Crl. Appeal No. 765-DB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 765-DB of 2002 Date of Decision : January 15, 2009 Amrik Singh .... Appellant Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Hemant Saini, Advocate for the appellant. Mr. S. S. Gill, Addl. A. G., Punjab. * * * L. N. MITTAL, J. : By this common judgment, we are disposing of three Criminal Appeals i.e. Crl. Appeal No. 765-DB of 2002 instituted by Amrik Singh, Crl. Appeal No. 338-DB of 2005 instituted by Sukhdev Singh @ Sukhi and Crl. Appeal No. 530-DB of 2005 instituted by Rano Bai @ Rani, as all these three appeals have arisen out of judgment and order dated 20.09.2002 passed by learned Additional Sessions Judge, Ferozepur. Appellants Amrik Singh and Sukhdev Singh stand convicted and sentenced to undergo life imprisonment and to pay fine of Rs.3,000/- each and in default of payment of fine, to undergo imprisonment for one Crl. Appeal No. 765-DB of 2002 2 year for offence under Section 302 of the Indian Penal Code (in short – IPC); to undergo rigorous imprisonment for seven years and to pay fine of Rs.1,000/- each and in default of payment of fine, to undergo imprisonment for six months under Section 364 IPC and also to undergo rigorous imprisonment for three years and to pay fine of Rs.500/- and in default of payment of fine, to undergo imprisonment for three months for offence under Section 201 IPC. The sentences have been ordered to run concurrently. Appellant Rano Bai @ Rani stands convicted and sentenced to undergo life imprisonment and to pay fine of Rs.2,000/- and in default of payment of fine, to undergo imprisonment for one year for offence under Section 120-B IPC. Prosecution version is as under :- Amarjit Singh (since deceased), resident of Village Patranwali, was married with Rano Bai @ Rani-accused about nine years before the occurrence. They had a daughter and a son. Amarjit Singh was agriculturist as well as tractor mechanic. Rajinder Singh-complainant is brother of the deceased and was posted as Sub Inspector, Police, C.I.D. Unit, Patiala at the relevant time and was residing at Patiala with his family. The deceased was having strained relations with his wife from the very beginning and the reason, as told by the deceased, was that his wife was having illicit relationship with Sukhdev Singh-accused of Village Patranwali. On 12.01.1998, complainant Rajinder Singh, after taking leave, came to his native village Patranwali. His paternal uncle Piara Singh, residing in the neighbourhood of the deceased, told the complainant that 22/23 days ago (to be precise – on 21.12.1997), Sukhdev Singh and Amrik Singh had taken away Amarjit Singh from his house on a scooter and since thereafter, Amarjit Singh had not returned. The complainant inquired from Rano Bai, but she could not give any satisfactory reply. The complainant and his another uncle Wanzar Singh had been searching for Amarjit Singh, but he Crl. Appeal No. 765-DB of 2002 3 could not be found. The complainant believing that Sukhdev Singh and Amrik Singh had abducted Amarjit Singh from his house with intention to kill him so as to remove the obstacle in the illicit relationship of his wife with Sukhdev Singh, lodged FIR Ex. P-6/B under Section 364 read with Section 34 IPC on 14.01.1998 by making statement Ex. P-6 to ASI Karnail Singh of Police Station Khui Khera. It was also stated that the deceased used to wear a silver ring with inscription `AS WARVAL' in his right hand finger. On 10.01.1998, a dead body was recovered from canal in the area of Police Station Ghamuriwali (Rajasthan). It was dead body of an unknown person. Photographs thereof were taken. After inquest proceedings, post-mortem examination on the dead body was conducted by Dr. Darshan Singh Rajpal (PW-14) of District Sri Ganganagar. Tissues of both upper and lower limbs had given way leaving only skeleton. Head and neck were swollen and skin thereon orogated due to water. Skin and soft tissues from the trunk and abdomen were also decomposed exposing thoracic and abdominal cavities skeleton. Thoracic organs except lungs and heart and whole of the abdominal organs were absent from the body. Skin of the face was swollen and cynosis was present . There was no hair. Both eyes were open, decomposed and collapsed. Tongue was protruding