Crl.Appeal No.839-DB of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARY AT CHANDIGARH Crl.Appeal No.839-DB of 2002 DATE OF DECISION: MAY 19, 2010 Jaswant Singh .....APPELLANT Versus State of Punjab ....RESPONDENT CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Mr. D.D. Sharma, Advocate, for the appellant. Mr. Rajesh Bhardwaj, Addl.A.G., Punjab. .. SATISH KUMAR MITTAL, J. 1. Accused Jaswant Singh has directed this appeal against the judgment dated 17.10.2002 passed by Additional Sessions Judge, Jalandhar, whereby he has been convicted under Section 302 IPC for committing the murder of Thana Singh son of Jit Singh and sentenced him to undergo imprisonment for life and to pay a fine of Rs.2000/-. 2. Appellant along with two other accused, namely, Balwinder Singh son of Meja Singh and Buta Singh, his brother-in-law, resident of village Daulewal, were tried for the offence of committing the murder of Tara Singh, but the trial Court only convicted the appellant for the said offence, as stated above, and Balwinder Singh and Buta Singh were Crl.Appeal No.839-DB of 2002 -2- acquitted of the charge. Against their acquittal, no appeal has been filed by the State. 3. As per the prosecution version, on 21.10.1999, one dead body (which was later on identified as that of Thana Singh) was noticed by PW15-Nirmal Singh son of Dhanna Singh, resident of village Kalaran, in the heap of dry grass behind his shop in the area of village Kalar. The said dead body was of a young man, who was wearing a pant, T-shirt, shoes, socks and wrist watch. There was a deep injury on his mouth, but from the face the said dead body was not identifiable. On seeing the dead body, the complainant went to inform the police while taking Naraina Lambardar of the village. The police party reached the spot and recorded the statement of Nirmal Singh. On the basis of the said statement (Ex.PJ), the initial FIR (Ex.PJ/2) was registered under Section 302/201 IPC against unknown accused at Police Station Nakodar on 21.10.1999. The inquest report (Ex.PK) with regard to the dead body was prepared. On the next day, i.e., 22.10.1999, the dead body was sent for post-mortem examination, but it was referred for the Expert opinion of Prof. & Head of the Forensic Department, Government Medical College, Amritsar through proper channel as it was in advance stage of purification. From Amritsar, the dead body was received on 24.10.1999 at 2.30 P.M. 4. Thereafter Dr. Jasbir Singh (PW6) conducted the post-mortem examination of the deceased on 24.10.1999. During post-mortem examination, it was found that the dead body was highly decomposed and foul smell was coming from the body. The facial features of the dead body were blotted and trunk was swollen. There was greenish to black Crl.Appeal No.839-DB of 2002 -3- pigmentation present all over the body. Marbelling was present over the distended abdomen. The scalp was denuted of hair except in occipital region which could be pulled out easily. The teeth were loosely present in the sockets and were easily pulled out. White maggots were crawling all over the body and at external orifices. Skin was present in gloves and stocks at both hands and feet. There was nibbling of fingers of left hand except index finger. During post-mortem examination, the following one injury was noticed:- “An ill defined wound 7 x 5.5 cms. in size is present over the right maxillary region, 1.5 cm below the right eye ball and 1 cm from the bridge of nose. White maggots are crawling inside the wound. Liquified decomposed tissue s present in the floor of the wound. Underlying bone is intact.” After receipt of the Chemical Examiner report (Ex.PG), the doctor gave the opinion that the cause of death in this case was compression of brain due to head injury, which was sufficient to cause death in the ordinary course of nature. In the opinion of the doctor, the probable duration between death and post mortem was within a week. Though in cross-examination, Dr.Jasbir Singh (PW6) stated that the possibility could not be ruled out that the duration between death and post mortem may have elapsed up to two weeks. After post-mortem, the dead body was identified by PW5-Tara Singh, father of the deceased and PW13-Harjinder Singh, brother-in-law of the deceased, on the basis of his clothes, watch, shoes, socks and face. 5. During investigation, the police recorded the statement of PW13-Harjinder Singh on 24.10.1999 to the effect that in the morning deceased Thana Singh came to him and stated that he was going to the Crl.Appeal No.839-DB of 2002 -4- office of Home Guard, Kapurthala in connection with his transfer. The investigating agency also recorded the statements of Shangara Singh son of Jagat Singh (PW11) and Balbir Singh son of Gurdip Singh (PW14) on 25.10.1999, who had last seen the deceased in the company of accused Jaswant Singh on 18.10.1999. The police has further recorded the statement of Jagtar Singh, Ex-Sarpanch of village Mudh, on 15.11.1999, before whom separate extra-judicial confession was made by all the three accused. According to the said extra-judicial confession, on 18.10.1999, appellant Jaswant Singh along with Balwinder Singh and his brother-in-law Buta Singh had killed Thana Singh. Further, according to that extra-judicial confession, appellant Jaswant Singh and Buta Singh caught hold the deceased and Balwinder Singh pressed his neck. It was stated that because the brother-in-law of the deceased was gunman with SHO, Sultanpur Lodhi, therefore, the deceased got raided the premises of Balwinder Singh and Buta Singh and also got recovered the poppy husk from them. On that account they had murdered Thana Singh. 6. According to the prosecution, the appellant was produced by the aforesaid Jagtar Singh before the police on 16.11.1999 and the other two acquitted accused were produced before the police on 16.12.1999. On the disclosure statement (Ex.PQ) made by the appellant on 18.11.1999, a scooter without any registration number was got recovered from the courtyard of his house. From the basket of the said scooter, the uniform of the deceased along with one belt was recovered. The same along with the scooter was taken into possession vide recovery memo Ex.PQ/1. 7. On the basis of the aforesaid evidence, the challan was filed Crl.Appeal No.839-DB of 2002 -5- against all the three accused. They were charge-sheeted under Section 302 IPC to which they pleaded not guilty and claimed trial. 8. In support of its case, the prosecution examined 18 witnesses. PW1-Naraina, Lambardar of the village, who had seen the dead body of the deceased along with Nirmal Singh; PW2-Baljit Singh, Constable, a formal witness; PW3-Tarlok Chand Passi, who proved the ownership of the scooter in the name of Buta Singh; PW4-Kulwinder Singh, Patwari, who prepared the site plan; PW5-Tara Singh, father of the deceased, who identified the dead body; PW6-Dr.Jasbir Singh, who proved the post-mortem report (Ex.PE); PW7-Jagtar Singh, Ex-Sarpanch, before whom the extra-judicial confession was made by the accused. The said witness in the Court did not support the prosecution version. As such, he was declared hostile and cross- examined by the prosecution. In his cross-examination, he stated that he did not make any statement before the police. None of the accused ever made any extra-judicial confession before him. He further stated that he did not produce any accused before the police; PW8-Gurpartap Singh, who brought the summoned attendance register and proved that the deceased remained present up to 17.10.1999, but he was on rest on 18.10.1999. Thereafter, he did not come present on duty; PW9-Sardul Singh, who got conducted post- mortem of the deceased; PW10-Shaffi Mohd., who took the photographs of the dead body; PW11-Shangara Singh, a witness of last seen, who stated that on 16.10.1999 the deceased came to him and requested that he should get him transferred from GRP, Jalandhar to Sultanpur Lodhi. On this, the witness asked him to come on 18.10.1999. He further stated that on 18.10.1999, deceased came to him at 2.00 PM along with Jaswant Singh on Crl.Appeal No.839-DB of 2002 -6- a new scooter. Then he asked the deceased to wear his uniform and wait outside the office. Thereafter, the witness went inside the office for having a talk with the officer about the transfer of the deceased. After few minutes, he came out and told the deceased that the officer had told him that he would pass the transfer order on 20.10.1999 and they should come on that day. As per the statement of the said witness, thereafter, the deceased removed his uniform and kept the same in the front basket of the scooter, and then both the deceased and Jaswant Singh left that place on the scooter; PW12-Bakhshish Singh, Constable, who delivered the special reports to the Illaqa Magistrate; PW13-Harjinder Singh, brother-in-law (Jija) of the deceased. He stated that the deceased used to reside with him in Sultanpur Lodhi. On 18.10.1999, the deceased came to him and told that he was going to Kapurthala in connection with his transfer. On that day, he had withdrawn his salary from the bank. Out of that amount, he had paid Rs.1600/- to his wife. Before leaving the house, he told that he was going to the office of Punjab Home Guard at Kapurthala in connection with his transfer. He further stated that on 24.10.1999 he went to Civil Hospital, Nakodar and identified the dead body of Thana Singh. In the cross- examination, the said witness stated that when Thana Singh did not return to his house, he did not make