IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 63-DB of 2002 DATE OF DECISION : 30.09.2010 Shiv Kumar @ Shibu .... APPELLANT Versus State of Haryana ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. S.S. Narula, Advocate, for the appellant. Mr. S.S. Randhawa, Addl. A.G., Haryana. * * * SATISH KUMAR MITTAL , J. 1. Appellant Shiv Kumar alias Shibu was tried by the Court of Sessions Judge, Karnal, for the offence under Section 302 IPC for committing murder of Amrik Singh. Vide judgment and order dated 13.11.2001, passed by the trial court, the appellant has been convicted and sentenced to undergo imprisonment for life and to pay a fine of ` 5,000/-, in default to undergo rigorous imprisonment for a period of one year, under Section 302 IPC. 2. As per the prosecution version, which is based upon the statement of Bhagwan Singh (PW.5), complainant Bhagwan Singh and deceased Amrik Singh were the real brothers. They were residing in village Crl. A. No. 63-DB of 2002 -2- Gondar, District Karnal, and were jointly cultivating the land. Their another brother Kishan Singh was employed in Refinery at Ambala and the eldest brother Gurdeep Singh was living separately and cultivating his land. Complainant Bhagwan Singh and his brother Amrik Singh (deceased) used to tether their cattle in the cattle shed on the tubewell in their field. Amrik Singh was used to go daily in the evening to tether the cattle. On 21.1.2001, in the evening, complainant Bhagwan Singh and his brother Amrik Singh were present at Bus Stand, Gondar, from where Amrik Singh went to tether the cattle by taking the bicycle of the complainant. At about 8.30 PM, when Amrik Singh did not return to the house, his wife Sukhvinder Kaur told the complainant that her husband Amrik Singh had not come to the house. Thereupon, the complainant told her that he will come later on, as earlier also, he used to come late. Thereupon, the complainant slept and wife of Amrik Singh did not say anything to him thereafter. In the next morning, at about 6 AM, when the complainant went to his fields to milch the cattle, he found that his brother Amrik Singh was lying dead within the boundary wall of the cattle shed. His neck was chopped off and he was found murdered. He got puzzled. Immediately, he came back to the village and told to his brother Gurdeep Singh about the murder of Amrik Singh. Thereafter, they along with other persons came on the spot and saw the place of occurrence. In the meanwhile, Surjit Singh Sarpanch (PW.12) also came to the spot. Thereafter, the complainant proceeded for the Police Station to report the matter and in the way on the bridge of drain on Gondar Road in the area of Crl. A. No. 63-DB of 2002 -3- village Gondar, the police party met him. He made statement (Ex.PC) before ASI Ram Pal Singh (PW.10) at 11.00 AM, on the basis of which formal FIR (Ex.PB) was registered at 11.30 AM. The special report of the FIR was sent, which was received by the Ilaqa Magistrate at 1.50 PM. In his statement, the complainant had stated that some unknown person had murdered his brother Amrik Singh without any cause. 3. Thereafter, the police went to the spot, got the place of occurrence photographed, prepared the inquest report (Ex.PF), lifted the blood stained earth from the spot, vide recovery memo Ex.PG, prepared the rough site plan (Ex.PJ) of the place of occurrence, and sent the dead body of Amrik Singh to General Hospital, Karnal, for post-mortem examination. 4. On the same day i.e. on 22.1.2001 at 3.45 PM, Dr. Vandana Bhatia (PW.11) conducted post mortem examination on the dead body of Amrik Singh. He found five incised wounds of various sizes on the neck of the deceased, out of which first injury was on the lower boarder of mandible. The second injury was just below the first injury and the third injury was 3 cms below the second injury, whereas the fourth injury was 6 cms below the first injury. The fifth injury was incised wound measuring 11 x 4 cms at the junction of neck and thorax. Trachea was found to be cut through and through. Vertebrae were visible. Major vessels were cut and wound was full of blood. In the opinion of the doctor, the cause of death was massive haemorrhage, leading to shock due to the injuries described. All the injuries were found to be ante-mortem in nature and sufficient to Crl. A. No. 63-DB of 2002 -4- cause death in the ordinary course of nature. The duration between the injuries and the death was instantaneous and the time between death and the post-mortem was within 24 hours. 