Punjab-Haryana High Court
Jasbir Singh @ Jassa And Another vs State Of Punjab on 24 March, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No. 687-DB of 2008 1
Criminal Revision No.100 of 2009
Criminal Appeal No. 323-DB of 2009
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:May 24, 2012
Criminal Appeal No. 687-DB of 2008
Jasbir Singh @ Jassa and another
......Appellants
Versus
State of Punjab .......Respondent
Criminal Appeal No. 323-DB of 2009
State of Punjab
......Appellant
Versus
Palwinder Singh @ Pinda and others
.......Respondents
Criminal Revision No.100 of 2009
Salinder Singh
......petitioner
Versus
State of Punjab and others .......Respondents
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.Baldev Singh, Sr. Advocate with
Mr.Deepender Singh, Advocate,
for the appellants in CRA No.687-DB of 2008.
Mr.R.K.Rana, Advocate
for the respondents in State appeal.
Mr.Rajesh Bhardwaj, Addl.A.G.Punjab.
Mr.Gagneshwar Walia, Advocate and
Mr.Sudhir Walia, Advocate,
for the complainant.
****
Criminal Appeal No. 687-DB of 2008 2
Criminal Revision No.100 of 2009
Criminal Appeal No. 323-DB of 2009
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned appeals as well as revision petition will be disposed of as these have arisen out of a common incident/ judgment.
Prosecution case was set in motion on the basis of statement of complainant Gurdev Singh before Sub Inspector Amarjit Singh. Complainant stated in his statement Ex.PG that Mohan Singh was son-in-law of the aunt of his wife. He was on visiting terms with Mohan Singh, who was residing in England along with his family. Mohan Singh had constructed a house in Gobind Nagar, Phagwara. About six years prior to the occurrence, Mohan Singh had purchased two plots in Ludhiana, South City and the same were lying vacant since then. Now Mohan Singh wanted to raise a boundary wall around the vacant plots. The owner of the adjacent plot claimed himself to be the owner of the plot purchased by Mohan Singh and restrained him from raising the boundary wall. On 18.8.2005, he had gone with Mohan Singh to the said plot on vehicle bearing registration No.HR-08B 6914 at about 11.30 A.M. from Phagwara to Ludhiana. They handed over the construction material to the mason for filling up the foundation of the plots and while returning back to Phagwara, they stopped at Dal Roti.com Dhaba on G.T.Road for taking meals. At about 1.30/ 2.00 P.M., they started towards their vehicle after finishing their meals. Mohan Singh was going ahead of them. When Mohan Singh reached near their vehicle, a scorpio of Criminal Appeal No. 687-DB of 2008 3 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 black colour came from Ludhiana side and stopped near them. The number plate of scorpio vehicle was covered with earth. 6-7 clean shaven young men wearing pants and shirts, armed with base ball bats, got down from the scorpio and inflicted injuries on the person of Mohan Singh. As a result of this Mohan Singh fell on the ground. Avtar Singh, driver of their (complainant) vehicle moved forward to save Mohan Singh but he was pushed aside. They raised alarm and the assailants sped away from the spot with their respective weapons after boarding the scorpio. He could identify the assailants if they were produced before him. Mohan Singh was removed to Daya Nand Medical College and Hospital, Ludhiana (DMC Ludhiana for short) for treatment in their vehicle but he succumbed to his injuries. He suspected that the person, who had dispute with Mohan Singh regarding plots, had got murdered Mohan Singh.
On the basis of the statement of the complainant formal FIR No.168 was registered on 18.8.2005 at police station Phillaur under Sections 302/ 148/ 149 IPC.
Sub Inspector Amarjit Singh, thereafter, went to DMC Ludhiana and prepared inquest report qua the dead body of Mohan Singh. Salinder Singh and Tirath Singh, who were residing in England, came to India on receipt of information qua the murder of Mohan Singh and requested Sub Inspector Amarjit Singh to wait for their arrival before sending the dead body for post mortem examination. Sub Inspector Amarjit Singh inspected the spot along with the complainant. He lifted blood stained earth from the spot and Criminal Appeal No. 687-DB of 2008 4 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 prepared rough site plan qua the place of occurrence. Salinder Singh and Tirath Singh insisted that the dead body be preserved for some more time as they wanted to take the same to England. Since there was no facility at Civil Hospital, Phillaur for preservation of the dead body, the same was sent to Amritsar. After arrival of Salinder Singh and Tirath Singh, the dead body of Mohan Singh was sent for postmortem examination. After the postmortem examination, the dead body was handed over to the relatives of Mohan Singh.
