IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 136-DB of 2000 Dated of Decision:- April 01, 2009 Major Singh and another ....APPELLANTS VERSUS State of Punjab ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present:- Sh. B.S.Bhasaur, Advocate for the appellants. Sh. Satinder Singh Gill, Addl. A.G. Punjab. ------ MEHTAB S.GILL, J. This is an appeal against the judgment of the learned Sessions Judge, Patiala, whereby he convicted Major Singh son of Tehal Singh and Major Singh @ Kala Singh son of Buta Singh under Sections 302/34 IPC and sentenced them to undergo life imprisonment. They were directed to pay a fine of Rs.50,000/- each, in default to further undergo R.I. for one year. Further they were convicted under Sections 201/34 IPC and sentenced to undergo R.I. for one year and to pay a fine of Rs.1000/- each, in default to further undergo R.I. for three months. Accused Major Singh son of Tehal Singh was also convicted under Section 404 IPC and sentenced to undergo R.I. for six months. He was directed to pay a fine of Rs.500/-, in 2 Criminal Appeal No. 136-DB of 2000 default to further undergo R.I. for one month. All sentences were ordered to run concurrently. Darshan Kaur wife of Sukhdev Singh, Sarabjit Kaur alias Sarbo wife of Major Singh and Tehal Singh son of Piara Singh were acquitted after the trial concluded. State has not filed an appeal against the acquittal of these persons. The case of the prosecution is unfolded by the statement Ex.PG of Anup Singh. Anup Singh stated, that he is a resident of Village Nimnabad, Police Station Safidon, District Jind. He has another brother by the name of Malook Singh. Anup Singh further stated that he had four sons; three of them lived separately and Avtar Singh was residing with him. One of his sons Balkar Singh had two sons, elder being Hoshiar Singh aged 18 years and younger to him was Mukhtiar Singh. About a year back, Hoshiar Singh had passed his matriculation examination. Now-a-days he was working on a lathe machine in Safidon. About a month prior to the occurrence, Tehal Singh son of Piara Singh of Village Nimnabad made a complaint to Anup Singh, that his grandson Hoshiar Singh had an evil eye on his daughter-in- law Sarabjit Kaur @ Sarbo wife of Major Singh. Anup Singh confronted his grand son, who denied it. On 11.9.1997 Hoshiar Singh left for Safidon, but he did not come back in the night. On the next day, they started searching for him. In the evening, they met Mastan Singh son of Malook Singh, Anup Singh’s nephew, who told him that Hoshiar Singh, Major Singh son of Tehal Singh and Major Singh alias Kala son of Boota Singh had met him on the Bus Stand of Safidon and Major Singh son of Tehal Singh had told him, that they were going to Village Kheri Musalmana to 3 Criminal Appeal No. 136-DB of 2000 bring his wife back and would come back after 2/4 days. After about 4/5 days, Major Singh son of Tehal Singh and his wife Sarabjit Kaur alias Sarbo came back to the village. Anup Singh enquired from them about the whereabouts of Hoshiar Singh, but they did not give a proper reply. On 20.9.1997 when Anup Singh along with his nephew Joga Singh son of Malook Singh were sitting on the bridge of the drain of their village and planning how to search for Hoshiar Singh, Balkar Singh son of Kapoor Singh, resident of Nimnabad told them that Major Singh son of Tehal Singh and Major Singh alias Kala son of Boota Singh had met him. Major Singh son of Tehal Singh told him that Hoshiar Singh had illicit relations with his wife. Major Singh son of Tehal Singh further told him, that he and Major Singh alias Kala in consultation with his father Tehal Singh, his wife Sarabjit Kaur alias Sarbo and his mother-in-law Darshan Kaur had taken Hoshiar Singh to the village of his in-laws at Kheri Musalmana and murdered Hoshiar Singh, after stabbing him and threw his dead body in the paddy fields of Dr. Surjit Singh, which was towards Village Barsat. The body was lying near the Katcha path of canal minor. Balkar Singh further stated, that Major Singh alias Kala had also disclosed to him, that they had committed a blunder. After disclosing it, they went away. Anup Singh on hearing what Balkar Singh had told him, along with Sarpanch Mohinder Singh of their village, ex- Sarpanch Chanan Singh, Anup Singh’s son Balkar Singh and Anup Singh’s nephew Joga Singh went to the house of Major Singh son of Tehal Singh and then to the house of Major Singh alias Kala, who by then had fled. Anup Singh along with the others then went to Village Kheri Musalmana. They reached Village Kheri Musalmana at about 6.00 p.m. From there they took Sarpanch Dalip Singh along with them after 4 Criminal Appeal No. 136-DB of 2000 telling him the whole occurrence. They reached the paddy fieled of Dr. Surjit Singh near the Katcha path of canal minor towards Village Barsat. They searched for the dead body of Hoshiar Singh. They found in it a decomposed body lying in the paddy field. Balkar Singh son of Anup Singh identified the dead body of his son Hoshiar Singh on the spot from the clothes and shoes (Jutti). It was clear that Hoshiar Singh had been murdered by Tehal Singh son of Piara Singh, Major Singh son of Tehal Singh, Major Singh alias Kala son of Boota Singh, Sarabjit Kaur alias Sarbo wife of