out. Scalp had no hair. There was no fracture of skull bone or vertebra. Membrane was decomposed. Cause of death, in the opinion of the doctor, was asphyxia caused by strangulation. Probable duration between death and post-mortem was about two weeks. On 15.01.1998, the complainant, on coming to know that an unidentified body had been recovered in the area of Police Station Ghamuriwali (Rajasthan), went to the said police station and identified from the photographs that dead body was of his brother Amarjit Singh. He made statement to this effect in the said police station. On 28.01.1998, the Crl. Appeal No. 765-DB of 2002 4 complainant reported this fact to Police Station Khui Khera and stated that Sukhdev Singh and Amrik Singh intentionally killed Amarjit Singh after kidnapping him in criminal conspiracy with Rano Bai @ Rani. Thereupon, offences under Sections 302, 201 and 120-B were added. On 30.01.1998, ASI Rachhpal Singh arrested Sukhdev Singh and Amrik Singh along with scooter, which was also seized. Sukhdev Singh, after making disclosure statement, got recovered a silver ring with `AS WARVAL' engraved on it. Accused Amrik Singh, after making disclosure statement, got recovered a turban allegedly of the deceased, with which he was strangulated. Wanzar Singh made statement during investigation that on 21.12.1997, at about 04:00 P.M., he had seen Sukhdev Singh and Amrik Singh taking Amarjit Singh on scooter. He also stated that on 22.12.1997, when both accused again met him, he inquired about Amarjit Singh and they disclosed that he had gone to Rajasthan for some personal work. Sampuran Singh stated before police during investigation that on 20.01.1998, Sukhdev Singh and Amrik Singh separately made extra-judicial confession before him that they had illicit relationship with Rano Bai and since the deceased had come to know of it, they along with Rano Bai, decided to kill him and accordingly, both of them took the deceased on their scooter to bridge of Gang Canal in the area of Village Jandwala and after making him to consume liquor, he was strangulated with his own turban by both of them and then they threw his dead body into Canal. Similar extra-judicial confession was made on 20.01.1998 by Rano Bai @ Rani before Lajinder Singh. Mukhtiar Singh (PW-7) stated before the police that on 21.12.1997 at about 07:30-08:00 P.M., he had seen Sukhdev Singh and Amrik Singh strangulating Amarjit Singh with turban of the deceased, who was under the influence of liquor and thereafter, both of them had thrown his dead body in the canal and they had threatened to kill him if he disclosed it to anybody. Other investigation formalities were completed and all the three Crl. Appeal No. 765-DB of 2002 5 appellants were put to trial. Charge under Section 120-B IPC against all the three accused and substantive charge under Sections 364, 302 and 201 IPC against Sukhdev Singh and Amrik Singh and charge of conspiracy under Section 120-B IPC for the said offences against Rano Bai @ Rani was framed. All the three accused pleaded not guilty and claimed trial. The prosecution examined 14 witnesses in support of its case. Ram Chander (PW-1) stated that he had taken photographs of the dead body at the asking of police of Police Station Ghamuriwali. Pritpal Singh (PW-2) prepared scaled site plan and proved the same. Rajinder Singh (PW-3) is the complainant and brother of the deceased. Piara Singh (PW-4) is uncle of the deceased. Rajinder Singh, Piara Singh, Sampuran Singh (PW-5), Mukhtiar Singh (PW-7) and Lajinder Singh (PW- 8) have broadly stated according to the prosecution version narrated herein above. ASI Mohan Lal (PW-6) stated that he obtained record of inquest proceedings and photographs from Police Station Ghamuriwali in Rajasthan. Head Constable Darshan Singh (PW-9) stated that the aforesaid documents were handed over by ASI Mohan Lal to SHO Rachhpal Singh vide memo Ex. P-12. Ram Chander, who was initially examined as PW-1, was again put in the witness-box as PW-10 and proved the photographs of the dead body. ASI Karnail Singh (PW-11) stated that he has recorded statement Ex. P-6 of Rajinder Singh-complainant and made his own endorsement Ex. P-6/A on it and sent to Police Station Khui Khera, where on its basis, FIR Ex. P-6/B was recorded. Karnail Singh went