries and they had taken away the three- Crl. A. No. 253-DB of 2004 -9- wheeler from the spot. He further stated that then he came back to Abohar, stayed at the Railway Station for the night and, thereafter, went to Malout to his relatives, where he stayed for three days. Thereafter, on 9.2.1999, he made his statement (Ex.D1), stating the aforesaid facts, to the police. PW.5 Dr. Sarabjit Singh Sandhu stated that on 8.2.1999 at 4.30 PM, he along with Dr. K.K. Aggarwal conducted the post mortem examination on the dead body of Shekhar. He proved the Post Mortem Report (Ex.P3) of the deceased and the pictorial diagram (Ex.P4) showing the seats of injuries. PW.6 Dr. V.K. Mujral, SMO, Incharge Civil Hospital, Fazilka, who referred the dead body of Shekhar to Forensic Science Laboratory, Medical College, Faridkot, proved his endorsement (Ex.P6/A) in this regard. PW.7 Kashmiri Lal ASI, PS Malout, on 8.2.1999 was posted as HC in Police Station City Fazilka. He is witness to the recovery of blood stained earth and simple earth, taken from the spot. He has proved the recovery memo Ex.P7. PW.8 SI Prem Kumar has stated that on 15.2.1999, he had formally arrested accused Deepak and Balauri alias Balour in this case from the custody of the police of Police Post Kala Chowki, Bombay. PW.9 Hardial Singh Constable and PW.10 Pal Chand Constable are formal witness, who have proved their affidavits Ex.P8 and Ex.P9, respectively. Crl. A. No. 253-DB of 2004 -10- PW.11 Manmohan Bawa, Billing Incharge, M/s Novelty Autos, Amritsar, stated that as per the record, a Bajaj Auto Rickshaw was sold by his concern in favour of Shekhar (deceased). He proved the photostat copies of the bill, sale letter and receipt as Ex.P10, Ex.P11 and Ex.P12, respectively. PW.12 Sulakhan Singh, the then SHO, Police Station City Fazilka, the Investigating Officer of the case, has fully supported the case of the prosecution and proved all the documents, prepared by him, during the investigation of this case. PW.13 LC Baljit Singh is the formal witness, who took the dead body of deceased Shekhar to Hospital and got conducted the post mortem examination on the same. PW.14 Ramesh Suresh Ahirie, Inspector, Special Branch, CID- II, Mumbai, has stated that on 12.2.1999, while he was posted as P.S.I in Police Station Kala Chowki, Mumbai, at about 10.45 PM, accused Deepak and Balauri alias Balour were produced before him, and during interrogation they disclosed regarding the commission of the instant crime. Then he conveyed the said information to the police of Police Station City Fazilka. Thereafter, on 16.2.1999, both the accused were handed over to the police of Police Station City Fazilka. PW.15 Shanta Ram Mathur Rathaur, ASI, Police Station Kala Chowki, stated that on 12.2.1999, while he along with one Constable was on patrol duty in the area of Cotton Green Yard Bombay Port Trust, accused Crl. A. No. 253-DB of 2004 -11- Deepak and Balauri alias Balour were found quarreling with each other and on suspicion, they were taken to Police Station and were produced before Ramesh Suresh Ahirie, P.S.I (PW.14). PW.16 Beant Singh, the then SHO, Police Station City Fazilka, proved the statement of the complainant (Ex.P1), recorded by him on 7.2.1999, on the basis of which formal FIR (Ex.P1/A) was registered. In their statements under Section 313 Cr.P.C., all the appellants denied the incriminating evidence appearing against them. However, in defence, they did not lead any evidence. While relying upon the statements of PW.1 Rakesh Kumar Bawa, PW.2 Raj Kumar, the witnesses of last-seen, and the statement of PW.4 Harjit Singh, the eye witness, as well as the medical evidence and the other connecting evidence, coupled with the arrest of the accused and recovery of three-wheeler as well as gold ring of the deceased, the learned trial court convicted and sentenced all the appellants, as indicated in the first paragraph of the judgment. Shri P.P.S. Duggal, Advocate, learned counsel appearing on behalf of appellants Deepak and Balauri alias Balour; Shri Vikas Kumar, Advocate, learned counsel for Raj Kumar alias Sema; and Shri Sant Pal Singh Sidhu, Advocate, learned counsel for appellants Manjinder Singh alias Billa and Ashok Kumar alias Pammi, argued that in the present case, the prosecution has miserably failed to prove the guilt of all the appellants beyond reasonable doubt. According to them, the trial court has committed Crl. A. No. 253-DB of 2004 -12- grave illegality while relying upon the statement of PW.4 Harjit Singh, the alleged eye witness, whose testimony in the facts and circumstances of the case is wholly unreliable and untrustworthy. Learned counsel argued that the said witness had not seen the occurrence at all and he has been introduced as an eye witness by the prosecution, after four days of the occurrence. Learned counsel further argued that the said witness claims to be on visiting terms with deceased Shekhar, but his conduct after witnessing the alleged occurrence is highly improbable, as he immediately did not report the matter regarding killing of Shekhar to any of his relatives or to the police, and his silence for four days clearly indicates that he is a made- up witness and his testimony is totally unreliable. Learned counsel further argued that if the testimony of PW.4 Harjit Singh is discarded, then there is no sufficient evidence, on the basis of which the appellants could have been convicted for the serious offence of kidnapping and murder. Learned counsel argued that in this case, the prosecution has completely failed to establish the motive for the alleged crime. They further argued that the alleged recovery of weapons of offence from appellants Raj Kumar alias Sema, Deepak and Balauri alias Balour has been discarded by the trial court and that being so, their conviction and sentence is liable to be set aside. Learned counsel for appellants Deepak and Balauri alias Balour argued that merely on the basis of recovery of kirch on the basis of the disclosure statement of appellant Deepak and recovery of kapa as well as a wrist watch on the basis of the disclosure