Punjab-Haryana High Court
Central Bureau Investigation vs Bibi Jagir Kaur & Ors on 4 December, 2018
Equivalent citations: AIRONLINE 2018 P AND H 15
Bench: A.B. Chaudhari, Kuldip Singh
CRA-D-867-DB of 2012 (O&M) and others -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Reserved on: 26.10.2018
Date of decision: December 04, 2018
CRA-D-867-DB of 2012 (O&M)
Central Bureau of Investigation
......Appellant
Versus
Bibi Jagir Kaur and others
....Respondents
CRA-D-868-DB of 2012 (O&M)
Kamaljeet Singh
......Appellant
Versus
Bibi Jagir Kaur and others
....Respondents
CRA-S-1431-SB of 2012 (O&M)
Nishan Singh
......Appellant
Versus
Central Bureau of Investigation
....Respondent
CRA-S-1500-SB of 2012 (O&M)
Bibi Jagir Kaur
......Appellant
Versus
Central Bureau of Investigation
....Respondent
CRA-S-1501-SB of 2012 (O&M)
Paramjit Singh Raipur
......Appellant
Versus
Central Bureau of Investigation
....Respondent
CRA-S-1538-SB of 2012 (O&M)
Dalwinder Kaur Dhesi
......Appellant
Versus
Central Bureau of Investigation
....Respondent
CORAM: HON'BLE MR. JUSTICE A.B. CHAUDHARI
HON'BLE MR. JUSTICE KULDIP SINGH
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Present: Mr. S.K. Saxena, Special Standing Counsel and
Mr. R.K. Handa, Special Standing Counsel for CBI.
Mr. R.S. Cheema, Senior Advocate with
Mr. Arshdeep Cheema, Advocate for the appellant
(in CRA-S-1538-SB of 2012).
Mr. Vinod Ghai, Senior Advocate with
Mr. A.S. Kang, Advocate for the appellant
(in CRA-S-1501-SB of 2012).
Mr. J.S. Bedi, Senior Advocate with
Mr. S.S. Brar, Advocate for the appellant
(in CRA-S-1500-SB of 2012).
Mr. A.P.S. Deol, Senior Advocate with
Mr. Vishal Rattan Lamba, Advocate for the appellant
(in CRA-D-868-DB of 2012) and
for the complainant (in other appeals).
Mr. Preetinder Singh Ahluwalia, Advocate for the appellant
(in CRA-S-1431-SB of 2012).
****
A.B. CHAUDHARI, J
By this common order, above said all the appeals are being
disposed of.
2. Being aggrieved by the judgment and order dated 30.03.2012,
in SC Case No.18T of 2010, dated 10.11.2001/ 29.09.2007, passed by the
learned Additional Sessions Judge, Patiala, by which the above
accused/appellants, namely, Nishan Singh, Bibi Jagir Kaur, Paramjit
Singh Raipur and Dalwinder Kaur Dhesi were convicted for commission
of offence punishable under Sections 120-B, 313, 365 and 344 of Indian
Penal Code, 1860 (for short 'IPC') and were sentenced to undergo
imprisonment as indicated against their names, by the learned trial Court,
in the operative part of the impugned judgment and order, these appeals
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have been filed by them in this Court.
FACTS
3. The prosecution case, in brief, was that appellant No.1-Bibi
Jagir Kaur had two daughters, namely Harpreet Kaur alias Rozy and
Rajneet Kaur alias Daizy. Harpreet Kaur alias Rozy died in the intervening
night of 20/21.04.2000 and the cremation took place on 21.04.2000 in the
morning at Village Begowal. Thereafter, wide publicity was given by
media in various newspapers so also in the television that her death was
under mysterious circumstances. The Government of Punjab ordered that
a probe should be conducted and accordingly, Shri K.K. Attri, Inspector
General of Police, was assigned the job.
4. In the meanwhile, Criminal Miscellaneous No.11329-M of
2000 was filed by the lawyers for Human Rights and another Criminal
Miscellaneous No.11534-M of 2000 (Exhibit PW79/1) was filed by
Kamaljeet Singh (complainant), in this Court. Learned Single Judge of
this Court made a final order dated 09.06.2000 (Exhibit P-2) ordering that
the investigation shall be conducted by CBI and accordingly, the
investigation was handed over. Preliminary enquiry (P.E.) was registered
at SIC-1 Branch of the CBI, New Delhi, on 11.07.2000, which was
entrusted to Shri Harbhajan Ram (PW-90), SP of that Branch. Harbhajan
Ram, SP took possession of documents, photographs and letters and
greeting cards from Kamaljeet Singh vide memo (Exhibit PW77/4), on
18.07.2000, so also the diary (Exhibit P-20) of Dr. Jyoti Rana (PW7) and
register (Exhibit P-23) of Dr. Vikramjit Singh (PW8) and their Guest's
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Register (Exhibit P-33). He also took possession of register of Motel
Oasis from Pardeep Chhabra (PW-21), the owner thereof. Harbhajan Ram,
SP concluded that the offence was committed and as such, regular case
RC-5-2000 dated 03.10.2000, under Sections 120-B IPC read with Section
304, 344, 313 and 201 IPC was registered. Investigation was handed-over
to Shri Anurag Garg, IPS, Investigating Officer who collected all
documents form Harbhajan Ram.
5. The investigation revealed that Bibi Jagir Kaur belong to
lubana community. She was the head of religious Dera Sant Prem Singh
Begowal having following of members of lubana community. She was
elected M.L.A. from Bholath Constituency on the ticket of Shiromani
Akali Dal and was inducted as a Cabinet minister in the Government
headed by Shri Parkash Singh Badal. House No.955, Sector 39-A,
Chandigarh was allotted to her. Thereafter, Bibi was elected as President
of Shiromani Gurudwara Prabandhak Committee (for short 'SGPC') in
March 1999 and as such, she resigned from Cabinet. Dalwinder Kaur
Dhesi was a trusted friend of Bibi Jagir Kaur while Paramjit Singh Raipur
was a political advisor of Bibi Jagir Kaur. Nishan Singh, Sub Inspector of
Punjab Police was given the duty as Personal Security Officer of Bibi
Jagir Kaur. Eventually, he was related to her, he being the younger brother
of late Balbir Singh who was Bibi Jagir Kaur's brother-in-law as he was
married to sister of Bibi Jagir Kaur. Satya, Harvinder Kumar alias
Binder and Sanjeev Kumar (deceased) were the household servants of
Dalwinder Kaur Dhesi. The investigation further, revealed that Harpreet
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Kaur initially studied in Sant Prem Singh School, Begowal. PW77-
Kamaljeet Singh (complainant) also belong to lubana community and his
younger brother Simarjit Singh was the class-mate of Harpreet Kaur.