any search for him as he used to return after 3-4 days; PW14-Balbir Singh, who is a witness of last seen. He was working in the office of Punjab Home Guard, PCI, Godown. He stated that on 18.10.1999, he was on duty in Railway Station, Sultanpur Lodhi. Thana Singh (deceased) came to that place as he was employed as Home Guard volunteer with him. In those days, his posting was at Jalandhar. The Crl.Appeal No.839-DB of 2002 -7- deceased told him that he along with Jaswant Singh was going to Kapurthala in connection with his transfer. He stated that both Jaswant Singh and the deceased went to Kapurthala on the scooter. At that time, the accused was telling the deceased that he was being remembered by Buta Singh and Balwinder Singh; PW15-Nirmal Singh, who had first time noticed the dead body and got recovered the same, and on the basis of whose statement, the FIR was registered; PW18-Pritam Singh, the then SHO of P.S. Nakodar, who recorded the statements of the witnesses and completed the investigation of the case. 9. After closing of the prosecution evidence, all the incriminating evidence was put to the accused. They denied the same. Thereafter, the statements of the accused were recorded under Section 313 Cr.P.C. In his statement, accused Jaswant Singh stated that he is innocent and was falsely implicated in this case. In his statement, accused Buta Singh stated that he is innocent and was falsely implicated in this case. The scooter was taken into possession by the police from his house. Similarly, accused Balwinder Singh stated that he is innocent and was falsely implicated in this case. However, in defence, the appellant did not lead any evidence. 10. The trial Court while relying upon the statements of PW11- Shangara Singh and PW14-Balbir Singh, in whose company the deceased was seen last time, convicted appellant Jaswant Singh, whereas accused Buta Singh and Balwinder Singh were acquitted of the charge while coming to the conclusion that the prosecution has not been able to prove its case against them beyond a reasonable doubt. It has been further held by the trial Court that the conviction of accused Buta Singh and Balwinder Crl.Appeal No.839-DB of 2002 -8- Singh could not be based on the statements of Shangara Singh (PW11) and Balbir Singh (PW14) in the absence of any evidence that the deceased was last seen in the company of the deceased. Hence this appeal. 11. We have heard the learned counsel for the parties and gone through the record of the case. 12. The present case is a case of blind murder. For the first time, on 21.10.1999, the dead body of the deceased was seen by PW1-Naraina, Lambardar and PW15-Nirmal Singh in the heap of dry grass in the area of village Kalar. At that time the dead body was in advance stage of purification. There was an injury on the face of the dead body. From the face, the dead body was not identifiable. When the dead body was noticed, the deceased was wearing a pant, T-shirt, shoes, socks and wrist watch. On information, the police reached the spot and recorded the statement of PW15-Nirmal Singh and sent the dead body for post-mortem examination. For three days, the dead body was not identified by anyone. Till the post-mortem examination, the dead body was not identified because in the Post Mortem Report (Ex.PE) it has not been mentioned that by that time the dead body was identified by anyone. However, as per record (memo of identification of dead body), the dead body was identified on 24.10.1999 by PW5-Tara Singh, father of the deceased and Harjinder Singh, brother-in-law of the deceased, on the basis of his clothes, watch, shoes, socks and face. The post-mortem of the deceased was also conducted on 24.10.1999. Dr. Jasbir Singh (PW6), who conducted the post-mortem examination of the deceased, found that the dead body was highly decomposed and foul smell was coming from the body. The facial features Crl.Appeal No.839-DB of 2002 -9- of the dead body were blotted and trunk was swollen. There was greenish to black pigmentation present all over the body. Marbelling was present over the distended abdomen. The scalp was denuted of hair except in occipital region which could be pulled out easily. The teeth were loosely present in the sockets and were easily pulled out. White maggots were crawling all over the body and at external orifices. Skin was present in gloves and stocks at both hands and feet. There was nibbling of fingers of left hand except index finger. In the opinion of the doctor, the probable duration between death and post mortem was within a week. Though in cross-examination, Dr.Jasbir Singh (PW6) stated that the possibility could not be ruled out that the duration between death and post mortem may have elapsed up to two weeks. So from the post-mortem, it was not clear when the deceased had died. 13. The case of the prosecution is based upon circumstantial evidence. The prosecution has relied upon four circumstantial evidence. Firstly, the evidence of extra-judicial confession was made by the accused before PW7-Jagtar Singh, Ex-Sarpanch of village Mudh. Secondly, the evidence of last seen, i.e., statements of Shangara Singh (PW11) and Balbir Singh (PW14) as well as the evidence of PW13-Harjinder Singh, brother-in-law of the deceased. Thirdly, the evidence of recovery of scooter from the house of the appellant on his disclosure statement; and fourthly, the evidence of motive. 