Crl.Appeal No.381-DB of 2003 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision: 16.3.2010 (I) Crl.Appeal No.381-DB of 2003 Hakam Singh and another ... Appellants versus State of Punjab ... Respondent (II) Crl.Appeal No.387-DB of 2004 Mana Ram ....Appellant versus State of Punjab ... Respondent CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.S.S.Duhan, Advocate, for the appellants. Ms.Gurveen H.Singh, Addl.AG, Punjab. ... JORA SINGH, J. Crl.Appeal No.381-DB of 2003 was filed by Hakam Singh son of Nanja and Mana Ram son of Nek Ram to impugn the judgment dated 27.2.2003 rendered by Additional Sessions Judge (Adhoc), Fast Track Court, Patiala, arising out of FIR No.237 dated 6.4.2001 under Sections 302/34 IPC, Police Station Samana, whereas Crl.Appeal No. 387-DB of 2004 was again instituted separately by Mana Ram to impugn the above said judgment. By the said judgment, they were convicted under Section Crl.Appeal No.381-DB of 2003 2 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months each. Prosecution story, in brief, is that on 2.4.2001, one dead body was found lying in the old well in the fields of Darshan Singh, resident of Gheora. Jeeva Ram, father of Harmesh Singh at 12.55 PM had met police party headed by ASI Tarsem Lal while present near Bus Stand of Bibipur, and reported to the police that dead body of one person was lying in the old well of Darshan Singh. Then ASI Tarsem Lal along with party and complainant had gone to the spot. Dead body was brought out of the well and was identified by Jeeva Ram as of his son Harmesh Singh @ Meshi. Then Jeeva Ram reported to the police that he is resident of Village Gheora. He has three sons, namely, Kala, Jeeta and Harmesh Singh. Harmesh Singh was a student of 8th class. He was missing for the last 5-6 days. He had made sufficient search about Harmesh Singh in his relations but failed to trace him. On 1.4.2001, Rachhpal Singh, Ex.Sarpanch, and Hazura Singh of his village requested him to report the matter to the police that Harmesh Singh was missing. Rachhpal Singh also requested him that they should search one or two days more but today, i.e., 2.4.2001, number of persons were found gathered in the fields of Darshan Singh near his old tubewell. Then he along with his brother Bawa had gone to the fields of Darshan Singh and came to know that one dead body was lying in the old well and dead body was of his son Harmesh Singh. He has doubt about the death of his son but cannot suspect any person. Whenever he will come to know about anything, then he will report to the police. At this stage, he is not interested to take action against any one. After recording the statement of Crl.Appeal No.381-DB of 2003 3 Jeeva Singh and making endorsement at 12.55 PM, statement was sent to the police station, on the basis of which entry was made in the roznamcha. Empty urea bag stained with blood was also lying in the well and the same was made into a sealed parcel. Parcel was taken into police possession vide memo (Ex.PQ), attested by the witnesses. Blood stained earth was lifted from the spot and was made into a sealed parcel with seal bearing impression `TL'. Parcel was taken into police possession vide memo (Ex.PR) attested by the witnesses. Pair of shoes, pants and shirt of the deceased were also made into a sealed parcel and taken into police possession vide memo (Ex.PS) attested by the witnesses. Inquest report was prepared. Dead body was sent to the hospital for postmortem examination. After postmortem examination, dead body was handed over to the relatives of the deceased for cremation. On 6.4.2001, ASI Tarsem Lal along with party was present near water tank of Village Gheora, where Jeeva Ram had met the party and got recorded his statement (Ex.PB) to the effect that dead body of his son Harmesh Singh was recovered from the old well of Darshan Singh. On 3.4.2001, his son-in-law Bhupinder Singh came to Village Gheora to attend cremation and told him that about 15/20 days earlier when he came to Village Gheora, then Hakam Singh told him that his brother-in-law (Harmesh Singh) had bad intention and used to tease his sister, and asked to make him (Harmesh Singh) understand, otherwise, they will eliminate him. He (Bhupinder Singh) replied that he will make his brother-in-law ( Harmesh Singh) understand. On 5.4.2001, Bhupinder Singh again came to Village Gheora and had gone outside after taking meal. After some time, Hakam Singh son of Nanja while under the influence of liquor was raising Crl.Appeal No.381-DB of 2003 4 raula as to what action has been taken