CRR No. 2587 of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRR No. 2587 of 2009 (O&M) Date of decision: 3.5.2011 Jangir Singh ........ Petitioner Versus State of Punjab and another ........ Respondents CORAM: HON'BLE MR.JUSTICE JORA SINGH Present: Mr. L.S. Sidhu, Advocate, for the petitioner. Mr. RPS Sidhu, AAG, Punjab. Mr. A.S. Cheema, Advocate, for respondent No. 2. JORA SINGH, J. CRM No. 50034 of 2009 This is an application under Section 5 of the Limitation Act, for condonation of delay of 50 days in filing the instant revision petition. Learned counsel for respondents submit that there is no need to file formal reply to this application. In view of the averments made in the application, the same is allowed. Delay of 50 days in filing the revision petition is condoned. CRR No. 2587 of 2009 Jangir Singh, preferred this revision to challenge the judgment of acquittal dated 23.4.2009, rendered by the learned Additional Sessions Judge, Mansa, in Sessions Case No. 5 of CRR No. 2587 of 2009 (O&M) -2- 20.8.2005, arising out of FIR No. 64 of 4.4.2005, registered under Sections 302/201 IPC, at Police Station City, Mansa. By the said judgment, respondent-accused Jagga Singh, was acquitted of the charge levelled against him. Prosecution story in brief is that Jangir Singh-complainant (petitioner), lodged a complaint with the police on 4.4.2005, to the effect that he has two sons namely Mithu Singh and Ajaib Singh. Jagtar Singh and Amrik Singh, are the sons of Mithu Singh. Jagtar Singh, had dispute with his wife namely Virpal Kaur. Jagtar Singh, had filed complaint under Section 420 IPC against his wife and her relations namely brothers-in-law Jassa Singh, Sucha Singh and mother-in-law Mukhtiar Kaur. In-laws of Jagtar Singh, had also filed complaint before Women Cell against them but there was a compromise. Compromise was reduced into writing in the presence of Gram Panchayat of villages Makha and Dhingar. After six days, again Virpal Kaur, had a dispute with her mother-in-law Amarjit Kaur. Virpal Kaur, had summoned her brother Balwinder Singh and Ex. Sarpanch of village Dhingar. Jugraj Singh, also came, then in their presence, Ex. Sarpanch, Dhingar enquired about the dispute then Virpal Kaur, reported that her mother- in-law was saying that she was not interested in doing work and make excuses on one pretext or the other. Ex-Sarpanch replied that dispute is not serious and such like minor disputes do happen in the houses then Virpal Kaur, started abusing and had thrown the child which was in her lap. Child was slapped. Ex-Sarpanch, Dhingar, requested Balwinder Singh to take away Virpal Kaur, with him but she refused to accompany Balwinder Singh by saying that she will come alone in the CRR No. 2587 of 2009 (O&M) -3- morning. After leaving Virpal Kaur, Ex-Sarpanch and others came back. In the morning, Virpal Kaur, threatened to kill her son, Jagtar Singh, his wife Gurdev Kaur and Amarjit Kaur. Earlier also she used to threatened that she would get eliminated or kidnapped the grandmother of Jagtar Singh i.e. Gurdev Kaur. On 29.3.2005, Gurdev Kaur, had gone to Mansa at about 11.00 a.m. to contact some Tantrik but she failed to return. Efforts were made to trace her but she was not traceable. After 1-2 days there was news in the newspaper, then they came to know about the recovery of dead body. They had gone to Police Station, Mansa, then to Civil Hospital, Mansa. In the hospital, doctor told them that they had sealed the clothes of the deceased. Sealed parcel was sent to police station Mansa. After that they came to Police Station, Mansa, and came to know that dead body was sent to Faridkot. In the evening also they had gone to police station Mansa. Amarjit Kaur, had identified clothes of Gurdev Kaur i.e. jutti and the bangles which were in the left arm. Complainant suspected that Gurdev Kaur, was eliminated by Sukha Singh, Jassa Singh, sons of Gurnam Singh, Virpal Kaur, Mukhtiar Singh, Bikkar Singh, Balwinder Singh and one saint to whom she used to come on every Tuesday, in conspiracy with each other and after putting her dead body in a gunny bag had thrown it towards college side. Statement of Jangir Singh, Ex. PC, was recorded and after making endorsement Ex. PC/1, the same was sent to the police station on the basis of which formal FIR Ex. PC/2 was recorded. Dead body of Gurdev Kaur, was recovered lying near the college. Dead body was sent to hospital