Punjab-Haryana High Court
Charan Singh Etc vs State Of Pb on 26 September, 2014
Author: Rajive Bhalla
Bench: Rajive Bhalla, Amol Rattan Singh
Criminal Appeal No.565 DB of 2002 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Criminal Appeal No.565 DB of 2002
Date of Decision:26thSeptember, 2014
1. Charan Singh son of Ajit Singh
2. Kamaljit Kaur @ Kesar Kaur widow of Sewa Singh
..Appellants
versus
The State of Punjab ..Respondent
Criminal Appeal No.795 DB of 2003
Paramjit Singh son of Amar Singh ..Appellant
versus
The State of Punjab ..Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE AMOL RATTAN SINGH
Present: Mr. Vinod Ghai, Senior Advocate,
with Mr. Simardeep Singh, Advocate,
for the appellants (Criminal Appeal No.565 DB of 2002)
Mr. R.P.Dhir, Advocate,
for the appellant (Criminal Appeal No.795-DB of 2003)
Mr. P.P.S.Thethi, Additional Advocate General,
Punjab.
RAJIVE BHALLA, J.
By this order, we shall decide Criminal Appeal No. 565 DB of 2002 Charan Singh and another versus State of Punjab KUMAR VIRENDER 2014.10.17 12:53 and Criminal Appeal No. 795 DB of 2003 Paramjit I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 2 Singh versus State of Punjab as they arise from the same judgment/order dated 27.7.2002 recorded by the Additional Sessions Judge, Jalandhar, convicting and sentencing the appellants in the following terms:-
U/s 302 IPC Charan Singh is sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/-. In default of payment of fine, further RI for three months.
U/s 302/34 IPC Paramjit Singh is sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/-. In default of payment of fine, further RI for three months.
U/s 120-B IPC Kamaljit Kaur is sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/-. In default of payment of fine, further RI for three months.
The appellants, three in number, have been convicted and sentenced for the murder of Sewa Singh son of Bhagwan Singh. The prosecution alleges that Kamaljit Kaur wife of Sewa Singh (deceased) and Charan Singh (appellant in Criminal Appeal No.565-DB of 2002) shared an illicit relationship and, therefore, conspired to murder Sewa Singh. Paramjit Singh (appellant in Criminal Appeal No.795-DB of 2003) is alleged to have helped Charan Singh to commit the murder of Sewa Singh. KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 3
PW13, Inspector/SHO Swaran Deep Singh, Police Station Nakodar and other police officials, were on patrol duty at Adda Shakar, village Chowk Kalan. PW3 Kashmir Singh approached him at about 1.30 P.M. and made a signed statement, Ex.PD, that at about 11.30 A.M, he and his brother Charanjit Singh were going from village Chak Battol (where he resides) to village Chak Kalan to purchase household articles. As they neared the unmetalled path leading to village Chak Pir Pur, adjoining the cremation ground, they heard their brother's cries "Mar Ditta Mar Ditta". Kashmir Singh and his brother shouted "Don't be afraid, we have come" and then they saw a young man inflicting 8/9 sword blows and their brother falling to the ground. A second young man was sitting on a blue coloured scooter with its engine running. The young men boarded the scooter with the weapon and both the young men sped towards Chak Khurd. By the time, they reached their brother, he had already breathed his last. Kashmir Singh further stated that the young man, who inflicted injuries, was tall and about 24/25 years of age whereas the second young man was of average height and about 24/25 years of age. The assailants were dressed in pants and shirts and had covered their heads with a piece of cloth. Kashmir Singh stated that he can identify the assailants if they appear before him. Kashmir Singh also stated that on account of a matrimonial dispute with his wife Kesar Kaur, his KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 4 brother resides in Mohalla, Dhodh Kot Shahkot. Kashmir Singh also stated that he has left his brother Charanjit Singh to guard the body.
PW13 Inspector/SHO Swaran Deep Singh, attested the statement and vide endorsement, Ex.PD/2 forwarded it to Police Station Nakodar, where FIR No.74 dated 18.3.2000 was registered at 2.10 P.M., by nominating Charan Singh, Paramjit Singh and Kamaljit Kaur, appellants as the accused. The SHO conducted inquest proceedings, Ex.PN, at the spot. The dead body was identified by Paramjit Singh and Sadhu Singh, two other brothers of Sewa Singh who recorded statements during inquest proceedings to the effect that they were sitting in the mill of another brother at village Chak Battol and suddenly saw the public running and shouting that a cyclist has been murdered near the cremation ground of village Chak, by inflicting sword injuries. Paramjit Singh and Sadhu Singh went to the spot and saw that their brother Sewa Singh has been murdered by inflicting sword injuries. Paramjit Singh and Sadhu Singh signed these statements.
