Punjab-Haryana High Court
State Of Punjab vs Balwinder Singh And Others on 3 August, 2011
Author: S.S. Saron
Bench: S.S. Saron, Jora Singh
Crl. Appeal No.D-774-DBA of 2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No.D-774-DBA of 20020
Date of decision:-03.08.2011
State of Punjab
..... Appellant.
Versus
Balwinder Singh and others.
.....Respondents
CORAM : HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr. U.S. Dhaliwal, Addl. AG, Punjab.
Mr. Surinder Garg, Advocate for the respondents.
***
S.S. SARON, J.
This appeal has been filed by the State of Punjab against the judgment and order dated 21.03.2002 passed by the learned Additional Sessions Judge (Ad hoc) Fast Track Court, Faridkot whereby the respondents have been acquitted for the offences punishable under Sections 302, 480 read with Section 34 of the Indian Penal Code (IPC-for short), besides, Section 25 of the Arms Act, 1959.
The FIR (Ex.PD/2) was registered on the statement of Charanjit Singh (PW-2) son of deceased Piara Singh made before Mangat Crl. Appeal No.D-774-DBA of 2002 -2- Singh ASI Incharge Police Post Bilaspur (PW-8) on 21.04.1995. According to the complainant-Charanjit Singh (PW-2), he was resident of village Machhike and was running a 'Karyana' (grocery) shop in the village. During the previous night as usual, their family members were sleeping in the courtyard of their house. Charanjit Singh (PW-2) and his wife were sleeping on the roof of their house. At about 11/12.00 pm in the night, they heard dogs barking in the street. Charanjit Singh complainant (PW-2) got up from his bed and after getting up, he saw one person standing in their courtyard. After hearing the noise of Charanjit Singh (PW-2), his father namely Piara Singh (deceased) also got up and sat on the cot. Then, the person who had a weapon with him fired a shot with it towards father (Piara Singh) of the complainant (PW-2) with an intention to kill him. The shot hit on the mouth of Piara Singh (deceased) and he fell down from his cot. The said person who had worn drab shirt (ghasmela kurta) and also worn a 'parna' (under turban) on his head, ran away from the spot along with his weapon. The complainant when he came down from the 'kotha' (roof), he saw that his father had died. Thereafter, the complainant along with Swarn Singh, Panch came to the police for giving information. Paramjit Singh son of Piara Singh was left behind to look after the dead body. The statement (Ex.PD) of Charanjit Singh (complainant) (PW-2) was recorded by Mangat Singh, ASI, Incharge Police Post, Bilaspur (PW-8) on 21.04.1995 at 5.00 pm. Police proceedings were recorded by Mangat Singh ASI Incharge Police Post Bilaspur (PW-8) to the effect that Charanjit Singh (PW-2) had come to him at Police Post Bilaspur along Swarn Singh Panch and he got his statement (Ex.PD) recorded which was readover to him and he signed Crl. Appeal No.D-774-DBA of 2002 -3- the same in Punjabi. He accepted the same to be correct which was attested by Mangat Singh ASI (PW-8). From the said statement (Ex.PD) of Charanjit Singh complainant (PW-2) a prima facie case for the offence under Section 302 IPC, besides, Sections 27 and 25 of the Arms Act was made out. The statement was sent through Punjab Home Guard (PHG) Gurdeep Singh for registration of FIR. Its number was asked to be intimated and higher officials were asked to be informed through wireless message. Mangat Singh ASI (PW-8) proceeded to the place of occurrence on a government Canter along with Head Constable Kaur Singh No.1000, PHG Bikker Singh and PHG Hardev Singh. The SHO was informed through wireless message. On receipt of the writing, FIR No.14 dated 21.04.1995 (Ex.PD/2) was registered for the offences under Sections 302/34 IPC, besides, Sections 25 and 27 of the Arms Act. Mangat Singh, ASI (PW-8) reached the place of occurrence and in the meantime, SHO Ajmer Singh (PW-13) along with other officials also reached there. Ajmer Singh, SHO (PW-13) then took up the investigation of the case. The case was initially filed as untraced by the SHO of Police Station, Nihal Singh Wala. Thereafter under orders of higher police officials, the case was again investigated by Mangat