Punjab-Haryana High Court
State Of Punjab vs Budh Singh Son Of Hari Singh Son Of Hakam ... on 9 January, 2014
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
CRA No. D-229-DBA of 2001 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No. D-229-DBA of 2001
Date of decision: January 09, 2014
State of Punjab
.................Appellant
versus
1. Budh Singh son of Hari Singh son of Hakam Singh, aged 74
years, agriculturist, resident of Indra Basti Ram Nagar, Sunam,
District Sangrur (dead, appeal abated against him in terms of
Section 394 (1) Cr.P.C. vide order dated 09.09.2013).
2. Jagrup Singh son of Budh Singh,, aged 31 years, agriculturist,
resident of Ram Nagar, Sunam, District Sangrur
3. Manmeet Singh son of Daljit Singh, aged 26 years, agriculturist
resident of Ram Nagar, Sunam, District Sangrur.
.............Respondents.
Criminal Revision No. 455 of 2001 Date of decision: January 09, 2014 Hardev Singh son of Bant Singh, resident of village Higarwal, District Sangrur .................Petitioner versus
1. The State of Punjab
2. Budh Singh son of Hari Singh son of Hakam Singh, aged 74 Sunder Sham years, agriculturist, resident of Indra Basti Ram Nagar, Sunam, 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 2- District Sangrur (Dead).
3. Jagrup Singh son of Budh Singh, aged 31 years, agriculturist, resident of Ram Nagar, Sunam, District Sangrur
4. Manmeet Singh son of Daljit Singh, aged 26 years, agriculturist, resident of Ram Nagar, Sunam, District Sangrur.
.............Respondents.
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE S.P.BANGARH Present:- Ms. Ritu Punj, Addl. AG, Punjab for the appellant-State of Punjab in CRA No. D-229-DBA of 2001 and for respondent No.1 in CRR No.455 of 2001. Mr. Vinod Ghai, Sr. Advocate with Mr. Vineet Kaushal, Advocate for the petitioner-Hardev Singh in CRR No. 455 of 2001. Mr. T.S. Sangha, Sr. Advocate with Mr. H.S. Sangha, Advocate and Mr. Dinkar Sharma, Advocate for respondent No.3-Manmeet Singh in CRA No. D-229- DBA of 2001 and for respondent No.4 in CRR No. 455 of 2001.
Mr. Naresh Kumar Joshi, Advocate for respondent No.2-Jagrup Singh in CRA No. D-229-DBA of 2001 and for respondent No.3 in CRR No. 455 of 2001. S.P. BANGARH, J This order will dispose of CRA No. D-229-DB of 2001 filed by the State of Punjab and also Criminal Revision No. 455 of 2001 filed by Hardev Singh, as both emanate from the common judgment of acquittal dated 24.10.2000.
The case of the prosecution is that the complainant- Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 3- Hardev Singh was posted as Constable at Budhlada. He was under
transfer to Police Station Boha. He had come to his natal place at Sunam, being on leave, and was to join at Boha after availing leave. Sukhdev Singh-deceased, who was also in the police department, had also come on leave to his natal place at Sunam.
On 19.05.1997 at about 11.46 P.M., both of them alongwith their first cousin Jora Singh, were present in their house located at Indra Basti, Sunam. A tape-recorder was being played by them. When they were about to take their meals, Budh Singh (accused), whose house was on the back side of the house of deceased (Sukhdev Singh), came and knocked at the door of house of Hardev Singh-complainant. Hardev Singh-complainant and Sukhdev Singh-deceased came out and Budh Singh (respondent No.1) asked them as to why they were playing the audio cassette player. Thereupon, they told that they were in their own house and playing the audio casette player at a low volume. Thereupon, Budh Singh (respondent No.1), asked them to sit and he would just tell them the taste of playing casette. On saying so, Budh Singh (respondent No.1) went away. Hardev Singh-complainant and Sukhdev Singh-deceased came inside and they were to take meals.
After some time, Budh Singh (respondent No.1) again came and asked them to come out. When Hardev Singh- complainant, Sukhdev Singh (deceased) and Jora Singh came out of house, they saw Budh Singh (respondent No.1) standing there Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 4- alongwith his son Jagrup Singh (respondent No.2), who was armed with dang, and grandson of his brother namely Manmeet Singh (respondent No.3), who was armed with kirpan. Budh Singh (respondent No.1) raised lalkara and asked his accomplices that Hardev Singh-complainant and Sukhdev Singh-deceased should be given taste for playing tape-recorder and, on his saying so, Jagrup Singh (respondent No.2) gave blow of dang, that hit the neck of Sukhdev Singh-deceased, and simultaneously, Manmeet Singh (respondent No.3) gave blow with sword thrustwise, that hit in the left side of chest of Sukhdev Singh-deceased, who, consequently, fell down on the road. Jora Singh and Hardev Singh-complainant raised alarm of 'Bachao Bachao'. In the meanwhile, a patrolling party headed by HC Balwinder Singh reached there. On raising alarm by Hardev Singh-complainant and on seeing the police, all the three accused fled away from the spot alongwith their respective weapons, while raising lalkaras.