Harpreet Kaur used to visit the residence of Simarjit Singh and in the
course of her frequent visits, she became friendly with the complainant
which later developed into a love affair. The investigation also revealed
that after completing her matriculation, Harpreet Kaur was admitted in
Shivalik Public School, Sector-41, Chandigarh in the year 1997 and she
shifted to Chandigarh in the official residence of Bibi Jagir Kaur. But then
her love affair with Kamaljeet Singh (complainant) continued not to the
liking of Bibi Jagir Kaur, but despite her objection, it continued through
letters, phone calls and meetings at Chandigarh. From the year 1998
onwards, the complainant-Kamaljeet Singh frequently visited Chandigarh
and stayed in Motel Oasis and Janta Tourist Bungalow, where Harpreet
Kaur used to meet him. On some occasions, even Kamaljeet Singh visited
residence of Bibi Jagir Kaur to meet Harpreet Kaur and also stayed in her
house. Kamaljeet Singh and Harpreet Kaur wanted to go USA and settle
there after their marriage. Harpreet Kaur was to visit South Africa and
USA, and therefore, she pressed Kamaljeet Singh that they should be
engaged before her departure. On 06.09.1999, in room No.104 of Motel
Oasis, Harpreet Kaur and Kamaljeet Singh got engaged in the presence of
family members of the complainant and one Kusum (PW-13).
Photography and videography of engagement ceremony was captured by
Simarjit Singh. Harpreet Kaur with her younger sister Rajneet Kaur alias
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Daizy had come for the ceremony. But Rajneet Kaur had left the place
after sometime while Harpreet Kaur was dropped by Kamaljeet Singh.
6. According to the prosecution, Harpreet Kaur had developed
physical relations with Kamaljeet Singh resulting into her pregnancy. She
informed Kamaljeet Singh from USA on telephone in December, 1999
about it. After her return to India, Harpreet Kaur and Kamaljeet Singh
visited Rana Medical and Maternity Centre, Sector 39, Chandigarh, on
12.02.2000, where Dr. Jyoti Rana medically examined her who advised
her to have ultrasound. She underwent ultrasound at the clinic of Dr.
Vikramjit Singh (PW-8) on 14.02.2000 confirming pregnancy.
Complainant and Harpreet Kaur were hopeful of getting married soon and
that Harpreet Kaur wanted to continue with the pregnancy and again
visited Dr. Jyoti Rana on 23.02.2000, where Tetanus Toxide injection was
given to her after three months of pregnancy. According to prosecution,
Bibi Jagir Kaur was not in favour of the marriage of her daughter with
Kamaljeet Singh because of great disparity in their respective status and
rather she wanted Harpreet Kaur to get married to Channi son of
Dalwinder Kaur Dhesi, who was studying in U.K. After coming to know
about pregnancy of Harpreet Kaur, Bibi Jagir Kaur became perturbed as it
was likely to bring disrepute to her political and social status. She
discussed the problem with Dalwinder Kaur Dhesi and Paramjit Singh
Raipur. Dr. Balwinder Singh Sohal (PW-27) was working as Medical
Officer in the Dera of Bibi Jagir Kaur. In March/April, 2000, Bibi Jagir
Kaur, Dalwinder Kaur Dhesi, Paramjit Singh Raipur, Nishan Singh, SI,
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Satya, Harvinder Kumar alias Binder, Sanjeev Kumar (deceased) and
approver, Dr. Balwinder Singh Sohal (PW-27) hatched a criminal
conspiracy at Chandigarh, Jalandhar, Phagwara and other places in Punjab
to abduct Harpreet Kaur from Chandigarh house and wrongfully confine
her and get her pregnancy terminated against her will. In case of failure to
do so, to eliminate Harpreet Kaur and destroy the evidence. Pursuant to
the conspiracy, Dr. Balwinder Singh Sohal, the approver, contacted Dalbir
Kaur, staff nurse to get the pregnancy terminated. Paramjit Singh Raipur
and Dalwinder Kaur Dhesi and Dr. Balwinder Singh Sohal went to
Chandigarh on 18.03.2000 and persuaded Harpreet Kaur to accompany
them to Patiala for the purpose of shopping in connection with her
marriage. Harpreet Kaur was given chat in Sector-22, Chandigarh mixed
with powder of Trika tablets with an intention to cause her sedation.
Having consumed the tablets mixed with drug, Harpreet Kaur developed
dizziness and as such, she was brought to Jasdil Mansion, Phagwara by
Dalwinder Kaur Dhesi, Paramjit Singh Raipur, Nishan Singh, Dr.
Balwinder Singh Sohal, the approver. During night, when Harpreet Kaur
alias Rozy was coming out of the effect of sedation, further sedative was
administered to her and she again became unconscious. At that time,
Dalwinder Kaur Dhesi pressed her abdomen with some wood due to
which leakage started. In the early morning on 19.03.2010 at about 5:00
A.M., Dalwinder Kaur Dhesi, Paramjit Singh Raipur and Dr. Balwinder
Singh Sohal brought her to Anmol Nursing Home at residence of PW40-
Dalbir Kaur, wife of Dr. Satpal at Kartarpur. PW40-Dalbir Kaur
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administered medicines for abortion and as a result, pregnancy was
terminated on 20.03.2000. A dead male foetus was aborted which was
about four and a half months. In the evening, Dalwinder Kaur Dhesi,
Paramjit Singh Raipur, Dr. Balwinder Singh Sohal along with Harpreet
Kaur left Kartarpur and returned to Jasdil Mansion. Thereafter, Harpreet
Kaur was detained against her will and was not allowed to make any
contact with Kamaljeet Singh and his family members. To ensure that,
Nishan Singh, Satya, Harvinder Kumar, Sanjeev Kumar kept vigil and
guarded her in illegal confinement in Jasdil Mansion. PW27-Dr.
Balwinder Singh Sohal kept on visiting Jasdil Mansion in order to monitor
condition of Harpreet Kaur and administered requisite post abortion
medicines and informed the progress to Bibi Jagir Kaur.
7. On 08.04.2000, Harpreet Kaur alias Rozy succeeded in
escaping from Jasdil Mansion and reached Bidhipur Phatak (Railway
Level Crossing) near Kartarpur, where she along with Kamaljeet Singh
(PW-27) and PW20-Manjit Kaur, in the evening, left for Rai and took
shelter at the residence of PW26-Kulwinder Chauhan, Warden of Sports
School Rai. In telephonic conversation, Bibi Jagir Kaur persuaded her
daughter to return to Jasdil Mansion, Phagwara in the night of
09/10.04.2000 on the false pretext that she will get her married to
Kamaljeet Singh. On 14.04.2000, Bibi Jagir Kaur asked Paramjit Singh
Raipur, Nishan Singh, Dr. Balwinder Singh Sohal to eliminate Harpreet
Kaur as she was insisting for marriage and had brought disrepute to her. In
the intervening night of 20/21.04.2000, Dr. Balwinder Singh Sohal
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reached Jasdil Mansion, Phagwara where Paramjit Singh Raipur asked
him as to how many tablets of Phenobarbitone would be sufficient to kill a
person. On his advise, 30/35 tablets of Phenobarbitone taken earlier by
Paramjit Singh from Dr. Balwinder Singh Sohal from Patter Kalan
Dispensary were powdered and mixed in the vegetables to serve to
Harpreet Kaur. Harpreet Kaur was persuaded by Paramjit Singh Raipur
and Dalwinder Kaur Dhesi in the presence of Dr. Balwinder Singh Sohal,
the approver, to take meals. Thus, the said food was administered to her
and after consuming the food, she died in the same night. Her death was
confirmed by Dr. Balwinder Singh Sohal at about 2:00 A.M. after
examining pulse and heartbeat. Bibi Jagir Kaur was informed about her
death. In order to destroy all the evidence of murder, it was decided to
project the death as a natural death due to dehydration and vomiting.