to Village Patranwali and prepared rough site plan Ex. P-13 and recorded statements of witnesses. MHC Balwinder Singh (PW-12) proved copy of DDR dated 28.01.1998 recorded on the basis of statement made by Rajinder Singh regarding identification of dead body of Amarjit Singh and adding of offences under Sections 302, 201 and 120-B IPC. ASI Rachhpal Singh Crl. Appeal No. 765-DB of 2002 6 (PW-13) stated about investigation of the case conducted by him. Dr. Darshan Singh Rajpal (PW-14) stated about post-mortem examination conducted by him on the dead body of unknown person (subsequently identified to be of Amarjit Singh-deceased). The accused, when examined under Section 313 of the Code of Criminal Procedure, denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. It was also alleged that the complainant being posted in the Police Department, fabricated the evidence and falsely implicated them. Rano Bai stated that she was not having cordial relations with the complainant and therefore, she has been falsely implicated. No evidence was led by the accused in their defence. Learned Additional Sessions Judge, Ferozepur, vide impugned judgment and order dated 20.09.2002 convicted and sentenced the appellants, as noticed in the opening part of this judgment. Feeling aggrieved, the convicts have filed these appeals separately. We have heard learned counsel for the parties and examined the case file with their assistance. The learned trial court, finding the prosecution evidence to be reliable, convicted and sentenced all the three accused. However, for reasons to be recorded hereinafter, we find force in the submission of the learned counsel for the appellants that the prosecution case suffers from many infirmities and is highly doubtful and the appellants deserve benefit of doubt. According to the learned State counsel, all the prosecution witnesses have broadly supported the prosecution case and therefore, guilt of the appellants stands proved beyond reasonable doubt. Learned counsel for the appellants, however, assailed the prosecution case on various grounds. It was vehemently contended that there has been long and Crl. Appeal No. 765-DB of 2002 7 unexplained delay in lodging the FIR and therefore, the prosecution version is gravely suspicious and doubtful. There is considerable force in the contention. Piara Singh (PW-4) is real uncle of the deceased. Sardara Singh, father of the deceased, was real brother of Piara Singh, both being sons of Ghula Singh. Piara Singh had allegedly seen on 21.12.1997 that Sukhdev Singh and Amrik Singh had taken away Amarjit Singh (since deceased) from his house on their scooter. However, Piara Singh did not report the matter to the police and only Rajinder Singh, brother of the deceased, reported the matter to the police on 14.01.1998 i.e. after 24 days. There is no explanation for this long delay. It is not the case of Piara Singh that he had approached the police and the police did not record the report. Piara Singh has rather stated that he never approached the police to lodge report prior to 14.01.1998 when the matter was reported by Rajinder Singh to the police. It is also significant to notice in this context that Piara Singh has stated that on 22.12.1997, Amrik Singh and Sukhdev Singh told this witness that deceased had gone to Rajasthan and would be back in a day or two, but when the deceased did not return, Piara Singh formed opinion that the deceased had either been killed or confined by Sukhdev Singh and Amrik Singh in connivance with Rano Bai-accused. In cross-examination, Piara Singh specifically stated that after 2-3 days of 22.12.1997, he started suspecting that Amarjit Singh has either been killed or confined by the accused, but he did not report the matter to the Police Station. Inspite of the aforesaid opinion and suspicion, Piara Singh did not think it proper to report the matter to the police for another three weeks. It is also not in evidence that Piara Singh even informed Rajinder Singh-complainant about disappearance of Amarjit Singh and about the aforesaid opinion or suspicion of Piara Singh, although Rajinder Singh was posted as Sub Inspector in police at Patiala. In these circumstances, the highly belated version of the prosecution has to be taken with a pinch of salt and creates