Sukhdev Singh-deceased lost consciousness. Hardev Singh-complainant and HC Balwinder Singh, took Sukhdev Singh- deceased on a scooter to Civil Hospital, Sunam, who, on the way to hospital, succumbed to his injuries received in the incident. Jora Singh and other members of the police party were left at the spot. Hardev Singh-complainant, after leaving the corpse in the Civil Hospital, Sunam under the custody of HC Balwinder Singh, proceeded to lodge report with the police and in the vegetable Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 5- market, he met the police party headed by SI Sampuran Singh, where he made his statement Ex.PG before SI Sampuran Singh, that was read over and explained to him, who, after admitting its genuineness and correctness, signed the same.
The doctor incharge also sent intimation to the police station about the arrival of corpse of Sukhdev Singh. SI/SHO Sampuran Singh made his endorsement on statement Ex.PG and sent the same to police station, Sunam, where formal FIR Ex.PG/1 was recorded. He himself took up the investigation and reached Civil Hospital, Suman, where he prepared inquest report Ex.PC on the corpse of Sukhdev Singh. He also recorded the statements of witnesses and sent the corpse of Sukhdev Singh to the mortuary of Civil Hospital, Sangrur for autopsy alongwith his request Ex.PD, through ASI Gurbhajan Singh. SI/SHO Sampuran Singh also went to the place of occurrence and inspected the same and prepared the rough site plan Ex.PT. He also lifted the blood stained earth from there and put the same in a small box and made that into a parcel, that was duly sealed by him with his seal bearing impression 'SS' and that parcel was later seized by him vide recovery memo Ex. PV.
SI/SHO Sampuran Singh also seized audio casette player, deck speaker and casettes Ex.P11 to Ex.P14 vide recovery memo Ex.PV. Hardev Singh-complainant produced his blood stained shirt and trousers Ex.P8 and Ex.P9 respectively, that were made into parcel, that was duly sealed by him with his seal bearing impression Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 6- 'SS' and that parcel was seized vide recovery memo Ex.P4.
On 20.05.1997 at 10.30 A.M. autopsy on the corpse of Sukhdev Singh was conducted in the mortuary of Civil Hospital, Sangrur. There were four injuries on the corpse of Sukhdev Singh. The cause of death was due to shock and haemorrhage, as a result of injuries, that were ante mortem in nature. Injury No.1, that was incised penetrating wound on front of chest on left side, alone was found sufficient to cause death in the ordinary course of nature.
On 23.05.1997, Jagrup Singh (respondent No.2) and Manmeet Singh (respondent No.3) were arrested and their personal search memos Ex.PZ and Ex.PAA, respectively, were prepared. During interrogation, Manmeet Singh (respondent No.3) suffered disclosure statement Ex.PDD to the effect that he had kept concealed one sword in his land near heap of chaff and he could get the same recovered. Pursuant to his disclosure statement Ex.PDD, he led the police party to the place of concealment and got recovered blood stained sword Ex.P7, that was made into parcel, which was seized vide memo Ex. PFF Jagrup Singh (respondent No.2) was also interrogated, who during interrogation suffered disclosure statement Ex.PEE to the effect that he had kept concealed dang in his land near the smadh of Mansa Ram and could get the same recovered. Pursuant to his disclosure statement Ex.PEE, he led the police party to the place of concealment and got recovered dang Ex.P6, that was seized vide Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 7- memo Ex. PGG Budh Singh (respondent No.1) was also arrested in this case.
After completion of investigation, SHO of Police Station Sunam, instituted police report in terms of Section 173 Cr.P.C against the respondents Nos. 1 to 3 in CRA No. D-229-DBA of 2001 and respondents Nos. 2 to 4 in CRR No. 455 of 2001 before the Illaqa Magistrate to the effect that it appeared that they had committed offence punishable under Section 302 read with Section 34 IPC. On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were furnished to the respondents by the learned Illaqa Magistrate, who later committed the case to the Court of Session, that was assigned by the learned Sessions Judge, Sangrur to self, who framed charge under Section 302 read with 34 IPC against all the private respondents, whereto, the latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined, as many as, 12 witnesses, who deposed as under :-
PW-1 Constable Gurtej Singh tendered in evidence his affidavit Ex.PA.