against him and how Bhupinder Singh will trace his brother-in-law because he had been murdered by him and Mana. Bhupinder Singh was directed to make Harmesh Singh understand, but he (Bhupinder Singh) failed to make him ( Harmesh Singh) understand. Sunehra Ram son of Manohar Lal was also present when Hakam Singh was raising raula about the above said fact. As per admission of Hakam Singh and Mana Ram before Bhupinder Singh and Sunehra Ram, he is sure that his son Harmesh Singh was murdered by Hakam Singh and Mana Ram and dead body was thrown in the well. Statement was read over and explained to Jeeva Ram. After making endorsement at 8.30 PM, statement was sent to the police station, on the basis of which, formal FIR was recorded. On 12.4.2001, Chhota Ram had produced the accused before the police. Hakam Singh was interrogated and suffered disclosure statement (Ex.PM). In pursuance of disclosure statement, he got recovered shawl from the specified place. Shawl was made into a sealed parcel and taken into police possession vide memo (Ex.PN) attested by ASI Tarsem Lal and Mukhtiar Singh (not examined by the prosecution). After completion of investigation, challan was presented in Court. Accused were charged under Sections 302/34 IPC, to which they pleaded not guilty and claimed trial. To prove its case, prosecution examined PW1 MHC Jagga Ram, who tendered his affidavit (Ex.PA). PW2 Bhupinder Singh is the brother-in-law of deceased and stated that 15/20 days earlier to the occurrence, he along with his wife had gone to Village Gheora. Then Hakam Singh had met him and lodged a Crl.Appeal No.381-DB of 2003 5 protest that Harmesh Singh used to tease his sister. He was requested to make him ( Harmesh Singh) understand, otherwise he is to be eliminated. He had assured Hakam Singh that he will make him (Harmesh Singh) understand. Harmesh Singh was missing from his house w.e.f. 28.3.2001. He had made an effort to search him but failed to succeed. On 2.4.2001, he came to know about the death of Harmesh Singh. On 3.4.2001, he along with his wife came to Village Gheora to attend last rites of Harmesh Singh. Then he came to know that Harmesh Singh was murdered and his dead body was thrown in the well. He had informed his father-in-law, namely, Jeeva Ram that Hakam Singh had lodged a protest about the conduct of Harmesh Singh few days earlier. After 2/3 days, again he had gone to village Gheora to console his in-laws. Hakam Singh had met him when he was under the influence of liquor. Sunehra Ram was also with him. Then Hakam Singh told him that he along with Mana Ram had murdered Harmesh Singh and dead body was thrown in the well. No body can take action against them. PW3 Karnail Singh stated that about 1-1/2 years back at about 8/9 PM, he was near the Haveli of Karamjit Singh, then had seen the accused with Harmesh Singh. Hakam Singh and Mana Ram were saying to Harmesh Singh that he should leave teasing their sister, otherwise he ( Harmesh Singh) is to be murdered and his dead body is not to be found anywhere. Both the accused were under the influence of liquor. PW4 Jeeva Ram is the father of deceased. He has reiterated his stand taken before the police on 2.4.2001 and 6.4.2001, while lodging reports (Ex.PC and Ex.PB). PW5 Sunehra Ram has also supported the version of Crl.Appeal No.381-DB of 2003 6 Bhupinder Singh by saying that at about 8/9 PM, he along with Bhupinder Singh was present in the street. Then Hakam Singh and Mana Ram under the influence of liquor were saying that Harmesh Singh was murdered and now they have made him to understand forever. PW6 Bhima Ram stated that on 28.3.2001 at about 9.00 PM, he had gone to irrigate the land and when he was returning to his village and was present near the fields of Darshan Singh, then Hakam Singh and Mana Ram were sighted while grappling with Harmesh Singh. They were requested not to grapple. Then Hakam Singh replied that if he wanted to die, then he should come forward. Out of fear, he ran away. Then from a distance of 15 karams, he had sighted the accused while throwing Harmesh Singh in the well. On the 3rd day, accused met him near the water tank and threatened not to disclose about the occurrence to any body, otherwise he would be eliminated. Police came to his village and stated not to worry and tell the truth. Entire matter was brought to the notice of police. PW7 Chhota Ram as per story had produced the accused before the police but he did not support the prosecution story and was declared hostile. PW8 Constable Nirmal Singh and PW9 Constable Daljit Singh tendered their affidavits (Ex.PE and Ex.PF), respectively. PW10 AMHC Hari Chand stated that while he was serving as AMHC, DDR No.12 was entered in the Daily Diary Register. On 7.4.2001 at about 7.00 AM, special report was handed over to Ilaqa Magistrate at his residence. PW11 Dr. Harish Tuli was the member of the Board. On 3.4.2001, the Board had conducted postmortem examination on the dead Crl.Appeal No.381-DB of 2003 7 body of Harmesh Singh and noticed the following injuries on his person:- “1. About 7 to 8 abraded contusion on front and sides of neck varying from 2-6 cm in sizes. Petechial haemorrhages were present underneath be contused abrasions. 