On 10.12.2005, a special investigating team was constituted by Senior Superintendent of Police, Jalandhar to investigate the case. The said team inspected the spot on 18.12.2005. On 22.12.2005, scorpio bearing registration No. HR 31- C, 1980 was taken in possession from MHC Harjinder Singh, Police Station Goraya, who had recovered the same from Rurke Kalan in an abandoned condition.
Accused were arrested. During interrogation, accused Gurpreet Singh @ Gopi, Jasbir Singh @ Jassa, Palwinder Singh @ Pinda and Rajwinder Singh @ Raju suffered disclosure statements and got recovered base ball bats from the disclosed places. Accused Hardip Singh @ Ghanti, Sukhwinder Singh @ Rita, Sukhjit Singh and Kulwant Singh suffered disclosure statements and got recovered iron rods from the disclosed places.
After completition of investigation and necessary formalities, challan was presented against accused Jasbir Singh @ Jassa, Palwinder Singh @ Pinda, Rajwinder Singh @ Raju, Criminal Appeal No. 687-DB of 2008 5 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 Sukhwinder Singh, Gurpreet Singh @ Gopi, Sukhjit Singh, Hardeep Singh and Kulwant Singh. Accused Sukhjiwan Singh @ Jiwan Singh and Inderjit Kaur @ Mindi were declared proclaimed offenders (P.O for short) and they could not be arrested during investigation.
Prosecution in order to prove its case examined 27 witnesses.
The accused, when examined under Section 313 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), after the close of prosecution evidence, pleaded that they were innocent and had been falsely involved in the case.
The accused did not lead any evidence in their defence. Vide impugned judgment dated 26.8.2008, accused Jasbir Singh @ Jassa and Gurpreet Singh @ Gopi were held guilty of commission of offence under Sections 149, 302/ 149 IPC by the trial Court. However, accused Palwinder Singh @ Pinda, Rajwinder Singh @ Raju, Sukhwinder Singh, Hardip Singh, Sukhjit Singh and Kulwant Singh were acquitted of the charges framed against them. Hence, Criminal Appeal No.687-DB of 2008 has been filed by the accused, who were convicted and sentenced by the trial Court. Criminal Appeal No.323-DB of 2009 and Criminal Revision No.100 of 2009 have been filed by the State and the complainant respectively challenging acquittal of the accused.
Learned senior counsel for the appellants has submitted that there was unexplained delay in lodging of the FIR. The eye witnesses had not witnessed the occurrence and had been Criminal Appeal No. 687-DB of 2008 6 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 introduced at a later stage to falsely involve the accused in this case. The special report had also reached the Magistrate after inordinate delay which also rendered the prosecution case doubtful. In fact, no occurrence as alleged had taken place at 2.00 P.M. As per the complainant, the occurrence had taken place after they had taken meals at the Dhaba, whereas, PW-5 during postmortem examination found semi digested food in the stomach which led to the inference that the deceased had taken meals a couple of hours before the occurrence. There was no occasion for accused Gurpreet Singh to suffer an extra judicial confession before PW-15 Sunil Kumar @ Pinky as the said person was not known to him. The identity of the accused had not been established in this case as the accused had not been identified by the complainant or Avtar Singh, driver of the vehicle. The identification of the accused by PW Santokh Singh in the court was unreliable. Further the said witness had seen the accused on number of occasions when he had visited the court for recording of his statement. The story putforth by the son and the grand daughter of the deceased had been concocted at a later stage. Their statements were recorded in January/ February, 2006. Although PW-17 Salinder Singh had visited India immediately after the occurrence but had failed to put forth the version got recorded by him on 20.1.2006. The accused had no motive to commit murder of the deceased. PW-10 Naresh Tiwari and PW-11 Navyug Singh, who had disclosed the number of the offending scorpio had not disclosed the said number to the investigating officer before 18.12.2005. As Criminal Appeal No. 687-DB of 2008 7 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 per FIR, the number plate of the scorpio was covered with earth and hence, the statements of PW-10 and PW-11 had been recorded later on to strengthen the prosecution case. Recoveries of weapons had been falsely planted on the accused.