Therefore, neither the postmortem was conducted nor information was
given to the police. The dead body was handed-over by them to Bibi Jagir
Kaur near Cheheru Bridge and was ultimately, cremated in Begowal
village in the presence of Bibi Jagir Kaur and other accused persons
without conducting any postmortem, at 10:30 A.M. on 21.04.2000. That
even before funeral part was done, water was poured to drowse the pyre at
4:30 P.M. in the presence of Bibi Jagir Kaur and ashes were collected in a
gunny bag and immersed in river Beas at Gobindwal on the same evening.
8. The CBI investigation had found that Dr. Tarsem Singh of
Begowal was persuaded by Bibi Jagir Kaur to give false statement to
Punjab police to the effect that in the intervening night of 20/21.04.2000,
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he had visited Jasdil Mansion and examined the deceased who was
suffering from dehydration, dysentery and vomiting, and that it was
advised by him to take the patient to Ludhiana. Dr. Balwinder Singh Sohal
had made a confessional statement on 21.01.2000 before Metropolitan
Magistrate, Delhi. Then, he applied for grant of pardon. He was granted
pardon subject to condition under Section 306 of Code of Criminal
Procedure, 1973 (for short 'Cr. P.C.) by the Chief Judicial Magistrate,
Patiala, on 12.01.2001. Thus he was approver witness for prosecution. The
investigation was completed and the challan was filed as stated above.
After completion of necessary formalities, the Sessions Court framed
changes against the accused persons, which were denied by them and
therefore, the trial was required to be held. The trial commenced. During
trial, accused Sanjeev Kumar expired. In the trial, the prosecution
examined in all 94 witnesses including the Investigating Officer (PW-94)
Shri Anurag Garg, whose names have been given by the trial Court in
Paragraph-15 of the impugned judgment. The trial Court, after completion
of prosecution evidence, recorded the Statement under Section 313 of Cr.
P.C. Defence witnesses were examined by the accused persons. The
accused persons denied their involvement. The accused Bibi Jagir Kaur
took a stand that she was the head of Yadgari Gurudwara Sant Baba Prem
Singh, Begowal, but after the death of her husband, Shri Charanjit, her
political opponent wanted to claim gaddi of the said Dera and after
making conspiracy to implicate her by creating false evidence, though,
death of Harpreet Kaur, her beloved daughter was natural, falsely involved
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her. The complainant (PW-77) never brought to her any marriage proposal
and she never knew about it. Her daughter was just 13/14 years of age.
She denied any relationship between the complainant and her daughter
and had no knowledge absolutely of whatsoever nature. She stated that
Kamaljeet Singh and his sister formed a gang entangling young girls to
blackmail them on the basis of video cassettes and photographs and her
political rivals took advantage thereof and got a false case registered
against her. The CBI had threatened the witnesses and Government
servants to depose according to the desire of CBI and made a false and
bogus investigation to trouble them. The mobile telephone number
allegedly attributed to her was not used by her, but was used by Kirpal
Singh Chauhan, Incharge of SGPC Sub-Office at Chandigarh. It was Dr.
Balwinder Singh Pandori, who was in the employment of dispensary of
the Dera and not PW27-Dr. Balwinder Singh Sohal, approver as he was
never employed. CBI had initially opposed the bail application filed by
PW27-Dr. Balwinder Singh Sohal which was rejected also. But CBI got
him released by giving concession in subsequent bail application which
was immediately filed in order to make him a approver. PW77-Kamaljeet
Singh received huge amount from her political opponents to implicate her.
The death of her dear daughter was her personal tragedy which was fully
made use of by her political opponents for getting their ill designs
fulfilled. Harpreet Kaur was cremated in open public view of thousands of
persons, Chief Minister, Police Officers and public at large.
9. The other accused persons had also taken their respective
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stand in the Statement under Section 313 Cr. P.C. and it is not necessary
to reproduce them in the present judgment.
10. The learned trial Court thereafter, framed points for
determination from 'a' to 'k'. The trial Court thereafter, heard the
arguments of the prosecuting agency, CBI as well as accused persons and
finally held that the accused persons were liable to be convicted and
accordingly, recorded their conviction and sentence as stated above.
Hence, these appeals.
ARGUMENTS
11. On behalf of the appellants, in these appeals, learned Senior
Advocates Mr. R.S. Cheema, Mr. J.S. Bedi, Mr. Vinod Ghai and learned
Advocate Mr. P.S. Ahluwalia appeared for different appellants. Mr. S.K.
Saxena and Mr. R.K. Handa, Special Standing Counsel appeared for
Central Bureau of Investigation, the prosecuting agency while Mr. A.P.S.
Deol, learned Senior Counsel appeared for the complainant-Kamaljeet
Singh.
12. The four appellants/accused persons, namely Bibi Jagir Kaur,
Dalwinder Kaur Dhesi, Nishan Singh and Paramjit Singh Raipur have
filed appeals vide appeal numbers CRA-S-1500-SB of 2012, CRA-S-
1538-SB of 2012, CRA-S-1431-SB of 2012 and CRA-S-1501-SB of
2012, respectively. Three accused persons namely Satya, Harvinder
Kumar alias Binder and Sanjeev Kumar (deceased) were acquitted by the
learned trial Court for the charges framed against them, and their acquittal
has not been challenged anywhere. Their acquittal was made for the
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reasons stated by the learned trial Court in the impugned judgment.
Appeal number CRA-D-867-DB of 2012 has been filed by the CBI against
Bibi Jagir Kaur and others questioning the correctness of the acquittal on
the main charge of offence of murder allegedly by the accused persons.
Appeal number CRA-D-868-DB of 2012 has been filed by Kamaljeet
Singh against Bibi Jagir Kaur and others questioning their acquittal for the
main charge of offence of murder etc.
13. Learned Senior counsel for the respective appellants made the
following submissions:-
i) The impugned judgment of the trial Court is perverse and on
misapprehension of facts, evidence on record and the law;
ii) As per this Court's order, CBI had undertaken the
investigation on 11.07.2000 by registering P.E. and Harbhajan
Ram (PW-90) was the first Investigating Officer who filed his
report on 11.09.2000. In his investigation, he came to the
conclusion that Harpreet Kaur died because of dehydration.
