Crl. Appeal No.59-DB of 1999 -1- .... IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. …. Crl. Appeal No.59-DB of 1999 Decided on: 28th March, 2008. Nahar Singh and others … Appellants Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE S. D. ANAND Present:- Ms. T.S. Sangha, Sr. Advocate with Mr. J.S. Lalli, Advocate for the appellants. Mr. Rajesh Bhardwaj, Deputy Advocate General, Punjab for the respondent. … S.D. ANAND, J. This appeal had been originally filed by Nahar Singh and Mohinder Singh appellants. The third convict Pritam Singh did not file an appeal. The learned counsel for the appellants informs us that, as per instructions, Pritam Singh was an indigent and just could not afford the filing of an appeal. We take notice of this fact. We would pass suo-motu orders qua Pritam Singh, as noticed in the following paras of this judgment. The appeal shall stand dismissed as abated qua Nahar Singh, who is reported by the learned State counsel to have died. The appellants were convicted by the learned Trial Judge for offences under Sections 364,201 and 302/34 of the Indian Penal Code. For the offence under Section 364 IPC, they were directed to undergo Crl. Appeal No.59-DB of 1999 -2- .... rigorous imprisonment for life and to pay a fine of Rs.1000/- each. For the offence under Section 302/34 IPC, they were directed to undergo rigorous imprisonment for life and to pay a fine of Rs.1000/- each. For the offence under Section 201 IPC, the appellants were directed to undergo further rigorous imprisonment for a period of three months each. The prosecution allegations at the trial were as under:- Rani PW 5 was married to Krishan Singh deceased about 8-9 years ago (prior to her examination at the trial on 22.10.1998). After marriage, the deceased became a resident son-in-law and started living at the natal house of Rani at Fatehgarh. Krishan Singh was in employment with one Basakha Ram as a Siri. On 5.3.1996, Rani PW 5, her father PW Gurcharan Singh and her husband Krishan Singh, were standing in front of their house. The appellants came over there. At that time, appellant Nahar Singh was carrying a Gandasa and appellants Pritam Singh and Mohinder Singh were carrying a sword each. They called upon Krishan Singh to accompany them to the wheat fields and he complied. When he did not return home, Rani and Gurcharan Singh went to the house of the appellants in the morning. There, they were told that even the appellants did not return home the preceding night. They were also not able to ascertain the whereabouts of Krishan Singh. In the evening, Gurcharan Singh and Rani were informed by Sukhdev Singh PW 6 (a nephew of Gurcharan Singh) that Krishan Singh had taunted the sister of appellant Mohinder Singh. Thereafter, Gurcharan Singh and Sukhdev Singh went over to Police Station, Lehra and lodged FIR Ex.PF. Crl. Appeal No.59-DB of 1999 -3- .... The appellants were produced by Chanan Singh Sarpanch before PW 10 ASI Gursher Singh on 7.3.1996. Chanan Singh further informed ASI Gursher Singh that the appellants had made an extra-judicial confession before him that they had kidnapped and murdered Krishan Singh. The appellants, apart from getting the weapons of offence recovered, also led the party to the place where the dead body of Krishan Singh was lying. The recovery of the dead body was effected in the presence of PW 2 Rakesh Kumar, Naib Tehsildar-cum-Executive Magistrate, Sunam. PW 1 Dr. Parbhat Kumar, Emergency Medical Officer, Civil Hospital, Sangrur had conducted the post mortem examination on the dead body of Krishan Singh. He had also opined that the eight injuries (which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature) found on the dead body, could have been caused by the use of a Gandasa or a sword from its sharp side. PW 2 Shri Rakesh Garg, Naib Tehsildar-cum-Executive Magistrate, Sunam, had accompanied the police at the time of recovery of the dead body. PW 3 Gurcharan Singh, Patwari Halqa, Nangla had prepared the scaled site plan Ex.PE on the pointing of Labh Singh son of Teja Singh on 11.3.1996. PW 4 Gurcharan Singh and PW 5 Rani (father- in-law and widow respectively of Krishan Singh) constitute the last seen evidence. PW 6 Sukhdev Singh had witnessed the recovery of the dead body of Krishan Singh. PW 7 Constable Sarwan Singh had delivered the Special Report to the learned Illaqa Magistrate and higher police officers. Crl. Appeal No.59-DB of 1999 -4- .... PW 8 Inspector Simrat Pal Singh had recorded the formal FIR, inspected the spot and prepared rough site plan Ex.PH and had also recorded the statement under Section 161 Cr.P.C. of Rani PW. He also raided the house of the appellants who could not be found available over there. The matter was, thereafter, investigated by PW 10 ASI Gursher Singh. PW 9 Head Constable Avtar Singh got