Learned State counsel as well as learned counsel for the complainant, on the other hand, have submitted that the prosecution had been successful in proving its case. PW-9 Santokh Singh had identified all the accused present in the Court and hence, all the accused were liable to be convicted qua the offence of murder of Mohan Singh. Accused Inderjit Kaur, daughter-in-law of Mohan Singh had illicit relations with accused Sukhjiwan Singh. Inderjit Kaur conspired with Sukhjiwan Singh to commit the murder of Mohan Singh. The said fact was duly established from the statements of PW-17 Salinder Singh and PW-18 Sharanjit Kaur. The accused had refused to participate in the identification parade and hence, an adverse inference was liable to be drawn against them. The call details of sim card owned by accused Gurpreet Singh had been produced on record which revealed that accused Gopi, Inderjit Kaur and Sukhjiwan Singh were in contact with each other before and after the occurrence. PW-15 was secretary of Satluj club and his brother was Ex-Municipal Councillor and president of Municipal Corporation, Phillaur. Hence, the extra judicial confession suffered before him by accused Gurpreet Singh was liable to be believed. The injured had been initially rushed to the hospital for treatment by the eye witnesses and thereafter, FIR was lodged. There was no Criminal Appeal No. 687-DB of 2008 8 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 unexplained delay in lodging of the FIR.
We have carefully gone through the record available on the file.
Complainant, while appearing in the witness box as PW- 6, has deposed as per the contents of the FIR. As per the complainant, the assailants were armed with base ball bats and had come to the spot in a scorpio. The said witness, however, failed to identify the accused in the Court.
Driver of Tata Safari bearing registration No.HR-08B- 6914, Avtar Singh, while appearing in the witness box as PW-7, deposed that on 18.8.2005 at about 1.30/ 2.00 P.M., he was sitting in his vehicle. He saw Mohan Singh coming towards his vehicle ahead of Santokh Singh and Gurdev Singh. He noticed that some quarrel was going on. He alighted from his vehicle and was hit by something and he fell down. He was given more beatings. He lost his senses and regained his consciousness after 2-3 minutes. He was told that the assailants had fled away. He took Mohan Singh in an injured condition to DMC, Ludhiana in his vehicle along with Santokh Singh and Gurdev Singh. Later he came to know that Mohan Singh had died. He stayed at DMC, Ludhiana, whereas, Gurdev Singh and Santokh Singh returned back to Phillaur. He further disclosed that he could not see the assailants at the spot. The said witness was declared hostile but nothing fruitful could be elicited from his cross- examination.
PW-9 Santokh Singh deposed that he was a private Criminal Appeal No. 687-DB of 2008 9 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 contractor. On 18.8.2005, he had gone to Ludhiana from Phagwara with Mohan Singh and Gurdev Singh in safari No. HR 08B-6914 driven by Avtar Singh. After supplying construction material at the spot, they stopped at Dal-Roti.com Dhaba for lunch at about 1.00 P.M. After eating their meals, while they were returning back to their vehicle Mohan Singh was attacked by 7-8 persons, who had come in a scorpio vehicle armed with base ball bats and iron rods. He identified all the accused present in the court. He pointed out towards accused Jasbir Singh and said that the said accused had given the first blow on the head of Mohan Singh with a base ball bat. Avtar Singh moved forward to rescue Mohan Singh but he was also given two blows by one of the accused. Then he came forward along with Gurdev Singh and raised alarm. All the assailants then sped away from the spot in their vehicle alongwith their respective weapons.