Crl. Appeal No. 765-DB of 2002 8 grave doubt about the prosecution version. Here, it may be added that even Rajinder Singh came to the village on 12.01.1998 and learnt of everything, but still he did not report the matter for another two days. Wanzar Singh, another uncle of the deceased, had also seen accused Sukhdev Singh and Amrik Singh taking the deceased on scooter on 21.12.1997 itself, but even Wanzar Singh did not report the matter to the police, when Amarjit Singh did not return. It is thus manifest that there has been abnormal and unexplained delay in lodging the FIR creating grave doubt about the prosecution version. Learned counsel for the appellants also contended that if the wife of the deceased was having illicit relationship with Sukhdev Singh- accused, it is not explained why the deceased accompanied Sukhdev Singh and Amrik Singh on their scooter and why he consumed liquor in their company. The contention is forceful and has merit. The motive for the occurrence is stated to be that the wife of the deceased was having illicit relationship with Sukhdev Singh-accused and on account thereof, relations between the deceased and his wife were strained and since the deceased was hindrance in the aforesaid illicit relationship, he was eliminated by Sukhdev Singh and Amrik Singh in connivance with Rano Bai, wife of the deceased. If this was the position, it does not appear to be logical as to why the deceased accompanied Sukhdev Singh and Amrik Singh on their scooter and why he consumed liquor in their company. The prosecution case is thus dented. Learned counsel for the appellants next assailed the testimony of Mukhtiar Singh (PW-7), who claimed to be eye-witness of the occurrence. He stated that at about 07:30-08:00 P.M., he had noticed Sukhdev Singh and Amrik Singh along with Amarjit Singh and they were dead drunk. The witness also saw that both these accused took off the turban from the head of Amarjit Singh and strangulated him with it and Crl. Appeal No. 765-DB of 2002 9 threw the dead body in canal. However, this witness having allegedly seen the occurrence on 21.12.997, did not report the matter to the police. The explanation given by him is that he had been threatened by Sukhdev Singh and Amrik Singh. However, the explanation cannot be accepted. Even if Mukhtiar Singh was scared and therefore did not report the matter to the police, he could at least have disclosed the occurrence to some villagers or to somebody else or to the family of the deceased. However, Mukhtiar Singh remained silent and did not disclose the occurrence to anybody, much less to the police, before the registration of the instant FIR, which was registered 24 days after the occurrence. Silence of this witness for such a long period creates doubt about the veracity of his testimony. It would also be not out of place to notice that Mukhtiar Singh does not belong to the village of the deceased or the accused and it is also highly doubtful if Mukhtiar Singh already knew any of them. Mukhtiar Singh stated that the deceased was a carpenter and for this reason, he was known to him. However, according to the FIR, the deceased was doing agricultural work and was also a tractor mechanic and not a carpenter. Thus, the reason stated by Mukhtiar Singh for knowing the deceased is falsified. Mukhtiar Singh had no occasion to know the deceased or the accused. He has stated that he made statement before the police after about one month. The alleged threat to him by the two accused is not sufficient to explain his silence for such a long period. The prosecution has relied on the statement of Piara Singh (PW-4) as evidence of the deceased last seen together with accused Sukhdev Singh and Amrik Singh. However, as already discussed herein above, Piara Singh remained silent for three weeks even after he formed opinion and suspected that Sukhdev Singh and Amrik Singh had killed the deceased in connivance with Rano Bai. This conduct of Piara Singh (PW- 4), who is real uncle of the deceased, is unnatural and makes his testimony Crl. Appeal No. 765-DB of 2002 10 unworthy of credence. That apart, the dead body was recovered in Rajasthan on 10.01.1998 i.e. 20 days after Piara Singh had seen the deceased with the two accused. This long gap of 20 days also makes the evidence of