The second theory advanced by the CBI was that the deceased
was pregnant and since the foetus was dead, it was essential to
save the life of Harpreet Kaur and that is why abortion was
made to take out the dead foetus, which story was rejected by
the learned trial Court which created its own story that there
was an abortion. The CBI had third theory that the accused
Dalwinder Kaur Dhesi had pressed the wooden log on the
stomach of the Harpreet Kaur due to which leakage started and
the pregnancy was aborted. In the wake of different stories, the
prosecution case itself was of grave doubt as the contradictory
inferences were placed before the Court by way of prosecution
story and then the Court also came to the conclusion sans any
evidence about abortion;
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iii) The prosecution projected PW27-Dr. Balwinder Singh Sohal
as star witness along with so called another star witness
PW77-Kamaljeet Singh. PW27 was projected as an eye
witness and the participant in the entire events which allegedly
took place from the alleged abduction from the house at
Chandigarh and thereafter, to Jasdil Mansion at Phagwara and
alleged abortion at Kartarpur. He was made an approver whose
evidence has been relied upon by the trial Court. the law as to
the approver is well settled and like any other witness, the
Court is bound to find out whether his evidence itself is
truthful and can be accepted. Not only that, thereafter, if the
evidence is found to be truthful, the Court has to look for
corroboration to his evidence. In the two bail applications filed
by PW27 before the Courts, in which he had repeatedly and
affirmatively stated that he had nothing to do with the case or
that he was nowhere connected with the crime in question and
that he claimed that he has not participated in the crime. He
was won over by the CBI which finding has also been
recorded by the learned trial Court. The first anticipatory bail
application was rejected on 07.11.2000 while his statement
was recorded, for the first time, by PW94-Anurag Garg, on
09.11.2000 and in a short span thereafter, he applied to the
trial Court for grant of anticipatory bail in which CBI had
given its no objection for grant of anticipatory bail clearly with
an eye on making him approver in the case. Learned Senior
counsel for the appellants essentially took us to the evidence to
point out that there were invariably major improvements made
by him and his evidence was completely untrustworthy testing
the same independently. It was also pointed out by the learned
Senior counsel that PW27 admitted that he was threatened by
CBI officers and was thus, under the influence of CBI to turn
as approver witness;
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iv) It is not necessary to give details regarding evidence as we
would discuss the same in the judgment. The learned trial
Court made an error in accepting his evidence which was
neither corroborated nor disclosed the offence. His name was
never mentioned in the writ petition, which was filed by the
complainant-PW77. The prosecution miserably failed to prove
that he was appointed as a medical officer in the dispensary at
Dera by not producing any evidence except his parol evidence
and on the contrary, the doctor who was appointed in
dispensary at Dera, clearly falsified his case that PW27 was
ever appointed in the dispensary at Dera. The prosecution
miserably failed to prove that he had any connection with Bibi
Jagir Kaur since there was no occasion for him to have so but
for the projection made by the CBI that he was with;
v) The prosecution heavily relied on the call details record by
examining some witnesses, but then it is an admitted fact that
not even mobile phone from a single accused was at all seized
by the Investigating machinery. The prosecution also failed to
prove that the mobile phones were really used by the accused
persons or they were in possession of those phones as mobile
phones about which the call details were placed no record
were owned by somebody else and were in possession of
someone else. By merely producing the call details and the
locations of the mobile phones moving from one place to
another it cannot at all be inferred, even remotely, the accused
persons had made movements in the area as alleged by the
prosecution as the movement of the SIM card only can be said
to have been proved by the prosecution. The evidence in the
form of call details produced by the Investigating agency is
worthless and is liable to be rejected;
vi) At any rate, there is no compliance of Section 65-B (4) of the
Evidence Act in relation to the proof and ingredients which are
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required to be proved to claim production of legal evidence;
vii) The story that deceased had jumped from the house at Jasdil
Mansion and had run away from the said house and travelled
35 kilometers to Rai with advance pregnancy in the night is
nothing but a cock and bull story. But even then, the evidence
by the witnesses on the said story does not take the case of the
prosecution any further regarding the alleged offence of
murder. At the most, the story projected, assuming but not
admitting, shows only the pregnancy being terminated and so
on and so forth. The alleged statements made by the deceased
to the witnesses about forceful termination of her pregnancy
against her will or any other statements cannot constitute an
admissible evidence within the meaning of Section 6 or
Section 32(1) of the Evidence Act;
viii) The death of Harpreet Kaur is said to have been caused and is
fully corroborated by the evidence of PW39-Dr. Tarsem Singh
because of dehydration and nothing more and at any rate, there
is no reliable evidence on record that anybody committed her
murder. The deceased was elder daughter of Bibi Jagir Kaur
and she had only two daughters with no son and therefore, it
was highly improbable that she will kill her own daughter for
the motive stated by the prosecution or making any conspiracy
as alleged by the prosecution;
ix) The prosecution did not examine Saheb Singh and second
daughter Rajneet Kaur since according to the prosecution
itself, they were along with the deceased. No explanation
whatsoever has come from the prosecution as to why they
were kept back;
x) According to the prosecution, the termination of pregnancy
was made because Bibi Jagir Kaur did not want the people at
large to come to know about her pregnancy in the first place
and secondly, that she did not want to marry Harpreet Kaur in
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a middle class family like that of PW77 when she was
occupying all higher posts in the Society. Testing the case for
the prosecution, the termination of pregnancy itself was made
on 18.03.2000 that too in secrecy and that she was healthy at
that time. The termination of pregnancy was not known to
anyone except the accused persons and PW27-Dr. Balwinder
Singh Sohal. If that was so, the termination of pregnancy
having been made in secrecy, there was no question of any
damage to her status and then, there was no cause or reason to
order her killing as late as on 08.04.2000 as alleged by the
prosecution. The story is wholly improbable as there was no
evidence to show that even after 18.03.2000, there was any
reason for her to order the killing of her own beloved elder
daughter out of two. Learned Senior counsel submitted that the
reason given by the witnesses that she was insisting for her
marriage with PW77, is in the form of improvement and was
introduced before the Court for the first time by the witnesses
and unfortunately, the trial Court relied upon the same;
xi) The trial Court recorded and relied upon the inadmissible
evidence of PW27 and refused to consider and apply the effect
of major improvements in the evidence of the witnesses;
xii) The trial Court has categorically recorded a finding that a dead
foetus was detected and in order to save the life of Harpreet
Kaur, Dalbir Kaur, the nurse was justified in taking out the
dead foetus. Applying the same reason and logic taking the
prosecution case as it was, the other accused persons also
could not be held guilty of any offence and it could be said
that in order to save her life due to the dead foetus, the
abortion was carried out;
xiii) Assailing the evidence of PW77, the complainant, learned
Senior counsel vehemently argued that he was a liar,
blackmailer and untrustworthy and unreliable witness since he
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turned hostile during recording of evidence and was also
declared hostile accordingly. Thereafter, he was recalled and
again he stated the prosecution story. During the cross-
examination by the defence, all the improvements were
brought on record. Unfortunately, his evidence has also been
believed by way of corroboration etc., by the trial Court;
xiv) Learned Senior counsel referred to us the evidence of the
witnesses, documents and so on and so forth and we would
discuss the same later rather than producing the same here.
Finally, the learned Senior counsel for all the appellants
prayed for acquittal of all the appellants;
14. Per contra, the learned counsel for the CBI made the
following submissions:-
i) The appellant-Bibir Jagir Kaur was, at the relevant time,
holding influential and powerful posts in the Punjab
Government as well as in SGPC and therefore, the
investigation was rightly handedover to CBI by this Court;
ii) The deceased was cremated in a great hurry after her death
without informing the police or any authority about her death
and that was done deliberately with a view to destroy the
evidence and avoid conduct of postmortem. Adverse inference
must be drawn against the accused persons in doing so as
accused persons were under obligation to inform the police
about her death. No explanation has been furnished by the
accused persons as to why that was done clandestinely;
iii) The prosecution has produced on record the evidence in the
form of call details which clearly proved the movement of
accused persons from Chandigarh to Phagwara and also those
who carried out the termination of pregnancy to Kartarpur.