2. 5 cm x 2 cm contusion on front and middle of forehead. 3. 10 cm x 7 cm contusion on front and upper part of the chest. 4. Multiple small abrasions and bruises all over the body, more so in the back. The routine viscera were sent to the chemical examiner.” Cause of death was due to injuries and poisoning due to chloro compound group of insecticide. Alcohol and chloro compound group of insecticide was found. Blood alcohol concentration was estimated to be 86.25 mg/100 ml of blood. PW12 Inspector Balwinder Singh had partly investigated the case after the investigation by ASI Tarsem Lal. PW13 ASI Tersam Lal had initially investigated the case. PW14 Kapil Dev, Patwari, had prepared scaled site plan (Ex.PW). After close of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. They denied all the prosecution allegations and pleaded to be innocent. Defence version of the accused is that case is false. They have not committed the murder of Harmesh Singh. In defence, DW1 Dalip Singh appeared and stated that both the Crl.Appeal No.381-DB of 2003 8 parties are known to him. Complainant party and accused party are from the same family. Earlier to the occurrence, complainant party had no dispute with the accused party. Deceased was characterless. After hearing learned Public Prosecutor for the State and defence counsel for the accused-appellants and from the perusal of evidence on the file, both the appellants were convicted and sentenced as stated aforesaid. We have heard learned counsel for the appellants and the State and gone through the evidence on the file. Learned counsel for the appellants argued that this is a blind murder. There is no eye witness. Case is based on circumstantial evidence and the only circumstantial evidence to connect the appellants with the crime is the evidence of last seen and admission of the appellants under the influence of liquor before Bhupinder Singh and Sunehra Ram. Medical evidence is contrary to the ocular evidence. Recovery of shawl is doubtful. Learned State counsel argued that before the present occurrence, there was no dispute amongst the parties as per DW. So, there was no idea to name the appellants. There is evidence of last seen and admission of the appellants before Bhupinder Singh and Sunehra Ram that after murder, dead body was thrown in the well. Shawl of the deceased was recovered in pursuance of disclosure statement suffered by Hakam Singh. Evidence on the file was rightly scrutinized by the trial Court. No possibility of second opinion. Admittedly, Harmesh Singh son of Jeeva Ram (PW4) was a student of 8th class and was 15/16 years' old. As per statement dated 2.4.2001 (Ex.PC) of Jeeva Ram recorded by ASI Tarsem Lal at 12.55 PM, Crl.Appeal No.381-DB of 2003 9 Harmesh Singh (deceased) was missing from his house for the last 5/6 days. On 2.4.2001, Jeeva Ram had noticed the gathering near the tubewell of Darshan Singh and Balbir Singh. After that, Jeeva Singh along with his brother Bawa had gone to the fields of Darshan Singh and Balbir Singh. Dead body was noticed lying in the old well. Thereafter, Jeeva Ram had gone to lodge a report and near Bus Stand of Bibipur, police party headed by ASI Tarsem Lal had met him. ASI Tarsem Lal along with party and complainant came to the fields of Darshan Singh and Balbir Singh. Dead body was brought out of the well and the same was identified by Jeeva Ram as of his son Harmesh Singh. Then statement of Jeeva Ram dated 2.4.2001 (Ex.PC) was recorded. At that time, Jeeva Ram reported to the police that no action is required against any body because he is not suspecting anybody. After preparing inquest report, dead body was sent to the hospital for postmortem examination. Postmortem examination was conducted by the Board of Doctors and dead body was cremated on 3.4.2001 by the relatives of the deceased. Evidence to connect the appellants with the crime is the evidence of last seen but after going