IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 351-DB of 2004 DATE OF DECISION : 03.05.2011 Bir Singh and others .... APPELLANTS Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Mr. H.R. Nohria, Advocate, for the appellants. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellants Bir Singh, Waryam Singh (both real brothers) and Baldev Singh (brother-in-law of Bir Singh) (hereinafter referred to as `A-1, A-2 and A-3' respectively) were tried by the court of Additional Sessions Judge, Kurukshetra, for committing murder of Baba Sewa Singh, aged about 65 years, and Achhar Singh, aged about 85 years. The trial court, vide its judgment dated 21.2.2004 convicted all the appellants under Section 302 read with Section 34 IPC, and vide order dated 25.2.2004, they have been sentenced to undergo imprisonment for life with fine of ` 5,000/- each, in default of payment of fine, to undergo further rigorous imprisonment for six months. Against their conviction and sentence, they have filed the instant Crl. A. No. 351-DB of 2004 -2- appeal. Case of the prosecution 2. (i) On 10.8.2001 at 8.30 AM, Jagtar Singh (PW.3), who was Lambardar of village Gangheri, Police Station Ismailabad, went to attend the Akhand Path at Gurudwara Gurbani Vidhyalya, Saran Sahab, Amardass Colony, Pehowa. When he reached at the gate of the Gurudwara, one Gurdeep Kaur (PW.5), who was coming out of the Gurudwara, met him. She disclosed that Baba Sewa Singh and Achhar Singh were lying dead on their respective beds. There were marks of electric current on their hands and other parts of the body. After that, on entering in the Gurudwara, he also saw that Baba Sewa Singh and Achhar Singh were lying dead on their respective cots and there were marks of electric current on their hands and other parts of the body. In the meantime, one Pritam Kaur (PW.6) also came to the spot and she disclosed that in the evening of the previous day at about 8.00 PM, she had seen A-1 and A-2 along with three other persons roaming around the Gurudwara. Thereupon, the complainant left for Police Station to lodge a report. The police party, headed by Darshan Lal ASI (now dead) met him near Bus Stand, Pehowa and his statement (Ex.PJ) was recorded by Darshan Lal ASI at 11.20 AM. The complainant also stated that A-1 and A- 2 had a civil dispute with Baba Sewa Singh in respect of four kanals of land of Gurudwara. Many civil cases were pending in the court. He further stated that he was certain that Baba Sewa Singh and Achhar Singh had been done to death by A-1 and A-2 along with their three companions by giving Crl. A. No. 351-DB of 2004 -3- electric current. (ii) After sending the said statement to the Police Station for registration of the case through Constable Jai Kishan, on the basis of which the formal FIR (Ex.PJ/2) was registered at 11.50 AM, Darshan Lal ASI along with other police officials, went at the spot. He found two dead bodies lying on the cots, regarding which separate rough site plans (Ex.PW15/D and Ex.PW15/E) were prepared by him. Four small pieces of red electric wires, which were cut with the teeth and were lying on earth underneath the main switch and grip, two parnas lying on the cot of deceased Baba Sewa Singh, and two parnas lying on the cot of deceased Achhar Singh, were lifted and taken into possession vide recovery memo Ex.PW15/F. Thereafter, he prepared the inquest reports (Ex.PB and Ex.PF) and bodies of both the deceased persons were sent to L.N.J.P Hospital, Kurukshetra, for post mortem examination. (iii) On 10.8.2001, a Board consisting of Dr. Shalinder Kumar (PW.11), Dr. K.K. Chawla and Dr. Paramjeet Singh, was constituted to conduct the post mortem on the dead bodies of Achhar Singh and Baba Sewa Singh. Since there was no obvious fatal injury visible externally on the bodies of the deceased, the Board of doctors found it difficult to ascertain the exact cause of death and the bodies were, therefore, referred to the Professor and Head Forensic Department, PGIMS Rohtak, for expert opinion. (iv) On 11.8.2001 at 9.30 AM, Dr. Vijay Pal Khanagwal (PW.1) Crl. A. No. 351-DB of 2004 -4- conducted post mortem on the dead body of Baba Sewa Singh. He found following five electric injuries on his body : 1. There was an oval contact electric burn in form of a brownish crater with the centre depressed and margins raised, eveted and thickened. The floor was pale and the ridge of the elevated skin was hyperemic. The size was 0.7 x 0.5 cms. On dissection, coagulative necrosis of the tissues in the vicinity of the crator seen. 2. Multiple contact electric burns in form of greyish oval crators of size varying from 0.5 x 0.5 cms to 1.0 x 0.5 cms with the centre depressed and margins raised, everted and thickened. The floor was plae and ridges of elevated skin hyperemic. These were situated on lateral aspect of left elbow joint over an area 3 x 2.5 cms. The tissues in the vicinity showed coagulative necrosis. 