Thus, so far as eye witness account is concerned, complainant as well as PW-7 Avtar Singh have failed to identify the accused. So far as the identification of PW-9 Santokh Singh in the court is concerned, the same fails to inspire confidence. The identification of the accused by this witness is not reliable. The said witness, in his cross-examination, deposed that he had appeared on a number of dates before the trial Court but his statement could not be recorded. All the accused were being produced in the court whenever he came there for recording of his statement. He also admitted that some of Criminal Appeal No. 687-DB of 2008 10 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 the relatives of Mohan Singh had also been coming to the court. He further deposed that his statement was recorded during the night intervening 18.8.2005 and 19.8.2005 by the police. He admitted that he did not know the accused at the time of occurrence. Since the said witness did not know the accused before the occurrence nor the accused had been produced before him during an identification parade, the possibility that he might have identified the accused as the assailants as he had been seeing them in the court on the earlier dates when he had appeared for the purpose of getting his statement recorded, cannot be ruled out. The said witness had the opportunity of seeing the accused when they were produced during trial on a number of dates before his statement was actually recorded. It is possible that due to this reason, he might have identified accused as the assailants, who had committed the murder of Mohan Singh. Further as per the complainant, the assailants were armed with base ball bats, whereas, as per PW-9, the assailants were armed with base ball bats and iron rods. During investigation, base ball bats were recovered from accused Gurpreet Singh, Jasbir Singh, Palwinder Singh and Rajwinder Singh and iron rods were recovered from accused Hardip Singh, Sukhwinder Singh, Sukhjit Singh and Kulwant Singh. The said discrepancy also renders the prosecution case doubtful.
There is no doubt that Mohan Singh had died on account of the injuries suffered by him. In this regard, PW-5 Dr.Deepak Walia deposed that on 20.8.2005, he along with Dr.Ashok Chanana, and Criminal Appeal No. 687-DB of 2008 11 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 Dr.Kirpal Singh, had conducted postmortem examination on the dead body of Mohan Singh and had found following injuries on his person:-
"1. An oblique lacerated wound 6.8 x 1 cm with clotted blood was present on the back of head on occipital region in its centre.
2. A dark reddish coloour bruise 4.5 x 2.5 cm was present on left cheek on the molur region.
3. On lower half of the nose a dark reddish coloured region 5.6 x 1.5 cm was present. A portion of left and right alae of nose was also torn. 1 x 0.5 cm to 1.5 x 0.5 cm with clotted blood. Underlying cartilage was broken. Clotted blood was present.
4. A dark brown abrasion 13 cm x 0.4 cm was present on the lateral surface of right thigh in its upper 1/3rd. It was obliquely placed.
5. An horizontal linear dark reddish brown abrasion 7 x 0.3 cm was present on the outer aspect of right thigh in its middle.
6. A dark reddish contusion 5 cm x 2.5 cm was present on the outer surface of right thigh in its lower one third.
7. Multiple reddish brown abrasion varying in size from 0.5 x 0.3 cm to 1.2 x 0.4 cm were present on the left knee in 6 x 3 cm area.
8. A dark reddish brown abrasion 3.8 x 1.5 cm was present on the region of point of elbow left.Criminal Appeal No. 687-DB of 2008 12
Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009
9. A dark reddish brown abrasion 2 x 1 cm was present on the lateral surface of left elbow.
10. A dark reddish brown abrasion obliquely placed 12 x 0.5 cm on the back of chest was present.
11. A dark reddish brown abrasion horizontally placed 6 x 0.4 cm was present on back and right side of chest in its centre.
12. A dark reddish brown abrasion / bruise 8 x 2.2. cm was present on the back and right side of abdomen on the lumber region.
13. A dark reddish brown bruise 5 x 2.5 cm was present on the back and left side of abdomen in the centre of lumber region.
He further deposed that the injuries were ante mortem in nature. In their opinion, the cause of death in this case was due to compression of brain due to haemorrhage as a result of injury No.1, which was sufficient to cause death in the ordinary course of nature.
However, the ocular version qua the involvement of the accused in the crime as disclosed by PW-9 Santokh Singh fails to inspire confidence.
