Crl.A.No.78-DB of 2006 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. Crl.A.No.78-DB of 2006 Date of decision: March 25, 2008 Harjit Singh and another ....Appellants. vs. The State of Punjab. ..Respondent CORAM: HON'BLE MR.JUSTI CE J.S.KHEHAR. HON'BLE MR.JUSTICE SHAM SUNDER. --- Present: Mr.D.S.Pheruman, Advocate, for the appellants. Mr.S.S.Bhinder, Addl.Advocate General,Punjab, for the respondent. -- J.S.KHEHAR,J. The instant appeal has been filed by the accused/appellants Harjit Singh and Hem Raj against the order passed by the Additional Session Judge (Adhoc) Amritsar in Sessions Case No. 50 of 2004 decided on 5.5.2005. By the impugned judgment, the accused/appellants have been found guilty for having committed the murder of Bhagwan Singh under section 302 read with section 34 of the Indian Penal Code. They have also been held guilty for having committed the offence under section 201 of the Indian Penal Code by disposing of the body of Bhagwan Singh so as to screen themselves from legal punishment. It would be pertinent to mention that besides the accused/appellants Harjit Singh and Hem Raj, there were two other accused namely Sukhjinder Singh alias Sukhvinder Singh and Paramajit Kaur alias Parveen. The trial Court found no evidence to prove Crl.A.No.78-DB of 2006 2 the allegations against the accused Paramajit Kaur alias Parveen, and she was accordingly acquitted. Sukhjinder Singh alias Sukhvinder Singh accused however, died during the trial. By a separate order passed on the same date i.e. 5.5.2005, the accused/appellants Harjit Singh and Hem Raj were sentenced to imprisonment for life each and were required to pay a fine of Rs.5000/- each under section 302 read with section 34 of the Indian Penal Code. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for a period of six months each. For having committed the offence under section 201 of the Indian Penal Code, they were sentenced to rigorous imprisonment for five years each and were required to pay a fine of Rs.2000/-each . In default of payment of fine, they were ordered to undergo further rigorous imprisonment for a period of two months each. The trial Court also directed that the substantive sentences imposed on the convicts would run concurrently. The prosecution version of the incident is based on the complaint made by Krishan Kumar PW1 to SI Sandeep Kumar PW5 on 26.7.2001. In his complaint, it was alleged by Krishan Kumar PW1 that he owns a Tata Sumo vehicle bearing registration No.PB02X-5565, for which he had employed one Bhagwan Singh as driver. On 8.7.2001 at about 12.30 in the afternoon, two youngmen with cut-hair, one wearing a shirt and a trouser, and the other wearing a shirt and a payjama, aged 25/26 years, came to his shop along with Avinash Grover PW2. It was sought to be explained by the complainant that Avinash Grover PW2 had a shop of his own close to the shop of the complainant Krishan Kumar PW1. According to the complainant, the two youngmen told him that their sister was in a serious condition, and that they wanted to take her to a hospital at Amritsar, for Crl.A.No.78-DB of 2006 3 treatment. They, accordingly, requested the complainant Krishan Kumar PW1 to give them his Tata Sumo vehicle, as they could not hire a taxi, on account of heavy rush, due to the prevailing marriage season. Accepting their request the complainant Krishan Kumar PW1 gave them his Tata Sumo vehicle, as well as, his driver Bhagwan Singh, so as to take them to Amritsar. It was alleged by the complainant that ever since the Tata Sumo vehicle was loaned by the complainant Krishan Kumar PW1 to the two youngmen on 8.7.2001, neither the Tata Sumo vehicle had been returned to him, nor the driver thereof (Bhagwan Singh) had came back. The complainant Krishan Kumar PW1 expressed an apprehension that his driver Bhagwan Singh had been abducted by the two youngmen who had taken his Tata Sumo vehicle on 8.7.2001. On the basis of the aforesaid complaint made by Krishan Kumar PW1, a First Information report bearing No. 143 was registered at Police Station Mehta on 26.7.2001 at 10.35 A.M. The facts of the case reveal that a supplementary statement was also made by Krishan Kumar PW1 to the police on 1.4.2001, disclosing the names of the accused/appellants Harjit Singh and Hem Raj as the two youngmen who had approached him on 8.7.2001, with the request that they desired to take their sister to a hospital at Amritsar, and to whom he had given his Tata Sumo vehicle, for the said purpose. After recording the statement of the complainant Krishan Kumar PW1, SI Sandeep Kumar PW5 accompanied the complainant to the place of occurrence, and prepared the rough site plan