Criminal Appeal No.D-935-DB of 2008 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.D-935-DB of 2008 Date of Decision:25.11.2011 Darshan Singh @ Darshan and another. .....Appellants Versus The State of Haryana .....Respondent CORAM: HON'BLE MR.JUSTICE S.S.SARON HON'BLE MR.JUSTICE RAMESHWAR SINGH MALIK Present: Ms.Amita Arora, Advocate for the appellants Mr.H.S.Deol, Additional Advocate General, Haryana and Mr. G.S.Sandhu, Asst. Advocate General,Haryana. **** S.S.SARON, J. This appeal has been filed by the appellants Darshan Singh @ Darshan son of Sukhdev Singh and Buta Singh @ Raju son of Kashmir Singh against the judgement and order dated 30.09.2008 passed by the learned Additional Sessions Judge, Fatehabad, whereby the appellants have been held guilty for the offence punishable under Section 302 of the Indian Penal Code ('IPC'- for short) and by a separate order passed on the same date, they have been sentenced to undergo rigorous imprisonment for Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 2 life, besides, pay a fine of ` 10,000/- each and in default of payment of fine, the person who defaults is to undergo further simple imprisonment for six months. The FIR (Ex.PC) in the case has been recorded on the statement of the complainant-Avtar Singh alias Manna (PW12). It is stated by the complainant-Avtar Singh @ Maana (PW12) that he is a resident of village Aherwan and does labour work. They were five brothers. Eldest is Jagtar Singh, then Kartar Singh, followed by Mukhtiar Singh, thereafter Avtar Singh (PW12) himself and the youngest is Balkar Singh. They all reside separately. The complainant-Avtar Singh (PW12) and Kartar Singh reside separately in village Aherwan. The father of the complainant namely Charan Singh (deceased) was residing with him; while Jagtar Singh and Mukhtiar Singh reside in village Hajrawan Kalan. Gurdeep Kaur, the mother of the complainant Avtar Singh (PW12) had gone to Jagtar Singh. Balkar Singh resides at Fatehabad. They all were married. Kartar Singh, however, was a divorcee. His father (deceased) had become a 'nihang' (a baptised Sikh) and was working as a 'chowkidar' at Chopra Petrol Pump. A day earlier to Avtar Singh making a statement before the police i.e. on 17.07.2004 there was a fair ('mela') at the Gurudwara on the occasion of 'Ammavasya'. Charan Singh (deceased), the father of the complainant remained at the Gurudwara during the day time. At about 08:30 p.m. after taking his meal at the Gurudwara, he came to the petrol pump and had slept on a cot. In the morning on 18.07.2004, at about 06:00 a.m., the mother's sister ('maasi') of the complainant namely Sarjeet Kaur and sister Bandu @ Balwinder Kaur came out for a Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 3 walk. They came to the petrol pump and saw that the father of the complainant was lying dead on the cot. He had suffered deep injuries on the right side of his head, right eye and right ear. The mother's sister ('maasi') came to the house and narrated the incident to the complainant. On this, the complainant (PW 12) and his brother Kartar Singh came to the petrol pump at the spot and saw that Charan Singh (deceased), father of the complainant was lying dead on the cot and there were deep injuries that had been inflicted on his head, right eye and right ear. Some unknown persons had inflicted injuries and murdered Charan Singh, the father of the complainant and after committing his murder had gone away. There was rainfall during the night and till the time of making his statement, he did not suspect any person. He had given information at the police station on telephone and thereafter, Bharat Singh, Inspector/SHO, Police Station Sadar, Fatehabad (PW11) had arrived. Avtar Singh (PW 12) got his statement recorded with Bharat Singh Inspector/SHO (PW11). The same was heard and was correct. Action was asked to be taken. The statement was signed by Avtar Singh in English and it was attested by Bharat Singh, Inspector/SHO (PW11). The police proceedings were recorded by Bharat Singh, Inspector/SHO, Police Station, Fatehabad, (PW 11), which are to the effect that on 18.07.2004 on receipt of information on telephone that Charan Singh Nihang was lying dead at the petrol pump, he along with Baljit Singh Sub-Inspector, Sahab Singh Head Constable, Rajesh Kumar Constable, Bharat Singh Head Constable, Sahab Ram Constable and Raj Kumar Constable in a government Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 4 vehicle, which was driven by Satish