3. Multiple contact electric burns in form of greyish oval crators of size varying from 0.5 x 0.5 cms to 2 x 0.5 cms over the thenar eminence of left hand (over an area 5 x 3 cms) and at the base of left thumb in transversely oblique direction. The centre of the crators was depressed and margins were raised, everted and thickened with pale floor and ridges of elevated skin being hyperemic. The tissues in the vicinity showed coagulative necrosis. 4. Similar greyish crators (contact electric multiple burns) of size varying from 0.5 x 0.5 to 1.5 x 0.5 cms present over dorsal aspect of all fingers of left hand irregular in varying directions between proximal to distal phalanges. The floor was pale and rediges of elevated skin was hyperemic and tissues in vicinity showed coagulative necrosis. 5. Multiple exit wounds of size varying from1.2 x 0.5 to 2 x 1 cms present over anterolateral aspect of left knee. These wounds were in form of split in the skin, oval in shape with punched out margins which were thickened and showed ecchymosis of the underlying tissues. Crl. A. No. 351-DB of 2004 -5- In the opinion of the doctor, the cause of death in this case was electrocution which was ante mortem in nature and homicidal in manner. According to him, the probable time that elapsed between injuries and death was immediate and between death and autopsy was between 24 to 36 hours. He proved the Post Mortem Report of Baba Sewa Singh as Ex.PD. (v) On the same day, Dr. Luv Sharma (PW.2) conducted post mortem on the dead body of Achhra Singh. He found the following injuries on his body : 1. There were multiple contact electrical burns in form of oval greyish craters of size varying from 0.5 x 0.5 to1.5 x 0.5 cms with the centre depressed and margins raised, everted, thickened situated over palmar aspect of right hand. (The floor was pale, healthy and the ridges of elevated skin were hyperemic) and on lateral aspect confined to middle and proximal phalynx of little finger in area 1 cm below base of proximal phalynx of the little finger and area 5 x 3 cms of the palm. The tissues in the viscinity showed coagulative necrosis. These burns were placed in a transverse direction. 2. There were multiple contact electric burns in the form of oval greyish craters (slightly elongated) of size varying between 1 x 0.5 cms to 3 x 1 cm placed in vertically oblique direction in an area of size 12 x 5 cm on medial aspect of left forearm. Similar multiple contact electrical burns were present over the palmlar aspect of the left hand of size between 2 x 0.5 to 1 x 0.5 cms, confined to the distal and middle phalanges of indix finger middle phalynx of middle finger and middle and distal phalanges of ring and little finger whereas similar contact electrical burns were present on dorsal aspect of left hand confined to ring and little finger. Crl. A. No. 351-DB of 2004 -6- In the opinion of the doctor, the cause of death in this case was electrocution which was ante mortem in nature and homicidal in manner. According to him, the probable time that elapsed between injuries and death was immediate and between death and autopsy was between 24 to 36 hours. He proved the Post Mortem Report of Achhra Singh as Ex.PH. (vi) During investigation, the police recorded the statements of Gurdeep Kaur (PW.5); Pritam Kaur (PW.6), who had last seen A-1 and A-2 along with three other persons roaming around the Gurudwara in the evening of 9.8.2001; Karnail Singh (PW.9), who had seen all the three appellants entering in the Gurudwara after scaling over its wall at about 12/12.30 AM (night), while A-1 was having electric wire in his hand; and Gurcharan Singh alias Channa (PW.13), who had seen all the three appellants at about 2.30 AM (intervening night of 9.8.2001 and 10.8.2001) coming out of the Gurudwara, after scaling over its wall. Statement of Tasvir Singh (PW.14) was also recorded, before whom A-1 and A-2 made separate extra judicial confession to the effect that all the three appellants had committed murder of Baba Sewa Singh and Achhar Singh, by giving electric shock to them, while they were asleep on their cots in the Gurudwara, after securing them with the help of parna on the cot itself. (vii) On 15.8.2001, A-1 and A-2 were arrested. No recovery was effected from them. On 17.8.2001, A-3 was also arrested and in pursuance of his disclosure statement (Ex.PK), two pieces of red colour electric