The occurrence in the present case had taken place at 1.30/ 2.00 P.M., whereas, the complainant got recorded his statement at 10.00 P.M. on 18.8.2005. Delay in lodging of the FIR leads to the inference that the same may have been utilized for consultations, confabulations and for giving a distorted version qua Criminal Appeal No. 687-DB of 2008 13 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 the manner of occurrence. Although learned counsel for the complainant as well as learned State counsel have argued that the delay in the present case was duly explained as the injured was first rushed to the hospital and, thereafter, the matter was reported to the police but the said argument is liable to be rejected as in the present case, the delay in lodging of the FIR has not been duly explained by the prosecution. The complainant, in his cross-examination, deposed that they had reached DMC, Ludhiana at 2.30 P.M. and they came to know about the death of Mohan Singh at 3.00 P.M. The ruqqa from DMC, Ludhiana qua the death of Mohan Singh was sent to police station Division No.8, Ludhiana. A perusal of the same reveals that Mohan Singh was brought dead in DMC, Ludhiana at 3.00 P.M. on 18.8.2005. Information in this regard was received by police station Division No.8, Ludhiana at 4.30 P.M., which was sent at 3.30 P.M. However, the complainant got recorded his statement qua the occurrence at 10.00 P.M. Mohan Singh had been brought dead to DMC, Ludhiana. Thus, Mohan Singh had succumbed to his injuries on the way to the hospital. Thereafter, the matter could have been easily reported to the police immediately but the same was done after inordinate delay. In the facts and circumstances of the present case, the delay in lodging of the FIR gains significance and renders the prosecution case doubtful.
During investigation, the statement of PW-8 Jagroop Singh was recorded by the police under Section 161 Cr.P.C. as well as by the Magistrate under Section 164 Cr.P.C. The said witness Criminal Appeal No. 687-DB of 2008 14 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 deposed that on 18.8.2005, he was present in his village Virk and at about 9.30 A.M., Gurpreet Singh @ Gopi came to his house on a motorcycle. Then they went to Phillaur and after half an hour they returned back to village Virk. He had not read his statements recorded by the police and the Judicial Magistrate. During his cross- examination, by the learned public prosecutor, he stated that it was correct that Gurpreet Singh had come to his house on motorcycle bearing No.PB-37-B 7873. Gurpreet Singh had a talk with Jasbir Singh @ Jassa. He knew Jasbir Singh @ Jassa who was having a scorpio of black colour. He was in police custody for eight days. During his detention in the police station, he came to know about the names of all the accused. All of them were detained in the police station on the allegation of committing a murder. He also admitted that the number of scorpio was HR 31-A 1980 and the number of Safari vehicle was HR 08B 6914. Gurpreet Singh had made a phone call from his mobile phone to Jasbir Singh. He also admitted that he had got recorded in his statement that Jasbir Singh, Gurpreet Singh and his other companions were planning to kill Mohan Singh, who had come from England. He further admitted that he had told the accused that he would not assist them in the said plan. He admitted his signatures on the statement under Section 164 Cr.P.C. (Ex.PW- 8/B). However, in his cross-examination by the defence counsel, he stated that it was correct that he had been forced to make a statement against accused as otherwise he was threatened that he would be arrayed as an accused with them. He was set free after Criminal Appeal No. 687-DB of 2008 15 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 detention of 6-7 days. He was again called by the police on 1.1.2006 and was tutored by the police and thereafter, his statements were recorded by the police as well as before the Magistrate. Thus, the statement of the said witness cannot be relied upon as the said witness cannot be described as a reliable witness. He has stated that he had been forced to make statements before the police as well as before the Magistrate. Further the statements of this witness were recorded by the police as well as by the Magistrate on 7.1.2006 after the arrest of the accused. Thus, the statements of this witness were recorded after a long delay. The possibility that the said witness had been introduced by the police in January, 2006 to strengthen the prosecution case cannot be ruled out. Hence, the statement of this witness fails to advance the prosecution case.