The Investigating Officer, took possession of the dead body and forwarded it for postmortem, vide application, Ex.PO, through Constables Charanjit Singh and Paramjit Singh The Investigating Officer collected blood stained earth from the spot and placed it in a small tin box, which was converted into a KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 5 parcel and sealed with seal "SDS". The sealed parcel, Ex.P7, was taken into possession, vide memo Ex.PE. A bicycle, Ex.P9, lying at the spot, was taken into possession vide memo Ex.PF. A kirpan found lying at the spot, was taken into possession, vide recovery memo Ex.PJ/2. The recovery memos, etc. were witnessed by SI Raj Kumar and HC Dalbir Singh. After post mortem, apparel worn by the deceased was produced before the Investigating Officer, by Constable Charanjit Singh, was converted into a sealed parcel and sealed with the seal "SDS". The sealed parcel, Ex.P10, was taken into possession vide memo Ex.PO. The entire case property was deposited with the MHC Arjun Singh.
The Investigating Officer recorded the statements of Amrik Singh and Parveen Singh sons of Sewa Singh on 18.3.2000 about an illicit relationship between Charan Singh and Kamaljit Kaur. The investigating officer, therefore, added section 120-B of the Indian Penal Code, to the FIR. The Investigating Officer, thereafter, recorded the statement of Gurdial Singh son of Malla Singh, on 19.3.2000 that Charan Singh had made an extra-judicial confession before him admitting that he had murdered Sewa Singh as Sewa Singh objected to Charan Singh's relationship with Kamaljit Kaur.
The Investigating Officer arrested Charan Singh, appellant, on 22.3.2000 while he was riding on the pillion of the KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 6 scooter and also arrested Paramjit Singh, who was driving the scooter. The scooter bearing registration number PB-33-6951 and the registration certificate, Ex.PL, were taken into possession, vide memo Ex.PG. A search of the dicky of the scooter revealed a blood stained shirt and a trouser, which were converted into a parcel and sealed with the seal "SDS". The sealed parcel, Ex.P12, was taken into possession, vide memo Ex.PH. The memos were attested by Raj Kumar and SI Sucha Singh. The case property was deposited with the Moharrir Head Constable.
Charan Singh suffered a disclosure statement, Ex.PJ, that he had concealed a kirpan near the cremation ground of Chak Khurd and could get it recovered. Charan Singh led the police party to the place where he had concealed the kirpan and got a kirpan recovered. A rough sketch of the kirpan is Ex.PJ/1. The sealed parcel containing the kirpan is Ex.P13 and Exhibit PJ/2 is the memo of taking the kirpan into possession. The rough site plans of the place of recovery are Ex.PJ/3 and Ex.PT, respectively. Paramjit Singh was produced before the Investigating Officer on 24.3.2000 and arrested but nothing was recovered.
The post mortem report, Ex.PK, was received and after receipt of Ex.PU, a report from the Forensic Science Laboratory, the Investigating Officer completed investigation and KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 7 filed a report under section 173 of the Code of Criminal Procedure, but as the report disclosed the commission of an offence exclusively triable by the Court of Session, the case was committed to the Court of Sessions. The Additional Sessions Judge, Jalandhar, after considering contents of the final report, framed charges under Section 302 of the Indian Penal Code against Charan Singh under Section 302/34 of the Indian Penal Code, against Paramjit Singh and 120-B of the Indian Penal Code against Kamaljit Kaur @ Kesar Kaur. The charges, so framed, were put to the accused, who pleaded not guilty and claimed trial. The prosecution was, thereafter, directed to lead evidence.
The prosecution has examined PW1 Kewal Singh, Patwari, PW2 Constable Nand Singh, PW3 Kashmir Singh, PW4 Amrik Singh, PW5 Parveen Singh, PW6 SI Raj Kumar, PW7 Dr. Sunil Verma, PW8 Charanjit Singh, PW9 Gurdial Singh, PW10 Amarjit Singh, PW11 Clerk Surjit Ram, PW12 MHC Arjan Singh, PW13 DSP Swaran Deep Singh and PW14 Constable Charanjit Singh. Besides this, the prosecution tendered Ex.PU, report prepared by the Forensic Science Laboratory and closed its evidence.
The incriminating circumstances appearing in the evidence were put to the appellants under Section 313 of the Code of Criminal Procedure but they denied their involvement KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 8 and pleaded innocence. The statement made by Charan Singh reads as follows:-
" I am innocent. Kashmir Singh and Charanjit Singh are brothers of the deceased Sewa Singh. Kamaljit Kaur alias Kesar Kaur is my cousin sister. When father of Sewa Singh died, a 4 marlas plot fell to the share of Sewa Singh. But above mentioned Kashmira Singh and Charanjit Singh took forcible possession of the said place. I used to help my sister Kamaljit Kaur, whereas Gurdial Singh of Chak Khurd used to side with Charanjit Singh but they were not giving the possession of plot to Sewa Singh. Under a deep rooted conspiracy they called Sewa Singh on the pretext of compromise and got him killed. They falsely implicated me in this case and got me arrested when I had gone to attend the cremation of Sewa Singh. Kamaljit Kaur and Sewa Singh had great love and affection for each other. Nothing was recovered from me."
The statement made by Kamaljit Kaur @ Kesar Kaur reads as follows:-
" I am innocent. Kashmir Singh and Charanjit Singh are the brothers of my deceased husband Sewa Singh. Out of the property of my father in law situated KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 9 in Vil.Chak Venda, my husband got a plot of 4 marlas as his share. That 4 marlas property had been in illegal occupation of Kashmir Singh and Charanjit Singh and they were not delivering possession to my husband. On this account, there used to be dispute between Charanjit Singh, Kashmir Singh and my husband. Both my co-accused, who are my cousin brothers had been helping my husband on this issue whereas Gurdial Singh PW of Vill. Chakkhurd used to help Charanjit Singh and others against my husband. My behaviour was always cordial towards my husband. My husband was called by the above mentioned persons on the pretext of a compromise and under a deep rooted conspiracy he was got murdered by them and I along with my co-accused were got arrested by them on the day of cremation and falsely implicated in this case."
The statement made by Paramjit Singh reads as follows:-
" I am innocent. I have been falsely implicated in this case."
A perusal of statements made by the appellants reveals that they have denied the alleged illicit relationship and conspiracy but have stated that Sewa Singh (deceased) had a KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 10 dispute with his brothers, including the complainant over a four marla plot. The appellants, however, did not lead any evidence in defence.
After considering the arguments and the evidence on record, the trial court convicted and sentenced the appellants in terms referred to in the opening paragraph of the judgment.
Counsel for the appellants have addressed similar arguments and, therefore, only where necessary, separate arguments, relating to the individual role assigned to each appellant, shall be recorded.
Counsel for the appellants submits that the prosecution case is based upon depositions by PW3 Kashmir Singh and PW8 Charanjit Singh, brothers of the deceased, who appear to have deposed in unison that they witnessed the fatal assault on Sewa Singh and as is apparent from their statements made to the police, they saw two young men, one inflicting injuries and the other sitting on his scooter, with the engine running. After one of the young men inflicted injuries, they sped away on the scooter. PW3 Kashmir Singh, the complainant-eye witness, did not name the appellants while recording his statement before the police and described the young men as one tall and the other short, both wearing pants and shirts. The police, however, did not hold a test identification parade. PW3 KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 11 Kashmir Singh and PW8 Charanjit Singh, while deposing in court, named the appellants and identified Charan Singh as the person who inflicted kirpan blows and Paramjit Singh as the person who was sitting on the scooter. PW3 Kashmir Singh, however, admitted during cross-examination that though he did not know Paramjit Singh or Charan Singh but their names were disclosed by his nephew, who came back from Anand Pur Sahib on 19.3.2000, apparently referring to PW4 Amrik Singh son of Sewa Singh (deceased). PW3 Kashmir Singh eventually admitted that Paramjit Singh @ Pamma is a son of a real maternal uncle of Kamaljit Kaur @ Kesar Kaur, wife of Sewa Singh, an appellant, i.e. a cousin brother, but denied that Charan Singh is also a son of her maternal uncle. Upon further cross-examination, he admitted that he had seen the accused coming to the Gurdwara but did not know their names. The admission by PW3 Kashmir Singh that Paramjit Singh is Kamaljit Kaur's cousin brother proves the falsity of the story set up by the prosecution as it is difficult, if not impossible, to believe that PW3 Kashmir Singh did not know the name of Charan Singh, a brother of his sister-in-law Kamaljit Kaur @ Kesar Kaur and, therefore, if PW3 Kashmir Singh had witnessed the occurrence, he would have named the appellants, while making his statement to the police. Furthermore, if PW3 Kashmir Singh had witnessed the occurrence, approached the KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 12 police and accompanied the police to the spot where Sewa Singh's body was lying, his statement would have been recorded during inquest proceedings and he would have witnessed, documents and memos prepared by the police at the spot. A perusal of the inquest report, documents and