Major Singh for having illicit relations with Sarabjit Kaur @ Sarbo. On the basis of this statement, FIR Ex.PG/2 was registered on 20.9.1997 at 10.40 p.m. and the special report reached the A.C.J.M., Patiala on 21.9.1997 at 6.00 a.m. The prosecution to prove its case brought into the witness box, Dr. O.P.Aggarwal PW1, MHC Bhupinder Singh PW2, Constable Bachan Singh PW3, Constable Faquir Chand PW4, Anup Singh PW5, Mastan Singh PW6, Dr. Kanwarjit Singh Sandhu PW7, Raj Kumar Patwari PW8, Satnam Singh @ Satta PW9, Nek Ram Tailor PW10, Angrez Singh PW11, SI Amarjit Singh PW12, Inspector Rachhpal Singh PW13 and HC Balbir Singh PW14. Learned counsel for the appellants has argued, that Hoshiar Singh went missing on 11.9.1997. It is strange that Anup Singh PW5 kept quiet for 11 days. He or his son Balkar Singh should have informed the Sarpanch, the neighbours or other respectable of the village within this period since he knew that it was the appellants, who had taken him away. He also knew that appellant Major Singh son of Tehal Singh had a grudge 5 Criminal Appeal No. 136-DB of 2000 against Hoshiar Singh. It has come in evidence, that he came to know on the next day of the taking away of his grandson Hoshiar Singh by the appellants, as he was told about this by Balkar Singh son of Kapoor Singh. The conduct of Anup Singh PW5 is not natural, as a number of days had elapsed, of the missing of Hoshiar Singh, any prudent person would have gone to the police and given information of the missing of his child. The Investigating Officer SI Amarjit Singh PW12 introduced a number of false witnesses like Mastan Singh PW6, Satnam Singh @ Satta PW9, Angrez Singh PW11 and Nek Ram PW10 who have given the statements only to further the untruthful story of the prosecution. The conspiracy theory as propounded by Satnam Singh @ Satta PW9 does not inspire confidence, as there was no need for Satnam Singh @ Satta PW9 to keep quiet for such a long time, when he heard that appellants were planning the murder of Hoshiar Singh. Similarly the last seen evidence as propounded by Mastan Singh PW6 and Angrez Singh PW11 qua the extra judicial confession also does not inspire confidence. The identity of the deceased could not be established. Dr. O.P.Aggarwal PW1 in his testimony before the Court has stated, that the body was not identifiable. The body could not be identified by the clothes alone. The story of deceased having in his fist the hair of Major Singh @ Kala son of Buta Singh also does not inspire confidence. If a person is stabbed as Hoshiar Singh was in his chest and abdomen, he would not have had any opportunity to grab hold of the hair of appellant Major Singh @ Kala son of Buta Singh. 6 Criminal Appeal No. 136-DB of 2000 Lastly learned counsel for the appellants has argued, that there is an unexplained delay of nine days in lodging of the FIR. This itself goes to the root of the case. This time was being utilized by the complainant party to build up a false story, to implicate the appellants. Learned counsel for the State has argued, that the identification of the dead body has been established by the pant, baniyan, belt, underwear and shoes of the deceased, which were identified by Anup Singh PW5 and Balkar Singh, the father of Hoshiar Singh. Anup Singh in his statement before the Court has stated, that the body was identified by his son Balkar Singh at that time, when it was found in the field. In the recovery memo the purse and the identity card of the Election Commission were also found with photograph of the deceased, which were recovered from the paddy field. The hair recovered from the fist of the deceased was that of Major Singh son of Buta Singh, which has been established by the FSL report Ex.PX. It seems that a struggle took place before Hoshiar Singh was stabbed. Anup Singh PW5, the grandfather of the deceased and Balkar Singh, the father of the deceased could not have made a mistake in indentifying their own blood. They would not have accepted the identity of a wrong person, when it was a question of identifying their own near and dear one. The last seen evidence as propounded by Mastan Singh PW6 and Angrez Singh PW11 inspires confidence. Similarly the statement of Santam Singh @ Satta PW9 regarding the conspiracy being hatched and the statement of Angrez Singh PW11 qua the extra judicial confession made to him also inspire confidence. 7 Criminal Appeal No. 136-DB of 2000 The motive for the commission of the offence is very strong, as Major Singh son of Tehal Singh was not liking deceased having illicit relations with his wife. We have heard the learned counsel for the parties and perused the record with their assistance. On 11.9.1997 Hoshiar Singh was taken away by the appellants on the pretext to get back Sarabjit Singh @ Sarbo from her parents’ house in Village Kheri Musalmana. Mastan Singh PW6 saw the appellants along with the deceased at Bus Stand Safidon. Mastan Singh asked them as to where they were going. Major Singh son of Tehal Singh told him that they were going to Village Khera Musalmana to bring back his wife Sarabjit Kaur and would come back after 2/3 days. On 12.9.1997 Mastan Singh PW6 met Anup Singh PW5 in the village and told him that Hoshiar Singh had gone to Kheri Musalmana along with the