driver reached at the spot at the Petrol Pump Aherwan. At the spot, Avtar Singh complainant (PW 12) son of Charan Singh (deceased) got his statement (Ex.PB) recorded which was read over to him word by word recorded and he after accepting the same as correct signed the same in English which was attested by Bharat Singh Inspector (PW11). The statement of Avtar Singh-complainant (PW 12) disclosed the commission of an offence punishable under Section 302 IPC. A memo was sent to the police station through Rajesh Kumar, Constable for registration of a case (FIR). After registration of the case, the number of FIR was asked to be intimated, besides, special reports were asked to be sent. The dog squad and crime team was asked to be arranged and sent to the place of occurrence. The Investigating Officer Bharat Singh (PW 11) was busy in the inquiry and investigation at the spot. Ram Kishan ASI, on receipt of the information, registered FIR No.288 dated 18.07.2004 for the offence under Section 302 IPC at Police Station Fatehabad. Bharat Singh, Inspector (PW 11), conducted the investigation in the case. Inquest proceedings (Ex.P-13), in terms of Section 174 of the Criminal Procedure Code ('Cr.P.C'-for short) were conducted at the spot. The statements of witnesses namely Jagtar Singh, Swaran Singh, Kartar Singh, Sohan Pal, Puran Singh, Surjeet Kaur and Balwinder Kaur were recorded in terms of Section 161 Cr.P.C. Blood stained blanket, glass, two vials of medicines, one polythene of liquor were lifted from the spot. The liquor was put in a quarter. All the articles including the quarter were converted into sealed parcels and sealed with the seal of 'BS'. They were taken in Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 5 possession by the police vide recovery memo Ex.P-23, which was signed by Avtar Singh (PW12). Bharat Singh Inspector/SHO (PW 11) inspected the place of occurrence and prepared rough site plans Ex.P-24 and Ex.P-25. On 18.07.2004, Head Constable Sahab Singh handed over to Bharat Singh, Inspector/SHO (PW 11) three parcels along with the seal of doctor and the sample seal. These were taken into possession vide recovery memo Ex.P5. On 20.07.2004, Bharat Singh, Inspector/SHO (PW 11) recorded the statements of Sham, Sohan Lal, Parveen and Raj Pal in terms of Section 161 Cr.P.C. On 22.07.2004, he arrested Darshan Singh (appellant No.1) and recorded his disclosure statement Ex.P-1. On the basis of the said disclosure statement, Darshan Singh (appellant No.1) demarcated the place of occurrence. On the identification of the accused, the place of crime (Ex.P-2) was got demarcated. Bharat Singh, Inspector/SHO (PW11) recorded the statements of the witnesses. He prepared the police report ('challan') against Darshan Singh (appellant No.1) on 10.10.2004. Buta Singh @ Raju accused was declared a proclaimed offender. The police report ('challan') was filed in the Court of the learned Judicial Magistrate 1st Class, Fatehabad on 15.10.2004. The learned Judicial Magistrate 1st Class, Fatehabad, vide her order dated 01.12.2004 observed that the offence under Section 302 IPC was exclusively triable by the Court of Session. Accordingly, the case was committed to the said Court of learned Sessions Judge. The learned Additional Sessions Judge, Fatehabad, to whom the case was assigned, vide order dated 17.01.2005, charge sheeted Darshan Singh (appellant No.1) on the allegation that on the Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 6 intervening night of 17/18.07.2004 in the area of village Aherwan, he (Darshan Singh) and his co-accused Buta Singh in furtherance of common intention did commit murder by causing the death of Charan Singh by inflicting injuries on his head, right eye and on right ear and thereby committed an offence punishable under Section 302 read with Section 34 IPC. It was directed that he (Darshan Singh) be tried by the Court of learned Additional Sessions Judge, Fatehabad. The contents of the charge were read over and explained to Darshan Singh (appellant No.1) in simple Hindi. He heard and understood the charge and pleaded not guitly and claimed trial. Later on, Buta Singh @ Raju (appellant No.2) surrendered in the Court on 17.08.2005. A police report ('challan') was filed against Buta Singh @ Raju (appellant No.2) on 03.09.2005 in the Court of learned Judicial Magistrate 1st Class, Fatehabad. The learned Judicial Magistrate Ist Class, Fatehabad vide order dated 21.09.2005 in view of the offence under Section 302 IPC being alleged, committed