Singh, ASI (PW-8). Mangat Singh, ASI (PW-8) correctly recorded the statements of Nachhattar Singh (PW-4) and Gurdeep Singh (PW-5) before whom the respondents are said to have made an extra judicial confession. After completion of the investigation, police report (challan) was filed before the learned Judicial Magistrate 1st Class, Moga on 18.04.1996. The learned Judicial Magistrate 1st Class, Moga in view of the allegations that an offence punishable under Sections Crl. Appeal No.D-774-DBA of 2002 -4- 302, 480 read with Section 34 IPC, besides, Section 25 of the Arms Act were said to be made out, committed the case to the Court of the learned Sessions Judge, Faridkot as the offence punishable under Section 302 IPC was exclusively triable by the said Court. The learned Additional Sessions Judge to whom the case was assigned on 27.05.1996 framed charges against the respondents for the offence punishable under Section 302/34 IPC to the effect that during the intervening night on 20/21.04.1995 in the area of village Machhike the respondents in furtherance of their common intention i.e. to murder Piara Singh, Balwinder Singh (respondent No.1) did commit the murder by intentionally causing his death and thereby committed an offence punishable under Section 302 IPC whereas Raj Kumar (respondent No.2), Chamkaur Singh (respondent No.4) and Sahib Singh alias Sarbi (respondent No.3) were liable for the offence under Section 302/34 IPC. The respondents were directed to be tried by the said Court on the said charge. They pleaded not guilty to the charge and claimed trial.
The prosecution in order to establish its case examined as many as 14 PWs, besides, tendered documents in evidence. The statements of the accused (respondents) in terms of Section 313 of the Code of Criminal Procedure (Cr.P.C.- for short) were recorded and the substance of the evidence appearing against them was put to them. It was stated by Balwinder Singh (respondent No.1) and Sahib Singh alias Sarbi (respondent No.3) that they had been falsely implicated due to party faction in the village. Raj Kumar (respondent No.2) and Chamkaur Singh (respondent No.4) stated that they were innocent and that Gurdeep Singh Crl. Appeal No.D-774-DBA of 2002 -5- (PW5) and Nachhattar Singh (PW-4) (who are the witnesses of extra- judicial confession) made a false case in connivance with the police.
The learned Additional Sessions Judge (Ad hoc) Fast Track Court, Faridkot after considering the evidence and material on record, acquitted the respondents. The present appeal against the same has been filed by the State.
Shri U.S. Dhaliwal, learned Additional Advocate General, Punjab appearing for the State has contended that the incident in the case had occurred on the night intervening 20/21.04.1995 in the house of Piara Singh (deceased) at Village Machhike, when he was sleeping on a cot in his courtyard. It is submitted that Charanjit Singh-complainant (PW-2) had woken up and he had seen a person standing in the courtyard with a gun in his hand. The said person had fired at Piara Singh who suffered a got shot injury. It is submitted that the eye witness account of Charanjit Singh (PW-
2) was supported by his mother Gurmail Kaur (PW-3) to the extent that she had seen the person running from the spot after Charanjit Singh- complainant (PW2) had identified Balwinder Singh (respondent No.1) from the short distance. It is also submitted that Dr. Prem Singh (PW-1) noticed an injury on the mouth of the deceased which was sufficient to cause death in the course of ordinary nature. Therefore, according to learned State counsel, eye witness account has been corroborated by the medical evidence on record. It is further submitted that the evidence of extra judicial confession has been brought on record by the deposition of Nachhattar Singh (PW-4) and Gurdeep Singh (PW-5) and there is no reason to discard their testimonies. Regarding the delay in recording the Crl. Appeal No.D-774-DBA of 2002 -6- FIR, it is submitted that it is inconsequential inasmuch as the complainant Charanjit Singh had to wait till the morning when he went to the Police Post, Bilaspur where his statement was recorded.
