Punjab-Haryana High Court
Avtar Singh Alias Tari And Another vs State Of Punjab on 16 February, 2012
Bench: Jasbir Singh, Sabina
CRIMINAL APPEAL NO. 289-DB-2005 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
DATE OF DECISION: February 16, 2012
Parties Name
Avtar Singh alias Tari and another
...APPELLANTS.
VERSUS
State of Punjab
...RESPONDENT
CORAM: Hon'ble Mr. Justice Jasbir Singh
Hon'ble Mrs. Justice Sabina
PRESENT: Mr. S.S.Tiwana,
Advocate, for the appellants.
Mr. Rajesh Bhardwaj, Addl. A.G., Punjab
Jasbir Singh, J.
JUDGMENT
It was an allegation against the appellants that, in the intervening night of 25th December, 2002, within the area of village Shatrana, they in furtherance of their common intention, had intentionally committed murder of Tarlochan Singh Bhullar alias Baba Bhullar. It was further allegation against them that on the above date, they had also committed lurking house-trespass at night, by entering in a building belonging to the above deceased and voluntarily caused his death. CRIMINAL APPEAL NO. 289-DB-2005 -2-
Dead body of Baba Bhullar was noticed by PW4 Mohinder Singh on January 1, 2003, at 6.15 PM. He intimated the police by making statement Ex. PE. His statement was recorded by Inspector Tarun Rattan (PW12), whereupon FIR Ex. PE/2 was registered in Police Station Patran on January 1, 2003, at 6.30 PM for commission of an offence under Section 302/34 IPC. Offence under Section 460 IPC was added in the FIR on January 7, 2003.
The trial Judge has noticed following facts from the statement of Mohinder Singh (PW4):
"Who has stated that he is resident of village Shatrana and is Ex.Sarpanch. One Nihang Singh namely Tarlochan Singh Bhuller son of Bhag Singh who was familiar with the name of Baba Bhullar aged about 70 years and he was residing in the Guruduwara Sahib, Shatrana for the last 30/35 years and he was taking meal from the village. He further deposed that there are two other big Guruduwara in the village, as such, number of devotees coming to this Guruduwara was less. Since Baba Bhullar was not seen for the so many days, therefore, the complainant and Kalla Singh son of Joginder Singh, Amarjit Singh son of Nirbhai Singh and Tehal Singh Sarpanch went to Guruduwara Sahib to see him and found that room of Baba was locked and when they saw through the windows and felt that foul smell was emitting from inside the room and Baba Bhullar was lying dead on the cot and some unknown persons had killed him. The complainant after leaving Kalla Singh, Amarjit CRIMINAL APPEAL NO. 289-DB-2005 -3- Singh there has come along with Tehal Singh to lodge the report. Inspector Taran Rattan after recording the statement of the complainant put his endorsement on the same and forwarded the same to the Police Station through C. Satnam Singh on the basis of which formal F.I.R. Under Section 302 IPC was recorded."
After recording statement of PW4, the Investigating Officer - Inspector Tarun Rattan went to the place of occurrence, broke open door of the room in which dead body was lying, prepared inquest report on the dead body and sent it for post-mortem examination, which was conducted by Dr. Parshant Gautam (PW1) on January 2, 2003, at 11.15 AM.
In the meantime, the Investigating Officer removed blood stained earth from the spot and it was taken into possession against a recovery memo. A cot and a broken lock were also seized against recovery memos. It was also noted that the accused, who had committed murder of Baba Bhullar, had taken away a mare of the deceased. On January 7, 2003, the Investigating Officer recorded supplementary statement of Mohinder Singh (PW4), and the statements of Wadhwa Singh (PW5) and Baldev Singh (PW6). In his statement, PW5 has stated that he had seen both the appellants - accused on December 28, 2002 with a mare of the deceased. It is further stated that he had brought the above fact to the notice of PW4 Mohinder Singh. PW6 Baldev Singh has stated that on December 25, 2002, at about 8 or 9 PM, he had found both the accused taking liquor in the Dera of Avtar Singh and they were making a plan to take away mare of the deceased. It is further case of the prosecution that both the appellants had CRIMINAL APPEAL NO. 289-DB-2005 -4- made an extra-judicial confession admitting their guilt before Satnam Singh (PW7) on January 7, 2003. The appellants were arrested on January 8, 2003. On a disclosure statement made by appellant No. 2- Ranpat, weapon of offence ( a Sua) was recovered from his residential house. Similarly on a disclosure statement made by appellant No. 1, a mare was recovered from the house of his brother-in-law Baldev Singh (DW1) of village Chicharwal.