The fact that no phone calls were made by the deceased to
PW77 from 18.03.2000 onwards as against en number of calls
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from the said date to him clearly proved that she was abducted
by the appellants and were taken away from Chandigarh with a
view to terminate her pregnancy by practicing deception on
her;
iv) Mr. A.P.S. Deol, learned Senior counsel for the complainant
and Mr. S.K. Saxena, learned Special Standing counsel took
us through the call details record extensively and the
documents connected therewith. It is not possible to quote
their submissions, but if necessary would be discussed in the
judgment. The submissions made by them were that the
mobile phones in respect of which the call details have been
proved by the prosecution were in the possession of respective
accused persons. The tower locations at various places from
Chandigarh to Phagwara etc. clearly indicated plenty of calls
made by various accused persons amongst them and also with
Bibi Jagir Kaur even at dead hours of night. The abduction
took place on 1803.2000 from the house of Bibi Jagir Kaur at
Chandigarh and thereafter, as narrated by PW27-Dr.
Balwinder Singh Sohal, the deceased was brought to Jasdil
Mansion at Phagwara belonging to accused Dalwinder Kaur
Dhesi and was kept in confinement by the accused persons as
a part of conspiracy, first to terminate her pregnancy and then
get rid of her and to destroy evidence thereof. The call details,
if carefully seen, will show as to how accused persons were
acting in tandem and were making call details with each other
for carrying out or executing the conspiracy that was hatched
amongst them and ultimately they succeeded in terminating
her pregnancy and also getting rid of her. Learned counsel
took us through number of call details, which were carefully
seen by us;
v) Mr. A.P.S. Deol, learned Senior counsel for the complainant
then argued that all the statements made by the deceased to the
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witnesses including PW77 and his sisters were admissible
under Section 32(1) of the Evidence Act as to the cause of
termination of her pregnancy and the cause of her death. The
statements made by her to them have been clearly proved on
record by the prosecution through the evidence of these
witnesses. The trial Court has rightly convicted the appellants
for the charges levelled against them and their appeals deserve
to be dismissed;
vi) Learned Senior counsel for the complainant challenged the
judgment of the trial Court by which the order of acquittal of
the accused persons for the charge of offence of murder was
made. According to Mr. Deol, the trial Court completely
mislead itself in recording a contradictory finding and
acquitting the accused persons for the charge of offence of
murder which was clearly proved particularly when it was the
bounden duty of defence to prove as to how Harpreet Kaur
died and how her pregnancy was terminated before her death.
Mr. Deol contended that the accused persons did not come out
with any theory or reasonable and proper explanation. Adverse
inference is required to be drawn against accused persons for
not explaining the same as the prosecution has proved its case
beyond reasonable doubt. The appeals filed by the
complainant as well as CBI against the acquittal for the charge
of offence of murder are required to be allowed;
vii) Mr. S.K. Saxena and Mr. R.K. Handa, learned Special
Standing counsel for CBI vehemently opposed the appeals
preferred by the accused persons and supported the appeal
preferred by the CBI. It was argued that the prosecution
clearly proved by documentary evidence, the call details by
producing the witnesses from the mobile phone companies
with whom there was the record of the call/tower locations.
The objection raised by the appellants about lack of proof as
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per Section 65-B of the Evidence Act is wholly misconceived
inasmuch as the witnesses from the mobile operators were
duly examined to clearly prove their record, which was not
challenged by the defence in the cross-examination. The
printed details on record were clearly proved without any
objection from the other side for any reason and the entire
material and the printouts clearly proved the location of the
persons making the phone calls and in this case the accused
persons amongst them, at the dead hours of night, frequently,
obviously with a view to carry out and execute their
conspiracy. There was full compliance of relevant section of
Evidence Act for proof of call details and the trial Court
rightly relied on them. Perusal of the record of call details will
clearly show as to how the accused persons in tandem acted to
abduct the deceased from her house from Chandigarh and
thereafter, gave her sedatives and brought to Jasdil Mansion at
Phagwara and carried out further plan of termination of her
pregnancy and finally, killed her. According to Mr. Saxena,
PW27 is an eye witness to the entire incident and like any
other witness his evidence has to be tested like an ordinary
witness which is wholly trustworthy and he being an
independent person having no interest in either party and
being highly educated, there is no reason why his evidence
should be discarded. The dispensary at Dera being in rural
area and the manner in which the activities in Dera were
conducted, namely with cash payments etc., the expectation of
the defence that the documents/record of payments of salary to
PW27 should have been brought, is ridiculous. There is no
reason why the sworn testimony of PW27 should not be
accepted that he was employed in dispensary at Dera and
worked for almost 9 months and had thus, come in contact
with Bibi Jagir Kaur. Not only that he was treating younger
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daughter of Bibi Jagir Kaur as she was having epilepsy and
required frequent treatment. The defence has not produced
Rajneet Kaur to prove the case of prosecution on that aspect.
The law as to the evidence of approver is well settled and there
is no reason why the evidence of PW27 should be looked with
any suspicion as there is no proof to raise any suspicion for
doing so. The submission made by the learned Senior counsel
for the appellants about the pressure etc. by the CBI as alleged,
are all misleading and misconceived inasmuch as PW27 was a
fully independent witness and a Government servant and a
responsible witness. It is not necessary that there has to be an
active participation of approver as Section 306 IPC nowhere
contemplates so. After grant of pardon, he becomes an
ordinary witness like any other witness and therefore, he
cannot be treated differently. The burden to prove within the
meaning of Section 6 of the Evidence Act, which the
prosecution has proved its case beyond reasonable doubt, was
not discharged by the defence and in particularly Bibi Jagir
Kaur who was the mother of the deceased and therefore, the
trial Court has rightly convicted the appellants. A strong
presumption arose against the appellants in the wake of
voluminous evidence brought on record by the prosecution in
the form of call details as well as the eye witness account of
PW27.
viii) The evidence of PW27 is fully corroborated by the other
witnesses including PW77 and his sisters so also the Warden
of the hostel at Rai. These were all the independent witnesses
who proved the prosecution case to the hilt leaving no scope
for any doubt;
ix) The objections levelled by the learned Senior counsel for the
appellants about alleged different theories of prosecution is
baseless. When the investigation was taken over by the CBI,
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the investigation was bound to indicate a particular line of
investigation, but then that is not the final investigation and
therefore, no submission could be made on that basis.
According to Mr. Saxena, it is final investigation report that is
material and therefore, the argument is misleading;
x) Mr. Saxena then contended that the deceased had made
statements to the various witnesses including PW77 and his
sisters and those statements were clearly admissible in
evidence within the meaning of section 6 of the Evidence Act;
xi) We were taken through the record extensively by Mr. Saxena
who invited our attention to the documentary as well as oral
evidence and also connected the same to show that the
prosecution proved its case beyond any doubt. It is not
necessary for us to reproduce all that here as the same would
be part of discussion in the judgment;
xii) In support of the appeals against acquittal filed by CBI, Mr.
