Avtar Singh vs State Of Punjab

The facts of this case disclose that in village Kamalu there were two groups inimically disposed towards each other which resulted in several murders. The appellants herein belong to one group while the family members of the informant and others belong to the rival group. The case of the prosecution is that on 19th November, 1989 the informant Chhoto, PW-1, alongwith her brother Shivraj Singh and her sister-in-law (brother's wife) Balbir Kaur, PW-2 went to their fields in Village Bangi Kalan where they had also constructed a farm house. While they were there, the appellants came on a jeep and a tractor variously armed with deadly weapons including a double barrel gun. They also belong to village Kamalu, the village of the informant. Seeing them, the informant's brother Shivraj Singh hid himself in a room meant for storing chaff but the accused set the room on fire so that he was compelled to come out. He was immediately abducted by the appellants. The informant apprehended that they may kill Shivraj Singh. It is an undisputed fact that thereafter no one has seen Shivraj Singh alive, nor was his body recovered. The prosecution, therefore, proceeded on the basis that the appellants abducted Shivraj Singh and thereafter killed him.

The case of the informant PW-1 is that soon after the occurrence she returned to her village and immediately reported the matter to Namberdar Gurnam Singh and Chokidar Tohla Singh (both not examined). Along with them she went to P.S. Raman but despite their insistence the police did not take any interest in the matter and did not record the information she wanted to give. They, therefore, came back to the village. The informant admitted in her deposition that except the Namberdar and the Chowkidar she did not report the matter to any other person in the village on that day. She, in particular, named Major Singh Thanedar, PW-6, and stated that she had met him in P.S. Raman but he refused to take down the information which she wanted to lodge.

Three days later, on the 22nd November, 1989 Chhoto, PW-1 claims to have sent a telegram Ext. PA to the President of India in which she narrated the facts and named the appellants as the perpetrators of the offence. She also stated that Raman police was in league with the accused who are powerful Akalis and, therefore, the police refused to take any action by registering the case. PW-1 stated that since police took no action she waited for 2-3 days. Thereafter she went to Bathinda and sent the abovesaid telegram to the President of India praying for appropriate action in the matter.

Thereafter on 4th December, 1989, PW-1, made a written complaint to the Senior Superintendent of Police (SSP), Bathinda in which she narrated the incident which took place on 19th November, 1989 and complained that police were not taking any action and even refused to record the information which she sought to give to the police for taking appropriate action. In the said complaint to the SSP it was also stated that the appellants with their other companions had taken away 14 killas of cotton and plucked kinnus from two killas. They had also taken away girders, cement and fertilizers etc. lying in the fields. A complaint had been lodged by her with the police, but no action was taken. The said complaint made by PW-1 was sent to Raman Police Station where a case was registered against the appellants. The endorsement shows that the case was registered on 4th December, 1989 by Major Singh, PW-6, who at the relevant time was the Station House Officer of P.S. Raman.

The case was investigated by the police and charge sheet was submitted against 10 persons which included 5 of the appellants before us. It appears from the record that the statements of Amar Singh and Gurdev Singh were recorded by the police in the course of investigation under Section 161 of the Code of Criminal Procedure on 9th October, 1990 and on the basis of their statements 5 other persons, namely Gurjit Singh, Harjinder Singh, Jit Singh, Kuljit Singh and Ajaib Singh were arrayed as accused in the case alongwith 5 of the appellants, namely Sewa Singh, Sarabjit Singh @ Ujagar Singh @ Jagger Singh, Jagdeep Singh, Hardeep Singh, and Avatar Singh @ Tari.

The trial court, however acquitted five persons who were sent up as accused and tried by the Sessions Judge on the basis of the statements of Amar Singh and Gurdev Singh. Amar Singh and Gurdev Singh were not even examined as witnesses at the trial. The remaining two eye witnesses, namely PW1 and PW-2 did not implicate them.

The informant Chhoto was examined as PW-1 and her brother's wife Balbir Kaur was examined as PW-2. Major Singh, SHO Raman Police Station was examined as PW-6.