PW-2 Dr. H.S. Bali, Medical Officer, Civil Hospital, Sangrur, testified that on 20.05.1997 at about 10.30 AM, he conducted the autopsy on the corpse of Sukhdev Singh, that was Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 8- brought by ASI Gurbhajan Singh from Civil Hospital, Sunam. It was identified by Labh Singh and Bhura Singh. He further testified that the length of body was 5' - 11" and there was no ligature mark around the neck. It was body of a moderately built, moderately nourished male wearing one kameej, one pyjama white, one vest, one blue and red colour nikkar, one wrist watch. Weapon marks were there on the kameez and vest. They were soaked in blood. Rigor mortis were present in all the four limbs. Postmortem staining was present. Eyes and mouth were partially opened. He further testified that he found following injuries on the corpse of Sukhdev Singh-deceased:
1. Incised penetrating wound 2 cms x ½ cm on left side of front of chest in its lower part oblique, 3 cms on left of midline and 8 cms below and medial to left nipple. Clotted blood was present.
On dissection underlying 6th intercostal muscale was injured. Pericardium was injured. Right ventricle of heart was injured both at front and back, chest cavity was full of 900 cc of clotted and fluid blood. The direction of the wound was from front to back towards right and slightly upwards.
2. Two abrasions on right cheek 3 cms x 1.5 cms and 2 cms x 1 cms, 2 cms below right eye 5 cms on right of midline. Reddish base.
3. A contusion 3 cms x 1 cms on back of neck on right side, 3 cms on right of midline opposite 4th cerviceral vertebra, on Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 9- dissection, clotted blood present.
4. An abrasion 4 cms x 3 cms on front of right shoulder, base reddish.
PW-2 further testified that all the organs of thorax, skull, scalp were normal and healthy. Stomach contained 100 cc of semidigested food material. Small intestines contained chyle and gasses and large intestines contained faecal matters and gases. Bladder was empty.
Dr. H.S. Bali (PW-2) further testified that, according to him, the cause of death in this case was due to shock and haemorrhage, as a result of injuries, that were ante mortem in nature. He also testified that injury No.1 alone was sufficient to cause death in this case in the ordinary course of nature. The probable time that elapsed between injury and death was immediate and between death and autopsy was within 24 hours. He handed over to the police reconstituted corpse after autopsy, a carbon copy of the autopsy report, belongings of the deceased in a packet sealed at one place with seal bearing impression 'HSB ', police papers 1 to 20 duly signed by him; a sample seal of HSB impression.
Dr. H.S. Bali (PW-2) also brought the original autopsy report and proved the carbon copy, thereof, Ex.PB, that was prepared in the same process, as the original and was signed. Ex.PB/1-2 are the pictorial diagrams showing the seats of injuries. Inquest report Sunder Sham Ex.PC was part of the police papers received and signed by him. He 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 10- further testified that he conducted the autopsy on the corpse of Sukhdev Singh-deceased on police request Ex.PD, that was marked to him by Dr. L.C. Bansal, Acting SMO, vide endorsement Ex.PD/1 whose signatures, he identified. On the police request dated 20.05.1997 Ex.PE, he gave his opinion Ex.PE/1, that possibility of the injury No.1 having been caused with sword used as thrust wise in this case could not be ruled out.
Kameej Ex.P1, Pyjama Ex.P2, Vest Ex.P3, underwear/nikar Ex.P4 and wrist watch Ex.P5 were shown to him (PW-2) at the time of his deposition, that were removed by him at the time of autopsy and handed over to police in sealed parcel. He was also shown the dang Ex.P6 and he testified that possibility of injuries nos. 2 and 4 on the person of the deceased having been caused with dang thrust wise could not be ruled out. Sword Ex.P7 was also shown to this witness, who testified that injury No.1 on the person of the deceased having been caused with this sword Ex.P7, using thrust wise, could not be ruled out. He also testified that injury No.3 having been caused with dang Ex.P6 could not be ruled out.
PW-3 Dr. P.K. Bansal, testified that on 20.05.1997, when he was posted in Civil Hospital, Sunam, he sent the information to SHO, PS Sunam, regarding the corpse of a man named Sukhdev Singh, a police employee, father's name not known, brought to the said hospital by HC Balwinder Singh, alleged to have died with injuries, vide ruqa Ex.PF that was signed by him. Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 11-
PW-4 Hardev Singh is the complainant in this case, who deposed as per his statement Ex.PG, that has been reproduced in the earlier parts of this order.
PW-5 Jora Singh is another eye witness. He also narrated the occurrence being eye witness and corroborated the testimony of PW-4, that has been reproduced in the earlier parts of this order.