On completion of investigation, final report was put in Court. Copies of the documents were supplied to the appellants - accused as per provisions of Section 207 Cr.P.C. Case was committed to the competent Court for trial. Both the appellants were charge-sheeted for commission of offences under Sections 302 read with Section 34 IPC and 460 IPC vide order dated August 4, 2003. They pleaded not guilty and claimed trial. The prosecution produced 12 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the appellants - accused was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them. They denied the same, pleaded innocence and false implication. Appellant No. 1 took up the following stand in his statement:
"I am innocent. Due to political rivalry, I have been falsely implicated at the instance of Mohinder Singh, former Sarpanch. Mohinder Singh and Wadhawa Singh supported each other whereas I supported the candidate against them in Panchayat elections. Due to grudge, Mohinder Singh and Wadhawa Singh have got me falsely implicated in this case."
Counsel for the appellants has vehemently contended that it CRIMINAL APPEAL NO. 289-DB-2005 -5- was a case of blind murder. None had seen the occurrence. The prosecution has relied upon circumstantial evidence to pin point the appellants as accused. They were not named in the FIR. It is only allegation against them that they were seen with the mare owned by the deceased on December 28, 2002 by PW5 Wadhawa Singh. PW6 Baldev Singh had heard them conspiring to take away mare of the deceased on December 25, 2002. It is further allegation against them that before PW7, they had made an extra- judicial confession admitting their guilt.
It is contention of counsel for the appellants that statements of PW4 to PW7 do not inspire any confidence. Dead body was detected on January 1, 2003. Statements of PW5 and PW6 were recorded on January 7, 2003, and PW7 on January 8, 2003. For the intervening period, no explanation has been given. It is stated that recovery of mare is not proved on record. It is further said that ocular version of the witnesses does not correspond with the medical evidence on record. Counsel further argued that the investigation has been done in a very casual manner. No attempt was made to trace finger prints of the accused from the doors, locks and other articles lying at the place of occurrence. The Investigating Officer has arraigned the appellants as accused simply on the basis of a suspicion. He prayed that the appeal be allowed, impugned judgment and order be set aside and the appellants be acquitted of the charges framed against them.
Prayer made has vehemently been opposed by the State counsel, who argued that the deposition made by PW4 to PW7 is trust- worthy. There is nothing on record to show that they were inimical to the appellants. As such there was no occasion with them to depose falsely CRIMINAL APPEAL NO. 289-DB-2005 -6- against them. Recovery of mare and weapon of offence is proved on record. The investigation was done in a very disciplined manner. The Investigating Officer, wherever it was needed, took articles in possession against seizure memos and recorded statements of the witnesses. He prayed that the appeal having no substance be dismissed.
In this case, none had seen the occurrence, in which Baba Bhullar was murdered. His dead body was recovered on January 1, 2003, and the matter was reported to the police by PW4 Mohinder Singh. In the FIR, none is named as an accused. In the statement of PW4, it is not stated that mare of the deceased was missing. Furthermore, in the statement made by PW5 Wadhwa Singh, it is stated that he had seen the appellants with mare of the deceased on December 28, 2002, and he had intimated this fact to PW4, whereas in the statement of PW4 it is not so mentioned. In Court, this witness had stated that after December 28, 2002, he had gone to UP to meet his sister, whereas in his statement recorded under Section 161 Cr.P.C., it is not so stated. This witness has failed to show what was the reason for his disappearance from his village. PW6 has heard both the appellants conspiring to take away mare of the deceased on December 25, 2002. It is also stated by this witness that after that date, he had also gone to Haryana whereas in his statement under Section 161 Cr.P.C. , it is not so stated. This witness has also said that he had brought this fact to the notice of Wadhwa Singh, whereas it is not so stated by Wadhwa Singh (PW5). This witness has not stated above fact to anybody else till his statement was recorded on January 7, 2003. In view of above, the deposition made by PW5 and PW6 does not inspire any confidence.
CRIMINAL APPEAL NO. 289-DB-2005 -7-
So far as assertion that the appellants had made an extra judicial confession before Satnam Singh (PW7), it also appears to be unbelievable. It was stated by Satnam Singh (PW7) that both the appellants came to him on January 7, 2003, at about 8/ 9 PM. They admitted their guilt and made a request to him to produce them before the police. Police post is available in the village at a distance of 1- 2 KM. However, this witness told the appellants - accused to come on the next day. He never produced the appellants - accused before the police. They were arrested on January 8, 2003. This witness has stated that he came to know about murder of Baba Bhullar on January 8, 2003, which indicates that he was telling a lie. He is resident of the village where occurrence had taken place. It is not expected that he would not come to know about the murder in dispute. He is neither a person of means nor a Panch or Sarpanch. He has no special relation with the appellants - accused and also the police. Under the circumstances, it is not expected that the accused would make any confessional statement before him.
Not only as above, the ocular version of the prosecution also does not tally with the medical evidence on record. Post-mortem on the dead body was conducted by Dr. Parshant Gautam (PW1) on January 2, 2003, at 11.15 AM. Dead body was putrefied and foul smell was coming out. Maggots were present. This witness has specifically stated that there was no mark of injury on the dead body. Following injury was noticed on the person of the deceased:
"There was diffused swollen face, with nose compressed transversely. On deep dissection, multiple fractures of frontal CRIMINAL APPEAL NO. 289-DB-2005 -8- bones and parietal bones were present in skull. Diffuse extra- dural , sub-dural haematoma with brain laceration was present. Dura was damaged. Rest all other parts were healthy."