memos prepared at the spot, reveal that the Investigating Officer has recorded the statement of two other brothers of the deceased, namely, Paramjit Singh and Sadhu Singh and documents and memos prepared at the spot, are not witnessed by PW3 Kashmir Singh or PW8 Charanjit Singh. The statements by Paramjit Singh and Sadhu Singh, two other brothers of the deceased, recorded during inquest proceedings, record that Paramjit Singh and Sadhu Singh saw and heard people running towards the cremation ground, shouting that a cyclist has been done to death by inflicting sword injuries and when they reached the spot, they found the dead body of their brother Sewa Singh. Paramjit Singh and Sadhu Singh have not stated that PW3 Kashmir Singh or PW8 Charanjit Singh were present or witnessed the fatal attack upon Sewa Singh, thereby proving that PW3 Kashmir Singh and PW8 Charanjit Singh were not present at the spot and were introduced later. A further perusal of the deposition by PW3 Kashmir Singh reveals that he has deposed that after cremation, police arrested the wife and children of Sewa Singh deceased, thereby adding further KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 13 confusion and doubt about the correctness of the prosecution version particularly when the prosecution does not allege that Sewa Singh's children were arrested. It is further argued that deposition by PW8 Charanjit Singh, another eye witness, suffers from the same infirmities as the deposition by PW3 Kashmir Singh. PW8 Charanjit Singh has also admitted that Charan Singh, appellant, is the son of a maternal uncle of Kamaljit Kaur appellant and during his cross-examination also admitted that Paramjit Singh is also the son of a maternal uncle of Kamaljit Kaur @ Kesar Kaur appellant. PW8 Charanjit Singh has also admitted that Paramjit Singh and Charanjit Singh were visiting the Gurdwara before the occurrence, to recite kirtan on every Sunday. The admissions by PW3 Kashmir Singh and PW8 Charanjit Singh that Charan Singh and Paramjit Singh are cousin brothers of Kamaljit Kaur rules out the story of an illicit relationship between Charan Singh and Kamaljit Kaur.
Counsel for the appellants further submits that PW4 Amrik Singh and PW5 Parveen Singh, sons of Sewa Singh (deceased), produced by the prosecution to prove the conspiracy between Charan Singh and Kamaljit Kaur based upon an illicit relationship, have denied the allegation of an illicit relationship. PW4 Amrik Singh and PW5 Parveen Singh admitted that Charan Singh is their mother's cousin brother. PW4 Amrik Singh and PW5 Parveen Singh were declared KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 14 hostile and cross-examined by the Public Prosecutor. PW4 Amrik Singh and PW5 Parveen Singh have also deposed about a dispute between their father and his brother over a four marla plot in occupation of PW3 Kashmir Singh and PW8 Charanjit Singh. PW4 Amrik Singh and PW5 Parveen Singh have also deposed that their maternal uncles, who are accused in the present case, were helping their father, whereas PW9 Gurdial Singh of village Chak Khurd was helping Kashmir Singh. PW5 Parveen Singh has also deposed that when his mother and maternal relatives went to attend the cremation, Kashmir Singh got his mother and maternal uncles arrested by the police. The depositions by PW4 Amrik Singh and PW5 Parveen Singh prove the correctness of statements made by the appellants, under Section 313 of the Code of Criminal Procedure, about a dispute relating to property between the complainant and the deceased and as they have not supported the prosecution or the allegation of an illicit relationship, the prosecution has failed to prove motive or its allegations of a conspiracy based upon an illicit relationship between Charan Singh and Kamaljit Kaur.
Counsel for the appellants further submits that deposition by PW9 Gurdial Singh who has deposed that Charan Singh suffered an extra-judicial confession before him, is unbelievable if not ridiculous. PW9 Gurdial Singh has deposed KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 15 that at about 11.30 A.M. on 18.3.2000, he stopped Paramjit Singh, who was driving a scooter. Charan Singh was sitting on a pillion seat. As Charan Singh's shirt was blood stained, he asked Charan Singh about the blood stains. Charan Singh replied that they had murdered Sewa Singh, as the latter was preventing him from continuing with his relationship with Kamaljit Kaur. The deposition is unbelievable as a person who has committed murder would not, while escaping stop to make a confession. It is further argued that PW9 Gurdial Singh did not disclose these facts to the complainant or to the police but instead stated that he left for Ludhiana on 19.3.2000 and when he returned a day later, made a statement to the police. Counsel for the appellants submits that the evidence on record is riddled with infirmities, does not prove the presence of eye witnesses at the spot, does not establish motive, much less a conspiracy and the recovery of the alleged weapon of offence is clearly foisted upon Charan Singh.
Counsel for Paramjit Singh submits that the only role attributed to Paramjit Singh is driving of a scooter. The prosecution does not allege an illicit relationship or conspiracy or injuries, much less the fatal injuries, against Paramjit Singh. The prosecution has not recovered any weapon from Paramjit Singh who is, admittedly, a son of Kamaljit Kaur's maternal uncle and, therefore, the prosecution story, is not only false, but KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 16 cannot be believed as a brother would not assist in the murder of his brother-in-law.