Prosecution had also examined PW-10 Naresh Tiwari and PW-11 Navyug Singh to establish that the number of the offending scorpio was HR 31-C 1980. As per PW-11, he had noted down the number when the vehicle had crossed him at a fast speed while he was standing on the divider to note the vehicles parked in front of the adjacent dhaba. He was working at Satluj Vaishno Dhaba on the cash counter as a bill clerk on 18.8.2005. He had told the number of the vehicle to PW-10, who had noted down the same on the cash ledger book Ex.PZ at Ex.PZ/1. PW-10 has corroborated the statement of PW-11 in this regard. However, the statements of these witnesses fail to advance the prosecution case as these were recorded in December, 2005. As per these witnesses, police had Criminal Appeal No. 687-DB of 2008 16 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 been visiting the place of occurrence yet the said witnesses did not bother to inform the police that they had noted down the number of the scorpio vehicle. Further the police station, Phillaur was at a distance of 200 yards from their dhaba yet they did not bother to inform the police qua the number of the scorpio used by the assailants. In these circumstances, the statements of PW-10 and PW-11 which were recorded after a long delay are rendered doubtful and the possibility that they had been later introduced as witnesses to strengthen the prosecution case cannot be ruled out.
PW-17 Salinder Singh is the son of the deceased, whereas, PW-18 Sharanjit Kaur is the grand daughter of the deceased. PW-18 deposed that she was born in England. Inderjit Kaur was her mother and Salinder Singh was her father. The relationship between her parents was strained after 15-16 year of their marriage. Her parents started residing separately since June, 2004. She was residing with her mother, whereas, her brother was residing with her father. The telephone number at her mother's residence was 001162717553. When she was residing with her mother, Sukhjiwan Singh used to visit her as he had illicit relations with her mother. Her mother used to say that she would get killed her father and grand-father in India. Her mother had shown photographs of her father as well as her grand-father to Sukhjiwan Singh. Thereafter, she started living with her father. In this regard, PW-17 has corroborated the statement of PW-18. However, the statements of PW-17 and PW-18 qua conspiracy hatched by Inderjit Criminal Appeal No. 687-DB of 2008 17 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 Kaur to commit murder of Mohan Singh fails to inspire confidence. The statement of PW-17 Salinder Singh was recorded in January, 2006, whereas, the statement of PW-18 Sharanjit Kaur was recorded by the police on 10.2.2006. In case, the version put forth by the said witnesses was correct then Salinder Singh, who had come to India immediately after the murder of his father on 19.8.2005, would have immediately got recorded his statement in this regard on that day itself. The said witness, however, got recorded his statement in January, 2006. PW-17 had come to India again in December, 2005 for 4-5 days (as deposed by him in his cross-examination) yet he did not bother to get recorded his statement qua the version disclosed by him in his statement recorded on 20.1.2006. PW-18 had started residing with PW-17 in May 2006 and he (PW-17) was supposed to know about the intuitions of his wife since then. The delay in putting forth the version disclosed by this witness makes his statement doubtful. The said witness, in his cross-examination, deposed that he had sought divorce from his wife in January, 2006. She did not raise any objection and the divorce proceedings became final in August 2006. It is possible that due to his strained relations with his wife, PW-17 might have given a false version against his wife and his daughter PW-18 supported him in this regard.
Another factor, which makes the statements of PW-17 and PW-18 doubtful is that PW-18 had started residing with her father in May, 2005 and both of them knew that Inderjit Kaur was planning to get them murdered in India. Despite the said fact, PW-17 Criminal Appeal No. 687-DB of 2008 18 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 and PW-18 visited India in June, 2005. The said fact has been deposed by PW-17 in his cross-examination. From the statements of PW-17 and PW-18 it can be gathered that Inderjit Kaur wanted to eliminate her husband and her father-in-law so that she could get married with Sukhjiwan Singh. In this situation there was no reason for Inderjit Kaur to miss the opportunity of committing the crime when her husband had visited India in June, 2005. The murder of her father-in-law would not have helped Inderjit Kaur as by murdering him she could not have got married with Sukhjiwan Singh as alleged by PW-17. It is not the case of PW-17 that his wife wanted to grab the property of his father. In these circumstances, it is evident that Inderjit Kaur had no motive to commit the murder of her father-in-law. This leads to the inference that PW-17 coined the story in January, 2006 that his wife had conspired with other co-accused to commit the murder of his father to falsely involve her in this case along with others due to his strained relations with her. His daughter for her own reasons has helped her father PW-17. Hence, the statements of PW-17 and PW-18 fail to advance the case of the prosecution.