wires, all the four ends of which were naked, were recovered and taken into Crl. A. No. 351-DB of 2004 -7- possession vide recovery memo (Ex.PL) in the presence of complainant Jagtar Singh and HC Basau Ram. (viii) All the four pieces of red plastic insulation of a wire, recovered from the place of occurrence; and two pieces of red coloured electric wires and insulation removed from four ends, recovered at the instance of A-3, were sent to the Forensic Science Laboratory Haryana Madhuban (Karnal) for scientific examination. The Forensic Science Laboratory Haryana Madhuban submitted its report (Ex.PT) that insulation of wires, recovered from the place of occurrence and recovered at the instance of A-3 were similar in respect of colour, size, design, physical and microscopic appearance. 3. After completion of investigation, the police filed challan and charge under Section 302 read with Section 34 IPC was framed against the appellants, to which they did not plead guilty and claimed trial. Prosecution evidence 4. In support of its case, the prosecution examined fifteen witnesses. 5. PW.1 Dr. Vijay Pal Khanagwal and PW.2 Dr. Luv Sharma, who conducted post mortem on the dead bodies of Baba Sewa Singh and Achhar Singh, proved their respective Post Mortem Reports (Ex.PD and Ex.PH). 6. PW.3 Jagtar Singh is the complainant and witness to recovery of two pieces of red colour electric wires, all the four ends of which were naked, in pursuance of the disclosure statement of A-3. Crl. A. No. 351-DB of 2004 -8- 7. PW.4 Kuldeep Singh, who prepared the scaled site plan (Ex.PM) of the place of occurrence, is a formal witness. 8. PW.5 Gurdeep Kaur stated that on the day of occurrence at about 8.30 AM, she had noticed dead bodies of Baba Sewa Singh and Achhar Singh, with certain marks of electric shocks lying in the Gurudwara. 9. PW.6 Pritam Kaur, a witness of last seen, did not support the case of the prosecution and she was declared hostile. 10. PW.7 Bhoop Chand, Sub Station Assistant, HVPN Pehowa, proved that as per the record, in the intervening night of 9.8.2001 and 10.8.2001, electric supply continued throughout the night without any interruption in the Pehowa area, including Amar Dass Colony, Pehowa. In this regard, he proved his report Ex.PO. 11. PW.8 Shiv Kumar, Photographer, proved the negatives (Ex.P14 to Ex.P20) and the positive prints (Ex.P21 to Ex.P27), of the dead bodies of the deceased persons, prepared by him at the spot. 12. PW.9 Karnail Singh, who had seen the appellants on the intervening night of 9.8.2001 and 10.8.2001 entering in the Gurudwara after scaling over its wall, while A-1 was having electric wire in his hand, fully supported the case of the prosecution. 13. PW.10 Constable RajeshKumar, who delivered copies of special reports to DSP, Pehowa; Superintendent of Police, Kurukshetra; and the Duty Magistrate, is a formal witness. 14. PW.11 Dr. Shalinder Kumar, a member of the Board of doctors, Crl. A. No. 351-DB of 2004 -9- constituted by Dr. K.K. Chawla to conduct the post mortem examination of Achhar Singh and Baba Sewa Singh, proved reports Ex.PC and Ex.PG, to the effect that since there were no obvious fatal injuries visible externally on the bodies of Baba Sewa Singh and Achhar Singh. It was difficult for them to ascertain the exact cause of death and therefore, the bodies were referred to Professor and Head Forensic Department, PGIMS Rohtak, for expert opinion 15. PW.12 ASI Hukam Singh is a formal witness, who took the dead bodies of Baba Sewa Singh and Achhar Singh to PGIMS Rohtak and got conducted the post mortem examination. 16. PW.13 Gurcharan Singh alias Channa (PW.13), who had seen the appellants at about 2.30 AM (intervening night of 9.8.2001 and 10.8.2001) coming out of the Gurudwara, after scaling over its wall, has supported the case of the prosecution. 17. PW.14 Tasvir Singh proved the extra judicial confession, made by A-1 and A-2 before him regarding the commission of crime. 18. PW.15 SI Niranjan Singh, who conducted part investigation of this case, proved all the documents prepared by him during investigation. He also proved the documents, prepared by ASI Darshan Lal (now dead), who recorded the first information statement of the complainant and conducted the initial investigation in this case. Statements of the appellants under Section 313 Cr.P.C. 19. In their statements under Section 313 Cr.P.C., the appellants Crl. A. No. 351-DB of 2004 -10- denied the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. However, they did not lead any evidence in defence. Findings of the trial court 20. After hearing learned counsel for the parties and considering the circumstantial