Crl.A. No.222-DB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.222-DB of 2002 DATE OF DECISION: August 20, 2010 JIT PAL @ JITA ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE NAWAB SINGH. PRESENT: MR. ARUN SINGLA, ADVOCATE FOR MR. G.S. CHAHAL, ADVOCATE FOR THE APPELLANT. MR. SANDEEP MOUDGIL, DAG, PUNJAB. ASHUTOSH MOHUNTA, J. Appellant Jit Pal @ Jita has challanged the judgement of conviction and order of sentence dated 29.1.2002, passed the Sessions Judge, Kapurthala vide the appellant has been convicted and sentenced as under:- “Under Section 302 IPC - R.I. for life and to pay a fine of `5000/- and in default of payment of fine, to further undergo R.I. for 6 months. Under Section 201 IPC - R.I. for 5 years and to pay a fine of `5000/- and in default of payment of fine, to further undergo R.I. for 6 months. Both the sentences were ordered to run concurrently.” Crl.A. No.222-DB of 2002 -2- The FIR (Ex.PW8/A) in the present case was registered on the basis of the statement (Ex.PA) made by Nahro (PW1) wherein it was stated that she was living with her children in village Talwara. Her husband Swaran Dass used to sell articles, i.e. glass, cup etc. as a peddler in other villages. She further stated that on 14.4.1999, i.e on the day of Baisakhi, at 7.00 a.m. accused Jit Pal, caste Bazigar, resident of Talwara came to her house and she served tea to him and her husband. Thereafter, Jit Pal and her husband went for selling their buffalo in the cattle market at Subhanpur. From that day, her husband Swaran Dass and Jit Pal had not returned to the village. She further stated that she searched for her husband in the house of Jit Pal and her other relations and the surrounding areas, but did not find him anywhere. She had also informed to the respectables to the village and a rapat in this regard was also got recorded by his nephew Makhan Lal and Balwinder Singh at Police Station Bholath. She further stated that yesterday, i.e on 30.5.1999, her cousin brother Bua Dass resident of Machrawa came to her house at village Talwara and told her that he had gone for Satsang at Dera Radha Swami Beas and when at about 9.00 a.m., he got down from the bus at bus stand Beas, Jit Pal met him and on an enquiry made by him regarding the whereabouts of Swaran Dass, Jit Pal could not give a satisfactory reply and rather put off the matter and boarded the bus. Nahro (PW1) further stated that she had definite belief that Jit Pal had taken her husband Swaran Dass with an intention to kill him. The statement (Ex.PA) of Nahro (PW1) was recorded by Inspector/SHO Balkar Singh at 6.45 p.m. on 31.5.1999, who alongwith other police officials were present on the bridge of Bein Chowk Bholath in connection with checking and after making endorsement (Ex.PA) the same Crl.A. No.222-DB of 2002 -3- was sent to the Police Station for registration of a case, on the basis of which a formal FIR (Ex.PW/8) was recorded by Swaran Singh, Sub Inspector. Accused Jit Pal was arrested on 2.6.1999, by SI Swaran Singh vide memo (Ex.PW8/C). On 3.6.1999, the accused was interrogated by SI Swaran Singh on which he disclosed that on 14.4.1999, he alongwith Happy R/o Model Nagar, Jalandhar had committed the murder of Swaran Dass after bringing him towards Mand River Beas and threw his dead body in the river. His disclosure statement (Ex.PW8/E) was reduced into writing. The accused led the Police party to the disclosed place and pointed the place from where the dead body of Swaran Dass was thrown in the river, but the dead body of Swaran Dass could not be recovered due to the flowing water of the river. Rough site plan (Ex.PW8/F) of the place of occurrence was prepared. After completion of the investigation, challan against the accused under Sections 302/201 IPC was presented. The accused was charge-sheeted under Sections 302/201 IPC to which he pleaded not guilty and claimed trial. To prove its case, the prosecution examined 9 witnesses. PW1 Nahro (complainant) deposed that on 14.4.1999, i.e. on day of Baisakhi the accused came to her house. Thereafter the accused and her husband went to sell a buffalo at Subhanpur and from then onwards her husband did not return to the house. She further stated that she searched for him and also narrated the whole story to Makhan Lal and PW4 Balwinder Singh, whose wife was a Sarpanch. She further stated that Bua Dass came to her and told her that he met accused Jit Pal at Beas bus stand and on an enquiry made by him regarding the whereabouts of Swaran Dass, the Crl.A. No.222-DB of 2002 -4- accused did not give a satisfactory reply. Then she suspected that the Jit Pal had killed her husband. PW2 Bua Singh deposed that PW1 Nahro came to him and told that her husband was missing since Baisakhi. She further stated that Swaran Dass went to sell buffalo at Subhanpur alongwith Jit Pal and thereafter he never returned to home. He further stated that on 30.5.1999, when he went to Beas for attending a Satsang and alighted from the bus at Beas Bus Stand at about 9.00 a.m., accused Jit Pal met him. He enquired about the whereabouts of Swaran Dass from him, but nothing satisfactory was answered by accused Jit Pal. Thereafter he came to