14. We have closely scrutinized the aforesaid evidence led by the prosecution and thereafter have come to the conclusion that the prosecution has failed to prove the charge against the appellant beyond a reasonable Crl.Appeal No.839-DB of 2002 -10- doubt. First of all, we will deal with the evidence of extra-judicial confession made by the appellant before PW7-Jagtar Singh, Ex-Sarpanch. This witness has not supported the prosecution case all all. He was declared hostile. In his cross-examination, he has categorically stated that he did not produce any of the accused before the police. None of the accused made any extra-judicial confession before him and he did not make any statement to the police with regard to the said extra-judicial confession. Though the said witness has not supported the prosecution version, yet there are two other factors which further indicate that the witness was rightly saying that he did not produce the appellant before the police on 16.11.1999. It has come in evidence, i.e., in the cross-examination of PW14-Balbir Singh that when his statement was recorded on 25.10.1999 by the police, the accused was in the custody of the police. Secondly, the version given of the alleged extra- judicial confession does not find corroboration from the medical evidence. As per the version of extra-judicial confession, the appellant and co-accused Buta Singh caught hold the deceased and Balwinder Singh pressed his neck, but as per the medical evidence there was an injury on the face of the deceased due to which he had died. These two factors clearly belie the alleged version of the extra-judicial confession. Therefore, in our opinion, the said evidence cannot be relied upon at all as a piece of circumstantial evidence. 15. The other evidence led by the prosecution in support of its case is the evidence of last seen. In this regard, the prosecution has relied upon the statement of PW11-Shangara Singh and PW14-Balbir Singh. According to PW11-Shangara Singh, on 16.10.1999 the deceased came to him and Crl.Appeal No.839-DB of 2002 -11- requested him that he should be got transferred from GRP Jalandhar to Sultanpur Lodhi. This witness asked him to come after two days at Kapurthala. Thereafter, on 18.10.1999, the deceased along with accused Jaswant Singh came to Home Guard office at Kapurthala. He further stated that there he made a request to the officer while keeping the deceased waiting outside the office, and thereafter he assured him that he could come on 20.10.1999 as on that date the transfer order would be passed. According to him, thereafter the accused along with Jaswant Singh went on a scooter. The statement of this witness under Section 161 Cr.P.C. was alleged to have been recorded by the police on 25.10.1999. We have perused the original statement available on the record. There is a cutting in the month as from November it was made to October. It appears that the statement was recorded on 25.11.1999. There are two salient features of this statement. Firstly in the said statement the story of first wearing the uniform and then removing the uniform by the deceased, and putting the same in the basket was concocted; and secondly it was got stated from the witness that the back portion of the scooter was in bad condition. It appears to us that this statement was recorded by the police after the recovery of the scooter on 18.11.1999, which was in damaged condition, from where the uniform of the deceased was found in the basket of the scooter, to make it more authentic. There are other reasons. If there was any request for transfer by the deceased, then there should be some written request. But, in this case no evidence has been produced showing any written request was made by the deceased for his transfer from GRP, Jalandhar to Sultanpur Lodhi. Further, this witness in his cross-examination had stated that he came to know about Crl.Appeal No.839-DB of 2002 -12- the death of Thana Singh on 21.10.1999 on wireless message. It is pertinent to mention here that when up to 24.10.1999 the dead body of the deceased was not identified, then how he came to know about the death of Thana Singh on 21.10.1999 on wireless message. Therefore, the testimony of this witness cannot be said to be reliable as it does not inspire any confidence. 