PW-6 Jagrup Singh brought the original DDR register pertaining to the period from 06.05.1997 to 28.05.1997. He testified that as per entry in DDR bearing No. 41 dated 18.05.1997, that was endorsed by Assistant Constable Baldev Singh No. 344, C-II Sukhdev Singh No. 2306 proceeded for four days' leave from Mohali. He proved the true copy of the said entry Ex.PJ. He further testified that on 22.05.1997 at DDR No. 14, that was endorsed by Constable Charanjit Singh No. 529, he made endorsement at 11.30 a.m. regarding information of death of C-II Sukhdev Singh No. 2306. He proved the photocopy of the said entry Ex.PJ/1.
PW-7 Major Singh prepared the scaled site plan Ex.PK with correct marginal notes, after visiting the place of occurrence on the pointing out of Hardev Singh. He testified that his statement was recorded by the police.
PW-8 Mohinder Singh tendered in evidence his affidavit Ex.PR.
Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 12-
PW-9 HC Harpal Singh testified that on 13.05.1997, he was posted as MHC in Police Station Budhlada. He further testified that vide report No. 20 dated 13.05.1997, the leave of Constable I, Hardev Singh No. 648 was sanctioned for seven days and he was to report at Police Station Boha. He testified that in this connection report No. 20 dated 13.05.1997 was recorded by him in the DDR register. He brought the original register containing the said entry and proved the attested copy, thereof, Ex.PS. He testified that his statement was recorded on 05.07.1997.
PW-10 SI Sohan Lal testified that the investigation of the case was entrusted to him on 16.06.1997 and he recorded the statements of MHC Satnam Singh and Harpal Singh on 05.07.1997 and, thereafter, investigation was entrusted to some other officer. He testified that he recorded the statements correctly without addition or alteration.
PW-11 SI Sampuran Singh testified that on 20.05.1997, he was posted as SHO in Police Station, City Sunam and on that day, he along with other police officials was present in the crossing of Sabzi Mandi, Sunam, where, Hardev Singh got recorded his statement Ex.PG before him, that was read over and explained to him. He (Hardev Singh) signed the same after admitting its correctness and, thereafter, he (PW-11) sent that statement to Police Station through C.Jarnail Singh and on the basis, thereof, formal FIR Ex.PG/1 was recorded by MHC Mohinder Singh and he made Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 13- endorsement Ex.PG/2, thereon. He further testified that he made police proceedings Ex.PG/3.
PW-11 further testified that later, he reached Civil Hospital, Sunam and prepared the inquest report Ex.PC, that was thumb marked by Labh Singh and signed by Bhura Singh, PWs. He sent the corpse of Sukhdev Singh to the mortuary of Civil Hospital, Sangrur, for autopsy, along with police request Ex.PD, through ASI Gurbhajan Singh. Later, he visited the place of occurrence and prepared the rough site plan Ex.PT with correct marginal notes. He lifted the blood stained earth from the spot, put that into a small tin box and made parcel, thereof, that was sealed by him with his seal bearing impression 'SS' and sample seal was prepared separately and the case property was seized vide memo Ex.PU PW-11 further testified that tin box Ex.P10, containing blood stained earth, audio player Ex.P11, speaker Ex.P12 and casettes Ex.P13 and Ex.P14, were seized by him vide memo Ex.PV, that was signed by Maghar Singh and Gurmail Singh witnesses. He testified that Hardev Singh produced before him his blood stained clothes i.e. Shirt Ex.P8 and trousers Ex.P9 and those were seized vide memo Ex.PH. These clothes were produced at the time of deposition of this witness. He further testified that before seizing these clothes vide memo, a parcel, thereof, was prepared, that was sealed by him with his seal bearing impression 'SS'. The seal after use was handed over to Gurmail Singh. He arrested Budh Singh- Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 14- accused after making his personal search and `102/- were recovered from him, that were seized vide memo Ex.PX. He also prepared the arrest memo of Budh Singh-accused Ex.PY, as also, recorded the supplementary statement of Hardev Singh on 20.05.1997.
PW-11 further testified that on return to the police station, he deposited the case property with MHC Mohinder Singh and on 23.05.1997, Manmeet Singh and Jagrup Singh accused were formally arrested by him. He also prepared their personal search memos Ex.PAA and Ex.PZ, respectively. He also prepared the arrest memos Ex.PBB and Ex.PCC of Jagrup Singh and Manmeet Singh respectively. He further testified that Manmeet Singh-accused during custody suffered disclosure statement Ex.PDD and Jagrup Singh- accused during custody suffered disclosure statement Ex.PEE and later, Manmeet Singh pursuant to his disclosure statement Ex.PDD, got recovered sword Ex.P7, that was stained with blood, from the place disclosed by him in his disclosure statement ibid, that was made into parcel, which was sealed by him with his seal bearing impression 'SS' and that parcel was seized vide memo Ex.PFF. He further testified that later, Jagrup Singh-accused led the police party to the place of concealment and got recovered one lathi Ex.P6 having six knots, that was seized vide memo Ex.PGG. He further testified that he recorded the statements of witnesses at the spot and on return to the police station, he deposited the case property with MHC Mohinder Singh.