the case to the Court of Session. The Learned Additional Sessions Judge, Fatehabad, reframed the charge on 24.11.2005 against both the appellants on the allegations that on the intervening night of 17/18.07.2004 in the area of village Aherwan, they both (appellants) in furtherance of their common intention committed murder by causing the death of Charan Singh by inflicting injuries on his head, right eye and on right ear and thereby committed an offence punishable under Section 302 read with Section 34 IPC. It was directed that both (Darshan Singh and Butta Singh) be tried by the Court of learned Additional Sessions Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 7 Judge, Fatehabad. The contents of the charge were read over and explained to the accused in simple Hindi. Both the accused heard and understood the charge and pleaded not guilty and claimed trial. The prosecution in order to prove its case,examined as many as 13 witnesses and also tendered documents in evidence including the FSL reports Ex.P-35 and Ex.P-36. The learned Additional Sessions Judge, Fatehabad, after considering the evidence and material on record in terms of his order dated 30.09.2008 convicted the appellants for the offence punishable under Section 302 IPC and sentenced them to undergo rigorous imprisonment for life, besides, pay a fine of ` 10,000/- each and in default of payment of fine, to undergo further simple imprisonment for six months. Aggrieved against the same, the appellants have filed the present appeal. Learned counsel appearing on behalf of the appellants has contended that the case against the appellants is absolutely false and they have been falsely implicated. It is submitted that the case is based on circumstantial evidence in which the prosecution is liable to prove and establish the circumstances so as to prove the guilt of the appellants by cogent, reliable and convincing evidence. The circumstances, taken cumulatively, it is submitted 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 appellants and not by anyone else. In support of his contentions, learned counsel for the appellants cites Usman Mian v. State of Bihar 2004 (4) RCR (Criminal) 920 (SC). It is submitted that the recovery of bicycle and 'danda' vide Ex.P-36 is doubtful as the Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 8 recovery memo is ante dated. Besides, it is submitted that injuries on the person of Charan Singh (deceased) are not possible with a 'danda' as has been deposed by Dr. A.L. Bajaj, Medical Officer, General Hospital, Hisar (PW 9). Sohan Lal (PW 6) , it is submitted is a chance witness and no reliance can be placed on the testimony of a chance witness. In response, learned counsel for the State has submitted that the prosecution has established its case beyond shadow of reasonable doubt. It is submitted that the learned trial Court has recorded cogent and convincing reasons for convicting and sentencing the appellants. The same are not liable to be interfered with or set aside. It is submitted that the contentions as raised by the learned counsel for the appellants are devoid of any merit and are not liable to be taken into account. The appeal of the appellants, it is submitted, is liable to be set aside. We have given our thoughtful consideration to the matter and gone through the records of the case. Avtar Singh (complainant) appeared as PW12. He reiterated the version as given by him in his statement Ex.PB, on the basis of which FIR (Ex.PC) was registered. It is inter alia stated by Avtar Singh (PW 12) that his father Charan Singh (deceased) had become a 'nihang' (a baptised Sikh) and he used to remain at Chopra Petrol Pump as a Watchman. On 17.07.2004, there was a fair ('mela') in the Gurudwara on the occasion of 'Ammavasya'. The father of the complainant had remained at the Gurudwara during the day time and he returned to the Petrol Pump at about 08:30 pm after bringing his food from the Gurudwara and he slept there. On Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 9 the next day (i.e. on 18.07.2004), at about 06:00 am, Surjit Kaur and Balwinder Kaur aunt and sister, respectively, of the complainant (PW12) had gone for a morning walk and when they reached at the Petrol Pump, they found Charan Singh, father of the complainant, lying dead on the cot. There were injuries on the right side of head, eye and right ear. The aunt of the complainant (PW12) namely Surjit Kaur informed him (complainant) about the occurrence after she had reached him. Avtar