CRIMINAL APPEAL NO. 602-DB OF 2000 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: April 22, 2009 Parties Name Jagga Singh and another ...APPELLANTS. VERSUS State of Haryana ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH PRESENT: Mr. Inderjit Singh Brar, Advocate, for the appellants. Mr. S.S.Randhawa, Addl. A.G., Haryana JASBIR SINGH, J. JUDGMENT This appeal has been filed by Jagga Singh son of Dharam Pal and Mohan Lal son of Gian Chand against judgment dated October 10, 1997, vide which they were convicted for commission of an offence under Section 302 read with Section 34 IPC and order dated October 13, 1997, vide which following order of sentence was passed against them: “Jagga Singh son of Dharam Pal and Mohan Lal son of Gian Chand is sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- (Rupees five hundred only) or in default of payment of fine to further undergo rigorous imprisonment for one month for causing the murder of Raj Kumar. Each of the CRIMINAL APPEAL NO. 602-DB OF 2000 -2- two accused- convicts is again sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- (Rupees five hundred only) or in default of payment of fine to further undergo rigorous imprisonment for one month for causing the murder of Girdhari Lal. However, substantive sentences imposed upon the accused – convicts shall run concurrently.” It was allegation against the appellants that in the intervening night of 5th/6th March, 1994, in the area of Khuiyan Malkana, they intentionally caused death of Raj Kumar and Girdhari Lal in furtherance of their common intention. The trial Court has noticed following facts in paragraph No. 3 of the judgment with regard to case of the prosecution: “xxx That on 6.3.1994 Tarsem Kumar (PW4) son of Sohan Lal resident of Khuiyan Malkana, a Registered Medical Practitioner at Odhan, lodged FIR (Ex. PG) with Amar Singh SI, SHO, Police Station Sadar Dabwali (PW8) stating that they were four brothers and one sister who was married. His brother Raj Kumar (16) ( since deceased ) used to run a tailoring shop in their house and Girdhari Lal son of Har Lal (24) (since deceased) also used to do the job of tailoring. Yesterday at about 10.00 P.M., Jagga Singh and Mohan Lal, residents of Khuiyan Malkana (both accused) had come to the shop of his brother and took Raj Kumar and Girdhari with them on the pretext of witnessing film on VCR in Canal Colony and, at that time he (Tarsem Kumar) was also present at the shop. That day CRIMINAL APPEAL NO. 602-DB OF 2000 -3- (6.3.1994) at about 6.30 AM, while he was going to Odhan and was at a distance of 1 km. From his village, he noticed a lot of blood on the road and when out of suspicion and anxiety he looked hither and thither, he noticed dead-body of Girdhari Lal lying in the water-course running parallel to the road and at some distance he saw dead-body of his brother Raj Kumar lying in the same water-course. There were marks of sharp edged injuries on the head and body of Girdhari Lal and on the face, neck and abdomen of his brother Raj Kumar. Accused Jagga Singh and Mohan Lal had thrown the dead-bodies of Raj Kumar and Girdhari Lal after murdering them by causing injuries with sharp edged weapons, because many days back, Mohan Lal (accused) had complained him (Tarsem Kumar) about illicit relations between his sister Pammi and Raj Kumar (since deceased) and at that time he (Tarsem Kumar) had pacified Mohan Lal accused. But Mohan Lal and Jagga out of said grudge committed murder of Raj Kumar and Girdhari by causing injuries with sharp edged weapons.” It was further case of the prosecution that Tarsem Kumar (PW4), after discovery of dead bodies of Raj Kumar and Girdhari Lal, went to inform his father, who was away to the fields. He then went to the house of Girdhari Lal and took Jagga Ram, brother of the deceased, with him. After leaving his father and Jagga Ram at the spot, he went to the Police Station. On a statement made by him, an FIR Ex. PG was recorded in Police Station Sadar Dabwali on March 6, 1994, at 10 AM. After recording CRIMINAL APPEAL NO. 602-DB OF 2000 -4- the FIR, the Investigating Officer went to the spot and got the dead bodies photographed by Harbans Singh (PW2). After preparing inquest report of the dead bodies, those were sent for post-mortem examination, which was conducted by Dr. Jaswant Punia on March 7, 1994, at 9 AM. The Investigating Officer also lifted blood stained earth from the place of occurrence, put the same into two separate parcels and took into his possession against recovery memo. He also prepared the rough site plan Ex. PN with correct marginal notes. Thereafter, he recorded statements of the witnesses under Section 161 Cr.P.C. The accused were arrested on March 8, 1994. On interrogation, they made separate disclosure statements in the presence of Ved Parkash and Hardam Singh Pws, which led to the recovery of weapons of offence. The prosecution also cited PW5 Prem Chand son of Ram Chand and PW6 Sahi Ram son of Birbal Ram as eye witnesses to the alleged occurrence. As per post-mortem report, following injuries were found on the person of Raj Kumar: “1. Sharp cut wound over the chin, obliquely involving the right mandible area to the cheek about 10” long, obliquely with fracture of mandible. The wound was soaked with blood. 