Saxena vehemently argued that the trial Court has recorded
contradictory finding while recording order of acquittal about
serious offence of murder. The trial Court accepted the
evidence tendered by the prosecution in relation to the other
offences including abduction and termination of pregnancy so
also the conspiracy but then there is no reason why it has
rejected the evidence regarding murder as the only inference
that could be drawn was that the accused persons were the
persons who had committed murder. According to him, it was
for the accused persons to explain about the whereabouts of
the deceased right after 18.03.2000 since the prosecution has
proved that Harpreet Kaur went missing from that date from
the house at Chandigarh. Mr. Saxena has cited some
judgments and urged this Court to convert the acquittal on the
charge of murder into one of conviction. He submitted that in
all the probabilities, the conviction could be recorded and
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finally prayed for dismissal of the appeals preferred by the
appellants/accused persons and for allowing the appeal
preferred by the CBI against acquittal of accused persons;
In reply, learned Senior counsel for the accused persons
submitted that younger sister Rajneet Kaur was withheld by
the prosecution from being examined in the Court and
therefore, adverse inference is required to be drawn against the
prosecution. Similarly, Saheb Singh who was the son of
Dalwinder Kaur Dhesi was also not examined by the
prosecution before the Court and no reasons were given by
PW94-Anurag Garg from withholding their evidence from the
Court when they were prime witnesses who could have
disclosed the truth. Learned counsel then contended that there
was failure on the part of prosecution in not seizing mobile
phones or SIM cards which clearly was detrimental to the
prosecution case and serious doubt was created about the
evidence in the form of call details. It has also been contended
that the prosecution story clearly seems to be highly
improbable and at any rate, if really on 08.04.2000, Harpreet
Kaur had gone out of Jasdil Mansion out of the alleged
confinement/custody of PW77 and others, there is no
explanation whatsoever as to why the matter was not referred
to the police by them and/or any plea was field before the
High Court as was done at a later point of time by producing
her before the Court by asking for direction for security etc.
which clearly show that the prosecution story is highly
improbable and also false. PW77 claim that he loved deceased
and if that was so, he would have definitely reported the
matter to the police on 08.04.2000 or thereafter, or approached
the High Court for protection etc. Nothing was done and it is
only after cremation was over. Story was created afterthought.
According to the learned Senior counsel for the appellants,
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therefore, in the alternative, all the accused are required to be
given benefit of doubt as there is serious doubt about whatever
is stated by the witnesses.
CONSIDERATION
15. We have heard learned counsel for the rival parties at length
for a few days. We have gone through the entire evidence with their
assistance, oral as well as documentary. We have considered the
submissions on the propositions of facts as well as law canvassed by them
before us.
16. At the outset, we find that hue and cry in respect of death of
deceased Harpreet Kaur alias Rozy was made w.e.f. 24.04.2000, i.e. after
21.04.2000 when her dead body was kept for Darshan for a few hours and
after that cremation etc. had taken place in the presence of thousand of
persons including the high ranking police officers, Chief Minister and
number of people belonging to the area. Not only that, Criminal
Miscellaneous petitions were filed by the complainant (PW-77)-Kamaljeet
Singh and "Lawyers for Human Rights" in this Court. The projection that
was made in the media, electronic media as well as before this Court was
that the accused Bibi Jagir Kaur was politically and socially influential
person being M.L.A., as well as the then Minister in the Cabinet and the
Head of the prestigious SGPC. It would be apt to quote the valuable and
significant observations made by Hon'ble Judge Tek Chand, J. of this
Court way back in the year 1958, in the case of Rao Harnarain Singh
Sheoji Singh versus Gumani Ram Arya, AIR 1958 Punjab 273, in Para-
20, which reads thus:-
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"20. If what was contended on behalf of the respondent,
reflected a true picture of what he felt when giving publicity
about this case, there must be grave and serious misgiving in
his mind regarding his obligations as a journalist. It is little
realised that improper news items and comments regarding
causes which are either pending or about to be taken up
before Courts of law, very often hamper and hinder the proper
functioning of the Courts. Taking of sides in Criminal cases,
suggesting innocence or guilt of accused persons can cause
grave prejudice, by either influencing the minds of Judges,
Jurors, witnesses, or by creating a climate of sympathy for, or
prejudice against the accused. It is but essential, that those,
who are engaged in the administration of justice, should be
free from outside influence, and the judicial machinery should
be left unaffected by popular feelings as to guilt or innocence
of persons being tried or awaiting trial on a criminal charge.
The legal machinery, according to our law for adjudging the
culpability of accused persons, or in civil causes, for
determining the rights of the parties, carefully excludes from
consideration facts and circumstances, other than those which
are presented in a formal manner, according to the rules of
procedure and evidence. The decision rests on the material on
the record, and extraneous matters, howsoever palpable, or
seemingly important, are kept severely outside the judicial
purview. Any outside comment upon a pending case, and any
criticism of the parties or the witnesses, which is calculated to
influence the decision, has to be placed under a legal ban.
Journalists, whether out of good or evil intentions, who
intrude themselves on the due and orderly administration of
justice, are guilty of contempt of Court and can be subjected
to summary punishment. The Courts do not countenance any
interference which is calculated to impede, embarrass or
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obstruct the administration of justice. Any publication, which
has a tendency to foil or thwart a fair and impartial trial, or
any conduct, which in any manner prejudices or prevents
judicial investigation, whether by intimidation of or by
reflection on the Court, counsel, parties or witnesses, in
respect of a pending cause, constitutes contempt of Court."
17. The projection in the criminal petitions in this Court was that
because of her influence, truth was being suppressed by the Government
as well as by the police in relation to the death of her young daughter and
that therefore, an independent investigation by the CBI was the need of
the hour. Various narration of facts allegedly indicating suspicion about
her death etc. was projected in the said criminal petitions here and there
forcefully making allegations that the other accused/appellants had at the
directions of accused/appellant-Bibi Jagir Kaur committed the murder of
Harpreet Kaur, her own daughter in order to insulate her social as well as
political status. Learned Single Judge of this Court, on 09.06.2000, also
made an order directing investigation by CBI.
APPROVER
18. It is significant to note that after completing investigation into
the case admittedly CBI did not rely on any direct evidence in the form of
eye witnesses or otherwise. The CBI, however, made their alleged witness
as approver, namely PW27-Dr. Balwinder Singh Sohal who deposed as a
witness to the happenings right from the beginning till the end. It is an
admitted position that the approver PW27-Dr. Balwinder Singh Sohal was
not at all arrayed as an accused at any point of time after commencement
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of investigation or at any point thereafter. In other words, though,
according to the CBI, he had been a member of alleged conspiracy in the
crime in question and had participated in the crime during investigation,
the CBI never even thought of making him an accused at any point of time
for which it has no explanation.
19. Section 306 Cr. P.C. reads thus:-
"306. Tender of pardon to accomplice.--(1) With a
view to obtaining the evidence of any person supposed
to have been directly or indirectly concerned in or privy
to an offence to which this section applies, the Chief
Judicial Magistrate or a Metropolitan Magistrate at any
stage of the investigation or inquiry into, or the trial of,
the offence, and the Magistrate of the first class
inquiring into or trying the offence, at any stage of the
inquiry or trial, may tender a pardon to such person on
condition of his making a full and true disclosure of the
whole of the circumstances within his knowledge
relative to the offence and to every other person
concerned, whether as principal or abettor, in the
commission thereof.
(2) This section applies to--
(a) any offence triable exclusively by the Court
of Session or by the Court of a Special Judge
appointed under the Criminal Law Amendment
Act, 1952 (46 of 1952).
(b) any offence punishable with imprisonment
which may extend to seven years or with a more
severe sentence.
(3) Every Magistrate who tenders a pardon under
sub-section (1) shall record--
(a) his reasons for so doing;
(b) whether the tender was or was not accepted
by the person to whom it was made,
and shall, on application made by the accused,
furnish him with a copy of such record free of
cost.
(4) Every person accepting a tender of pardon made
under sub-section (1)--
(a) shall be examined as a witness in the Court
of the Magistrate taking cognizance of the offence
and in the subsequent trial, if any;
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(b) shall, unless he is already on bail, be
detained in custody until the termination of the
trial.