the post mortem examination conducted on the dead body of Krishan Singh and, thereafter, handed over the post-mortem papers and parcel of clothes to ASI Darbara Singh. PW 11 ASI Darbara Singh was present in the village in connection with the investigation of this case on 7.3.1996 when Chanan Singh Sarpanch produced the appellants before the police. He had also recorded the statement of Sarpanch Chanan Singh in this regard. He interrogated the appellants who made individual disclosure statements and, thereafter, led to the recovery of the respective weapons of offence. PW 12 Constable Karnail Singh and PW 13 Head Constable Gurmel Singh tendered their affidavits Ex.PBB and Ex.PCC respectively into evidence. Chanan Singh and Moti Singh PWs were given up as having been won over by the appellants. Head Constable Surjit Singh, Labh Singh and Jaswinder Singh Sarpanch were given up as unnecessary. Report of Chemical Examiner Ex.PDD and report of Serologist and Chemical Examiner to Government of India Ex.PEE were tendered in to evidence. Crl. Appeal No.59-DB of 1999 -5- .... Appellants pleaded innocence and examined DW 1 Constable Malkiat Singh, DW 2 MHC Gurnam Singh and DW 3 Chanan Singh (Sarpanch ) in defence evidence. We would like to point out, at the very out set, that the prosecution cannot be heard to draw any sustenance from the extra-judicial confession inasmuch as Sarpanch Chanan Singh-before whom it had been allegedly made by the appellants, was not examined by the prosecution at the trial and was given up as having been won over by the appellants. That Chanan Singh entered the witness box as DW 3 and denied that the appellants ever made any extra-judicial confession before him or that he had ever produced the appellants before the police. There is, thus, no substantive evidence on the file to prove that the appellants did make an extra-judicial confession before Sarpanch Chanan Singh. The prosecution evidence is woefully deficient in the context of the proof that the appellants had any motive to do away with Krishan Singh. Gurcharan Singh PW and Rani categorically testified that it was Sukhdev Singh who informed them that Krishan Singh had taunted sister of Mohinder Singh. He allegedly gave that information to them after Krishan Singh went missing. Sukhdev Singh PW 6 did not at all claim having furnished that information to either Gurcharan Singh or Rani. Apart therefrom, it may be noticed that the statement under Section 161 Cr.P.C. of PW 6 Sukdev Singh does not contain an averment that he had informed Gurcharan Singh and Rani about the deceased having taunted the sister of Mohinder Singh. He was confronted with that statement but he Crl. Appeal No.59-DB of 1999 -6- .... did not offer an explanation for omission of that fact from his statement under Section 161 Cr.P.C. On the own showing of PW 4 Gurcharan Singh and PW 5 Rani, Sukhdev Singh did inform them about the deceased having taunted the sister of Mohinder Singh. The appellants are alleged to have fetched Krishan Singh in the presence of Gurcharan Singh and Rani while they (appellants) were carrying weapons. Even in villages, it would be abnormal for a villager to carry a Gandasa or a Kirpan. In this case, the fact of Krishan Singh having taunted the sister of Mohinder Singh appellant had come to the notice of Gurcharan Singh and Rani and it was in their very presence that the appellants had allegedly fetched Krishan Singh. In spite thereof, it is illogical to accept that Gurcharan Singh and Rani would have either allowed Krishan Singh to accompany the appellants or, in any case, would have waited for 24 hours to lodge a report with the police. Further more, we may notice that the statement of PW 4 Gurcharan Singh to the effect that he had intimated the fetching of Krishan Singh by the appellants to Sukhdev Singh before all of them went over to the police does not appear to have been owned by PW 6 Sukhdev Singh. The prosecution not having been able to establish motive on the part of the appellants to do away with Krishan Singh, it also not having been able to prove that any extra-judicial confession had been made by the appellants before Sarpanch Chanan Singh and the statements of Gurcharan Singh and Rani on the point of information from Sukhdev Singh in the Crl. Appeal No.59-DB of 1999 -7- .... context of motive not having been owned up by the latter, we have no hesitation in holding that the prosecution has failed to establish the charge against the appellants. The appeal filed by Nahar Singh shall stand dismissed as abated. The appeal filed by Mohinder Singh shall stand allowed. Appellant Mohinder Singh shall stand acquitted of the charge. We also suo-motu order the acquittal of Pritam Singh, who did not prefer an appeal. ( S. D. ANAND ) JUDGE March 28, 2008. ( ADARSH KUMAR GOEL ) JUDGE sn