Counsel for the State of Punjab submits that deposition by two eye witnesses duly supported by deposition of a witness of an extra-judicial confession corroborated by medical evidence and recovery of the weapon, brings home the appellants' guilt. The fact that the witnesses have admitted that Charan Singh and Paramjit Singh were sons of a maternal uncle of Kamaljit Kaur @ Kesar Kaur, wife of the deceased, but did not name them in the FIR, is irrelevant. A person may or may not know the name or identity of a relative of a brother's sister and, therefore, this fact is not sufficient to cast any doubt on the depositions by eye witnesses. The prosecution witnesses have deposed about an illicit relationship between Kamaljit Kaur and Charan Singh. The fact that Kesar Kaur's sons have denied the illicit relationship or have alleged a dispute between Sewa Singh's brothers and Sewa Singh with respect to a 4 marlas plot, is not sufficient to cast a doubt on the prosecution story as the dispute has not been proved. The failure of the Investigating agency to record the statements of PW3 Kashmir Singh and PW8 Charanjit Singh during inquest proceedings, does not cast a doubt on their depositions as eye witnesses. The prosecution case having been proved, the appeal may be dismissed.
We have heard counsel for the parties, appraised the KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 17 evidence on record and duly considered arguments advanced by counsel for the appellants as well as by counsel for the State of Punjab.
Briefly put, the evidence relied by the prosecution to prove that the appellants murdered Sewa Singh is an alleged illicit relationship between Charan Singh and Kamaljit Kaur as the foundation of a conspiracy, sought to be proved by the depositions of PW4 Amrik Singh and PW5 Parveen Singh, sons of the deceased, the actual murder of Sewa Singh by Charan Singh, by inflicting sword injuries and Paramjit Singh helping him to escape sought to be proved by depositions of PW3 Kashmir Singh and PW8 Charanjit Singh, brothers of the deceased as eye witnesses, an extra-judicial confession, allegedly, suffered by Charan Singh, before Gurdial Singh, admitting not only to an illicit relationship with Kamaljit Kaur but also to the murder of Sewa Singh while escaping after murdering Sewa Singh, medical evidence to prove that Sewa Singh died of injuries inflicted with a sharp edged weapon, recovery of the sharp edged weapon. i.e., a kirpan, a report received from the Forensic Science Laboratory that the kirpan is blood stained, recovery of blood stained clothes from the dicky of the scooter, recovered from Charan Singh and recovery of blood stained earth etc. from the the spot to prove the site of the murder.
KUMAR VIRENDER2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 18
At the outset, we shall deal with the medical evidence produced by the prosecution to prove the homicidal death of Sewa Singh. PW7 Dr. Sunil Verma, Medical Officer, conducted post mortem on 18.3.2000 at 6.10 P.M and found the following injuries:-
" 1. 1.w 2 cm x 2 cms on the right index finger of right hand. The finger was amputated.
2. Incised wound 5 cm x 3 cms at the right wrist joint going obliquely. Muscle deep. Underlying bone was visible.
3. 1.w.6 cms 2x x 2 cm on the right arm 4 cms below the injury No.2.
4. Lacerated wound 2 cm x 3 cm in the middle of right deltoid.
5. Incised wound 6 cm x 2 cm on the right side of chest .5 cms below the right nipple.
6. Incised wound 3 cm x 2 cm on the left chest 2 cm above the left nipple.
7. Incised wound 4 cm x 2.5 cm on the left chest 4 cm away and medial to injury No.6. Muscle deep.
On dissection, 5th and 6th ribs of right side were cut. Theoracic cavity full of blood. Right lung was lacerated at various places. Right atrium and right ventricle were punctured.KUMAR VIRENDER
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8. Lacerated wound 17 cm x 2 cm x 4 cm on the left hand in the palm, extending upto middle finger exposing bones, tendons.
9. Lacerated wound 19 cm x 10 cm x 5 cm just above the left elbow joint. Bones, muscles, were cut and visible.
Walls, ribs, as described, Right pleura was injured. Larynx and tracheae were full of blood. Right lung was collapsed and cut at various places. Left lung was normal. In the heart, there was incised wound 3 cm x 2 cm on the right side of heart and it was empty. Abdominal wall, perotoneum, small intestines, large intestines, liver, spleen kidneys and organs of generation were healthy. Stomach contained semi digested food material and bladder contained 100 C of urine."