evidence, i.e. motive, the evidence of last seen, extra judicial confession, recovery, and the scientific evidence, the trial court convicted and sentenced the appellants, as mentioned in the earlier part of the judgment. Arguments of learned counsel for the appellant 21. Learned counsel for the appellants argued that case of the prosecution is based upon circumstantial evidence and all the circumstances, relied upon by the prosecution, i.e. motive, the evidence of last seen, extra judicial confession and recovery, have either been not established or the same are unreliable. Therefore, the prosecution has failed to establish the chain of circumstances, leading to the irresistible conclusion that it is only the appellants, who have committed the alleged crime. 22. While elaborating his arguments, learned counsel argued that in order to establish the motive, the prosecution is relying upon the statements of PW.9 Karnail Singh and PW.13 Gurcharan Singh alias Channa. The testimonies of both these witnesses are unreliable. Even the alleged motive, i.e. the dispute over 4 kanals of land is not too strong to provoke the appellants to commit the murder of two persons. Learned counsel further Crl. A. No. 351-DB of 2004 -11- argued that the prosecution version about the manner, in which the murders were committed, is highly improbable and doubtful. Two persons could not be killed by giving electric shocks without there being any resistance or struggle. While referring to the Post Mortem Reports, learned counsel argued that no external injury was found on the bodies of both the deceased persons, which clearly indicates that there was no struggle or resistance on their part. Learned counsel further argued that the prosecution version that all the three accused entered into the Gurudwara after scaling over the wall from the front side is also highly un-natural, because when as per the prosecution case, the Gurudwara was surrounded by the land of the accused on its three sides, they could have entered from the backside and not from the front side. Therefore, the version of the “last seen” witnesses that they had seen the appellants entering into the Gurudwara by scaling over the wall is doubtful, improbable and unbelievable. Further, according to the learned counsel, the statements of both the witnesses are highly doubtful, because as per the statement of the Investigating Officer, on the day of occurrence, when the police party went to the spot, both the witnesses were present in the village, but at that time, they did not make any statement regarding the “last seen” of the appellants. Rather their statements under Section 161 Cr.P.C. were recorded on the next day, and the prosecution did not give any explanation for not recording their statements, immediately after the occurrence, particularly when they were available. Learned counsel argued that PW.13 Gurcharan Singh alias Channa has even stated that he himself Crl. A. No. 351-DB of 2004 -12- did not go to the police, rather the police party came to him to record his statement. Learned counsel argued that these witnesses have stated that their statements were recorded on 11.8.2001, whereas as per the record, their statements were recorded on 10.8.2001 itself. This contradiction further creates doubt regarding the truthfulness of these witnesses. Learned counsel has also pointed out certain other contradictions in the statements of these witnesses. 23. Regarding the evidence of extra judicial confession, learned counsel argued that PW.14 Tasvir Singh belongs to a different District. His residence was 35 Kms. away from the place of occurrence. A-1 and A-2 were having no relationship with the said witness. The said witness was having no acquaintance with the police. He was a man of criminal back ground. Learned counsel argued that this witness has specifically stated that after making extra judicial confession, A-1 and A-2 went away and thereafter, they did not approach him, whereas PW.15 SI Niranjan Singh, the Investigating Officer, has stated that A-1 and A-2 were produced by PW.14 Tasvir Singh before him on 15.8.2001. All these factors further create doubt about this piece of evidence, relied upon by the prosecution. 