Sunder Sham2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 15-
PW-11 further testified that police request Ex.PE bears his signatures and, thereon, he sought the opinion of the doctor Ex.PE/1. He also testified that after the completion of other proceedings, police report under Section 173 Cr.P.C was prepared by SI Gurdev Singh, who was working as SHO, Police Station Sunam. He identified the signatures of SI Gurdev Singh on the police report under Section 173 Cr.P.C.
PW-12 ASI Gurbhajan Singh joined the investigation along with SI Sampuran Singh (PW-11) and he deposed on the lines of investigation and corroborated the testimony of PW-11 on the point of investigation. Thereafter the prosecution evidence was closed.
After the closure of prosecution evidence, respondents Nos. 1 to 3 in CRA No. D-229-DB of 2001 and respondents Nos. 2 to 4 in CRR No. 455 of 2001 were examined under Section 313 Cr.P.C., wherein, they denied the allegations of prosecution, pleaded innocence and false implication in this case.
Budh Singh-accused gave his own version that his son Tejinder Singh was kidnapped and killed by P.S. Virk, the then S.P., Sangrur. He made many complaints to the police and the higher authorities, as well as, to this Court. A writ was also filed by him against P.S. Virk and others in this Court and under the orders of this Court, the CBI was directed to conduct the investigation, in this regard and a case was registered against P.S. Virk and others, that has been pending in CBI court at Patiala. Out of that grudge, he Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 16- along with his son Jagrup Singh and one Manmeet Singh has been impleaded falsely in this case. He further stated that some unidentified persons committed the murder of Sukhdev Singh in dark night. P.S. Virk was putting pressure on him and his family members for withdrawal of the case against him and not to pursue the same. He further stated that Sukhdev Singh did not reside at Sunam and did not own any house in Indira Basti, Sunam. Hardev Singh and other witnesses were procured in the morning by police in connivance with P.S. Virk and present case has been foisted against him and his accomplices . He described his age as 80 years.
Jagrup Singh-accused also gave his own version, that has been given by Budh Singh (supra).
Manmeet Singh-accused also gave his own version, that has been given by Budh Singh (supra).
Respondents Nos. 1 to 3 in CRA No. D-229-DB of 2001 and respondents Nos. 2 to 4 in CRR No. 455 of 2001 were called upon to enter in defence, which they closed after tendering documents Ex.D1 to Ex.D5 and Ex.DX/1 to Ex.Dx/6.
After hearing both the sides, as also, after going through the evidence and material on record, the learned trial Court vide judgment of acquittal dated 24.10.2000, acquitted the respondents Nos. 1 to 3 in CRA No. D-229-DB of 2001 and respondents Nos. 2 to 4 in CRR No. 455 of 2001. Aggrieved, there against, the appellant- Sunder Sham State of Punjab, has filed the CRA No. D-229-DBA of 2001 and 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 17- Hardev Singh-complainant has filed CRR No. 455 of 2001, with prayer for acceptance, thereof.
Since both, the appeal and the revision, are arising out of the common judgment, therefore, these shall be decided together, to avoid conflicting orders.
Learned Additional Advocate General, Punjab for the appellant-State of Punjab and learned Senior counsel for the petitioner contended that the trial Court wrongly acquitted the accused-respondents, as also, the impugned judgment is based on conjectures and surmises and there has been miscarriage of justice. They also contended that the trial Court wrongly arrived at the conclusion that the witnesses being relatives are interested witnesses. While on the contrary, the testimonies of PW-4 (Hardev Singh) and PW-5 (Jora Singh) inspire confidence and, therefore, are reliable and free from blemished contradictions. They also contended that the testimonies of PW-4 (Hardev Singh) and PW-5 (Jora Singh) should be relied upon and the respondents-accused should be convicted and sentenced.
On the other hand, the learned Senior counsel for respondent No.3 in CRA No. D-229-DBA of 2001 and learned counsel for respondent No.4 in CRR No. 455 of 2001 contended that the impugned judgment does not suffer from any illegality or impropriety and the testimonies of PW-4 (Hardev Singh) and PW-5 (Jora Singh) have been rightly repelled by the trial Court, as their Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 18- presence at the place of occurrence is not established beyond doubt.
We have given thoughtful consideration to the contentions raised by the learned counsel for the parties and perused the record of the trial Court with their assistance.
First of all, it may be mentioned here that vide order dated 09.09.2013, appeal against Budh Singh-respondent No.1 in CRA No.D-229-DBA of 2001 and respondent No.2 in CRR No. 455 of 2001 stands abated because of his death, that had taken place on 10.01.2013, in terms of Section 394 (1) Cr.P.C.
Now the present appeal and revision survive only qua Jagrup Singh and Manmeet Singh.
Hardev Singh (PW-4) is the real brother of the deceased (Sukhdev Singh). Indubitably, he is the resident of Bigharwal, that is at a distance of 2 kms from City Sunam, where the alleged occurrence took place. On the day of occurrence, Hardev Singh (PW-4) was posted at Budhlada and was under transfer. He had come on leave and his presence at the place of incident at Sunam along with the deceased (Sukhdev Singh) and his cousin Jora Singh (PW-5) becomes utterly doubtful, as he being on leave was supposed to stay in his house at Bigharwal and he had no occasion to stay with the deceased (Sukhdev Singh) at Sunam.
Both the witnesses of the incident are related to the deceased (Sukhdev Singh), as already noticed, Hardev Singh (PW-4) Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 19- is the real brother of the deceased and Jora Singh (PW-5) is his cousin. There is no independent witness of the occurrence. Both, Hardev Singh (PW-4) and Jora Singh (PW-5) belong to village Bigharwal, which is at a distance of 2 kms from Sunam. There was no occasion for both of them, as already noticed, to stay at Sunam with the deceased, as they could easily go to their village in some vehicle, even during night.
Jagrup Singh (PW-6) testified that Sukhdev Singh (deceased) had obtained leave from Mohali, where he was posted. Even, Jora Singh (PW-5) was not knowing as to where Sukhdev Singh (deceased) was posted in those days, as can be seen from his deposition. This statement makes his presence at the place of occurrence doubtful. If he would have been present at the place of occurrence, in that event, Sukhdev Singh (deceased) would have told him about his place of posting being at Mohali. Even, Hardev Singh (PW-4) was not having knowledge about the place of posting of Sukhdev Singh (deceased) being at Mohali. So, this ignorance on the part of both these witnesses (PW-4 Hardev Singh and PW-5 Jora Singh) about the place of posting of Sukhdev Singh (deceased) being at Mohali must lead to inevitable conclusion that they were not present at the place of occurrence and had they been present there, they would have been knowing the actual place of posting of Sukhdev Singh (deceased) being at Mohali.
Besides, there is contradiction between the medical Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 20- evidence and the ocular evidence of Hardev Singh (PW-4) and Jora Singh (PW-5). According to Dr. H.S. Bali (PW-2), there were five injuries on the person of deceased (Sukhdev Singh). According to the FIR, there were only two injuries, one given by Jagrup Singh with lathi on the neck of the deceased and the other with sword blow in the chest by Manmeet Singh. Injury No.2 described by the doctor consists of two injury blows on the right cheek below the right eye to the midline. These two injuries are prominent enough, that could be noticed by Hardev Singh (PW-4) and Jora Singh (PW-5), if they would have been present at the time of alleged occurrence.
The trial Court rightly observed that the injury, that was concealed or might have been concealed underneath some clothes or could not be noticed, could be ignored being not noted by Hardev Singh (PW-4) and Jora Singh (PW-5), but those two injuries on the face of the deceased could be easily noticed by Hardev Singh (PW-4) and Jora Singh (PW-5), if these would have been caused to the deceased in their presence.
Apart from this, the doctor found semi-digested food in the stomach of the deceased, that implies that the last meal by the deceased might have been taken 3-4 hours before his death, but according to the case of the prosecution, the deceased was in the process of taking meal along with Hardev Singh (PW-4) and Jora Singh (PW-5), when he was caused injuries by the respondents- accused. This implies that death of Sukhdev Singh had taken place Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 21- much prior to the time given by the prosecution. The presence of semi-digested food in the stomach of the deceased also indicates the absence of Hardev Singh (PW-4) and Jora Singh (PW-5), at the place of occurrence.
It is the case of the prosecution that the alarm raised by Hardev Singh (PW-4) and Jora Singh (PW-5) allegedly attracted police party headed by HC Balwinder Singh. According to the prosecution version, the police party headed by HC Balwinder Singh consisted of Constable Sukhdev Singh and one SPO. According to Hardev Singh (PW-4), the police party consisted of HC Balwinder Singh, Constable Sukhdev Singh and one SPO. According to Jora Singh (PW-5), police party consisted of only HC Balwinder Singh and Constable Sukhdev Singh. He failed to mention any SPO to be the member of this police party. Since, both Hardev Singh (PW-4) and Jora Singh (PW-5) are not unanimous about the number of members of the police party, who reached at the spot, their presence must become doubtful at the place of occurrence, as if they would have been present at the place of occurrence, they would have candidly testified that the members of the police party, that was attracted to the place of incident was three, consisting of HC Balwinder Singh, Constable Sukhdev Singh and one SPO.
The presence of Hardev Singh (PW-4) and Jora Singh (PW-5) becomes further doubtful, as the members of the police party, that is HC Balwinder Singh and Constable Sukhdev Singh have not Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 22- been examined during arraignment. No explanation has come forth, as to why these police officials were left out from examination. An adverse inference must be drawn for non-examination of both the members of the police party. Possibility cannot be ruled out, that if these witnesses had been examined during arraignment, they would not have mentioned the presence of Hardev Singh (PW-4) and Jora Singh (PW-5) at the place of incident.
It is the candid case of Hardev Singh (PW-4) and Jora Singh (PW-5) that the alarm raised by them attracted the police party to the alleged place of incident. Therefore, it became obligatory on the part of the prosecution to examine the members of the police party to establish the presence of Hardev Singh (PW-4) and Jora Singh (PW-5) at the alleged place of incident. It is, no doubt, true that the police party consisting of HC Balwinder Singh, Constable Sukhdev Singh and one SPO had not seen the occurrence, but they allegedly saw Hardev Singh (PW-4) and Jora Singh (PW-5) at the alleged place of incident, as per prosecution version. This version should have been brought to the logical conclusion by examining HC Balwinder Singh and Constable Sukhdev Singh to show that Hardev Singh (PW-4) and Jora Singh (PW-5) were spotted by them at the alleged place of incident before the escape of the alleged assailants.
It is the case of the prosecution that HC Balwinder Singh with the help of Hardev Singh (PW-4) had removed the injured- deceased to the hospital. So, from that angle also, examination of Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 23- HC Balwinder Singh was utmost essential to prove that Hardev Singh (PW-4) was with him when the deceased, in injured condition, was removed to the hospital. This witness, HC Balwinder Singh, was given up by the prosecution on 12.01.2000, as unnecessary. We fail to understand as to how this witness could be held unnecessary, especially when he was allegedly present at the time of alleged occurrence along with Hardev Singh (PW-4) and he helped him in removing the injured/deceased to Civil Hospital, Sunam.
The trial Court rightly observed that HC Balwinder Singh, being a police employee, could be examined very easily and there was no chance that he could have been won over by the accused. The adverse inference, thus, was rightly drawn by the trial Court by logically coming to the conclusion, that if, HC Balwinder Singh would have been examined, he would not have supported the prosecution version about the presence of Hardev Singh (PW-4) and Jora Singh (PW-5) at the time, when the deceased was assaulted. So, in these circumstances, HC Balwinder Singh happened to be very prominent and necessary witness, as he noticed the presence of Hardev Singh (PW-4) and Jora Singh (PW-5) allegedly at the place of occurrence, as also he removed the injured/deceased to the Civil Hospital, Sunam.
Indeed, the presence of Hardev Singh (PW-4) stands falsified from the chit Ex.PF, that was sent by Dr. P.K. Bansal (PW-3) at 12.15 a.m. to the effect that a corpse of a man named Sukhdev Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 24- Singh, a police employee was brought by HC Balwinder Singh No. 544 and his father's name was not mentioned. It may be noticed that in the chit Ex.PF, name of father of the deceased has been mentioned as unknown.. HC Balwinder Singh, obviously, was not supposed to have knowledge of the name of father of Sukhdev Singh (deceased). If, Hardev Singh (PW-4) would have been accompanying HC Balwinder Singh, then he would have narrated the name of father of Sukhdev Singh (deceased) before the doctor. Even, Dr. P.K. Bansal (PW-3) did not mention the name of Hardev Singh (PW-4) in the chit Ex.PF. If, Hardev Singh (PW-4) would have been accompanying HC Balwinder Singh, then his name would have been mentioned in the chit Ex.PF by Dr. P.K. Bansal (PW-3), as also, the name of father of the deceased, as Hardev Singh (PW-4) happened to be his real brother.