The appellants in their statements recorded under Section 313 of the Code of Criminal Procedure denied their guilt and it appears to be their case from the suggestions made to the witnesses that the alleged deceased Shivraj Singh was mentally handicapped and that he may have gone somewhere which was not within their knowledge. Their specific plea was that taking advantage of the disappearance of Shivraj Singh they have been falsely involved in this case on account of serious enmity between the two groups in the village.

The statement of Sewa Singh was to the effect that he had contested elections to the post of Sarpanch against Jugraj Singh brother of the informant PW-1. Once he had won and on the second occasion he lost the election. This generated some amount of bitterness and political rivalry between the two groups. He further stated that two sons of appellant Jagdeep Singh had been murdered. Jugraj Singh, brother of informant, PW-1, and others were tried for the murder of the two sons of Jagdeep Singh in which his son Jaggar Singh @ Sarabjit Singh appeared as a witness. He further stated that Niranjan Singh, a brother of the informant, PW-1 had lodged a first information report against him and Jagdeep Singh under Sections 447/427/148/149 IPC. However, in that case they were acquitted. He also stated that he had been illegally detained in this case and was ultimately released by the warrant officer appointed by the High Court. He further stated that Niranjan Singh made a complaint against him which was found to be false and was consequently filed but thereafter action under Section 182 IPC was initiated against him.

Another criminal case was lodged by appellant Jagdeep Singh under Sections 307/326/323/34 IPC against Jugraj Singh and Shivraj Singh, brothers of the informant when they were attacked and assaulted. Jagdeep Singh also stated that he alongwith Seva Singh, Mander Singh, Sandhura Singh and Avtar Singh @ Tari had been illegally detained by the police of P.S. Raman and were brutally tortured by the police on 6th December, 1989. Ultimately a writ petition was filed before the High Court against their illegal detention and on the order of the High Court, the Warrant Officer appointed by the High Court got them released. It was, therefore, submitted that far from being friendly towards the accused the police was bent against them and illegally detained them in custody continuously for several days till they were released from their illegal detention by the Warrant Officer appointed by the High Court.

It is not necessary to refer to the statements of the other accused recorded under Sections 313 of the Code of Criminal Procedure because the facts we have noticed are sufficient to reach the conclusion that there was intense enmity between the two groups in village Kamalu and several murders had taken place including the murders of two sons of appellant Jagdeep Singh by the brothers of the informant PW-1 and others.

It was submitted before us that the occurrence took place on 19th November, 1989 at about 7.00 a.m. but no report was made to the police regarding the incident. Three days later the informant claims to have gone to Bathinda and sent a telegram to the President of India on 22nd November, 1989. Thereafter on 4th December, 1989 she made a belated complaint to the Senior Superintendent of Police, Bathinda on the basis of which the first information report was registered at P.S. Raman. On the other hand PW-1 contends that she had in fact gone to the police station alongwith Namberdar Gurnam Singh and the Chowkidar of the village but the police, which was under the influence of the accused, refused to record the statement of the informant and register the case against the appellants. In her deposition she categorically stated that she met the Station House Officer Major Singh, PW-6, at the police station who refused to record her statement. She thereafter returned to the village and waited for 2-3 days. When she found that the police had not taken any action in the matter, she sent a telegram to the President of India on 22nd November, 1989. Later she made a complaint to the Senior Superintendent of Police, Bathinda on 4th December, 1989. She has admitted in the course of her examination that apart from the Namberdar and the Chowkidar of the village, she did not inform any one after returning to the village soon after the incident. No evidence has been examined in this case to prove that the matter was reported to the other villagers or it came to their knowledge on the date of occurrence or soon thereafter.

PW-6, Major Singh had been examined as a prosecution witness. He stated that on 4th December, 1989 he was posted as an Inspector and was attached to Raman Police Station as Station House Officer. On receipt of the application Ext. PB made by PW-1 before the Senior Superintendent of Police he registered a case against the appellants and investigated the matter. He narrated the steps which he took during the course of investigation of the case. He categorically asserted that he did not receive any complaint prior to the registration of the case on 4th December, 1989. Neither Chowkidar nor Gurnam Siugh, Namberdar met him prior to 4th December, 1989.

Accordingly, these appeals are allowed and the appellants are acquitted of all the charges levelled against them. The judgment and order of the High Court is set aside. The appellants are directed to be released forthwith unless required in connection with any other case.