24. With regard to the evidence of recovery, learned counsel argued that except PW.3 Jagtar Singh (complainant), statement of no other recovery witness was recorded. PW.3 Jagtar Singh was a disciple of Baba Sewa Singh (deceased) and was an interested witness. Therefore, the recovery of two pieces of red colour electric wires, all the four ends of Crl. A. No. 351-DB of 2004 -13- which were naked, in pursuance of the disclosure statement of A-3, is also doubtful. Learned counsel concluded that with such material flaw in the circumstantial evidence led by the prosecution, the prosecution has failed to connect the appellants with the crime beyond shadow of reasonable doubt. Arguments of learned State counsel 25. On the other hand, learned Additional Advocate General, Haryana, argued that all the circumstantial evidence, led and proved by the prosecution are reliable. The chain of circumstances is complete and it leads to the irresistible conclusion that it is only the appellants who have committed the alleged crime. Thus, the trial court has rightly convicted and sentenced the appellants. Discussion 26. The present case is a case of blind murder. The case of the prosecution is based upon circumstantial evidence. In such cases, the circumstances from which the conclusion of guilt is to be drawn should, in the first instance, be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Further, the circumstances should be conclusive in nature, which should be such as to exclude every hypothesis but the one proposed to be true. 27. In the present case, deceased Baba Sewa Singh was residing in the Gurudwara and was managing its affairs. The other deceased, namely Achhar Singh, was also residing in the Gurudwara along with him. Three sides of the said Gurudwara were surrounded by the land of A-1. From the Crl. A. No. 351-DB of 2004 -14- testimonies of PW.3 Jagtar Singh and PW.9 Karnail Singh, it has been established that there was a dispute between Baba Sewa Singh and A-1 as well as A-2, with regard to 4 kanals of land of Gurudwara, regarding which many cases were pending between them in the court. On 10.8.2001 at about 8.30 AM, dead bodies of both the deceased persons were noticed by PW.3 Jagtar Singh lying on the cots in a room of the Gurudwara. Initially, a Board consisting of PW.11 Dr. Shalinder Kumar (PW.11) and two other doctors was constituted to conduct the post mortem on both the dead bodies, but since there was no obvious fatal injury visible externally on the bodies of the deceased, the Board of doctors found it difficult to ascertain the exact cause of death and therefore, the dead bodies were referred to the Professor and Head Forensic Department, PGIMS Rohtak, for expert opinion. PW.1 Dr. Vijay Pal Khanagwal and PW.2 Dr. Luv Sharma, conducted the post mortem on the dead bodies of Baba Sewa Singh and Achhra Singh, respectively. PW.1 Dr. Vijay Pal Khanagwal found five electrocution injuries on the body of Baba Singh and PW.2 Dr. Luv Sharma found two electrocution injuries on the body of Achhra Singh. In the opinion of both the doctors, cause of death in this case was electrocution, which were ante mortem in nature and homicidal in manner. Thus, from the medical evidence, led by the prosecution, homicidal death of both the deceased by electrocution has been established. 28. In order to connect the appellants with the homicidal deaths of two persons, the prosecution is relying upon the evidence of “last seen”, Crl. A. No. 351-DB of 2004 -15- extra judicial confession and the recovery effected from A-3. Evidence of “last seen” 29. PW.7 Pritam Kaur, though before the police stated that on the previous night, she had seen A-1 and A-2 along with three other persons, roaming around the Gurudwara, but in the court she did not support the prosecution case and was declared hostile. PW.9 Karnail Singh is another witness of “last seen”. He was owner-cum-driver of a truck and was residing near the Gurudwara. On the previous night of the occurrence, at about 12/12.30 a.m., when he was parking his truck near the Gurudwara, he had noticed that all the three appellants had entered into the Gurudwara, after scaling over its wall. A-1 was having a bundle of electric wires. He had seen them in the moon light. At that time, he thought that the appellants were entering into the Gurudwara to get the supply of electricity from the Gurudwara for their tubewell, therefore, he went to his house. Next morning, when he visited the Gurudwara, he came to know that Baba Sewa Singh and Achhra Singh were found dead and apparently, electric current was given to them. The third witness of “last seen” is PW.13 Gurcharan Singh alias Channa. He was also residing in Pehowa. In the intervening night of 9.8.2001 and 10.8.2001 at about 2.30 AM, when he was coming to his house from his field and was passing near the Gurudwara he saw all the three appellants coming out of the Gurudwara, after scaling over its wall. All of them were in a confused and perplexed position. At that time, A-3 was having electric wire in his hand. On the next day, he had gone to meet Crl. A. No. 351-DB of 2004 -16-