for post-mortem examination. Investigating Officer, had CRR No. 2587 of 2009 (O&M) -4- gone to the spot and had prepared rough site plan with its correct marginal notes. Statements of the witnesses were also recorded. On 14.4.2005, Devinder Singh, had produced the accused along with scooter before SP (D), Lakwinder Singh. Accused confessed his guilt before SP (D). After arrest of accused, he was interrogated and suffered a disclosure statement Ex. PE. In pursuance of the disclosure statement, got recovered a pair of tungals and a pair of murkian. Recovered articles were made into a sealed parcel sealed with the seal bearing impression 'LS'. Parcel was taken into police possession vide memo attested by the witnesses. On 18.4.2005, complainant had identified the recovered articles to be of the deceased. After completion of investigation, challan was presented in Court. Accused was charge-sheeted under Sections 302/201 IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined 9 witnesses, namely, PW-1 Dr. Asha Kiran; PW-1/A C. Bogha Singh; PW-2 HC Darshan Singh; PW-3 Jangir Singh; PW-4 ASI Rajinder Singh; PW-5 Hoshiar Singh; PW-6 Davinder Singh; PW-7 Gurmit Singh; PW-8 Lakhwinder Singh and PW-9 Inspector Gobinder Singh. After close of prosecution evidence, statement of accused under 313 Cr.P.C. was recorded. Accused denied all the allegations of the prosecution and pleaded to be innocent. In defence, DW-1 Hardev Singh, was examined. After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on the file, respondent-accused was acquitted of the charge CRR No. 2587 of 2009 (O&M) -5- levelled again him. I have heard learned counsel for the petitioner, learned State counsel, learned counsel for respondent No. 2 and carefully gone through the file. Learned counsel for the petitioner argued that Gurdev Kaur (deceased) had left the house on 29.3.2005. Dead body was recovered on 2.4.2005 and to connect the accused-respondent No. 2 with the crime, recovery of gold ornaments of the deceased in view of the disclosure statement of respondent No. 2. Second circumstance to connect the accused with the crime is the statement of PW-6 Davinder Singh, before whom the respondent-accused had made extra judicial confession but statements of PW-6 Davinder Singh and PW-7 Gurmit Singh, without any reason were ignored by the trial Court but after going through the evidence on file, I am of the opinion that submission of the learned counsel for the petitioner is not correct one. Undisputedly, Gurdev Kaur (deceased) was the wife of Jangir Singh-complainant and according to the story, Gurdev Kaur, had gone to Mansa on 29.3.2005 but no one had seen Gurdev Kaur (deceased) in the company of respondent-accused. No eye-witness who had seen the respondent-accused while committing the crime. Case is based on circumstantial evidence. When case is based on circumstantial evidence, then motive assumes importance but before the present occurrence, no dispute with the respondent-accused. Without any dispute with the respondent-accused then question is why they had committed the crime. No witness stated a word that earlier to the occurrence Gurdev Kaur (deceased) used to CRR No. 2587 of 2009 (O&M) -6- visit the house of the respondent-accused. No one had seen the deceased with the accused. First circumstance to connect the respondent-accused with the crime is that respondent-accused had made extra judicial confession before PW-6 Davinder Singh but statement of PW-6 was rightly ignored by the trial Court. According to the story, respondent had made extra-judicial confession before PW-6 Davinder Singh, on 17.4.2005. Respondent-accused was arrested in this case on 14.4.2005, so after arrest of accused on 14.4.2005, story regarding extra judicial confession before Davinder Singh, PW-6, on 17.4.2005, is not correct one. If on 17.4.2005, respondent-accused had made extra judicial confession before Davinder Singh, then on 17.4.2005 or 18.4.2005, respondent-accused was expected to be arrested by the police. If on 14.4.2005, respondent-accused was arrested by the police then no question of extra-judicial confession on 17.4.2005. No allegation of the prosecution that extra judicial confession was while in custody. In case, on 17.4.2005, respondent-accused had made extra- judicial confession then how statement of Devinder Singh, under Section 161 Cr.P.C. was recorded on 14.4.2005. Respondent-accused is the