2. Sharp wound over the left side of angle of mandible about 5” long obliquely and soaked with blood. 3. Multiple sharp wounds over the front of neck, transversely placed, soaked with blood. 4. Sharp wounds two in number over the left should region, anteriorly and soaked with blood. 5. Sharp wound over the right dorsum of hand involving fingers, soaked with blood. CRIMINAL APPEAL NO. 602-DB OF 2000 -5- 6. Stab wound over the right side of abdomen over the right iliac fossa (The wound was about 2” long) which was the inlet of wound with blackening of the surrounding area. The outlet of the wound was present over the left side of lower back region and its size was about 1 ½ “ long and it was soaked with blood. 7. Abrasion over the right ankle joint.” Similarly, following eight injuries were found on the person of Girdhari Lal deceased: “1. Sharp wound over the right lateral side of skull involving occipital to the forehead with skin, bone (skull) was fractured and separated out. Brain matter was coming out of the skull. The wound was about 20” long. It was transversely located with ruptured, right ear from the upper part. 2. One sharp wound over the left fore-head about 5 inches long. 3. One sharp wound over the temporo occipital region of skull. 4. Multiple stab wound over the right illiac fossa of abdomen and parts of intestines were coming out of the stab wound. There was inlet of wound and outlet of wound was present over the left buttock. The size of the wound was 2” long and outlet was 1 ½ “ with blackening of the surrounding area. 5. Multiple sharp wound present over the left fore-arm , dorsum of the hand. 6. Sharp wound about 5” long over the right lateral side of the knee joint. CRIMINAL APPEAL NO. 602-DB OF 2000 -6- 7. Multiple sharp stab wound present over the left buttock region. 8. Abrasion over the left knee joint.” All the injuries were found ante-mortem in nature and were sufficient to cause death in ordinary course. On conclusion of investigation, final report was put in Court for trial. The charge-sheet was served upon the appellants, to which they pleaded not guilty and claimed trial. The prosecution produced eight witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, separate statements of the appellants – accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. It was specifically stated by them that they have been involved in this case at the instance of Bhagwan Dass Mehta etc., who were inimical to them. They led no evidence in defence. The trial Court, on appraisal of evidence, found both the appellants guilty and accordingly convicted and sentenced them as found mentioned in earlier part of this order. Counsel for the appellants has vehemently contended that it was a case of blind murder. Eye witnesses were introduced lateron to falsely implicate the appellants in this case. He argued that all the witnesses in this case were interested being related to both the deceased, as such trial Court was not justified in placing reliance upon their testimony. Counsel tried to show us that delay in lodging the FIR has not been explained by the prosecution. The intervening period was used to concoct a false story CRIMINAL APPEAL NO. 602-DB OF 2000 -7- against the appellants. He further argued that owner of the Dhaba, where the deceased were allegedly last seen in the company of the appellants was not joined in the investigation. Owner of the Dhani where PW5 and PW6 had gone for the night after the occurrence, was also not cited as a witness. The place where video film was being exhibited was not identified and further that Chowkidar, who allegedly stopped PW5 and PW6 from entering the colony was also not joined in the investigation. Counsel further argued that though closely related, PW5 and PW6 did not disclose factum of murder of the deceased to other family member for more than 13 hours. Their conduct was most unnatural. He also argued that complainant