appellants. Both the appellants being co-villagers of Anup Singh PW5, he did not have any suspicion that something wicked was working in the minds of the appellants. It is on 20.9.1997 when Anup Singh PW5 was sitting along with his nephew Joga Singh on the drain, Balkar Singh son of Kapoor Singh came and asked him as whether they have located Hoshiar Singh. It is then that Balkar Singh son of Kapoor Singh told them that he had met the appellants, who told him that they had taken Hoshiar Singh to Village Kheri Musalmana and murdered him with a knife and then threw his body in the field of Dr. Surjit Singh of Kheri Musalmana. Thereafter Anup Singh PW5 along with the respectables of the village went to Village Kheri Musalmana and located the body of Hoshiar Singh in the field of Dr. Surjit Singh near 8 Criminal Appeal No. 136-DB of 2000 the canal drain. The body was identified by Balkar Singh, the father of the deceased. Though the body was in a state of decay, Balkar Singh identified the body by the clothes the deceased was wearing i.e. pant Ex.P1, baniyan Ex.P2, belt Ex.P3, underwear Ex.P9 and shoe Ex.P11. In recovery memo Ex.PL made by the Investigating Officer SI Amarjit Singh PW12, a purse and the identity card of the Election Commission were found near the dead body. By all this evidence the identity of the deceased could not be doubted that the body was not that of Hoshiar Singh. Nek Ram PW10 is an independent witness. He has stated that he is running a Tailoring shop. A bush-shirt was shown to him with a sticker on it by the police, which had been stitched by him. He has stated, that it was the same bush-shirt which he stitched for Hoshiar Singh, who was his permanent customer. This bush-shirt was recovered on the disclosure statement Ex.PQ of Major Singh son of Buta Singh. Further it has come in evidence of Dr. O.P.Aggarwal PW1, that the deceased in his left fist was having a bunch of hair. These were put in a jar and handed over to the police. In the FSL report Ex.PX, it comes out that the hair recovered from the hands of the deceased were similar to that of the hair of appellant Major Singh @ Kala son of Buta Singh. It seems that before deceased was stabbed, there was a struggle between the deceased and appellant Major Singh @ Kala son of Buta Singh. During the struggle deceased caught hold of the hair of the appellant Major Singh @ Kala, which remained in his hand even after his death. Deceased was a young boy of 18 years. The last seen evidence of Mastan Singh PW6, the statement of Satnam Singh @ Satta PW9 of over-hearing and the extra judicial 9 Criminal Appeal No. 136-DB of 2000 confession made before Sarpanch Angrez Singh PW11, all inspire confidence. Mastan Singh PW6 has stated as already discussed above, that on 12.9.1997 he saw the appellants in the company of Hoshiar Singh at about 6.00 p.m. at the Bus Stand Safidon. When he asked them, they told him that they were going to Village Kheri Musalmana. Satnam Singh @ Satta PW9 stated before the Court, that he is owner of a truck, which plies from Safidon. About 15 days prior to 20.9.1997, he was sitting at Maheshi’s Dhaba, at the old Bus Stand Safidon, at about 11.00 a.m., he over heard the appellants talking that Hoshiar Singh had an evil eye on Sarabjit Kaur @ Sarbo and he visited the house of Major Singh son of Tehal Singh. Major Singh son of Tehal Singh further stated, that he made a complaint with Anup Singh PW5, but Hoshiar Singh was not stopping from coming to his house. It was thereafter that they hatched the conspiracy to take Hoshiar Singh to Village Kheri Musalmana and to eliminate him. Satnam Singh @ Satta PW9 at that time did not realize the seriousness of the situation and did not talk about it, as he thought that it is a domestic matter of the two families. The extra judicial confession made before Angrez Singh PW11, the Sarpanch of Village Nimnabad is truthful and also inspires confidence. He is the headman of the village. He is the type of person who can help others out. On 4.10.1997 appellants confessed that they had murdered Hoshiar Singh about 20/25 days back. The reason was the illicit relations of Hoshiar Singh with Sarabjit Kaur @ Sarbo. Learned counsel for the appellants has laid much stress on the delay in lodging of the FIR. But this argument does not cut much ice. 10 Criminal Appeal No. 136-DB of 2000 Occurrence had taken place on 11.9.1997. Anup Singh PW5 or Balkar Singh son of Anup Singh did not report the matter to the police, as they thought that Hoshiar Singh would come back. Hoshiar Singh had gone with the appellants, who were also the residents of Village Nimnabad. They did not suspect any foul play even after they were told by Mastan Singh PW6 of he having met them at Bus Stand Safidon. It is Balkar Singh son of Kapoor Singh, who then broke the actual story of the murder of Hoshiar Singh, that the complainant party got into action and reported the matter to the police after discovering the body from the field of Dr. Surjit Singh of Village Kheri Musalmana. Delay in lodging the FIR has been adequately explained. With the above discussion and observations, we do not find any merits in the appeal. Dismissed. (MEHTAB S.GILL) JUDGE (DAYA CHAUDHARY) April 01, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO