Punjab-Haryana High Court
Surjit Singh @ Sita vs State Of Punjab on 9 February, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: February 09, 2011
Criminal Appeal No.906-DB of 2004
Surjit Singh @ Sita ...Appellant
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE ARVIND KUMAR
Present: Mr. A.P.S.Deol, Senior Advocate with
Mr. Vishal Rattan, Advocate, for the appellant.
Mr. S.S.Dhaliwal, Addl. AG, Punjab,
for the respondent-State.
HEMANT GUPTA, J.
Appellant Surjit Singh @ Sita is in appeal aggrieved against the judgment of conviction and order of sentence dated 11.09.2004 passed by the learned Sessions Judge, Faridkot, vide which the appellant was convicted, inter alia, for the offences punishable under Sections 364, 302/34, 201 and 435 IPC and sentenced to undergo for varying terms as mentioned in the order of sentence.
Appellant Surjit Singh @ Sita and one Labh Singh were made to stand trial in case FIR No.71 dated 26.07.1995 for the offences punishable under Sections 364, 302/34, 201 and 435 IPC. The appellant herein was initially declared Proclaimed Offender, whereas Labh Singh was convicted and sentenced vide Criminal Appeal No.906-DB of 2004 2 judgment dated 22.09.2001. During the pendency of Criminal Appeal No.593-DB of 2001 against the said judgment, Labh Singh died and the said appeal was dismissed as abated on 02.11.2010. The appellant was made to stand trial after he was apprehended on 27.08.2002. Thereafter, the appellant was convicted and sentenced by the learned trial Court vide its judgment dated 11.09.2004. Therefore, the present appeal is at the instance of Surjit Singh @ Sita.
The prosecution case was set in motion on the basis of statement (Ex.PC) of Ms. Kiran made to ASI Jarnail Singh, on 26.07.1995. In her statement, Kiran stated that Gurnam Singh son of Arjan Singh Arora (now deceased), was son of her mother's sister. She stated that she married Bhupinder Singh about two years ago, but due to strained relations, she was living with her cousin Gurnam Singh at Muktsar. The other brothers of Gurnam Singh were living separately at Muktsar. She further stated that Labh Singh son of Lehna Singh, Sukhdev Singh son of Basant Singh and Surjit Singh son of Joginder Singh used to visit the house of Gurnam Singh and take liquor together. Sukhdev Singh and Labh Singh were working as labourers in the Grain Market, Muktsar, whereas the wives of Surjit Singh and Labh Singh are sisters. Gurnam Singh was plying his jeep bearing No.HNN-4535 as taxi and has developed illicit relations with the daughter of Labh Singh. Gurnam Singh requested Labh Singh to give the hand of his daughter to him, but Labh Singh did not agree and took ill of it and started nursing a grudge against Gurnam Singh. She stated that on 20.07.1995 at about 7.00 AM, she and the Criminal Appeal No.906-DB of 2004 3 brothers of Gurnam Singh namely Ajit Singh and Kuldip Singh were sitting with him in their house. In the meantime, Labh Singh, Sukhdev Singh and Surjit Singh came to the house of Gurnam Singh and desired to take his jeep in hire for going to Gadheli in Rajasthan. A sum of Rs.700/- were paid to Gurnam Singh as hire charges. Gurnam Singh agreed to go with them. They all started for their destination in the jeep of Gurnam Singh (deceased), whereas Kuldip Singh and Ajit Singh, brothers of Gurnam Singh went to their houses. After waiting for 3/4 days, when Gurnam Singh did not return back, she went to the houses of Ajit Singh and Kuldip Singh and informed them about the non-return of Gurnam Singh. Thereafter, she along with Ajit Singh and Kuldip Singh went to the houses of Labh Singh and Sukhdev Singh, but could not contact them. She further stated that on 26.07.1995, they again went to the house of Labh Singh, where they met Labh Singh and Sukhdev Singh. On enquiry, they did not give proper reply and slipped away from their houses. She and brothers of Gurnam Singh believed that Labh Singh, in order to have a revenge of the illicit relations of Gurnam Singh with his daughter, in connivance with Sukhdev Singh and Surjit Singh abducted Gurnam Singh and might have murdered him. On the basis of such statement, an FIR (Ex.PC/2) was lodged at about 12.15 AM on 26.07.1995. The special report was received by the learned Magistrate at about 1.20 PM on 26.07.1995.