Explanation of the prosecution is that Hardev Singh (PW-
4) had left HC Balwinder Singh in the hospital to keep surveillance on the corpse of Sukhdev Singh, at the hospital and himself had gone to lodge a report and, therefore, father's name of Sukhdev Singh was not mentioned. This explanation is not cogent, as if Hardev Singh (PW-4) would have been present with HC Balwinder Singh, then the latter definitely would have asked the father's name of Sukhdev Singh (deceased) from the former. Even the doctor could wait for the arrival of Hardev Singh (PW-4), who allegedly had himself gone to the police station to lodge FIR. Chit Ex.PF could be sought to be delayed by Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 25- HC Balwinder Singh by requesting the doctor that the arrival of Hardev Singh (PW-4) may be awaited for knowing the father's name of Sukhdev Singh (deceased) from him.
Indeed, if Hardev Singh (PW-4) would have been accompanying the deceased along with HC Balwinder Singh, in that event, the doctor in chit Ex.PF would have written the name of Hardev Singh (PW-4) instead of HC Balwinder Singh or atleast the name of Hardev Singh (PW-4) would have been added along with HC Balwinder Singh in the chit Ex.PF, as also, the father's name of the deceased would have been mentioned in chit Ex.PF, if Hardev Singh (PW-4) had accompanied the deceased to the hospital.
It is also improbable that HC Balwinder Singh, who allegedly took the deceased to the hospital did not get his clothes drenched with the blood of the deceased. So, even the presence of HC Balwinder Singh becomes doubtful, in this view of the matter, that his clothes did not get drenched with the blood of the deceased. Possibility, in these circumstances, cannot be ruled out that blood stained clothes of Hardev Singh (PW-4) have been introduced, only to establish the plea that Hardev Singh (PW-4) had accompanied the deceased to the hospital.
It is the case of the prosecution that Jora Singh (PW-5) along with Constable Sukhdev Singh and SPO were left at the spot by Hardev Singh (PW-4) and HC Balwinder Singh. It is improbable version, as nothing remained at the spot and if, the alleged Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 26- occurrence had taken place in the alleged manner, then all the members of the police party, as also Hardev Singh (PW-4) and Jora Singh (PW-5) would have accompanied the deceased to the hospital for treatment, as he was alive at the spot. The main concern of Jora Singh (PW-5), at that time, if he would have been present at the alleged place of incident was to look for treatment of the deceased in the hospital.
Possibility, in these circumstances, cannot be ruled out that the deceased was not killed by the respondents-accused and some unidentified persons would have killed him and his corpse was removed to the hospital by HC Balwinder Singh.
It is, thus, the case where no one saw the deceased being killed. The testimonies of Hardev Singh (PW-4) and Jora Singh (PW-
5) do not connect the respondents-accused with the alleged commission of murder of Sukhdev Singh. The medical evidence and ocular evidence are not corroborating each other. Besides, there is a delay in sending the copy of the FIR to the Magistrate and no explanation has been rendered. The benefit of doubt was, thus, required to be given to the respondents and the trial Court rightly did so. The view taken by the trial Court disbelieving the presence of Hardev Singh (PW-4) and Jora Singh (PW-5) is not an impossible view.
The Hon'ble Supreme Court of India in Nepal Singh v. State of Haryana; 2009 (3) RCR (Criminal) 418; held that if two Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 27- reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial Court. It has been further held that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent, unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened, but reinforced, reaffirmed and strengthened by the trial court.
The Hon'ble Supreme Court of India in State of Punjab v. Rakesh Kumar; 2007 (1) RCR (Criminal) 797; held that an order of acquittal can be interfered with only if there is an absolute assurance of the guilt of the accused upon the evidence on record and the High Court would not be justified in interfering with the order of acquittal, unless the same is found to be perverse and the order of acquittal can be set aside if the view taken by the trial Court is perverse. If on over-all appreciation of evidence available on record, two views are possible and when on appreciation of evidence, a particular view has been preferred by the learned Sessions Judge and when the findings cannot be said to be perverse merely because another view is possible, the High Court would not be justified in interfering with the acquittal order recorded by the learned trial Judge. Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh CRA No. D-229-DBA of 2001 - 28-
So, there is no illegality or impropriety in the impugned judgment of acquittal of respondents and reversal, thereof, is not justified especially when it is well settled that when even two views are possible, appellate court should not reverse the judgment of acquittal merely because the other view is possible.
Accordingly, CRA No. D-229-DBA of 2001 is dismissed. Since, there is no illegality or impropriety in the impugned judgment of acquittal, CRR No. 455 of 2001 is also, hereby, dismissed, being devoid of merits.
(SATISH KUMAR MITTAL) (S.P.BANGARH)
JUDGE JUDGE
09.01.2014
sham
1. Whether the Reporters of the Local papers may be allowed to see the judgment? Yes
2. To be referred to the Reporters or? Yes
3. Whether the judgment should be reported in the digest? Yes Sunder Sham 2014.01.31 14:37 I attest to the accuracy and integrity of this document Chandigarh