Exhibit PW5/A. The remaining investigation was conducted by other police officials. There is no evidence on the record of this case to substantiate that any further Crl.A.No.78-DB of 2006 4 investigation was conducted in the case. In any case, on completion of the investigation and other police formalities, a challan was presented before the Sub Divisional Judicial Magistrate, Baba Bakala on 18.10.2002. On a consideration of the matter, the Sub Divisional Judicial Magistrate, Baba Bakala arrived at the prima facie conclusion, that offences punishable under sections 302/365/201/34 of the Indian Penal Code were made out, against the accused Sukhjinder Singh, Harjit Singh, Paramjit Kaur alias Parveen and Hem Raj. Since the offence under section 302 of the Indian penal Code is exclusively triable by the Court of Session , the Sub Divisional Judicial Magistrate, Baba Bakala by his order dated 5.12.2002, committed the case for trial to the Court of Session. On 21.1.2003, the Sessions Judge, Amritsar charged the accused Sukhjinder Singh, Paramajit Kaur, Hem Raj and Harjit Singh for having committed the murder of Bhagwan Singh under Section 120-B of the Indian Penal Code. He also charged Sukhjinder Singh and Harjit Singh for having kidnapped Bhagwan Singh and as such for having committed the offence under Section 365 of the Indian Penal Code. The accused were also charged for entertaining a common intention to cause the death of Bhagwan Singh and thereafter for having actually caused his death, and as such, for committing the offence punishable under Section 302 of the Indian Penal Code. The accused were then confronted with the charges levelled against them. They pleaded not guilty and claimed trial. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution is being summarized hereunder. The first Crl.A.No.78-DB of 2006 5 witness produced by the prosecution was the complainant Krishan Kumar PW1. Krishan Kumar PW1 reiterated the factual position narrated by him when he had made his complaint to SI Sandeep Singh PW5 on 26.7.2001. He also asserted that he had made a supplementary statement on 1.4.2002 before the police wherein he had identified the names of those persons who had come to take his Tata Sumo vehicle along with Avinash Grover PW2. During the course of his cross examination he acknowledged that he had not referred to the presence of any girl with the two youngmen who had come to take his Tata Sumo vehicle along with Avinash Grover PW2 in his complaint. He explained that he had come to know about the names of the accused after reading their names in the news paper, wherein it was mentioned that certain persons had been apprehended by the police and had admitted having taken away one vehicle from Chowk Mehta as well. He confirmed that he had named Hem Raj and Harjit Singh i.e. the accused/appellants only on the basis of his aforesaid news-paper report. The statement of Avinash Grover was recorded by the trial Court as PW2. Avinash Grover PW2, supported the occurrence as was projected by Krishan Kumar PW1 while recording his statement. He confirmed that after the Tata Sumo vehicle was taken away by the accused, neither the vehicle had been returned, nor the driver had come back. The statement of constable Mohan Singh was recorded as PW3. He tendered into evidence his affidavit Exhibit PB. A perusal of the aforesaid affidavit reveals that ASI Sovinder Singh had given him the special report for being delivered to the Ilaqa Magistrate on 1.4.2002. He also stated that he had delivered the special report to the Ilaqa Magistrate on the same day. The statement of Darshan Singh was recorded as PW4. It would be pertinent to mention that Crl.A.No.78-DB of 2006 6 Darshan Singh PW4 is the father of the missing driver Bhagwan Singh. Darshan Singh PW4 asserted that three males and one female (i.e. all the accused before the trial court) were taking tea on a tea stall and he had overheard them talking that they had killed the driver of the vehicle which they had stolen from Mehta chowk and that they had thrown his dead body in the Sultanwind canal. He asserted that during their conversation they were calling the lady by the name of Parveen, whereas, the others were being mentioned as Timi, Shanti and Raju. Needless to mention that the aforesaid names are the aliasis of the accused before the trial Court. Darshan Singh PW4 stated that out of those seen by him taking tea at the tea stall, Sukhjinder Singh was not present in court. During the course of his cross- examination, he acknowledged that no identification parade was conducted, nor had he been called upon to identify the accused in jail. The statement of SI