through the evidence on the file, we are of the opinion that evidence of last seen is not cogent and convincing, and the same is doubtful. PW3 Karnail Singh stated that about 1-1/2 years back at about 8/9 PM, he was going towards his fields situated in Village Gheora. He was near the Haveli of Karamjit Singh, then appellants were seen with the deceased. After crossing the Haveli, he heard the appellants by saying to Harmesh Singh that he should leave teasing their sister, otherwise he is to be eliminated. At that time, both the appellants were under the influence of liquor. But statement of Karnail Singh inspires no confidence because on Crl.Appeal No.381-DB of 2003 10 1.4.2001 at about 8/9 PM, he had seen the deceased last time in the company of the appellants. Dead body was recovered on 2.4.2001 and if Karnail Singh had seen the deceased last time in the company of the appellants on the earlier day in the evening, then he should have reported the matter to the police or the complainant. Explanation put forward not to report the matter to the police is that he (Karnail Singh) had gone to UP because his relative was ill. When came back after 6/7 days, then he came to know about the murder of Harmesh Singh. Karnail Singh is the resident of Village Rohar and if he was owning land in Village Gheora and had last seen the deceased in the company of the appellants, then it is very easy to state that after seeing the deceased in the company of the appellants, he had gone to some other State. Nothing is on the file as to which relative of the witness residing in UP was not keeping good health. According to the witness, only the appellants were noticed while they were under the influence of liquor, whereas medical evidence shows that deceased was also under the influence of liquor. Karnail Singh has not stated a word that deceased was not under the influence of liquor. It is very strange that only the appellants were found under the influence of liquor and not the deceased, who was also under the influence of liquor as per postmortem report. PW6 Bhima Ram is the second witness of last seen but his statement also does not inspire any confidence. First of all, Bhima Ram is related to the complainant party. Jeeva Ram, complainant, is the uncle of Bhima Ram. In examination-in-chief, he stated that on 28.3.2001 at about 9.00 PM, when he was returning to his village and was near the fields of Darshan Singh and Balbir Singh, then had seen both the appellants while Crl.Appeal No.381-DB of 2003 11 grappling with Harmesh Singh. He requested the appellants to stop. Then Hakam Singh told him that if he wanted to die, then he should come forward. Then out of fear, he had gone away, and from a distance of 15 karams, he had seen the appellants caught hold the deceased from his arms and legs and threw him in the well. On the 3rd day, again appellants had met him and threatened not to disclose about the incident to anybody, otherwise he would be killed. That means, Bhima Ram is the eye witness and in his presence, Harmesh Singh was thrown in the well. Dead body was recovered on 2.4.2001. Police was present when dead body was brought out of the well. That means, at the time of recovery of dead body on 2.4.2001, Bhima Ram had disclosed about the incident to the police, but statements of Bhima Ram and Karnail Singh under Section 161 Cr.P.C. were recorded by the police on 8.4.2001. When close relation of Bhima Ram was thrown in the well and the police had assured the complainant party not to worry, then Bhima Ram should have reported the matter to the police, but there is no statement of Bhima Ram dated 2.4.2001. Bhima Ram categorically stated that he had disclosed about the incident to the police and his statement was recorded, but this fact is not correct one because statement of Bhima Ram is dated 8.4.2001. In cross-examination, Bhima Ram stated that he cannot tell from how many days, Harmesh Singh was missing and nobody had disclosed him that dead body of Harmesh Singh was lying in the well. In the last lines of cross-examination, he stated that on his own accord, he has gone to the police and entire village was present there. After recovery of dead body, it is very easy to introduce two witnesses to state that they had seen the deceased in the company of the appellants. When occurrence was witnessed by close relation, i.e., Bhima Ram, then immediately he should Crl.Appeal No.381-DB of 2003 12 have informed the complainant or the police. If on 28.3.2001 Bhima Ram out of fear failed to disclose about the incident to the complainant or