The dead body of Gurnam Singh (deceased) was recovered by ASI Jarnail Singh on 27.07.1995 from Kikrali minor in the area of P.S.Rawatsar, Rajashtan. The clothes of the Criminal Appeal No.906-DB of 2004 4 deceased were found in the bushes on the bank of canal and identified by Kiran, which were converted into parcels Exs.P-1 to P-6 and taken into possession vide recovery memo Ex.PA. The Investigating Officer also prepared rough site plans Exs.PQ and PR i.e. the place from where the dead body and the place from where the clothes of the deceased were recovered respectively.
It was on 04.08.1995, SI Shivraj Bhushan arrested Sukhdev Singh and Labh Singh. On the basis of information disclosed by Sukhdev Singh, rough site plan of the place of occurrence Ex.PT was prepared. It was, thereafter, Sukhdev Singh turned as an approver. The learned Magistrate granted pardon to Sukhdev Singh on 09.08.1995 vide order Ex.PJ/1 on the basis of his statement Ex.PJ. However, Sukhdev Singh was released on the termination of trial against accused Labh Singh.
In the present case, the prosecution has examined Sukhdev Singh as PW-7; Kiran, author of FIR as PW-3; Amrik Singh, a motor mechanic and the witness of last seen as PW-2; as well as Ranjit Singh and Ajit Singh, brothers of the deceased Gurnam Singh, as PW-4 and PW-8 respectively. Apart from examining the other formal and informal witnesses, the prosecution has also examined ASI Jarnail Singh, the Investigating Officer, as PW-13 to prove the charges levelled against the present appellant.
Relying upon the testimony of PW-7 Sukhdev Singh, which was found to be corroborated in material aspects by the testimonies of PW-3 Kiran, PW-4 Ranjit Singh and PW-8 Ajit Singh as well as the medical evidence, the learned trial Court Criminal Appeal No.906-DB of 2004 5 convicted and sentenced the appellant Surjit Singh, as mentioned above.
Before this Court, learned counsel for the appellant has vehemently argued that the evidence of an approver is weak evidence and that the evidence of an accomplice is unworthy of credit, unless the same is corroborated in material particulars in terms of Section 114, Illustration (b) of the Indian Evidence Act, 1872. It is argued that the evidence of PW-7 Sukhdev Singh is not corroborated in material aspects. The only evidence, which can be said to be corroborated, is of last seen, but the manner of occurrence or the evidence inculpating the present appellant is not proved. Therefore, the conviction recorded by the learned trial Court suffers from illegality, as inadmissible evidence has been relied upon to return a finding of conviction against the appellant.
The Hon'ble Supreme Court in a judgment reported as Rameshwar Vs. The State of Rajasthan, AIR 1952 SC 54, while considering the scope of rule of corroboration to the evidence of a accomplice has held that it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice or the complainant is true and that it is reasonably safe to act upon it. The independent evidence in some way reasonably connect or tend to connect the accused with it by confirming in some material Criminal Appeal No.906-DB of 2004 6 particular the testimony of the accomplice or complainant that the accused committed the crime.
In Sarwan Singh Rattan Singh Vs. State of Punjab, AIR 1957 SC 637, it was held to the following effect:
"7. ..... It is hardly necessary to deal at length with the true legal position in this matter. An accomplice is undoubtedly a competent witness under the Indian Evidence Act. There can be, however, no doubt that the very fact that he has participated in the commission of the offence introduces a serious stain in his evidence and Courts are naturally reluctant to act on such tainted evidence unless it is corroborated in material particulars by other independent evidence."
It would not be right to expect that such independent corroboration should cover the whole of the prosecution story or even all the material particulars. If such a view is adopted it would render the evidence of the accomplice wholly superfluous. On the other hand, it would not be safe to act upon such evidence merely because it is corroborated in minor particulars or incidental details because, in such a case, corroboration does not afford the necessary assurance that the main story disclosed by the approver can be reasonably and safely accepted as true.
But it must never be forgotten that before the Court reaches the stage of considering the question of corroboration and its adequacy or otherwise, the first initial and essential question to consider is whether even as an accomplice the approver is a reliable witness. If the answer to this question is against the approver then there is an end of the matter, and no question as to whether his evidence is corroborated or not falls to be considered.
In other words, the appreciation of an approver's evidence has to satisfy a double test. His evidence must show that he is a reliable witness and that is a test which is common to all witnesses. If this test is satisfied the second test which still remains to be applied is that the approver's evidence must receive sufficient corroboration. This test is special to the cases of weak or tainted evidence like that of the approver." In K. Hashim Vs. State of T.N. (2005) 1 Supreme Court Cases 237, it was held to the following effect:
32. In Jnanendra Nath Ghose v. State of W.B. AIR 1959 SC 1199, this Court observed that there should be corroboration in material particulars of the approver's statement, as he is considered a self-confessed traitor. This Court in Bhiva Doulu Patil v. State of Maharashtra AIR 1963 SC 599 held that the combined effect of Sections 133 and 114 Illustration (b) of the Criminal Appeal No.906-DB of 2004 7 Evidence Act was that an accomplice is competent to give evidence but it would be unsafe to convict the accused upon his testimony alone. Though the conviction of an accused on the testimony of an accomplice cannot be said to be illegal, yet the courts will, as a matter of practice, not accept the evidence of such a witness without corroboration in material particulars. In this regard the Court in Bhiva Doulu Patil case observed (AIR pp.600-01, para 6):
"6. In coming to the above conclusion we have not been unmindful of the provisions of Section 133 of the Evidence Act which reads:
'133. An accomplice shall be a competent witness against an accused person; and a conviction is not illegal merely because it proceeds upon the uncorroborated testimony of an accomplice.' "
33. It cannot be doubted that under that section a conviction based merely on the uncorroborated testimony of an accomplice may not be illegal, the courts nevertheless cannot lose sight of the rule of prudence and practice which in the words of Martin B. in R. v. Boyes (1861) 9 Cox CC 32, "has become so hallowed as to be deserving of respect" and the words of Lord Abinger "it deserves to have all the reverence of the law:". This rule of guidance is to be found in Illustration (b) to Section 114 of the Evidence Act which is as follows:
"The Court may presume--
(a) * * *
(b) that an accomplice is unworthy of credit, unless he is corroborated in material particulars;"
34. The word "corroboration" means not mere evidence tending to confirm other evidence. In D.P.P. v. Hester (1972) 3 All ER 1056, Lord Morris said: (All ER p.1065f) "The purpose of corroboration is not to give validity or credence to evidence which is deficient or suspect or incredible but only to confirm and support that which as evidence is sufficient and satisfactory and credible; and corroborative evidence will only fill its role if it itself is completely credible...."
35. In D.P.P. v. Kilbourne (1973) 1 All ER 440, it was observed thus: (All ER p. 456c-d) "There is nothing technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful whether or not to believe a particular statement one naturally looks to see whether it fits in with other statements or circumstances relating to the particular matter; the better it fits in the more one is inclined to believe it. The doubted statement is corroborated to a greater or lesser extent by the other statements or circumstances with which it fits in."
36. In R. v. Baskerville (1916) 2 KB 658 which is a leading case on this aspect, Lord Reading said: (All ER p. 41 D-F) Criminal Appeal No.906-DB of 2004 8 "There is no doubt that the uncorroborated evidence of an accomplice is admissible in law.... But it has long been a rule of practice at common law for the judge to warn the jury of the danger of convicting a prisoner on the uncorroborated testimony of an accomplice or accomplices, and, in the discretion of the judge, to advise them not to convict upon such evidence; but the judge should point out to the jury that it is within their legal province to convict upon such unconfirmed evidence.... This rule of practice has become virtually equivalent to a rule of law, and since the Court of Criminal Appeal Act, 1907, came into operation this Court has held that, in the absence of such a warning by the judge, the conviction must be quashed.... If after the proper caution by the judge the jury nevertheless convict the prisoner, this Court will not quash the conviction merely upon the ground that the testimony of the accomplice was uncorroborated."
38. First, it is not necessary that there should be independent confirmation of every material circumstance in the sense that the independent evidence in the case, apart from the testimony of the complainant or the accomplice, should in itself be sufficient to sustain conviction. As Lord Reading says:
"Indeed, if it were required that the accomplice should be confirmed in every detail of the crime, his evidence would not be essential to the case; it would be merely confirmatory of other and independent testimony." (Baskerville case, All ER p.42 B-C)
39. All that is required is that there must be some additional evidence rendering it probable that the story of the accomplice (or complainant) is true and that it is reasonably safe to act upon it.