Singh-complainant (PW 12) along with his brother Kartar Singh reached the place of occurrence and saw that Charan Singh was lying dead on the cot and there were injuries on his head, eye and right ear. He (complainant) informed the police Fatehabad on telephone about the occurrence. The police reached the spot and recorded his statement (Ex.PB), which he signed. The police started its investigation and took in its possession a blanket, spectacles, a nip containing some liquor and two vials of medicines from the spot. These were converted into sealed parcels. Blood stained earth was also lifted from the spot and converted into a sealed parcel. All the parcels were sealed with the seal of 'BS' and the parcels were taken in possession vide recovery memo Ex. P-23, which was attested by him. It is further stated that after about 13 months of the occurrence, the police arrested accused Buta Singh (appellant No.2). Buta Singh (appellant No.2) was taken to village Bhirdana by the police and he handed over a 'danda' (Ex.P-35) to the police after getting the same recovered from his house. He also handed over a bicycle to the police after getting the same recovered from his house. The police took the cycle and 'danda' vide recovery memo Ex.P-36, Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 10 which was attested by him. In cross-examination, Avtar Singh (PW12) has stated that the police had reached the spot at about 09.15/09.30 am and the police enquired about the death of his father from all the persons present at the spot first and then started proceedings of this case. It is stated that the police may have called respectable persons from the village but he was made to remain at the spot. His statement was recorded at about 9.00/9.30 am. As far as he remembered the statement of his brother Kartar Singh was also recorded by the Police at the spot on 18.07.2004. He did not know whether the police recorded the statement of any other person at the spot or not on that day. The police remained at the spot till 11.00/11.30 am on 18.07.2004. His father used to do the work of Watchman at Chopra Petrol Pump for the last ten/twelve years. The Petrol Pump was lying deserted since last two/three years now. It is stated that it had started raining at about 12.00/12.30 am during the intervening night of 17.07.2004 and 18.07.2004. In the beginning the rain was heavy and it rained for about one hour. His father used to consume liquor. The owner of the Petrol Pump namely Parveen Kumar Chopra was also summoned at the Petrol Pump by the Police on the next day at about 10.00/10.30 am. The police called Raj Pal, Sohan Lal, Shyama, Puran Singh and Swaran Singh at the Petrol Pump on 19.07.2004 and recorded their statements. Accused Buta Singh was earlier known to him. He was arrested by the Police about 13 months of the occurrence. He did not know from where he was arrested by the Police. Buta Singh was brought to his house by Khiyali Ram SI at about 2.00 pm. After two-three minutes, Police Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 11 along with the complainant and Buta Singh went to village Bhirdana. They remained there for about 20/25 minutes at the house of Buta Singh. The writing was done at the house of Buta Singh and the signatures of the complainant were obtained. The complainant along with the Police and accused Buta Singh came to Fatehabad and the complainant went back to his house at about 4.00 pm from Police Station, Sadar Fatehabad. The 'danda' it is stated was having a length of 2 ½ to 3 feet. The make of the cycle was 'Atlas'. It is stated that it was incorrect to suggest that nothing was got recovered by Buta Singh accused to the police. It was also stated as incorrect to suggest that his (complainant's) signatures were obtained in the Police Station by the Police. It is also stated as incorrect to suggest that he was deposing falsely. The other witness examined by the prosecution was Sohan Lal (PW 6) who states that on 17.07.2004, he was coming from his house and when he reached near the house of some 'Kumhars', he found both the accused Darshan Singh and Buta Singh (appellants) standing there. Darshan Singh had started abusing him (Sohan Lal PW 6) and he also abused them. It is stated that Buta Singh (appellant No.2) was having a 'danda' with him. Thereafter, Darshan Singh and Buta Singh (appellants) went towards the road and the bus stand. At that time, both the accused were having nothing except 'danda'. When Sohan Lal (PW 6) reached near the