16. The second witness of last seen is PW14-Balbir Singh. According to this witness, the deceased along with appellant Jaswant Singh met him in Sultanpur Lodhi before going to Kapurthala. According to the said witness, the deceased was telling that he was going to Kapurthala in connection with his transfer. Thereafter, both the appellant and the deceased went to Kapurthala on a scooter. The statement of this witness was also alleged to have been recorded under Section 161 Cr.P.C. on 25.10.1999, but a perusal of the statement shows cutting in the date and month on which the said statement has been recorded. The testimony of this witness is also not reliable firstly for the reason that in his cross-examination he had stated that he had seen the accused on 25.10.1999 in police custody and before that he had not seen the accused in police custody. This fact is also not possible for the two reasons, firstly, because as per record (Arrest Memo) the accused was arrested on 16.11.1999. Secondly, the said witness had not stated this fact in his statement recorded under Section 161 Cr.P.C. From these two factors, the testimony of this witness is also not reliable and trustworthy. The prosecution has also examined PW13-Harjinder Singh, brother-in-law of the deceased. He stated that in the morning of 18.10.1999 the deceased came to him at Sultanpur Lodhi, but in the cross-examination this witness has stated that he did not search for the deceased as he used to return to the Crl.Appeal No.839-DB of 2002 -13- house after 3-4 days. This part of the statement of the witness is improbable. He did not make any complaint to the police as to why the deceased did not return to the house. Secondly, this witness has stated that on the said date the deceased had drawn his salary from the bank. But the prosecution did not lead any evidence that any amount was withdrawn by the deceased on that date, therefore, the testimony of this witness is not corroborated and does not inspire any confidence being a related witness. 17. Now the only evidence remains against the appellant is the recovery of scooter (Ex.P1) from him on the basis of his disclosure statement (Ex.PQ) on 18.11.1999. Though it has been stated that the scooter was not recovered from the house of the accused, but the co-accused Buta Singh in his statement recorded under Section 313 Cr.P.C. stated that the scooter was taken into possession by the police from his house. It has come in evidence that the scooter was purchased by Buta Singh. One important factor has not been explained by the prosecution that how the scooter was got damaged. This creates a doubt in the prosecution version. It may be a case of accident of the scooter because there was injury on the face of the deceased. Even if the evidence is accepted on the basis of recovery of the scooter, the appellant cannot be convicted for the offence of murder. 18. Further, in our opinion, the prosecution has also failed to prove in this case the alleged motive. No other evidence with regard to motive was led. Except the statement of PW7-Jagtar Singh, Ex-Sarpanch, before whom the extra-judicial confession was made by the accused, there is no other evidence to prove the alleged motive. According to the said statement, the brother-in-law of the deceased was gunman with SHO, Sultanpur Lodhi, Crl.Appeal No.839-DB of 2002 -14- therefore, the deceased got raided the premises of Balwinder Singh and Buta Singh and also got recovered the poppy husk from them. On that account they had murdered Thana Singh. But the prosecution has neither produced any evidence that the the brother-in-law of the deceased was gunman with SHO, Sultanpur Lodhi and secondly Balwinder Singh and Buta Singh were ever booked for an offence under the N.D.P.S. Act, 1985. Thus, in absence of any such evidence, the prosecution has failed to establish the motive on the part of the appellant to commit the murder of the deceased. Therefore, in our opinion, the aforesaid evidence led by the prosecution is not sufficient to bring home satisfactorily the guilt of the accused. It is well settled that circumstantial evidence produced by the prosecution must be inconsistent with his innocence. In our view, all the circumstantial evidence led by the prosecution in the present case unerringly is not pointing towards the guilt of the accused. The chain of circumstantial evidence is not complete and from this evidence it cannot be concluded that within all human probability the crime was committed by the accused and none-else. Not only the chain of the circumstantial evidence is incomplete, but there is possibility of