Above head injury was declared as cause of death. The injury was ante mortem in nature and sufficient to cause death in ordinary course. Duration that might have elapsed between death and post-mortem was declared as more than 48 hours. In his cross-examination, this witness has specifically stated that injury could be possible with a fall from horse etc. The Investigating Officer is stated to have recovered a weapon of offence, i.e., Sua from appellant No. 2. It is nobody's case that it was used to cause any injury to the deceased. No visible mark of injury was found on the dead body, which was detected on January 1, 2003. Duration of 48 hours cannot be stretched upto December 25, 2002, to say that murder was committed on that date as has been projected by the prosecution. The prosecution has failed to fill up above lacuna.
Not only as above, recovery of weapon of offence from house of appellant No. 2 is also not believable. No independent witness was joined at the time of recovery. Other members of the family of the appellant were also residing in the said house.
Recovery of mare on a disclosure statement made by the appellant No. 1 also does not inspire confidence. The mare after recovery was not released on Superdari and there is nothing on record to show that from the date of recovery, in whose custody the mare remained. It was not produced in Court at the time of recording evidence. It was loosely said by CRIMINAL APPEAL NO. 289-DB-2005 -9- the Investigating Officer that he had seen the mare outside the Court when his statement was recorded.
Investigation also appears to be faulty. Dead body was removed after breaking open a lock of the door of a room, in which it was lying. No attempt was made to trace the finger prints from the lock, doors and other articles, which were available at the spot. Statements of all the witnesses were recorded on January 7 & 8, 2003 and criminal case was foisted upon the above accused, It is a case of blind murder. There is no eye witness account. The prosecution case rests upon the circumstantial evidence. None had seen the deceased with the accused. In such like cases, the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established. Circumstances need to be of a definite tendency positively pointing towards guilt of the accused. All the circumstances taken together should form a complete chain so that there is no escape from a conclusion that within all human probability the crime was committed by the accused and not by anybody else. The circumstantial evidence must be complete and incapable of explanation of any hypothesis other than that of guilt of the accused. The evidence should be inconsistent with the innocence of the accused and it should not be capable of two opinions. Their lordships of the Supreme Court in Krishnan v. State, (2008) 15 SCC 430, a case where accused was sought to be convicted on the basis of circumstantial evidence, after considering a large number of its earlier judgments, observed as under:
"15...This Court in a series of decisions has consistently held CRIMINAL APPEAL NO. 289-DB-2005 -10- that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
(i)the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii)those circumstances should be of definite tendency unerringly pointing towards guilt of the accused;
(iii)the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351: 1982 SCC (Cri) 431: AIR 1982 SC 1157)."
The above view was reiterated by the Hon'ble Supreme Court in the case of Babu v. State of Kerala, (2010) 9 SCC 189, and also in the case of SK Yusuf v. State of West Bengal, 2011(74) ACC 293. In the latter judgment, it was observed as under:
"Undoubtedly, conviction can be based solely on circumstantial evidence. However, the court must bear in mind while deciding the case involving the commission of serious offence based on CRIMINAL APPEAL NO. 289-DB-2005 -11- circumstantial evidence that the prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence case. The circumstances from which the conclusion of guilt is to be drawn should be fully established. The facts so established should be consistent only with the hypothesis of the guilt of the accused and they should not be explainable on any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
Similarly, in the case of Wakkar and another v. State of U.P. and others, 2011 (3) SCC 306, it was opined by the Supreme Court that merely on the basis of recovery of some offending articles, an accused cannot be declared guilty of commission of murder. Similarly in the case of Mustkeem @ Sirajudeen v. State of Rajasthan, 2011 AIR (SC) (Cri) 1683, it was opined by the Supreme Court that "where the case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person".
In this case, evidence of prosecution has been analysed keeping in mind the principles/ parameters set down by their lordships of the Supreme Court in the above judgments. After analysis of the evidence, this CRIMINAL APPEAL NO. 289-DB-2005 -12- Court is satisfied that the chain of circumstances is not complete and is not such which may indicate towards guilt of the appellants - accused and none else. Nobody had seen the appellants in the company of the deceased. Statement made by PW5 that they were seen with mare of the deceased is not believable. This witness has failed to give any reason for his going to UP for many days. Similarly, statement of PW6 that he had heard the appellants conspiring to take away mare of the deceased is also not acceptable. PW8, before whom alleged extra-judicial confession was allegedly made, is not a reliable witness as has been discussed in earlier part of this order. Investigation is also very casual in this case.
In view of facts, mentioned above, this appeal is allowed, impugned judgment and order dated September 4, 2004, are set aside and the appellants are acquitted of the charges framed against them. The appellant, who is in custody, be set at liberty forthwith if he is not required in any other case.
( Jasbir Singh ) Judge ( Sabina) Judge February 16, 2012 DKC