Sandeep Kumar was recorded as PW5. He affirmed that he had recorded the complaint of Krishan Kumar PW1 on 26.7.2001. He also stated that he had prepared the rough site plan, of the place of occurrence. The statement of Rishi Ram was recorded as PW6. He being a draftsman claims to have visited the place of occurrence on 7.10.2001 and prepared the scaled site plan Exhibit PW6/A at the instance of Krishan Kumar PW1. The prosecution then produced Gurmej Singh as PW7. In his statement before the trial Court Gurmej Singh PW7 asserted that all the accused had made an extra judicial confession to him on 2.9.2001 at about 11.45 PM affirming that they had hired the Tata Sumo vehicle owned by Krishan Kumar PW1 of Mehta Chowk. They also confessed to him, that they had given intoxicants to the driver Bhagwan Singh by mixing the same in his tea and that, on drinking the tea the driver had become unconscious. They also told Gurmej Crl.A.No.78-DB of 2006 7 Singh PW7 that they had put his body in a bag and had thrown the same in the Sultanwind canal. All the accused before the trial Court ( according to the statement of Gurmej Singh PW7) had requested Gurmej Singh PW7 to produce them before the police, as such Gurmej Singh PW7 asserted that he required them to come to him a week later, for the said purpose, but none of them returned to him. During his cross examination, he acknowledged that he was not associated with any identification parade of the accused in jail. He also admitted that the house of Bhagwan Singh (i.e. the missing driver) is in his village. He also asserted that the dead body of Bhagwan Singh was not recovered. He denied being a Police wityness. After recording the statement of Gurmej Singh PW7 the prosecution evidence was closed by order. The statements of the accused were then recorded under section 313 of the Code of Criminal Procedure. All the accused were confronted with the incriminating evidence appearing on the record of the case. All the accused denied the same and pleaded innocence. Insofar as the accused/appellant Harjit Singh is concerned, in his defence, he inter alia asserted as :- “This is a false case. I am innocent. A false and fabricated story had been created against me at the instance of the police and a false case registered against me. I am falsely implicated in this case.” Likewise, the accused/appellant Hem Raj in his defence reiterated the defence adopted by the accused/appellant Harjit Singh by stating as under:- “This is a false case. I am innocent. A false and fabricated story had been created against me at the instance of the police Crl.A.No.78-DB of 2006 8 and a false case registered against me. I am falsely implicated in this case.” In their defence, the accused examined Rajinder Kumar Addl.Ahlmad, Court of Additional District Judge, Amritsar, as DW1. While appearing before the trial Court Rajinder Kumar DW1 brought along with him the summoned file of Criminal Case No.92 of 2002-03 titled as State v. Satnam Singh. He asserted that Gurmej Singh PW7 had been examined as PW5 in the aforesaid case on 9.2.2004. After having examined Rajinder Kumar DW1,the defence evidence was closed. The Additional Sessions Judge (adhoc) Amritsar delivered the judgment in Sessions Case No.50 of 2004 on 5.5.2005 wherein the accused/appellants Harjit Singh and Hem Raj were convicted under Section 302 read with section 34 of the Indian Penal Code for having committed the murder of Bhagwan Singh. They were also convicted under section 201 of the Indian Penal Code. Paramjit Kaur alias Parveen one of the accused was however, acquitted as no evidence had been produced by the prosecution showing her involvement in the case. No order was passed against the accused Sukhvinder Singh on account of the fact that he had died during the trial of the case. After having heard the accused/appellants Harjit Singh and Hem Raj on the question of sentence, the Additional Session Judge (adhoc) Amritsar, by a separate order dated 5.5.2005, sentenced them to imprisonment for life and a fine of of Rs.5000/-, for having committed the offence under section 302 read with section 34 of the Indian Penal Code. In default of payment of fine they were ordered to undergo further rigorous imprisonment for six months. On account of their conviction under section 201 of the Indian Penal Code, they were sentenced to undergo rigorous Crl.A.No.78-DB of 2006 9 imprisonment for five years, and to pay a fine of Rs.2000/-. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for two months. The trial Court also directed that the substantive sentences awarded to the convicts would run concurrently. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgment rendered by the Additional Sessions Judge,Amritsar, reveal that while holding the accused/appellants Harjit Singh and Hem Raj guilty, the trial Court extensively relied upon the statements of the complainant Krishan Kumar PW1 and Avinash Grover PW2. The trial Court felt the Krishan Kumar PW1 and Avinash Grover PW2 were in an effective position to identify the accused/appellants Harjit Singh and Hem Raj, because they had approached them with the request to allow them to take their sister to Amritsar in the Tata Sumo vehicle owned by Krishan Kumar PW1. Since the interaction between the accused/appellant Harjit Singh and Hem Raj with Krishan Kumar PW1 and Avinash Grover PW2 was at some length, the trial Court was of the view that it was not possible for them to have committed any mistake while identifying them. The trial court also took into consideration the fact that Krishan Kumar PW1 and Avinash Grover PW2 had both asserted in their respective statements that Bhagwan Singh had been taken by them in the Tata Sumo vehicle loaned to the accused/appellant on 8.7.2001 and that, he had not returned thereafter. This probably was taken as the last seen evidence, by the trial court. On the basis of the aforesaid last seen evidence, the trial Court, taking into consideration that the accused Harjit Singh and Hem Raj had not tendered any explanation about the whereabouts of Bhagwan Singh, was of the view that it was sufficient to conclude, that Crl.A.No.78-DB of 2006 10 Bhagwan Singh had been killed by them, and that, the Tata Sumo vehicle borrowed from Krishan Kumar PW1 was then sold by the accused/appellants Harjit Singh and Hem Raj, to someone. For the aforesaid reasons, the trial Court convicted the accused/appellants Harjit Singh and Hem Raj for having committed the murder of Bhagwan Singh under Section 302 read with section 34 of the Indian Penal Code. Both the accused/appellants Harjit Singh and Hem Raj were also convicted under section 201 of the Indian Penal Code for having disposed of the dead body of Bhagwan Singh as also the Tata Sumo vehicle. Learned counsel for the accused/appellants Harjit Singh and Hem Raj has vehemently contended that there is no evidence on the record of the case to link the accused/appellants Harjit Singh and Hem Raj with either the murder of Bhagwan Singh or with the disposal of his body in the Sultanwind Canal. He also submitted that there was no evidence whatsoever to show that the accused/appellant had sold the Tata Sumo vehicle owned by Krishan Kumar PW1. In order to assail the conclusions drawn by the trial Court learned counsel for the accused/appellants Harjit Singh and Hem Raj advanced a number of submissions. The same same have been summarized hereafter and dealt with individually. The first contention of the learned counsel for the accused/appellants Harjit Singh and Hem Raj is, that the foundation of the prosecution case had been laid on the extra judicial confession which had already been made by the accused before Gurmej Singh PW7. In this behalf, tt is the contention of the learned counsel for the appellants, that Gurmej Singh PW7 is a resident of the same village as Bhagwan Singh Driver, and therefore, he had been picked up as a stock witness, to Crl.A.No.78-DB of 2006 11 substantiate the prosecution story. It is also the case of the learned counsel for the appellants, that the statement of Rajinder Kumar DW1 established that in a similar other case Gurmej Singh PW7 had appeared as a prosecution witness on behalf of the police. It is also submitted by the learned counsel that none of the accused was known to Gurmej Singh PW7, and as such, there was no occasion for them to approach him for making an extra judicial confession. It was also contended that Gurmej Singh PW7 did not occupy any social or official position for which the accused/appellants could have gone to him for help. We find merit in the aforesaid contention of the learned counsel for the appellants. For the reasons depicted by the learned counsel for the appellants, the trial Court also disbelieved the statement of Gurmej Singh PW7. The accused/appellants are not residents of village Buttar Cibia to which Gurmej Singh PW7 belongs. It is also not shown that Gurmej Singh PW7 was known to the accused/appellants before they had gone to him to make a statement. In fact Gurmej Singh can be accepted to be known to the complainant side because he was a resident of the same village as the missing driver of the Tata Sumo vehicle i.e. Bhagwan Singh.There was no earthly reason, for the accused, to go to Gurmej Singh PW7, not earlier known or acquainted with them, to repose confidence in him to