In response Shri Surinder Garg, Advocate learned counsel appearing for the respondents submits that the learned trial Court has recorded cogent and convincing reasons for acquitting the respondents which are liable to be sustained and upheld. It is submitted that no one had seen any of the assailants at the house of Piara Singh. In any case, as per the prosecution case even the accused Raj Kumar, Chamkaur Singh and Sahib Singh were standing outside the house and were not seen by the prosecution witnesses. The identity of Balwinder Singh it is submitted is not established, besides, it is submitted that the gun which is said to have been fired was not recovered. The extra judicial confession said to be made before Nachhattar Singh (PW-4) and Gurdeep Singh (PW-5) were recorded after eight months of the incident and it is submitted that it would be highly unsafe to rely on the same. It is also submitted that even if two views are possible, one which is in favour of the respondents, who are the accused is liable to be accepted.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance have gone through the records of the case.
It may be noticed that while lodging the FIR (Ex.PD/2), it was not recorded that Charanjit Singh (PW-2) saw Balwinder Singh (respondent No.1) as the person, who had fired with his gun at his father Piara Singh (deceased). However, while deposing in the Court, it is stated that one Crl. Appeal No.D-774-DBA of 2002 -7- person was standing in the courtyard of the house during the intervening night of 20/21.04.1995 and he was having a rifle in his hand. It is stated that Balwinder Singh (respondent No.1) had fired from his gun at the father of the complainant and when the complainant came down from the roof, he found that his father was dead. The accused had run away from the spot. It is also stated that only Balwinder Singh (respondent No.1) had entered the house while the others were standing outside. In cross-examination, it is accepted as correct that the night was dark, besides, no identification parade was conducted by the police. It is also accepted that he could not identify the assailant, who killed his father but he saw him running from the spot. Gurmail Kaur (PW-3), who is wife of deceased Piara Singh and mother of the complainant-Charanjit Singh (PW-2) had deposed that about three years earlier to her deposition in Court which was made on 25.03.1998, she along with her children and her husband (Piara Singh) were sleeping on different cots in the courtyard of their house. Her son Charanjit Singh (PW-2) and his wife were sleeping on their cots on the roof of their house. It was 11.00/12.00 pm during the night. She had not seen anyone and they woke up after hearing the noise of a gun shot. She saw a person running from the spot. Nothing was in his hand. She found that a fire-arm had shot hit her husband on his mouth and as a result of the fire arm injury he had fallen on the ground. On hearing the noise of the shot, the entire family had woken up. She, however, could not identify the assailant present in the Court.
A perusal of the aforesaid statements of Charanjit Singh (PW-
2) and Gurmail Kaur (PW-3) would show that Charanjit Singh (PW-2) had Crl. Appeal No.D-774-DBA of 2002 -8- stated that he could not identify the assailant who had killed his father, but he saw him running from the spot. Besides, Gurmail Kaur (PW-3) did not identify the person, who had fired from a fire-arm and she could not identify the assailant present in the Court. In fact, she was sleeping and had heard the fire-arm shot after it had been fired.