(5) Where a person has accepted a tender of pardon
made under sub-section (1) and has been examined
under sub-section (4), the Magistrate taking cognizance
of the offence shall, without making any further inquiry
in the case,--
(a) commit it for trial--
(i) to the Court of Session if the offence is
triable exclusively by that Court or if the
Magistrate taking cognizance is the Chief
Judicial Magistrate;
(ii) to a Court of Special Judge appointed
under the Criminal Law Amendment Act,
1952 (46 of 1952), if the offence is triable
exclusively by that Court;
(b) in any other case, make over the case to the
Chief Judicial Magistrate who shall try the case
himself."
20. The salient features are:-
(i) a person supposed to have been directly or
indirectly concerned in or privy to an offence;
(i) can be tendered a pardon;
(iii) will have to make full and true disclosure within
his knowledge;
(iv) in the commission of the offence;
(v) shall, unless he is already on bail, be detained in
custody until the termination of the trial.
21. Section 307 Cr. P.C. reads thus:-
"307. Power to direct tender of pardon.--At any
time after commitment of a case but before judgment is
passed, the Court to which the commitment is made
may, with a view to obtaining at the trial the evidence of
any person supposed to have been directly or indirectly
concerned in, or privy to, any such offence, tender a
pardon on the same condition to such person."
22. Section 308 Cr. P.C. reads thus:-
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"308. Trial of person not complying with conditions of
pardon.--(1) Where, in regard to a person who has
accepted a tender of pardon made under section 306 or
section 307, the Public Prosecutor certifies that in his
opinion such person has, either by wilfully concealing
anything essential or by giving false evidence, not
complied with the condition on which the tender was
made, such person may be tried for the offence in
respect of which the pardon was so tendered or for any
other offence of which he appears to have been guilty in
connection with the same matter, and also for the
offence of giving false evidence:
Provided that such person shall not be tried
jointly with any of the other accused:
Provided further that such person shall not be
tried for the offence of giving false evidence except with
the sanction of the High Court, and nothing contained in
section 195 or section 340 shall apply to that offence.
(2) Any statement made by such person
accepting the tender of pardon and recorded by a
Magistrate under section 164 or by a Court under sub-
section (4) of section 306 may be given in evidence
against him at such trial.
(3) At such trial, the accused shall be entitled to
plead that he has complied with the condition upon
which such tender was made, in which case it shall be
for the prosecution to prove that the condition has not
been complied with.
(4) At such trial, the Court shall--
(a) if it is a Court of Session, before the
charge is read out and explained to the
accused;
(b) if it is the Court of a Magistrate before
the evidence of the witnesses for the
prosecution is taken,
ask the accused whether he pleads that he has
complied with the conditions on which the
tender of pardon was made.
(5) If the accused does so plead, the Court shall
record the plea and proceed with the trial and it
shall, before passing judgment in the case, find
whether or not the accused has complied with
the conditions of the pardon, and, if it finds that he
has so complied, it shall, notwithstanding
anything contained in this Code, pass judgment of
acquittal."
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23. It would be, with respect, apt to quote the following para 12
from the judgment of this Court in the case of A.L. Mehra versus The
State, AIR 1958 Punjab 72, which read thus:-
"12. Mr. Sethi has placed three submissions before us in
support of the contention that notwithstanding the provisions
of Sub-section (3) of Section 337 it is within the power of the
Court to admit his client to bail. It is contended in the first
place that as soon as an accused person is tendered a pardon
under the provisions of Section 337 of the Code of Criminal
Procedure he loses the status of an accused person and
acquires that of a witness, A.J. Peiris v. State of Madras, AIR
1954 SC 616 (B); In the matter of Khairati Ram, ILR 12 Lah
635 at p. 639: (AIR 1931 Lah 476 at P. 478) (C), and is
entitled as such to be released from custody.
This contention cannot bear a moment's scrutiny, for, as
pointed out by an American jurist, the grant of pardon carries
an imputation of guilt and an acceptance thereof a confession
of it. A pardon has been defined as an act of grace which
exempts the individual on whom it is bestowed from the
punishment the law inflicts for a crime he has committed. It is
in substance and effect a contract between the State on the one
hand and the person whom it is granted on the other. As the
greater includes the less, a general power to grant pardons
carries with it the right to impose conditions limiting the
operation of such pardon.
It follows as a consequence that it is open to the pardoning
power to annex to a pardon any condition, precedent or
subsequent, and of any nature so long as it is not illegal,
immoral or impossible of performance. When a pardon is
granted on a condition precedent, it does not become
operative until and unless the prisoner performs the condition
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in question. If the condition is not performed, the prisoner
stands precisely as though no pardon had been granted :
Pyare v. The State, AIR 1955 NUC (MB) 5650 (D); Kundan
Lal v. Emperor, ILR 12 Lah 604 at P. 613: (AIR 1931 Lah 353
at p. 356) (E). If the condition is satisfied the pardon and its
connected promises take full effect. In the leading case of Ex
Parte Garland (1871) 18 Law Ed 366 (F), the Supreme Court
of United States explained with admirable clarity the effect of
a pardon thus :
"A pardon reaches both the punishment prescribed for the
offence and the guilt of the offender; and when the pardon is
full it releases the punishment and blots out of existence the
guilt, so that in the eye of the law the offender is as innocent
as if he had never committed the oflence. If granted before
conviction, it prevents any of the penalties and disabilities
consequent upon conviction from attaching; if granted after
conviction it removes the penalties and disabilities, and
restores him to all his civil rights; it makes him, as it were, a
new man, and gives him a new credit and capacity. There is
only this limitation to its operation; it does not restore offices
forfeited or property or interests vested in others, in
consequence of the conviction and judgment."
24. In Sarvanabhavan and Govindaswamy versus State of
Madras, AIR 1966 Supreme Court 1273, the Constitution Bench of the
Apex Court stated thus, as to "approver":-
"Ordinarily a Court seeks for corroboration of the evidence of
an approver before convicting an accused person on that
evidence. Generally speaking this corroboration is of two
kinds. Firstly, the Court has to satisfy itself that the statement
of the approver is credible in itself and there is evidence other
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than the statement of the approver that the approver himself
had taken part in the crime; secondly, after the Court is
satisfied that the approver's statement is credible and his part
in the crime is corroborated by other evidence, the Court
seeks corroboration of the approver's evidence with respect to
the part of other accused persons in the crime, and this
evidence has to be of such a nature as to connect the other
accused with the crime.
(Para 19)
But it must never be forgotten that before Court reaches
the stage of considering the question of corroboration and its
adequacy or otherwise, the first initial and essential question
to consider is whether even as an accomplice the approver is
a reliable witness. If the answer to this question is against the
approver then there is an end of the matter, and no question as
to whether his evidence is corroborated or not falls to be
considered. In other words, the appreciation of an approver's
evidence has to satisfy a double test. His evidence must show
that he is a reliable witness and that is a test which is common
to all witnesses. If this test is satisfied the second test which
still remains to be applied is that the approver's evidence must
receive sufficient corroboration. This test is special to the case
of weak or tainted evidence like that of the approver. This is
not to say that the evidence of an approver has to be dealt
with in two watertight compartments; it must be considered as
a whole along with other evidence. Even so, the Court has to
consider whether the approver's evidence is credible in itself
and in doing so it may refer to such corroborative pieces of
evidence as may be available. But there may be cases where
the evidence of the approver is so thoroughly discrepant and
so inherently incredible that the Court might consider him
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wholly unreliable. (S) AIR 1957 SC 637 and AIR 1961 SC
1762, Rel. on.