Talwara and narrated the entire incident to PW1 Nahro. PW3 Kala Singh made a statement to the effect that on Baisakhi Day, at about 6/7.00 p.m. he was present at bus stand Dhilwan where he saw accused alongwith Swaran Dass and an other boy taking tea at a tea Stall. He enquired from Swaran Dass regarding his family and also asked him about his visit there to which Swaran Dass told him that they had come from Subhanpur after selling a buffalo for `2600/-. He further stated that accused Jit Pal introduced the other boy as his friend and thereafter deceased Swaran Dass did not meet any one nor had been seen anywhere. Balwinder Singh put his appearance as PW4 and stated that on 1.6.1999, at about 4.00 p.m., he was present at the electric tubewell. Accused Jit Pal came to him at his tubewell alongwith his uncle and aunt and told him that they had sold a buffalo at a fair at Subhanpur for `2600/-. He also disclosed that one Happy had met them in the cattle fair and they had taken tea at Subhanpur. The accused further disclosed that some intoxicants were put in the tea of Swaran Dass which was served to Swaran Crl.A. No.222-DB of 2002 -5- Dass. Thereafter Swaran Dass was taken to river Beas and on his becoming unconscious, one of them had strangulated the neck of Swaran Dass and the other pressed the private part of Swaran Dass as a result of which Swaran Dass died and they threw his dead body in river Beas. The amount of `2600/- was taken out from the pocket of Swaran Singh which was distributed among the accused and Happy. The accused kept `1200/- and remaining `1400/- was kept by Happy. This witness further stated that the accused asked to produce him before the Police. This witness told the accused to come on the next day and thereafter the accused came at 10.00 a.m. on the next day and was produced before the Police. PW8 SI Swaran Singh deposed that on 2.6.1999, the investigation of this case was entrusted to him. On that day, when he alongwith other police officials was present at Bein Chowk Bridge, PW4 Balwinder Singh came there and produced accused Jit Pal before him. The statement of PW4 Balwinder Singh was recorded and the accused was arrested. On interrogation on 3.6.1999, the accused confessed committing the murder of Swaran Dass and suffered disclosure statement (Ex.PW8/E). PW9 Inspector Balkar Singh deposed that on 31.5.1999, he was posted as SHO, P.S. Bholath. He alongwith other police officials was present at Bein Chowk Bridge where PW1 Nahro alongwith Kashmira Singh and Balwinder Singh came and got recorded her statement with regard to abduction of her husband Swaran Dass. This witness further stated that during investigation, he found that accused Jit Pal had kidnapped Swaran Dass on the pretext of selling buffalo. On further enquiry it was revealed that accused Jit Pal had committed the murder of Swaran Dass. He further stated that co-accused Happy could not be traced out despite best Crl.A. No.222-DB of 2002 -6- efforts. Thereafter, the prosecution closed its evidence. After closure of the prosecution evidence, statement of the accused under Section 313 Cr.P.C. was recorded. The accused stated that he had been falsely implicated at the instance of PW Balwinder Singh, Sarpanch in connivance with Nahro complainant, as during elections for the post of Sarpanch, he supported and voted the rival party of PW Balwinder Singh. The trial Court after going through the entire evidence, placed reliance on the testimony of PW1 Nahro who stated that her husband had gone with the accused to sell a buffalo on 14.4.1999, but did not come back to the house thereafter. The trial Court also placed reliance on the statement of PW8 Kala Singh who was also a witness to the last seen evidence. Apart from the above, the trial Court placed reliance on the statement of PW4 Balwinder Singh, before whom extra judicial confession was allegedly made by the accused. On the basis of the above, the accused was convicted under Sections 302/201 IPC and sentenced to undergo life imprisonment. It has been argued on behalf of the appellant that deceased Swaran Dass had allegedly gone with the accused Jit Pal to sell his buffalo on 14.4.1999 in a cattle fair. Thereafter, although his whereabouts were not known, yet no report was lodged with the Police upto 31.5.1999, i.e. the date when the FIR was registered. It is further submitted by the counsel for the appellant that there is inordinate delay of more than 45 days in lodging the FIR. There is no plausible explanation for not reporting the matter to the Police with regard to the fact that Swaran Dass was missing since 14.4.1999, hence the prosecution story cannot be believed and the accused is entitled to be acquitted. Crl.A. No.222-DB of 2002 -7- A perusal of the aforementioned facts shows that although Swaran Dass had gone with accused Jit Pal to sell his buffalo in a cattle fair on 14.4.1999, but the FIR was lodged only on 31.5.1999, i.e. after an inordinate delay of 45 days. There is nothing on record to show as to why the matter was not reported earlier, specially, when the whereabouts of the deceased were not known. Hence, there is obviously a substantial delay in lodging