The prosecution has examined Nachhattar Singh (PW-4) who stated that the respondents had met them in village Bilaspur. First of all, Balwinder Singh (respondent No.1) disclosed to Nachhattar Singh (PW-4) that he had killed Piara Singh by firing from his gun shot on his mouth in village Machhike. He had disclosed that he had fired at Piara Singh in his house. Thereafter, Raj Kumar (respondent No.2) disclosed to him that Piara Singh had been killed by them and he also disclosed that they were standing outside the house. He (Raj Kumar) disclosed that Balwinder Singh had fired at Piara Singh. Thereafter, Sahib Singh (respondent No.3) disclosed that they were standing behind the wall of house of Piara Singh and Balwinder Singh had fired at Piara Singh. Lastly, Chamkaur Singh (respondent No.4) had also disclosed that Balwinder Singh (respondent No.1) had entered the house of Piara Singh with a fire-arm and he fired at Piara Singh. As a result of which, Piara Singh died while he along with the other two remained standing behind the wall of the house. The fourth accused also disclosed that Balwinder Singh had entered the house of Piara Singh with the fire arm and had fired at Piara Singh. The accused (respondents) also stated that Nachhattar Singh (PW-4) and Gurdeep Singh (PW-5) should produce them before the Police or in the alternative a compromise be got effected with the family of the deceased. Crl. Appeal No.D-774-DBA of 2002 -9-
In cross-examination, it is stated that he could not identify the fourth accused and his name had not been mentioned in the examination- in-chief. Out of the four accused (respondents) Nachhattar Singh (PW-4) could identify only Balwinder Singh. The discrepancies in his statement were got confronted with. It may be noticed that Nachhattar Singh (PW-4) states that after about five-six months of the murder of Piara Singh, he along with Gurdeep Singh (PW-5) of his village went to Machhike and at that time the extra judicial confessions were made. The period of five-six months after the murder of Piara Singh is quite substantial for the accused (respondents) to make an extra judicial confession before Nachhattar Singh (PW-4).
Gurdeep Singh (PW-5) states that in the year 1996 he along with Nachhattar Singh (PW-4) had gone to village Machhike for some work. All the four accused (respondents) met them. Balwinder Singh (respondent No.1) told them that about eight months back, they had gone to village Machhike to the house of relation of Nachhattar Singh (PW-4) to commit theft in the house but inadvertently his relation got killed with the rifle. Therefore, the extra-judicial confession made before Gurdeep Singh (PW-
5) is after eight months.
It may be noticed that extra judicial confession is a weak type of evidence. In the present case, the extra judicial confession according to Nachhattar Singh (PW-4) was made five-six months after the murder of Piara Singh and according to Gurdeep Singh (PW-5) the extra judicial confession was made eight months after the murder of Piara Singh. It was a joint extra judicial confession of all the accused before the two persons Crl. Appeal No.D-774-DBA of 2002 -10- i.e. Nachhattar Singh (PW-4) and Gurdeep Singh (PW-5). Therefore, not much reliance can be placed on such a joint confession made before two witnesses, who are complete strangers to the respondents. It may also be noticed that at one stage, an untraced report of the incident had been prepared as stated by Mangat Singh, ASI (PW-8). However, under the order of higher police officers, Mangat Singh ASI (PW-8) again investigated the case. On 05.01.1996, Mangat Singh ASI (PW-8) recorded the statements of Nachhattar Singh (PW-4) and Gurdeep Singh (PW-5) who made statements of extra judicial confessions being made by the respondents. Therefore, the possibility of the statements being recorded only on the directions of the higher police officers to file a charge report (challan) cannot be ruled out. In any case it would be highly unsafe to base a conviction on the depositions of Nachhattar Singh (PW-4) and Gurdeep Singh (PW-5) before whom the respondents are stated to have made a joint extra judicial confession.
It may also be noticed that the fire-arm which is said to have been used in the incident has not been recovered. In fact, none of the witnesses has mentioned in his statement about the fire arm whether it was a gun or a rifle. In the absence of the recovery of the fire-arm, it would be safe to conclude that the prosecution has been unable to establish the guilt of the respondents beyond the shadow of reasonable doubt.
In the circumstances, we are in agreement with the learned counsel for the respondents that the prosecution has not established the guilt of the respondents beyond shadow of reasonable doubt and the benefit which has been given by the learned trial Court is liable to be Crl. Appeal No.D-774-DBA of 2002 -11- sustained and upheld.
For the foregoing reasons, there is no merit in this appeal and the same is accordingly dismissed.
(S.S. SARON) JUDGE (JORA SINGH) 03.08.2011 JUDGE A.kaundal