40. Secondly, the independent evidence must not only make it safe to believe that the crime was committed but must in some way reasonably connect or tend to connect the accused with it by confirming in some material particular the testimony of the accomplice or complainant that the accused committed the crime. This does not mean that the corroboration as to identification must extend to all the circumstances necessary to identify the accused with the offence. Again, all that is necessary is that there should be independent evidence which will make it reasonably safe to believe the witness's story that the accused was the one, or among those, who committed the offence. The reason for this part of the rule is that:
"A man who has been guilty of a crime himself will always be able to relate the facts of the case, and if the confirmation be only on the truth of that history, without identifying the persons, that is really no corroboration at all.... It would not at all tend to show that the party-accused participated in it."
41. Thirdly, the corroboration must come from independent sources and thus ordinarily the testimony of one accomplice would not be sufficient to corroborate that of another. But of Criminal Appeal No.906-DB of 2004 9 course the circumstances may be such as to make it safe to dispense with the necessity of corroboration and in those special circumstances a conviction so based would not be illegal. I say this because it was contended that the mother in this case was not an independent source.
42. Fourthly, the corroboration need not be direct evidence that the accused committed the crime. It is sufficient if it is merely circumstantial evidence of his connection with the crime. Were it otherwise, "many crimes which are usually committed between accomplices in secret, such as incest, offences with females" (or unnatural offences) "could never be brought to justice". (See M.O. Shamsudhin v. State of Kerala (1995) 3 SCC 351).
In the light of law laid down by the Hon'ble Supreme Court in respect of evidence of an approver, we now proceed to discuss the evidence led by the prosecution in order to seek conviction of the present appellant.
PW-7 Sukhdev Singh has given detailed sequence of events and his role in causing death of Gurnam Singh. The relevant extract from his evidence read as:
".....Thereafter, Gurnam Singh and Labh Singh grappled with each other as a result thereof Gurnam Singh fell down and then Labh Singh sat on the chest of Gurnam Singh and Gurnam Singh called me to save him. I asked Labh Singh to refrain from giving beating to Gurnam Singh and enquired from him the reasons for the said beatings. Labh Singh told me not to interfere and exhorted to catch hold the legs of Gurnam Singh, but I refused to do so. Labh Singh asked Surjit Singh to kill me first as I was not cooperating to him. I pleaded Labh Singh not to kill me and he told me that they would spare me only if I cooperate them and caught hold the legs of Gurnam Singh. Then I caught hold the legs of Gurnam Singh. Then Surjit Singh gave a kappa blow on the neck of Gurnam Singh. Again Surjit Singh gave a kappa blow hitting the same on the nose of Gurnam Singh which cut his nose. Surjit Singh accused directed Labh Singh to remove the clothes of Gurnam Singh so that his body may not be recognized from his clothes. As a result of the said injuries Gurnam Singh died at the spot. ...."
Learned counsel for the appellant has vehemently argued that the statement of PW-7 Sukhdev Singh is that of an Criminal Appeal No.906-DB of 2004 10 unreliable and untrustworthy witness. Firstly, he tries to exculpate himself and then states that he held the legs of the deceased when Surjit Singh gave kappa blow. It is argued that the said statement is made up and is unnatural. It is further argued that, in fact, as per his statement, he was arrested on 24.07.1995 and brought to the Police Station, when Labh Singh accused was already in custody. Since the said part of the statement is contrary to the prosecution story of lodging of FIR on 26.06.1995 and the recovery of dead body of Gurnam Singh on 27.07.1995, therefore, the prosecution has miserably failed to prove the commission of crime by the appellant. It is argued that a perusal of Ex.DB, DDR No.24 dated 24.07.1995, shows that the police party has gone to Rajasthan. It is contended that, in fact, the police party has gone to Rajasthan in connection with the investigation of the present case and to that extent the statement of PW-7 Sukhdev Singh that he was arrested on 24.07.1995 is corroborated by the DDR and belies the prosecution case. It is also argued that in the documents i.e. request for post-mortem examination (Ex.PS), rough site plan (Ex.PR) and statements of Ajit Singh and Kuldip Singh during inquest proceedings (Ex.PB), the date 26.07.1995 has been over- written to that of 27.07.1995. It is also argued that on 26.07.1995, the dead body was not recovered, therefore, the description of offence under Section 302 IPC on 26.07.1995, belies the prosecution case.