Learned counsel for the complainant has placed much reliance on the call records of phone number 9815762053 proved on record by PW-22 Sushil Kumar Chopra. Admittedly, it has not been brought on record as to who was the subscriber of sim card number 9815762053. PW-22, in his cross-examination, deposed that he could not tell as to who was the subscriber of the said sim card. Similarly, PW-21 Opinderjit Singh Ghuman deposed in his cross- Criminal Appeal No. 687-DB of 2008 19 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 examination that he did not get verified as to who was the subscriber of phone number 9815762053. Learned counsel for the complainant has stated that the said sim card was being used by accused Jasbir Singh @ Jassa . From the call details, it was evident that he was in touch with his co-accused Gurpreet Singh, whose mobile phone number was 9357714916 and Inderjit Kaur (P.O), whose phone number was 001162717553 and Sukhjiwan Singh (P.O) whose phone number was 00447980076215. So far as the phone numbers of Inderjit Kaur and Sukhjiwan Singh ( POs) are concerned, the same were disclosed by PW-17 but there is no documentary proof on record in this regard. Be that as it may, the fact remains that it is not established on record that sim card number 9815762053 belonged to accused Jasbir Singh @ Jassa. In these circumstances, the call details of sim card number 9815762053 brought on record fail to advance the prosecution case to show connivance between accused Gurpreet Singh, Jaspreet Singh, Inderjit Kaur (P.O) and Sukhjiwan Singh (P.O) Prosecution has also tried to establish extra judicial confession suffered by accused Gurpreet Singh before PW-15 Sunil Kumar @ Pinky. PW-15 Sunil Kumar @ Pinky deposed that on 23.9.2005 at about 8.00 A.M. accused Gurpreet Singh came to his house and told him that Sukhjiwan Singh, cousin brother of Jasbir Singh @ Jassa, was residing in England. Sukhjiwan Singh had relations with Inderjit Kaur, daughter-in-law of Mohan Singh. Inderjit Kaur had assured Sukhjiwan Singh qua his permanent settlement in Criminal Appeal No. 687-DB of 2008 20 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 England. Divorce petition of Inderjit Kaur was pending in the court at England. She had sought divorce from her husband to get married to Sukhjiwan Singh. Sukhjiwan Singh made a phone call to Jasbir Singh to murder Mohan Singh. Jasbir Singh then contacted him (Gurpreet Singh). On 18.8.2005, he had committed murder of Mohan Singh along with Jasbir Singh @ Jassa, Hardip Singh, Palwinder Singh, Sukhjinder Singh, Rajwinder Singh, Kulwant Singh and Roopa. They had used scorpio bearing No.HR 31-C 1980 at the time of commission of crime. Gurpreet Singh requested him that he should be produced before the police. He asked Gurpreet Singh to meet him on the next day at his cold store. On the same day, he met Deputy Superintendent of Police, Phillaur and got recorded his statement. On the next day at 10.00 A.M., he produced Gurpreet Singh before the police.
Evidentiary value of extra judicial confession depends upon trustworthiness of the witness before whom confession is made. Law does not contemplate that the evidence of an extra judicial confession should in all cases be corroborated. It is not an inflexible rule that in no case conviction can be solely based on extra judicial confession. It is basically in the realm of appreciation of evidence and a question of fact to be decided in the facts and circumstances of each case. It has been held in Bhagwan Dass vs. State of (NCT) of Delhi 2011 (2) RCR (Criminal) 920, as under:-
"12. In our opinion the statement of the accused Criminal Appeal No. 687-DB of 2008 21 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 to his mother Smt. Dhillo Devi is an extra judicial confession. In a very recent case this Court in Kulvinder Singh & Anr. vs. State of Haryana Criminal Appeal No.916 of 2005 decided on 11.4.2011 referred to the earlier decision of this Court in State of Rajasthan vs. Raja Ram (2003) 8 SCC 180, where it was held (vide para 10) :
"An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses Criminal Appeal No. 687-DB of 2008 22 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touch-stone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
The statement of PW-15 fails to inspire confidence as Gurpreet Singh had no occasion to suffer extra judicial confession before this witness. Gurpreet Singh did not know this witness. As per PW-15, Gurpreet Singh had been referred to him by his (Gurpreet's) father. However, the said witness further in his cross- examination deposed that he had no business dealings with the father of Gurpreet Singh. He did not have any joint cultivation with the father of Gurpreet Singh. He had no financial dealings with Bhupinder Singh, father of Gurpreet Singh. In these circumstances, there was no occasion for Bhupinder Singh to refer his son to Sunil Kumar. Further PW-15 deposed that Police Station, Phillaur was Criminal Appeal No. 687-DB of 2008 23 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 about 200 yards from his residence. Then there was no occasion for this witness to ask Gurpreet Singh to come to him on the next day especially when he had met the Deputy Superintendent of Police on the same day for recording of his statement. The possibility that this witness was later on introduced in this case by the prosecution to strengthen its case cannot be ruled out.