the FIR in the present case. It has also been contended that as per the statement of PW Nahro, who was the wife of Swaran Dass, the accused came to her house on 14.4.1999 and took her husband Swaran Dass to Sudhanpur where a cattle fair was being held. Both of them went there to sell a buffalo. She has further stated that although she and her relatives searched for Swaran Dass, but his whereabouts were not known. The accused was asked by Bua Dass regarding the whereabouts of the deceased, but no satisfactory reply was given by the accused. It is contended that when the accused was missing for such a long time, then the natural conduct of the wife would be to report the matter to the Police. In the present case, no report was lodged upto 31.5.1999, i.e. the date when the formal FIR (Ex.PW8) was recorded. Apart from the above, in the cross-examination of PW1 Nahro, she stated that Bua Dass is the husband of her sister and she never went to the village of Bua Dass to inform him, however, he was informed only when he had come to meet her and that too after more than 1½ months of the occurrence. Thus, this conduct of Nahro, PW1 is also highly unnatural as she never informed her close relatives about the missing of her husband and hence her the statement with regard to last seen cannot be believed. Crl.A. No.222-DB of 2002 -8- Another witness of last seen is PW3 Kala Singh, who has stated that he met Swaran Dass at the bus stand of village Dhilwan at about 6/7.00 p.m. on Baisakhi day. This witness has stated that Nahro was his sister from brotherhood. Despite the fact that he was closely known to the deceased and his family, this witness also never reported the matter to the Police till the time the FIR was registered. Hence, no weightage can be given to his testimony also. The prosecution has also placed reliance on the statement of PW4 Balwinder Singh, before whom accused Jit Pal had allegedly made an extra judicial confession. A perusal of the statement of PW4 Balwinder Singh shows that the accused had allegedly told him that he and one Happy had given a capsule of intoxicant to the deceased and when Swaran Dass became unconscious, he and Happy strangulated the deceased and threw his body in river Beas. They also took out `2600/- from the pocket of the deceased, out of which he kept a sum of `1200/- with himself the remaining `1400/- were handed over to Happy. A perusal of the statement of PW4 Balwinder Singh shows that in the extra judicial confession allegedly made by the accused, no motive has been spelt out as to why the accused killed the deceased. It has also not been mentioned that as to on which date the accused had murdered Swaran Dass. Thus, even the extra judicial confession, which was allegedly made on 1.6.1999, i.e. after more than 1½ month of the occurrence is not free from doubt. Apart from the above, the Police did not even arrest or challan Happy, who had allegedly committed the crime alongwith the accused, as per alleged extra judicial confession made by the accused before PW4 Crl.A. No.222-DB of 2002 -9- Balwinder Singh. In case, Happy had also committed the crime, then the Police was duty bound to arrest him and to enquire with regard to his role in the entire crime, but no challan was presented against Happy. Lastly, the dead body of the deceased Swaran Dass could not be found. This also causes a doubt about the genuineness of the version of the prosecution. From the aforementioned discussion, it clearly transpires that there was a delay in lodging the FIR. The deceased was alleged to have gone with the accused on 14.4.1999. However, the report was lodged before the Police only on 31.5.1999, when the formal FIR was recorded. Moreover, PW1 Nahro also did not inform Bua Dass, who was the husband of her sister, for a period of more than 1½ month after Swaran Dass went missing. This conduct of PW1 Nahro of not informing her close relatives about missing of her husband is highly unnatural. Furthermore, the witnesses to the last seen, namely, PW1 Nahro and PW3 Kala Singh are not reliable. Their testimonies are not free from doubt and further the extra judicial confession allegedly made by the accused before PW4 Balwinder Singh also cannot be relied upon to convict the accused, as neither any motive has been spelt out in the extra judicial confession, nor the date when the crime was committed. Furthermore, there in no explanation by the prosecution as to why Happy was not challaned and prosecuted, although PW4 Balwinder Singh has categorically stated that the accused had confessed before him that Happy had also participated in the crime. For the foregoing reasons, we are of the considered opinion that the prosecution has miserably failed to prove the case beyond reasonable shadow of doubt against Jit Singh @ Jita and accordingly, the judgement of Crl.A. No.222-DB of 2002 -10- the Sessions Judge, Kapurthala dated 29.1.2002, convicting him of the charges under Sections 302/201 IPC cannot be sustained and the same is set aside. The appeal is allowed. The accused is acquitted of all the charges. His bail bonds shall stand discharged. (ASHUTOSH MOHUNTA) JUDGE August 20, 2010 (NAWAB SINGH) Gulati JUDGE