resident of Mansa whereas PW-6 is the resident of village Dhingar. He had no say in the Police Department. He was not expected to save the respondent-accused. When PW-6 Davinder Singh, had no say in the Police Department and he was not in a position to save the respondent-accused then respondent-accused had no idea to made extra-judicial confession before him. Extra judicial confession is made to avoid torture at the hands of the police. If respondent- CRR No. 2587 of 2009 (O&M) -7- accused had really made extra judicial confession then arrest of the respondent-accused on 14.4.2005 is not correct one. After arrest, statement of PW-6 under Section 161 Cr.P.C. should have been recorded immediately but in the present case, statement under Section 161 Cr.P.C. of PW-6 Davinder Singh, was recorded on 14.4.2005 whereas extra-judicial confession was made on 17.4.2005. Story regarding extra judicial confession was rightly ignored by the trial Court. Learned counsel for the petitioner further argued that on 29.3.2005, respondent-accused was seen by Gurmit Singh-PW-7, while carrying a gunny bag on a scooter. That means on 29.3.2005, respondent-accused was seen while carrying a gunny bag and if this fact is correct one then why statement of Gurmit Singh, under Section 161 Cr.P.C. was recorded on 14.4.2005. PW-7 Gurmit Singh, further stated that on 2.4.2005, he had read news in the newspaper regarding recovery of a dead body of an old lady. On 29.3.2005, at about 1.00 a.m. respondent-accused was seen on a scooter while carrying a gunny bag and PW-7 Gurmit Singh, came to know about the death on 2.4.2005 then on 2.4.2005 or 3.4.2005, he should have contacted the police that on 29.3.2005, he had seen the respondent-accused while driving a scooter and was carrying a gunny bag but on 29.3.2005, no report to any authority. On 2.4.2005, there was a news in the newspaper then on 2.4.2005 or 3.4.2005, he should have reported the matter to the police that on 29.3.2005, he had seen the respondent- accused while carrying a gunny bag on the scooter but no explanation why the matter was not reported to the police that accused was seen while carrying a gunny bag on a scooter on 29.3.2005. Statement of CRR No. 2587 of 2009 (O&M) -8- PW-7 Gurmit Singh, under Section 161 Cr.P.C. is dated 14.4.2005, whereas respondent-accused was arrested on the same day i.e. on 14.4.2005. That means Gurmit Singh, was also introduced to strengthen the prosecution story. Next submission of the learned counsel for the petitioner was that there was recovery of gold ornaments from the house of the respondent-accused. Recovered articles were found to be of the deceased but in the FIR there is not a word that while leaving the house deceased was carrying gold ornaments which are alleged to have been recovered in pursuance of the disclosure statement suffered by the respondent accused. When gold ornaments were not on the person of the deceased when she had left Mansa then story qua recovery of gold ornaments was concocted. There was no identification mark on the recovered articles of gold. Recovery was on 14.4.2005, whereas respondent-accused had made extra-judicial confession on 17.4.2005. Recovered articles were not produced in Court when Jangir Singh, appeared. If recovery was genuine then recovered articles should have been produced in Court, at the time of statement of Jangir Singh. PW-1 Dr. Asha Kiran, had conducted post-mortem examination on the dead body of Gurdev Kaur but doctor is not in a position to opine as to what was the cause of death. Doctor categorically stated that no information can be given regarding cause of death in this case. Doctor was not clear whether Gurdev Kaur, was murdered or death was natural. When two views are possible then favourable view to the accused is to be accepted. No reason to set aside the judgment of CRR No. 2587 of 2009 (O&M) -9- acquittal simply on the ground that second view as per Ist Appellate Court was possible. When possible view was taken by the trial Court, then no reason to set aside the judgment of acquittal. Judgment of acquittal is to be set aside if the evidence was misread or judgment is perverse. In view of all discussed above, I am of the opinion that there is no infirmity or illegality in the impugned judgment and the same is upheld. For the reasons recorded above, revision petition without merits is dismissed. May 3, 2011 ( JORA SINGH ) rishu JUDGE