Tarsem Kumar was also an introduced witness. As per version of this witness, one of the appellants has made a serious complaint regarding conduct of the deceased Raj Kumar to him a few days prior to the date of occurrence. In that event, it was not expected from this witness to allow his younger brother to accompany the appellants – accused during night. For whole of the night no attempt was made to search for the deceased. By indicating discrepancies in the statements of the prosecution witnesses, he argued that their statements were not reliable. He prayed that the appeal be allowed and the appellants be acquitted of the charges framed against them. Counsel for the State has vehemently opposed the arguments raised by counsel for the appellants. By making reference to the statements of PW4, PW5 and PW6 re: recovery of weapons of offence at the instance of the appellants, he argued that the prosecution was successful in proving guilt of the appellants. He justified judgment and order, passed by the trial Court. He further argued that in the given circumstances, lodging of FIR was very prompt. Regarding conduct of PW5 and PW6, State counsel CRIMINAL APPEAL NO. 602-DB OF 2000 -8- argued that it depends upon mental state of the witnesses, a witness may act differently under different circumstances. Merely because both of them have not disclosed the factum of murder to anybody else for 13 hours, it cannot be taken as a circumstance against them. He prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, this Court is of the opinion that the present appeal deserves to be allowed. After going through the statements made by PW4 Tarsem Kumar (brother of deceased Raj Kumar), PW5 Prem Chand and PW6 Sahi Ram, who were closely related to the deceased, this Court is of the opinion that their testimony does not inspire confidence. As per case of the prosecution, on March 5, 1994, at 10 PM, Tarsem Kumar (PW4) had seen the appellants in the company of both the deceased. In his presence, appellants – accused told deceased Raj Kumar and Girdhari Lal that a TV -cum- VCR show was on in the Canal Colony and they should accompany them to that place. Tarsem Kumar is elder brother of deceased Raj Kumar. He has specifically stated that a few days earlier, Mohan Lal had made a complaint to him regarding illicit relations of his brother Raj Kumar with Pammi ( sister of Mohan Lal). This witness has stated that he had pacified the above named person. As per FIR, the murder has been committed in view of above said grouse. If that was the situation, it was not expected from Tarsem Kumar, elder brother of Raj Kumar, to allow Raj Kumar and Girdhari Lal to accompany the appellants- accused during night. Furthermore, there is no evidence on record that when Raj Kumar deceased failed to return to his house during night, any attempt was made either by Tarsem Kumar or any other member of the family to locate CRIMINAL APPEAL NO. 602-DB OF 2000 -9- him. Tarsem Kumar never went to the house of the appellants to know about whereabouts of the deceased. In the next morning, this witness started to his place of work at 6.30 AM without showing any concern for his younger brother Raj Kumar for his absence from the house. Discovery of the dead body by this witness is by chance. Even after detection of the dead bodies, conduct of this witness is unreliable. Dead bodies were recovered at 6.30 AM. He went from one place to another and thereafter went to the Police Station and got recorded his statement only at 10 AM. Police Station is situated at a distance of 15 KMs only. PW5 has given eye witness account of the occurrence. He is the first cousin of deceased Raj Kumar and his house is situated at a distance of 2 ½ Killas from house of the deceased. As per case of the prosecution, occurrence had taken place at a distance of 1 KM away from the village/ Mohalla and that place is situated at a distance of 2 KMs away from Dhani Fateh Singh. PW5 has stated that on the fateful day, he along with Sahi Ram PW6 had gone to see a movie on a TV -cum- VCR, which was being exhibited in the Canal Colony. Chowkidar of the Colony did not allow them to enter there. Both of them returned to the Bus Stand on GT Road and then went to a Dhaba on road leading to Sirsa from Dabwali. They reached at Dhaba at about 11.30 PM and saw appellants and both the deceased sitting there and eating something. The eye witnesses started taking tea. In their sight, the appellants and both the deceased left that place. The witnesses left thereafter and followed them. Then they saw both the appellants causing injuries to both the