house of Rajpal and Kala, he started talking with them and he came to know that Darshan Singh and Buta Singh (appellants) had a quarrel with Rajpal (brother of the complainant and son of the deceased). Sohan Lal (PW 6) remained there for Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 12 about one hour. Thereafter, both the accused (appellants) came back and at that time Darshan Singh (appellant No.1) was having a cycle with him and Buta Singh (appellant No.2) was having the same 'danda' with him. Thereafter, both the accused (appellants) went to the house of Darshan Singh (appellant No.1). Mother-in-law of Buta Singh (appellant No.2) had been kept by Darshan Singh (appellant No.1) in his house. In the cross-examination, it is stated by Sohan Lal (PW 6) that he had no dispute with the accused Darshan Singh (appellant No.1) earlier. It is further stated that Buta Singh (appellant No.2) had a 'danda' of 2/3 feet in length and it was like a handle of 'kassi'. The police had called him from his fields on the next day at about 6.00 pm. in the house of Charan Singh (deceased). At that time, about 20 persons had gathered there. He could not tell the names of those persons. Police, it is stated, did not record the statement of any other person in his presence. Police got his thumb impression on his statement. He remained with the police for about 15 minutes. After that he left for his fields leaving the police in the house of the deceased-Charan Singh. He has his own residence in village Aherwan. He had no agricultural land and he was a 'siri' (a person who works in the field as a sharer for the crops) with Gurdev Singh in July 2004 and he used to cultivate the land of Gurdev Singh on the basis of share in the crop. He denied the suggestion that he never cultivated the land of Gurdev Singh. Buta Singh (appellant No.2) It is stated was a resident of village Bhirdana, which falls at a distance of 10 Kms.from village Aherwan. It is voluntarily stated that Buta Singh (appellant No.2) was married in village Aherwan. Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 13 The other witness examined by the prosecution is Puran Singh (PW7) who stated that about two years earlier to his deposition which was made on 24.07.2006, he was present at his house. At about 9.00 pm, Buta Singh and Darshan Singh (appellants) were quarrelling with Rajpal mason. At that time, both the accused (appellants) were drunk and had 'dandas' with them. After quarrelling with Rajpal, both the accused (appellants) had gone from there. It is stated that about one year prior to the occurrence, Charan Singh, 'nihang' (deceased) had purchased 'gur' (Jaggery) on credit on behalf of Buta Singh (appellant No.2) but Buta Singh did not make the payment of this credit. About one and a half month earlier to this occurrence, Charan Singh (deceased) had kept the cycle of Buta Singh (appellant No.2) with him in lieu of this credit. Buta Singh (appellant No.2) had told him (Puran Singh-PW7) many times that the cycle had been kept by Charan Singh (deceased) and he would take revenge from him. Puran Singh (PW7) had a suspicion that murder of Charan Singh was committed by Buta Singh and Darshan Singh (appellants). In the cross-examination, it is stated by Puran Singh (PW 7) that he was sleeping on the roof of his house when Darshan Singh and Buta Singh (appellants) had a quarrel with Rajpal. He did not come down from the roof of his house. He was lying on the cot but was not sleeping. He did not know the cause of their quarrel. He did not know about the cause of quarrel nor did he make any enquiry from Rajpal about the quarrel. It is voluntarily stated that his father had inquired from him. It is stated that the accused had a quarrel with Rajpal for about fifteen-twenty minutes. The quarrel had taken Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.D-935-DB of 2008 14 place by the side of the gate inside the house of Rajpal. It is also stated that Charan Singh had not purchased the 'gur' of the accused Buta Singh in his presence. He (PW7) had heard that the deceased Charan Singh had kept the cycle of Buta Singh (appellant No.2) in lieu of the price of the 'gur' (Jaggery), which he had purchased on credit. He had not seen the cycle of Buta Singh (appellant No.2) being retained by Charan Singh (deceased). It is stated by Puran Singh (PW7) that he had suspicion regarding the murder of Charan Singh being committed by the accused only due to their being drunk. It is stated as incorrect to suggest that