statement of Balauri alias Balour, Crl. A. No. 253-DB of 2004 -13- they cannot be connected with the alleged offence. He further argued that only on the basis of the fact that they were named by two prosecution witnesses, their conviction is not safe. Learned counsel further argued that as far as appellant Deepak is concerned, on the day of occurrence, he was juvenile. This issue was enquired into by the trial court, and vide order dated 6.5.2003, the trial court recorded a finding that on the day of occurrence, the appellant was above 16 years and below 18 years of age. While referring to the charge framed on 16.7.1999, learned counsel argued that on that day, accused Deepak was 17 years of age. Thus, learned counsel argued that in view of the fact that on the day of occurrence, appellant Deepak was a juvenile, he should not have been sentenced to undergo life imprisonment. On the other hand, Shri Pavit Singh Mattewal, learned Additional Advocate General, Punjab, argued that PW.4 Harjit Singh has fully supported the case of the prosecution regarding the occurrence, witnessed by him and his testimony has been rightly believed by the trial court. He further argued that PW.4 Harjit Singh has specifically named all the appellants. Regarding discarding of recovery of the weapons of offence from appellants Raj Kumar alias Sema, Deepak and Balauri alias Balour by the trial court, learned counsel argued that these recoveries have been fully established by the prosecution and the trial court, without any justification, has disbelieved the same. He further argued that the appellants have been rightly convicted and sentenced by the trial court, while relying upon the Crl. A. No. 253-DB of 2004 -14- trust-worthy evidence led by the prosecution. Thus, the impugned judgment and order is to be upheld. We have considered the arguments raised by learned counsel for the parties and have carefully gone through the record of the case. In this case, it has been established by the prosecution, i.e. from the statements of PW.1 Rakesh Kumar Bawa and PW.2 Raj Kumar, that deceased Shekhar was plying three-wheeler auto rickshaw in the area of city Fazilka, and on 5.2.1999 at about 11 PM, all the five accused had hired his three-wheeler from Railway Station, Fazilka, for dropping them to Sanjeev Chowk, from where they had to board a bus for Delhi. When deceased Shekhar did not return for two days, PW.1 Rakesh Kumar Bawa reported the matter to the police. It is an important aspect in this case that names of all the five accused, who were residents of the same city and were known to the witnesses, find mention in the statement (Ex.P1) made by PW.1 Rakesh Kumar Bawa to the police on 7.2.1999, on the basis of which the formal FIR was registered on the same day at 5.15 PM. PW.1 Rakesh Kumar Bawa and PW.2 Raj Kumar were also plying three-wheelers in city Fazilka and their presence at the relevant time, when the appellants hired three-wheeler of the deceased, cannot be doubted. Secondly, both these witnesses have categorically stated that the accused were known to them and nothing adverse in this regard was elicited from their lengthy cross-examination. Both the witnesses further stated that after the accused boarded the three-wheeler, deceased Shekhar took them towards Sanjeev Chowk. It was further stated by them that three-wheeler of the Crl. A. No. 253-DB of 2004 -15- deceased was new one, as he had applied for its registration. When Shekhar did not turn up for two days, PW.1 Rakesh Kumar Bawa lodged the missing report to the police. During investigation, on 8.2.1999, dead body of the deceased was found lying in the pits near the dhani of mosque on Abohar- Ganganagar bypass road. Tarsem Lal and Des Raj identified the body as of Shekhar deceased. The identification of the dead body has not been questioned. On post-mortem examination of the said body by PW.5 Dr. Sarabjit Singh Sandhu and Dr. K.K. Aggarwal, seventeen injuries were found, out of which sixteen were incised wounds of different size on different parts of the body and one was linear scratch mark on the right lateral side of abdomen. All the injuries were found ante-mortem in nature and the probable time between death and post mortem was within 36 to 72 hours. In the opinion of the doctors, cause of death of the deceased was due to laceration of brain and its membranes, as a result of injuries No.1 to 5, which were individually sufficient to cause death in the ordinary course of nature. Thus, from the medical evidence, available on record, it has been established that death of Shekhar was homicidal. Now, the question arising for consideration is that who has caused the homicidal death of Shekhar, which amounts to murder. In order to prove that all the five appellants had committed this offence, the prosecution is relying upon the eye witness account, given by PW.4 Harjit Singh and the circumstantial evidence, i.e. the evidence of last-seen, recovery of three-wheeler, gold ring and wrist watch of the deceased as well Crl. A. No. 253-DB of 2004 -16- as recovery of the weapons of offence, at the instance of the accused. On a close examination of the testimony of PW.4 Harjit Singh, we find the same to be unreliable and untrustworthy, though the trial court has found his testimony trustworthy, and relied upon the same for convicting the accused for the alleged offences. This witness claimed that deceased Shekhar was known to him, as he used to take tea from his shop. He further claimed that on 5.2.1999 at about 11 PM, on the asking of the deceased, he had boarded the three-wheeler of the deceased at Malout Chowk, Fazilka, in which all the five appellants were also travelling, and thereafter, they went towards Sanjeev Chowk, where the accused asked to take them to Abohar and when they reached Masitan Wali Dhahni, accused Manjinder Singh alias Billa and Ashok Kumar alias Pammi asked to stop the three-wheeler and then accused Balauri alias Balour and Ashok Kumar alias Pammi took Shekhar in their fold, accused Balauri and Raj Kumar alias Sema caused injuries to Shekhar with kappas. He further stated that