deceased. After killing them, their bodies were dragged to the nearby fields and then put in the running canal water course. Out of fear both did not raise any noise and thereafter CRIMINAL APPEAL NO. 602-DB OF 2000 -10- went to Dhani Fateh Singh and slept there for whole of the night and came to the place of occurrence at about 11 AM the next day. PW6 has also deposed on the same lines. Both the witnesses were closely related to both the deceased. House of PW6 is situated 5 to 6 Karams away from the house of Girdhari Lal deceased. In their statement Ex. DA and Ex. DB made by PW5 and PW6 respectively recorded under Section 161 Cr.P.C., they have specifically stated that after the occurrence they had gone to their house and slept there. In Court they made improvement in their statements and stated that after the occurrence they had gone to Dhani Fateh Singh at a distance of 2 KMs and remained there for whole of the night and came back to the place of occurrence at 11 AM on March 6, 1994. Their statements were recorded thereafter. However, as per statement of the Investigating Officer, their statements were recorded at about 4 PM on March 6, 1994. Conduct of both these witnesses does not inspire confidence. As per their own version, the appellants had not seen them. Both did not raise any noise when appellants were causing injuries to both the deceased. Their presence was not noticed by the appellants. When both the appellants left the scene, it was expected from these witnesses to rush to their place of residence and intimate family members of both the deceased regarding the occurrence. Both were closely related to Raj Kumar and Girdhari Lal being their first cousins. However, both acted in a very strange manner firstly by stating that they went to their houses and slept there. Houses of the deceased and the witnesses are situated near each other. To overcome that deficiency, it appears that in Court they improved their version and stated that they had gone to Dhani Fateh Singh at a distance of 2 KMs away and stayed there for whole of the night. Both have deposed that they came to the place of occurrence at about CRIMINAL APPEAL NO. 602-DB OF 2000 -11- 11 AM. However, the Investigating Officer has stated that he noticed their presence in the afternoon and recorded their statements at about 4 PM, whereas to the contrary, both the witnesses have stated that their statements were recorded at 11 AM on March 6, 1994. As per statement of the Investigating Officer, inquest reports of the dead bodies were prepared before recording statements of PW5 and PW6. In the inquest report, in the summary of occurrence, prepared by the Investigating Officer, there is no mention that the occurrence was seen by PW5 and PW6. In other papers, prepared by the Investigating Officer, no such mention has been made. This fact clearly negatives deposition made by PW5 and PW6 that eye witness account was available with the Investigating Officer at 11 AM, when their statements were recorded. Not only as above, there is nothing in record to show that any film was being exhibited on TV in the canal colony. The place where it was being exhibited has not been identified. Chowkidar, who allegedly stopped PW5 and PW6 from entering the canal colony was not joined in the investigation. Dhaba owner, where PW5 and PW6 saw the deceased and the accused together taking some food, was also not associated in the investigation. It has not come on record as to where that Dhaba was situated. The prosecution has not brought any evidence on record to prove existence of Dhani Fateh Singh, in which, allegedly, both the witnesses stayed for whole of the night. There is nothing on record that PW5 and PW6 were working with owner of that Dhani. Admittedly recoveries of weapons of offence were made from place which was open and accessible to others also. The recovery was effected before Hardam Singh (PW7), real uncle of deceased Girdhari. No CRIMINAL APPEAL NO. 602-DB OF 2000 -12- independent person was produced in Court to support recoveries of weapons. The facts, mentioned above, cast a doubt regarding veracity of the case of the prosecution, benefit of which will go to the appellants – accused, who have already undergone about 6 years and 8 months of actual imprisonment. As per information supplied, appellants at present are on bail. In view of facts, mentioned above, this appeal is allowed, impugned judgment of conviction and order of sentence passed against the appellants are set aside and they are acquitted of the charges framed against them. (JASBIR SINGH) JUDGE (JORA SINGH) JUDGE April 22, 2009. DKC