5. On the same day, the blood stained clothes of the deceased, which were handed over by the doctor to the police, were taken into possession vide memo Ex.PK. 6. It is the further case of the prosecution that on 23.1.2001, statements of Jarnail Singh (PW.8) and Mohinder Singh (PW.9), residents of village Gondar, were recorded. Jarnail Singh stated that in the evening of 21.1.2001, he had seen accused Shiv Kumar and Amrik Singh (deceased) together at bus stop of the village. They had purchased liquor from a liquor vend and thereafter, they had gone towards the fields of Amrik Singh. In the next morning, he came to know that Amrik Singh had been murdered. Mohinder Singh in his statement to the police had stated that on 21.1.2001 at about 8.30 PM, after checking the water in his fields, he was coming back to his house. In the way, he saw that in the Dera of Amrik Singh, accused Shiv Kumar and Amrik Singh were quarreling with each other, while consuming liquor. 7. As per the case of the prosecution, on 24.1.2001 at about 8.00/9.00 AM, accused Shiv Kumar @ Shibu suffered an extra judicial confession before Surjit Singh Sarpanch (PW.12), according to which on the night of 21.1.2001, he and Amrik Singh had consumed liquor at the Dera of Amrik Singh and thereafter, an altercation took place between them, Crl. A. No. 63-DB of 2002 -5- upon which he had given 2-3 Kassi blows to Amrik Singh, which resulted into his death. It is further case of the prosecution that Surjit Singh Sarpanch produced the accused before Inspector Sobha Chand (PW.13), who arrested him. During interrogation, in pursuance of his disclosure statement (Ex.PN), he got recovered the Kassi (Ex.P14) from the Parali lying in the field of Gurdeep Singh, which was taken into possession vide recovery memo Ex.PO/1. At the time of arrest, the accused was wearing pant and shirt, which were blood stained. The same were also taken into possession by the police vide recovery memo Ex.PR and produced as Ex.P15 and Ex.P16. 8. On 2.2.2001, vide application (Ex.PM), the police sought opinion of Dr. Vandana Bhatia (PW.11) about the injuries on the person of deceased Amrik Singh being caused by the weapon of offence i.e. Kassi (Ex.P14), which was recovered from the accused. After seeing the weapon, the doctor vide her opinion (Ex.PM/1) opined that possibility of the injuries being caused to the deceased by the said weapon could not be ruled out. 9. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offence under Section 302 IPC, to which he did not plead guilty and claimed trial. 10. In support of its case, the prosecution examined 13 witnesses, out of whom PW.5 Bhagwan Singh (complainant), PW.8 Jarnail Singh, PW.9 Mohinder Singh, PW.10 ASI Ram Pal Singh, PW.11 Dr. Vandana Bhatia, PW.12 Surjit Singh, Sarpanch and PW.13 Inspector Sobha Chand are the material witnesses. Crl. A. No. 63-DB of 2002 -6- 11. PW.5 Bhagwan Singh complainant, reiterated his entire version, as stated by him to the police in his initial statement (Ex.PC), which formed the basis of the FIR (Ex.PB). He has fully supported the case of the prosecution, on each and every aspect of the case. 12. PW.8 Jarnail Singh and PW.9 Mohinder Singh are the witnesses of last seen, who have fully supported the case of the prosecution regarding the last seen of the deceased in the company of the accused in the evening/night of 21.1.2001. 13. PW.10 ASI Ram Pal Singh, who conducted the initial investigation in this case, has proved the statement of the complainant (Ex.PC) recorded by him, the inquest report (Ex.PF) prepared by him, recovery memo (Ex.PG) vide which blood stained earth lifted from the spot was taken into possession, rough site plan (Ex.PJ) of the place of occurrence and the recovery memo (Ex.PK), vide which blood stained clothes of the deceased were taken into possession. 14. PW.11 Dr. Vandana Bhatia, who conducted the post mortem examination on the dead body of deceased Amrik Singh, has proved the Post Mortem Report of the deceased as Ex.PL as well as the opinion (Ex.PM/1) on the application (Ex.PM) moved by the police. 15. PW.12 Surjit Singh, Sarpanch, has also supported the case of the prosecution regarding the extra judicial confession made by the accused before him. 16. PW.13 Inspector Sobha Chand, who arrested the accused and Crl. A. No. 63-DB of 2002 -7- conducted the further investigation in this case, has proved the recovery memo (Ex.PO/1), vide which Kassi, got recovered by the accused in pursuance of his disclosure statement (Ex.PN), was taken into possession, rough site plan (Ex.PQ) of the place of recovery of Kassi, recovery memo (Ex.PR), vide which blood stained shirt (Ex.P15) and pant (Ex.P16) of the accused were taken into possession. 17. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. He pleaded innocence and false implication in the case at the instance of Surjit Singh Sarpanch and the complainant party. He has further pleaded that Surjit Singh Sarpanch wanted to purchase their land, but they refused to sell it, due to which Surjit Singh Sarpanch and the complainant have deposed against him. He has denied any confessional statement being made by him before Surjit Singh Sarpanch. He has taken the plea that he along with Jellu and Nimboo, brothers of one of the witness, namely Jarnail Singh, were arrested by the police on 23.1.2001 on suspicion and thereafter, the police in collusion with Surjit Singh Sarpanch and the complainant set Jellu and Nimboo free and falsely implicated him in this case. 18. In defence, the appellant examined DW.1 Sushil Bhargava, a correspondent of `Dainik Bhaskar', a daily news paper, which is published from Panipat. He has deposed that he looks after the crime beat of District Karnal of the said news paper. He has proved the news items (Ex.DA and (Ex.DB) published on 23.1.2001 and 24.1.2001. Crl. A. No. 63-DB of 2002 -8- 19. The trial court, while relying upon the medical evidence, extra judicial confession of the accused, recovery of Kassi, statements of PW.8 Jarnail Singh and PW.9 Mohinder, the witnesses of the last seen, and the statement of the complainant, convicted and sentenced the appellants, as indicated above. 20. We have heard the arguments of learned counsel for the parties and have gone through the trial court record. 21. Learned counsel for the appellant argued that the case of the prosecution is based upon the circumstantial evidence, but from those evidence, the prosecution has miserably failed to prove the guilt of the accused beyond reasonable doubt. The motive for the alleged crime also has not been proved. The theory of the alleged motive that the deceased was to pay some amount to the accused, due to which some altercation took place between them, was introduced for the first time at the fag end of the investigation i.e. on 28.2.2001, when supplementary statement of the complainant was recorded. Even in that statement, figure of ` 5,000/- does not appear, whereas while making improvement, the complainant in his statement in the court has stated that his brother Amrik Singh (deceased) had borrowed a sum of ` 5,000/- from the accused. Learned counsel further argued that even the complainant in his statement before the court has admitted that he had not seen any altercation between the deceased and the accused regarding the said amount. According to him, the prosecution has introduced a new motive in the court to the effect that an altercation had Crl. A. No. 63-DB of 2002 -9- taken place, when the deceased and the accused were consuming liquor in the Dera of deceased Amrik Singh. Thus, learned counsel argued that the prosecution has failed to establish the clear motive, which is an essential evidence in a case based on circumstantial evidence. 22. Learned counsel further argued that the evidence of last seen, led by the prosecution, is also improbable and unreliable. In this regard, statements of PW.8 Jarnail Singh and PW.9 Mohinder Singh are not trust- worthy, as their statements were recorded on 23.1.2001. PW.8 Jarnail Singh has stated that his brother Nimboo alias Nirmal Singh was also taken into custody in this case for interrogation, therefore, possibility of his deposing falsely in this case to get his brother released from the police custody cannot be ruled out. Regarding PW.9 Mohinder Singh, learned counsel argued that undisputedly, he is cousin of the deceased and his conduct after seeing the accused and the deceased quarreling while consuming liquor on 21.1.2001 at 8.30 PM in the Dera of the deceased is abnormal. Therefore, according to the learned counsel, testimonies of both these witnesses are not trust-worthy and reliable. 23. Learned counsel further argued that the evidence of extra judicial confession is very weak and unreliable. He contends that PW.12 Surjit Singh Sarpanch himself is involved in a case under Section 302 IPC and he has also admitted that he wanted to purchase the land of the accused party, which was not sold to him. Learned counsel further argued that due to political rivalry, Surjit Singh Sarpanch has falsely made the statement that Crl. A. No. 63-DB of 2002 -10- the accused had made extra judicial confession before him. According to learned counsel, the accused was already taken into custody by the police, as is clear from the defence evidence, therefore, theory of the prosecution that after making extra judicial confession before Surjit Singh