the police, then at the time of recovery of dead body, he should have reported the matter to the police. So, statements of Bhima Ram and Karnail Singh recorded on 8.4.2001 qua last seen inspire no confidence. Bhupinder Singh, son-in-law of Jeeva Ram, along with his wife had gone to attend cremation on 3.4.2001. Then reported to Jeeva Ram that 15/20 days earlier, when he came to Village Gheora, then Hakam Singh lodged a protest that Harmesh Singh used to tease his sister. He asked Bhupinder Singh to make Harmesh Singh understand, otherwise he was to be eliminated. Then he (Bhupinder Singh) replied that he will make his brother-in-law ( Harmesh Singh) understand. That means, at the time of recovery of dead body and cremation, Bhupinder Singh had the knowledge that 15/20 days earlier to the occurrence, Hakam Singh had threatened to eliminate Harmesh Singh because he ( Harmesh Singh) used to tease his sister. After recovery of dead body or at the time of cremation, Bhupinder Singh did not disclose this fact to his father-in-law Jeeva Ram. Police was present at the time of recovery of dead body but no intimation to the police. Number of injuries were noticed on the person of deceased. Death was unnatural and if 15-20 days earlier to the occurrence, Hakam Singh had threatened to eliminate Harmesh Singh, then after recovery of dead body or at the time of cremation, Bhupinder Singh should have brought this fact to the notice of Jeeva Ram and the police. Bhupinder Singh when appeared as PW2 stated in examination-in-chief that 15-20 days earlier to the occurrence when he came to Village Gheora, then Hakam Singh threatened him to eliminate Harmesh Singh because he used to tease his sister. Then he Crl.Appeal No.381-DB of 2003 13 replied that he will make his brother-in-law to understand. Harmesh Singh was missing w.e.f. 28.3.2001 but no report to the police. Bhupinder Singh made an effort to trace Harmesh Singh but did not succeed. On 3.4.2001, Bhupinder Singh was present at the time of cremation of Harmesh Singh, then he came to know that Harmesh Singh was murdered and dead body was thrown in the well. Bhupinder Singh in examination-in-chief further stated that he had brought this fact to the notice of his father-in-law. After 2/3 days, again he had gone to Village Gheora. Then under the influence of liquor both the appellants had met him. Hakam Singh under the influence of liquor raised a raula that Harmesh Singh was murdered by them and dead body was thrown in the well, but nobody can take action against them. When Bhupinder Singh had the knowledge that 15-20 days earlier, Hakam Singh had threatened to eliminate Harmesh Singh and Harmesh Singh was missing w.e.f. 28.3.2001, then after 28.3.2001 or at the time of recovery of dead body or cremation, Bhupinder Singh should have reported the matter to the police or the complainant. Failure to disclose this fact to the police or the complainant shows that conduct of Bhupinder Singh is unnatural. Sunehra Ram when appeared as PW5 then in examination-in- chief stated that at about 8/9 PM about two years back, he along with Bhupinder Singh was present in the street. Then Mana Ram and Hakam Singh were sighted while they were under the influence of liquor. Both the appellants told Bhupinder Singh that he (Bhupinder Singh) failed to make his brother-in-law understand and now they have made him (Harmesh Singh) to understand forever by eliminating him. Sunehra Ram is also related to the deceased. He is the maternal uncle of the deceased. When both the appellants had admitted that after murder, dead body was thrown in Crl.Appeal No.381-DB of 2003 14 the well by them, then there was no reason to remain silent. Bhupinder Singh or Sunehra Ram should have reported the matter to the police. No reasonable explanation is forthcoming as to why matter was not reported to the police when both the witnesses had the knowledge that the crime was committed by the appellants. On 6.4.2001, Jeeva Ram reported the matter to the police as per the information supplied by Bhupinder Singh and Sunehra Ram. So, story qua confessional statements under the influence of liquor by both the appellants before Bhupinder Singh and Sunehra Ram inspire no confidence. On 12.4.2001, Chhota Ram had produced the appellants before the police but he failed to support the prosecution story. So, arrest of the appellants on 12.4.2001 is doubtful. After arrest, Hakam Singh had suffered disclosure statement (Ex.PM) and in pursuance of disclosure statement, got recovered shawl, but no evidence qua identification of shawl. Shawl