Thus, in the present case, the prosecution had failed to prove its case beyond the shadow of reasonable doubt. Complainant and PW-7 Avtar Singh had failed to identify the accused. The identification by PW-9 Santokh Singh cannot be relied upon as the same is unreliable. Although the accused had declined to participate in identification parade but it is settled proposition of law that the prosecution has to establish its case beyond the shadow of reasonable doubt. Hence, in the present case, the prosecution had failed to establish the identity of the accused. Further during investigation, PW-10, PW-11 and PW-15 were introduced as witnesses to strengthen the prosecution case. It is also strange that in December, 2005, extra judicial confession of Gurpreet Singh was recorded giving a version which was disclosed by PW-17 in January, 2006. PW-17 had not disclosed the version put forth by him when he came to India in August and December, 2005. So far as PW-8 Jagroop Singh is concerned the said witness is the most unreliable witness as he stated that he had given his statement before the police and Magistrate at the instance of the police . The call details qua sim card No. 9815762053 proved on record fail to advance the Criminal Appeal No. 687-DB of 2008 24 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 prosecution case as the name of the subscriber of the said sim card has not been duly proved on record. It has been brought on record that black scorpio bearing number HR 31-C 1980 was owned by accused Jaspreet Singh but that in itself is not sufficient to order the conviction of the accused as the prosecution had failed to establish that the said vehicle had, in fact, been used at the time of commission of crime. PW-10 and PW-11 examined by the prosecution qua involvement of scorpio bearing No. HR 31-C 1980 at the time of commission of crime fail to inspire confidence. It is not believable that the eye witnesses had failed to notice the number of the scorpio vehicle as the number plate was covered with earth, whereas, PW-11 managed to read the number of the vehicle when it passed him at a fast speed. There is un-explained delay in lodging the FIR. The complainant party was having a vehicle with them and they could have immediately reported the matter to the police after the death of Mohan Singh. It is evident from record that Mohan Singh had died before he reached DMC, Ludhiana yet no effort was made to immediately report the matter to the police by the complainant party. The plea taken by the complainant party that Avtar Singh, driver of the vehicle, had suffered injuries, is not substantiated from record, as there is no medical treatment record qua Avtar Singh, available on record. Although the occurrence had taken in front of Dal-Roti.com Dhaba but none from the said dhaba was joined during investigation. There is a difference in the first version qua motive disclosed by the complainant and the motive Criminal Appeal No. 687-DB of 2008 25 Criminal Revision No.100 of 2009 Criminal Appeal No. 323-DB of 2009 disclosed by PW-17 and PW-18. The complainant had raised suspicion against the owner of the adjacent plot of the deceased, whereas, the son of the complainant has attributed motive to his wife. The statement of the complainant was recorded by the police after the son of the deceased had been informed qua the murder. PW-17 should have disclosed his version to the complainant so that it could be incorporated in the FIR. All the abovementioned facts make the prosecution case doubtful.
Accordingly, Criminal Appeal No.687-DB of 2008 is allowed. The impugned judgment/ order of conviction and sentence dated 26.8.2008 are set aside. Consequently, the appellants are acquitted of the charges framed against them. The appellants, who are in custody, be set at liberty forthwith, if they are not required in any other case.
Criminal Appeal No.323-DB of 2009 and Criminal Revision No. 100 of 2009 are dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
May 24, 2012
anita