Sarpanch, the accused was produced before the police on 24.1.2001 is concocted one. 24. Learned counsel further argued that the alleged recovery of Kassi at the instance of the accused is also not reliable, as at the time of the alleged recovery, no independent witness was associated by the police. He further argued that the prosecution version regarding some altercation while consuming liquor by the accused and the deceased at the spot is also doubtful, because no sign of struggle being made by the accused was noticed by the police. Further, neither any bottle nor any glass was recovered from the place of occurrence. In the Post Mortem Report also, no alcohol was found. According to the learned counsel, all these facts bely the prosecution version. 25. On the other hand, learned counsel for the respondent-State argued that the trial court has rightly convicted and sentenced the appellant on the basis of the evidence and the documents, available on record. According to him, in the instant case, the chain of circumstantial evidence led by the prosecution is complete, which fully establishes the guilt of the accused beyond reasonable doubt. 26. We have considered the arguments raised by learned counsel for the parties and carefully and cautiously gone through the evidence led Crl. A. No. 63-DB of 2002 -11- by the prosecution. On 22.1.2001 at 6.00 AM, when complainant Bhagwan Singh (PW.5) went to the fields, he saw that his brother Amrik Singh was lying dead within the boundary wall of their Dera, where the cattle shed was existing. There were cut signs on the neck of Amrik Singh. On seeing his brother dead, complainant Bhagwan Singh got puzzled and immediately came back to the village and informed his brother Gurdeep Singh about the murder of Amrik Singh. Then he along with his brother and other persons of the village went to the spot and the matter was reported to the police. On the same day, at 3.45 PM, post mortem examination on the dead body of the deceased was conducted by Dr. Vandana Bhatia (PW.11). According to the Post Mortem Report (Ex.PL), which has been duly proved, during post mortem examination, five incised wounds of various sizes were found on the neck of the deceased. Trachea was found to be cut through and through. Vertebrae were visible. All the injuries were found to be ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The duration between the injuries and the death was instantaneous and the time between death and the post-mortem was found to be within 24 hours. Thus, from the medical evidence led by the prosecution, it has been established that death of Amrik Singh was homicidal. 27. In the present case, though there is no direct evidence, but on the basis of the circumstantial evidence, the prosecution alleged that appellant Shiv Kumar @ Shibu has committed the murder of Amrik Singh. In order to prove the guilt of the accused, the prosecution is primarily Crl. A. No. 63-DB of 2002 -12- relying upon the statements of PW.5 Bhagwan Singh (complainant), PW.8 Jarnail Singh, PW.9 Mohinder Singh, PW.12 Surjit Singh, Sarpanch of the village, and PW.13 Inspector Sobha Chand, the Investigating Officer. The trial court has also convicted the appellant, while relying upon the testimonies of these witnesses. On a careful examination of the statements of these witnesses, we are of the view that in the instant case, the circumstantial evidence led by the prosecution is consistent with the hypothesis of the guilt of the accused and is not incompatible with the theory of the innocence of the accused. The circumstantial evidence led by the prosecution is sufficient to bring home the guilt of the accused beyond reasonable doubt. Neither the defence taken by the accused nor the minor contradictions pointed out by learned counsel for the appellant cause any doubt in the prosecution version or indicate towards the innocence of the accused. PW.5 Bhagwan Singh has stated that on 21.1.2001 at about 5 PM, his brother Amrik Singh had taken cycle from him for going to the fields to tether the cattle. At that time, the accused was also standing at the bus stand of the village, though at some distance. Thereafter, at about 6 PM, PW.8 Jarnail Singh saw Amrik Singh in the company of the accused. He has stated that on 21.1.2001 at about 6 PM, he had seen the accused and Amrik Singh together, while purchasing liquor from the liquor vend of village Gondar. He further stated that after purchasing the liquor, both of them had gone towards the fields of Amrik Singh on the bicycle. Thereafter, at about 8.30 PM, PW.9 Mohinder Singh had seen the accused as well as the Crl. A. No. 63-DB of 2002 -13- deceased in the Dera of Amrik Singh. At that time, they were consuming liquor and were also quarreling with each other and in the morning, the dead body of Amrik Singh was found in the Dera, having five incised wounds of various sizes on his neck. Thus, the prosecution has fully established that immediately before his murder, the deceased was seen in the company of the accused. In addition to these witnesses, the prosecution has examined PW.12 Surjit Singh, Sarpanch of the village, before whom the accused had made extra judicial confession regarding his guilt. In his statement, this witness has categorically stated that on 24.1.2001 at about 8.00/9.00 AM, accused Shiv Kumar came to him at his house and confessed that he had committed a mistake by committing the murder of Amrik Singh. He told that he had given 2-3 Kassi blows on the person of Amrik Singh, when they were together consuming liquor in the Dera of Amrik Singh. He further confessed that Amrik Singh had abused him and therefore, a quarrel took place between them and then he caused injuries to Amrik Singh with a Kassi and committed his murder. 28. Learned counsel for the appellant has vehemently argued that the testimonies of the aforesaid four witnesses are not trust-worthy at all. The version given by them is totally concocted and motivated and is not reliable. According to the learned counsel, when on the day of occurrence at about 8.30 PM, the complainant was informed by the wife of the deceased regarding not returning of the deceased from the fields, then it does not stand to reason that why the complainant immediately did not go to the Crl. A. No. 63-DB of 2002 -14- fields, which was at a short distance, to ascertain as to why his brother had not returned to home after tethering the cattle. Similarly, learned counsel further argued that statements of PW.8 Jarnail Singh and PW.9 Mohinder Singh, the witnesses of last seen, were recorded by the police only on 23.1.2001 and it has not been explained as to why their statements were not recorded at earlier point of time, when both of them were available in the village. Similarly, according to the learned counsel, testimony of PW.12 Surjit Singh, before whom the extra judicial confession was allegedly made by the accused, is also not reliable. In this regard, while referring to the cross-examination of this witness, he pointed out that this witness was not happy with the accused, as the accused did not support him in the Panchayat elections and had refused to sell his land to him. 29. We have carefully analysed the statements of the aforesaid witnesses. In our view, testimonies of these witnesses cannot be said to be doubtful or untrustworthy. There was no motive for these witnesses to falsely implicate the accused, who is also a resident of the village. Merely because one of the witnesses (PW.9 Mohinder Singh) is the cousin of the deceased and Jellu and Nimboo, brothers of another witness (PW.8 Jarnail Singh), were also interrogated in the case on the basis of suspicion, it cannot be said that these witnesses had deposed falsely against the accused with a motive. PW.12 Surjit Singh was the Sarpanch of the village. There was no reason for him to falsely depose against the appellant. In cross-examination, he has admitted that the accused and his brother had sold their entire land Crl. A. No. 63-DB of 2002 -15- 2/3 years prior to the occurrence and at that time, he wanted to purchase some of their land, but the deal could not materialize between him and the accused. Merely on account of this fact, in our opinion, no inference can be drawn that PW.12 Surjit Singh, who was Sarpanch of the village, had falsely implicated the appellant. During the investigation, immediately within two days of the commission of the offence, name of the appellant appeared as an accused. In all probabilities, he had approached the Sarpanch of the village with a request to produce him before the police. Therefore, it cannot be said that the act of the accused was improbable to go to the Sarpanch of the village to make extra judicial confession. Though the accused has taken the defence and has led evidence to the effect that he was not produced by PW.12 Surjit Singh before the police, rather he was arrested on 23.1.2001 itself, but on the basis of the statements of PW.12 Surjit Singh and PW.13 Inspector Sobha Chand, the prosecution has proved that the appellant was produced before the police by Surjit Singh on 24.1.2001 and thereafter, he was arrested. Thereafter, on the basis of his disclosure statement (Ex.PN), during interrogation, at the instance of the accused, a Kassi (Ex.P14) was