PW7 Dr. Sunil Verma has deposed that injuries were ante mortem and sufficient to cause death in the ordinary course of nature. The cause of death is neurogenic and haemorrhagic shock due to injuries nos. 5, 6 and 7. The doctor proved post mortem report Ex.PK and deposed that fatal injuries were caused with a sharp edged weapon. The deposition by the doctor proves that Sewa Singh died from injuries inflicted by a sharp edged weapon or weapons.
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Before dealing with the statements and depositions by eye witnesses, it would be necessary to determine whether the prosecution has proved the illicit relationship between Charan Singh and Kamaljit Kaur said to be the motive for the conspiracy to murder Sewa Singh.
The prosecution's theory of a conspiracy to murder Sewa Singh, is based upon an allegation of an illicit relationship between Kamaljit Kaur, wife of Sewa Singh, and Charan Singh (appellant) and is sought to be proved by PW4 Amrik Singh and PW5 Parveen Singh sons of the deceased and Kamaljit Kaur (appellant). PW4 and PW5, had made statements before the police alleging an illicit relationship between their mother and Charan Singh but while deposing in Court, categorically denied any knowledge of an illicit relationship between Charan Singh and their mother, denied that there was any dispute between their father and their mother Kamaljit Kaur and in fact, deposed that Charan Singh is their mother's cousin brother (Mama's son) who was helping them in their dispute with their uncles, including the complainant, over a four marla plot, which their uncles had illegally occupied. PW4 Amrik Singh and PW5 Parveen Singh, were declared hostile, subjected to a detailed cross-examination by the Public Prosecutor, confronted with their statements made before the police but refused to support the prosecution. PW5 Parveen Singh also deposed that after KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 21 cremation, Kashmir Singh, a brother of his father, got them, their mother and their maternal uncles arrested. PW4 and PW5 may have deposed to save their mother but it would be too much to expect them to forgive the alleged murderers of their father and the fact that one of them has deposed that they were also arrested does add a degree of doubt to the allegation of an illicit relationship between Charan Singh and Kamaljit Kaur and tends to suggest that their statements before the police were coerced.
To be fair to the prosecution, PW3 Kashmir Singh and PW8 Charanjit Singh, brothers of Sewa Singh (deceased), have deposed that there was a dispute between Sewa Singh and Kamaljit Kaur as the latter had an illicit relationship with Charan Singh but their depositions are irrelevant as they have deposed that PW4 Amrik Singh told them about the illicit relationship, rendering their depositions, as to the alleged illicit relationship, hearsay evidence and, therefore, inadmissible. It would also be appropriate to point out that in the statement, Ex.PD, made by PW3 Kashmir Singh before the police, he did not refer to an illicit relationship as the motive for the fatal attack on Sewa Singh and it did not even name the assailants.
The other evidence of this alleged illicit relationship is available in the deposition by PW9 Gurdial Singh, a witness of an alleged extra-judicial confession. Gurdial Singh has deposed KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 22 that on 18.3.2000 he stopped Charan Singh and Paramjit Singh who were on a scooter as he noticed blood stains on the clothes of Charan Singh. On his inquiring about blood stains, Charan Singh told him that he had murdered Sewa Singh as he was stopping him from continuing his relationship with Kamaljit Kaur. We are rather skeptical about this deposition, for reasons that we shall record later and, therefore, have no hesitation in holding that the prosecution has failed to prove an illicit relationship between Charan Singh and Kamaljit Kaur, much less has it proved that this illicit relationship was the foundation of a conspiracy to murder Sewa Singh and, therefore, hold that the prosecution has failed to prove its allegation of the alleged conspiracy between Charan Singh, Kamaljit Kaur and Paramjit Singh to murder Sewa Singh.
The failure of the prosecution to prove conspiracy and the alleged illicit relationship, would not, however, mean that all is lost for the prosecution as the prosecution relies upon the deposition by two eye witnesses, brothers of the deceased, namely, PW3 Kashmir Singh and PW8 Charanjit Singh to prove that Charan Singh inflicted injuries and Paramjit Singh helped him to escape on a scooter.
As a general rule of prudence, depositions by eye witnesses are accorded a degree of respect and if corroborated by other evidence, are accepted as incontrovertible proof of KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 23 culpability. The depositions by eye witnesses must, however, pass the test of credibility and be corroborated, where death is by injuries, by medical evidence. The depositions by these eye witnesses, if true and devoid of any contradictions or facts that would raise a doubt as to their role as eye witnesses, would be sufficient, in view of the medical evidence even without the prosecution proving conspiracy or the illicit relationship, to convict the appellants who participated in the fatal assault.
A perusal of their depositions, particularly the cross- examination, of both these witnesses and certain other significant facts do raise a significant doubt as to their presence and their role as eye witnesses but whether these doubts are sufficient to discard their depositions is the question that we shall proceed to answer.