make a clean breast of their alleged guilt. Gurmej Singh PW7 is a cultivator, though a former Sarpanch of his village Buttar Cibia, why and for what benefit the accused/appellants should have chosen him for making an extra judicial confession is also not clear. In the aforesaid view of the matter, we are also of the view that it would be improper to rely on the statement of Gurmej Singh PW7 to determine the veracity of the prosecution case. Crl.A.No.78-DB of 2006 12 The second contention of the learned counsel for the appellants is in respect of the statement of Darshan Singh PW4. It is pointed out that the statement of Darshan Singh, PW4, is not believable for two reasons; firstly, Darshan Singh PW7 is the father of the missing driver Bhagwan Singh, and as such, it is natural for him to toe the line of the prosecution story. Secondly, it was submitted that even if a crime of the nature in hand had been committed, no one would openly make statements in connection with the crime, in the presence and hearing of unknown persons, at a public place like a tea stall. It is, therefore, the contention of the learned counsel for the appellants that the testimony of Darshan Singh PW4 should also not be taken into consideration to record a finding against the accused/appellants Harjit Singh and Hem Raj. We find merit in the second contention of the learned counsel for the appellants. For the same reasons, as have been indicated by him, even the trial Court declined to take into consideration the statement of Darshan Singh PW4 terming it as improbable, and as such has concluded that his evidence deserves to be excluded. If the accused were discussing the matter at a tea stall, it is strange that only the father of the missing driver (Bhagwan Singh) Darshan Singh PW4 only over heard them talking about the crime openly. A tea stall is a busy place and is frequented by many persons, yet the investigating agency could not find an independent person to depose on the matter, after all, Darshan Singh PW4 is an interested person being the father of the missing driver of the Tata Sumo vehicle, could have been able to provide the information to the police, as to who else was at the tea stall when the accused/appellants were allegedly openly talking about the crime. We also find merit in the plea advanced on behalf Crl.A.No.78-DB of 2006 13 of the accused, that no one can be expected to openly talk about a crime in a public place. In any case having successfully committed the crime under reference as alleged, there was hardly anything to talk about. It also cannot be overlooked that the investigating agency also failed to arrange an identification parade so as to get the accused identified by Darshan Singh PW4. In the totality of the circumstances noticed hereinabove, we are of the view that it would not be proper to rely on the statement of Darshan Singh PW4 so as to establish the allegations levelled against the accused. Once the evidence of Darshan Singh PW4 and Gurmej Singh PW7 has been held to be unreliable and untrustworthy, and discarded for the reasons recorded hereinbefore, we are left with the evidence of only two witnesses on the basis of which the prosecution story can be examined i.e. the statements of Krishan Kumar PW1 and Avinash Grover PW2. In so far as the veracity of their statements is concerned, the same is contested by the learned counsel for the accused/appellants Harjit Singh and Hem Raj, on the following basis. Firstly, that they are both untrustworthy on account of the fact that although the Tata Sumo vehicle was given by Krishan Kumar PW1, to the accused/appellants on 8.7.2001, and although they did not return from Amritsar, which is not situated at far of place ,from Chowk Mehta, no complaint was made by the owner of the Tata Sumo vehicle Krishan Kumar PW1 till 26.7.2001. In this behalf the contention of the learned counsel for the appellants, is that the owner of the Tata Sumo vehicle made a complaint 18 days, after the accused allegedly took away the said vehicle, from him. Secondly, it is submitted that the complainant Krishan Kumar PW1 claims to have given his Tata Sumo vehicle to the Crl.A.No.78-DB of 2006 14 accused/appellants Harjit Singh and Hem Raj without any remuneration, despite the fact, that they were unknown to him.In this behalf, it is the contention of the learned counsel for the accused/appellants that the statements of Krishan Kumar PW1 and Avinash Grover PW2 are not believable and are merely trumped up to substantiate the prosecution story. Thirdly, it is the contention of the learned counsel for the appellants that though in the supplementary statement of Krishan Kumar PW1 dated