After hearing learned counsel for the parties, we do not find any merit in the present appeal. Ex.DB, DDR No.24 dated 24.07.1995 does not lead to an inference that ASI Jarnail Criminal Appeal No.906-DB of 2004 11 Singh has gone to Rajasthan in connection with the investigation of present case. Since the FIR itself has been registered on 26.07.1995 and in the absence of name of missing person Gurnam Singh or any other reference to the facts of the present case, it cannot be said that ASI Jarnail Singh has gone to Rajasthan in connection with the investigation of present case. Similarly, the over-writing of the date from 26.07.1995 to 27.07.1995 appears to be an inadvertent mistake. We say so for the reason that on 26.07.1995, ASI Jarnail Singh has prepared the site plan Ex.PQ in respect of recovery of dead body from the canal. There is no over- writing on the said recovery memo. FIR is that of offence under Sections 364/34 IPC. Ex.PR is the subsequent site plan and in respect of recovery of clothes of the deceased and the FIR recorded is that of 302/427/34 IPC. It appears that over-writing is not only in the digit of date, but in the digit of month as well, whereas in Ex.PS, there is correction in the digit of date only and not in the digit of month. In the statements recorded during the inquest proceedings, there is correction in the digit of date, but not in the digit of month. Therefore, such corrections in the date cannot be used to doubt the prosecution story as it appears to be inadvertent mistakes.
The evidence of PW-7 Sukhdev Singh stands corroborated in material circumstances by PW-3 Kiran, who has deposed that Gurnam Singh (deceased) left the house along with Sukhdev Singh, Labh Singh and Surjit Singh, when his jeep was hired as a taxi. The statement of PW-7 Sukhdev Singh is further corroborated by PW-4 Ranjit Singh and PW-8 Ajit Singh. As a Criminal Appeal No.906-DB of 2004 12 matter of fact, apart from complainant's family, statement of PW-2 Amrik Singh substantially supports the prosecution case. He has deposed that on 20.07.1995, Gurnam Singh had come to him in the noon time with his jeep along with two more persons, who were being called as Labh Singh and Sukhdev Singh. Though he did not recognize Surjit Singh, but the fact that Gurnam Singh was in the company of Labh Singh and Sukhdev Singh is proved from his statment. Surjit Singh and Labh Singh are near relations, as their wives are real sisters. Still further, vide recovery memo Ex.PL, the jeep which was driven by Gurnam Singh was taken into possession. From the testimony of PW-12 Inspector Shiv Raj Bhushan (the then SHO Police Station City, Muktsar), the jeep was burnt so as to destroy the evidence.
PW-10 is Dr. Hanuman Singh, who has conducted the post-mortem examination on the dead body of Gurnam Singh on 27.07.1995. He has found the following injuries:
"1. Incised wound triangular in shape 3 inches x 2 inches, 1 inch at the Nasal area and nasal bone cut.
2. Incised wound 5 x 3 cms into 2 inches at the anterior surface of the neck. Trachea at wound side completely cut. Both the wounds were antemortem in nature, caused by sharp weapon."
In his opinion, the time between death and the post-mortem examination was within 10 days and the cause of death was due to multiple injuries. The said medical evidence corroborates the evidence of PW-7 Sukhdev Singh in respect of kappa blow by the present appellant on the face of the deceased Gurnam Singh. Therefore, the evidence of PW-7 Sukhdev Singh-an approver is Criminal Appeal No.906-DB of 2004 13 corroborated by the statements of PW-3 Kiran, PW-4 Ranjit Singh, PW-8 Ajit Singh, PW-2 Amrik Singh and PW-10 Dr. Hanuman Singh.
In view of the above discussion and the evidence on record, which has been appreciated by the learned trial Court in correct perspective, we do not find that any case is made out for interference by this Court in the present appeal.
Dismissed.
(HEMANT
GUPTA)
JUDGE
09.02.2011 (ARVIND
KUMAR) Vimal JUDGE