PW3 Kashmir Singh is the first informant who recorded statement, Ex.PD, but did not name Charan Singh as the assailant or Paramjit Singh as the person, driving the scooter, PW3 Kashmir Singh described the assailants as two young men, one tall and the other short, aged 24/25 years who were wearing a shirt and pant, thereby asserting that he did not know the assailants. While deposing in court, however, PW3 Kashmir Singh deposed that they saw Charan Singh inflicting 8/9 blows with a kirpan on Sewa Singh and then boarding the scooter, which was driven by Paramjit Singh and speding away. KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 24 During cross-examination, PW3 Kashmir Singh admitted that Charan Singh accused is a son of a maternal uncle of Kamaljit Kaur wife of Sewa Singh, but denied any knowledge that Paramjit Singh appellant is also the son of a maternal uncle. PW3 Kashmir Singh also admitted that he knew that Paramjit Singh was related to Kamaljit Kaur, since the date of her marriage and that he had seen the accused coming to the Gurdwara for the last 8 to 10 years and knew their names, thereby proving that he was familiar with Charan Singh, the alleged assailant, was aware that he is a cousin brother of Kamaljit Kaur appellant but surprisingly chose not to name him in the statement that led to registration of the FIR. PW8 Charanjit Singh has also admitted that Charan Singh and Paramjit Singh are the sons of a maternal uncle of Kamaljit Kaur, but was unable to explain as to why they were not named before the police.
A further perusal of the cross-examination of these witnesses reveals that they have admitted that they were aware about an illicit relationship between Kamaljit Kaur, wife of the deceased and Charan Singh, but failed to offer an explanation as to why they did not disclose this fact to the police or name Charan Singh and Paramjit Singh, while recording their statements before the police. It would also be appropriate to once again emphasise that the statement, Ex.PD, which led to KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 25 registration of the FIR, does not refer to an illicit relationship as the cause of the murder, much less an illicit relationship between Charan Singh and Kamaljit Kaur or names Charan Singh as the assailant and Paramjit Singh, as the person driving the scooter. If these witnesses were aware that Kamaljit Kaur had an illicit relationship with Charan Singh and that he is a cousin brother of Kamaljit Kaur, they would definitely have named them or at least stated that the assailants are relatives of Kamaljit Kaur. It is, therefore, rather surprising that they chose not to name Charan Singh or Paramjit Singh while recording their statements before the police or disclose the illicit relationship. This apart, there are other significant factors that raise a serious doubt about the correctness of their depositions, that they witnessed the fatal assault on Sewa Singh.
A perusal of the deposition by PW3 Kashmir Singh, the first informant, reveals that he left the dead body to be guarded by Charanjit Singh, proceeded to the Police Station, but as he met the police on the way, made the statement, Ex.PD, and then returned with the police party to the spot but when the dead body was, taken into possession, it was identified by two other brothers of Sewa Singh, namely, Paramjit Singh and Sadhu Singh, during inquest proceedings, Ex.PN. The inquest report, prepared at the spot, contains statements by Paramjit Singh and Sadhu Singh, the two other brothers of the deceased, KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 26 instead of the statements of Kashmir Singh and Charanjit Singh and this apart, Kashmir Singh and Charan Singh did not state that PW3 Kashmir Singh or PW8 Charanjit Singh were present. Paramjit Singh and Sadhu Singh stated that they saw a crowd running towards the cremation ground shouting that a cyclist has been murdered by inflicting sword injuries. Upon reaching the spot, they found that their brother Sewa Singh was lying dead. If Kashmir Singh PW3 or Charanjit Singh PW8 had been present at the spot, as alleged by the prosecution and PW3 Kashmir Singh and PW8 Charanjit Singh had, indeed, witnessed the occurrence,the police would have, in all probability, recorded their statements, but instead recorded the statements of two other brothers of the deceased and if PW3 Kashmir Singh and PW8 Charanjit Singh were indeed present, their brothers would have noticed their presence or at least the police would have recorded their presence. The brothers, who made statements during inquest proceedings, were withheld by the prosecution. The presence of PW3 Kashmir Singh and PW8 Charanjit Singh becomes even more doubtful as the memo recording recovery of blood stained earth, a sheath of a kirpan and a cycle from the site, are surprisingly not witnessed by either PW3 Kashmir Singh or PW8 Charanjit Singh. A credible doubt, therefore, does arise as to their presence and depositions as eye witnesses.