last seen together insufficient to hold the accused guilty of murder of the deceased. Learned counsel for the appellants also pointed out that the dead body had been recovered in Rajasthan on 10.01.1998 and Rajinder Singh-complainant had allegedly identified the same to be of Amarjit Singh from photograph of the dead body on 15.01.1998, but inspite thereof, he reported this fact to Police Station Khui Khera on 28.01.1998 only vide report Ex.P-14. This delay of 13 days again creates doubt about the veracity of the prosecution case. Rajinder Singh tried to explain this delay by stating that after returning from Rajasthan after identifying the body, he had to join his duty at Patiala on 16.01.998. However, in the first instance, Rajinder Singh stated that he joined his duty on 17.01.1998. It was only on a subsequent date during cross-examination that the witness improved and stated that he had joined his duty on 16.01.1998. However, even if it be so, there is no explanation why Rajinder Singh could not take further leave and report the matter to the police, when his own real brother had been murdered. Rajinder Singh stated that he applied for leave on 27.01.1998 only and then proceeded on leave on 28.01.1998 and reported the matter to the Police Station Khui Khera on the same day regarding identification of the dead body. However, Rajinder Singh has not explained as to why he could not obtain leave earlier. Thus, the delay of 13 days in reporting the identification of the dead body to the concerned Police Station also creates doubt about the prosecution case. In addition to it, Rajinder Singh has also stated that report was also recorded in Police Station Ghamuriwali in Rajasthan on 15.01.1998, when he identified the dead body on the basis of photograph. However, the said report has also not been produced in Crl. Appeal No. 765-DB of 2002 11 evidence. Therefore, adverse inference arises against the prosecution for this reason as well. Learned counsel for the appellants also emphatically argued that medical evidence is also in conflict with the prosecution version. According to the prosecution version, the deceased was murdered on 21.12.1997 and post-mortem examination on the dead body was conducted on 10.01.1998 i.e. after 20 days. However, Dr. Darshan Singh Rajpal (PW- 14) stated that duration between death and post-mortem examination was about two weeks i.e. 14 days. Consequently, the prosecution evidence that the deceased had been murdered on 21.12.1997, as stated by the alleged eye-witness Mukhtiar Singh (PW-7), cannot be accepted. Doubt is created about the prosecution version and the reliability of the testimony of Mukhtiar Singh (PW-7) for this reason as well. Learned State counsel contended that Sampuran Singh (PW-5), witness of extra-judicial confession made by Sukhdev Singh and Amrik Singh, and Lajinder Singh (PW-8), witness of extra-judicial confession made by Rano Bai, are reliable witnesses. However, the appellants cannot be held guilty merely on the basis of evidence of a retracted extra-judicial confession, which by its very nature, is weak evidence. Such evidence is required to be corroborated, but in the instant case, the entire prosecution version is highly doubtful for the reasons recorded herein above and therefore, the conviction of the appellants cannot be upheld merely on the basis of evidence of retracted extra-judicial confession. From the aforesaid discussion, it becomes manifest that the prosecution case suffers from grave infirmities and is highly doubtful and therefore, the appellants deserve benefit of doubt. Before parting with the judgment, another submission of learned counsel for the appellants may just be noticed that appellants Amrik Singh and Sukhdev Singh have already remained in custody for more than Crl. Appeal No. 765-DB of 2002 12 nine years and appellant Rano Bai for more than seven years. For the reasons recorded herein above, all these three appeals are allowed and impugned judgment and order dated 20.09.2002 of learned Additional Sessions Judge, Ferozepur are set aside and appellants are acquitted of the charge against them giving them benefit of doubt. They be set at liberty forthwith, if not required in any other case. ( L. N. MITTAL ) JUDGE January 15, 2009 ( MEHTAB SINGH GILL ) monika JUDGE