Apart from the aforesaid circumstances, the fact that KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 27 they did not name the assailants, though they are cousin brothers of Kamaljit Kaur, their brothers' wife, admit that Charan Singh and Paramjit Singh are sons of a maternal uncle of Kamaljit Kaur @ Kesar Kaur wife of their brother, Sewa Singh (deceased), but did not name them and also allege that they were aware that Charan Singh was having an illicit relationship with Kamaljit Kaur adds to this doubt but did not dislike this relationship adds further doubt.
The failure of PW3 Kashmir Singh and PW8 Charanjit Singh, to name Charan Singh and Paramjit Singh as the assailants, in their statements recorded before the police, disclose the alleged illicit relationship to the police, though during cross-examination, they admit that Charan Singh and Paramjit Singh are cousin brothers of Kamlajit Kaur and also admit that they were aware of the illicit relationship between Kamaljit Kaur and Charan Singh, the failure of the police to record the statements of PW3 Kashmir Singh and PW8 Charanjit Singh during inquest proceedings, though Kashmir Singh is the first informant, and returned with the police to point out the place where the dead body was lying, the recording of statements of the two other brothers during inquest proceedings who do not name PW3 Kashmir Singh and PW8 Charanjit Singh as being present and were not examined etc. are cumulatively sufficient to raise a serious doubt as to the presence of PW3 KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 28 and PW8 at the time of the fatal assault upon Sewa Singh and thus their depositions as eye witnesses.
Another surprising fact, already noticed, is that PW4 Amrik Singh and PW5 Parveen Singh, sons of Kamaljit Kaur, cited as witnesses to prove the illicit relationship and motive for the murder of their father, have not only denied any such relationship and thereby motive, but have also deposed that there was a dispute between their late father and their uncles, particularly PW3 Kashmir Singh and PW4 Amrik Singh with respect to possession of a four marla plot. The depositions by PW3 Kashmir Singh and PW4 Amrik Singh may have been made, as has been urged by counsel for the State of Punjab, to save their mother, but it would be too much to expect sons to forgive the murderer of their father and to depose in his favour, thereby, in our considered opinion, adding further doubt as to the role of PW3 Kashmir Singh and PW4 Amrik Singh as eye witnesses.
The next piece of evidence, relied by the prosecution, is an extra-judicial confession, allegedly, suffered by Charan Singh, before PW9 Gurdial Singh. PW9 Gurdial Singh has deposed that on 18.3.2000 (the date of the murder) he stopped Paramjit Singh, who was driving a scooter and Charan Singh was sitting on a pillion seat as he noticed that Charan Singh's shirt was blood stained. He asked Charan Singh about the KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 29 blood stains. Charan Singh told him that they had just murdered Sewa Singh as the latter had stopped him from continuing his illicit relationship with Kamaljit Kaur. The deposition, in our considered opinion, is as ridiculous as it is worthless and on the face of it, merits rejection. To expect an assailant, who is escaping after committing a murder to stop his scooter, and make a confession, is asking us to believe the ridiculous. This apart, PW9 Gurdial Singh did not inform the brothers of the deceased or the police but instead left for Ludhiana for personal work and when he returned on the next day, informed the police. The deposition by PW9 Gurdial Singh, in our considered opinion, is not worth the paper on which it was written and even otherwise, as it does not contain material particulars of the offence, cannot be raised to be a status of a believable extra- judicial confession. An extra-judicial confession is, even otherwise, a weak piece of evidence. We, therefore, unequivocally reject this fabricated extra-judicial confession contained in the deposition by PW9 Gurdial Singh.
Coming to the recoveries, the recovery of a kirpan from Charan Singh, establishes, by the report of the Forensic Science Laboratory that it was blood stained. The clothes recovered from the dicky of the scooter, have also been found to be blood stained and, therefore, raise a degree of difficulty but as the prosecution has failed to prove the conspiracy based KUMAR VIRENDER 2014.10.17 12:53 I attest to the accuracy and authenticity of this docunt High Court Chandigarh Criminal Appeal No.565 DB of 2002 30 upon an illicit relationship, the depositions by eye witnesses does not inspire confidence and the extra-judicial confession, is not only ridiculous but clearly suspicious, we are unable to record a firm finding that the appellants conspired on account of an illicit relationship between Kamaljit Kaur and Charan Singh and, therefore, murdered Sewa Singh. We, therefore, have no hesitation in granting the benefit of doubt to the appellants and acquitting them of the offences charged. The appeals are allowed, judgment of conviction and order of sentence dated 27.7.2002, passed by Additional Sessions Judge, Jalandhar are set aside and the appellants be set free, if not required in any other case.
( RAJIVE BHALLA )
JUDGE
26th September, 2014 ( AMOL RATTAN SINGH )
VK JUDGE
KUMAR VIRENDER
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authenticity of this docunt
High Court Chandigarh