(Para 20)
The antecedents of the approver do not really make him
either better or worse. His evidence can only be accepted on
its own merits and with sufficient corroboration.
(Para 8)"
25. In Ram Narain versus State of Rajasthan, 1973 (3) SCC
805, the Supreme Court stated thus in Para-8:-
"An approver who is admittedly guilty of the crime is an
accomplice who has betrayed his associates and has
apparently sought pardon for saving his own skin. In other
words he has purchased complete immunity for his
prosecution at the expense of his associates by agreeing to
give evidence against them for the prosecution. He is,
therefore, presumed not to be a man of high character or a
fair witness. His pardon being conditional, to please the
prosecution he may well weave some false detail into the true
details of the prosecution story and may also falsely involve
some innocent person. There is thus a real danger of his
telling a story true in general outline but containing some
untruth which he can easily work into the story. It is for this
reason that the courts as a matter of prudence and caution
anxiously look for some corroboration to satisfy their
conscience that the approver's testimony which is clearly
admissible is also worthy of belief credit. One can of course
visualise an accomplice who is genuinely repentant for the
commission of his crime and truly desires to make a clean
breast of the whole affair by way of penitence. But even in
such cases the court has to judicially determine the extent to
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which his uncorroborated testimony can be considered as
trustworthy by looking to the other relevant material and the
attending circumstances on the basis of which the accused can
be safely convicted. The rule which seems to emerge from the
foregoing discussion and judicial decisions is that the
necessity of corroboration as a matter of prudence except
when it is safe to dispense with such corroboration must be
clearly present to the mind of the judge."
26. A careful perusal of the above manifestly show that there is a
vast difference between a "witness" and a "approver-witness". To say that
after grant of pardon, the approver will have to be treated at par with the
"witness" for all purposes would be ignorance of the various restrictions/
prohibitions/ consequences for an approver witness which do not apply to
an ordinary witness. In cases where approver was made accused before
granting pardon, and as in the present case, the approver PW27 was never
made an accused alongwith other accused persons would make no
difference. The "inculpatory statements" made by the accused to such a
approver cannot partake the character of "extra-judicial confession" and
such "inculpatory statements" as admissions vide Section 21 of the
Evidence Act, cannot be made admissible in evidence. Nay an approver is
a most unworthy friend, he having bargained for his immunity.
Approver-witness
PW27-Dr. Balwinder Singh Sohal
27. The defence of the accused persons was that PW27-Dr.
Balwinder Singh Sohal had no connection/acquaintance/relation with the
Dera, Bibi Jagir Kaur or all the other accused persons. The only
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foundation and no other for PW27's claim that he had come into the
contact/ connection/ acquaintance with the Dera, Bibi Jagir Kaur was that
in January 1996, he got employed in Dera and left it in September 1996,
or at least till the incident took place, i.e. from September 1996 till
March/April 2000. He does not claim that he used to attend Rajneet Kaur
even after he resigned in September 1996 till the year 2000. But his
guarded deposition that he kept himself in touch with Bibi Jagir Kaur after
resigning job in Dera is a major improvement/ omission and appears to
have been introduced by him to make a show of his contact/ continuity
from September 1996 till the year 2000. It was obligatory on the part of
CBI to make thorough investigation in order to prove that he was in fact,
working from January 1996 till September 1996 as a Doctor in the
dispensary of Dera rather than his parol version. The evidence could be in
the form of oral evidence of others working in the dispensary or even the
patients for that matter. PW27 claimed that he was getting monthly salary
of `7,500/- almost `3,000/- more than other dispensaries. The CBI did not
prove by any semblance of evidence that he in fact, received the said
salary for the period he allegedly worked from January 1996 to September
1996. PW27 stated in his evidence that the salary in other dispensaries
was only `4,500/- p.m. He having only M.B.B.S. Qualification, CBI did
not specify what was the special reason for paying him `3,000/- more than
the other dispensaries. Even PW27 does not say why he was being paid
`3,000/- more, in the wake of the fact that the dispensary is situated in
village Begowal. The CBI did not collect any account books, bank-
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passbooks or cash books either of this Dera of PW27 to show payment
and receipt of the salary for the said period. The CBI has not taken stand
that the dispensary or the Dera did not have any account or did not
maintain any account whatsoever of receipts and disbursements. The CBI
did not examine any witness from the staff of the Dera to support the
statement of PW27 that monthly salary of `7,500/- was paid to him by one
or the other mode to PW27 nor PW27 himself produced any appointment
letter from the Dera or bank passbook or any evidence of receipt of salary
or even for that matter the history cards, OPD cards, prescriptions of
medicines under his own handwriting given to patients during his nine
months period of employment from January 1996 to September 1996. The
CBI did not produce a single paper in that context. The CBI was never
prevented from getting at least one document from the Dera dispensary to
show that PW27 was really employed in the Dera and was therefore
familiar with the Dera and its office bearers. This was imperative because
CBI ultimately projected PW27 as its star approver witness to show that
his evidence was in the form of direct evidence/ocular evidence.
28. There is another reason why such investigation and the
evidence from PW27 was most essential. The reason is the evidence of
PW36-Balwinder Singh, the prosecution's own witness. He stated in his
evidence that dispensary in the Dera itself was started for the first time in
August 1996 by him as against the claim of PW27 that he worked from
January 1996. Though he was cross-examined by the CBI, his statement
was not challenged and therefore, can safely be accepted. In his evidence,
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PW36 stated that he was the first and the only doctor in the dispensary
when it was started. Though, he was declared hostile and cross-examined
by CBI, his evidence remained unshaken. PW27 did not claim that he was
the founder doctor of the dispensary. PW36 also stated that there was no
doctor in the month of August 1996 in the Dera when he started the
dispensary and he stoutly denied about employment of PW27. In the
cross-examination by the defence, he stated thus:-
"There was no doctor in the name of doctor Balwinder Singh
Sohal (PW27) who ever worked in this dispensary and it is
only doctor Balwinder Singh who worked in this dispensary,
i.e. myself."
29. This statement was not challenged by the public prosecutor by
making any further cross-examination and therefore, we think that the
same is liable to be accepted as true. The trial Court has not even referred
to the above evidence.
30. In the wake of the above tale-telling evidence, it would be
proper to quote the finding recorded by the trial Court in Para-85 of the
impugned judgment, which reads as under:-
"85. The testimony of PW27 Dr. Balwinder Singh Sohal was
challenged at the outset by claiming that he never remained
employed in the dispensary of the Dera Sant Prem Singh at
Begowal and in fact PW36 Dr. Balwinder Singh Pandori
remained employed as the first doctor of the said Dera and
the benefit had been sought to be taken because of the name of
Balwinder Singh being common. It may be that PW27 Dr.
Balwinder Singh Sohal was not able to produce any document
in the shape of appointment letter or in respect of any salary
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having been received from the Dera for his employment in the
dispensary. It may be that even the CBI had not been able to
collect any documentary evidence in respect of the
employment of the doctor at the dispensary of the said Dera
and regarding disbursement of the salary etc., but that is
primarily because the said Dera was a religious Dera and the
dispensary had been charitable and no record by such type of
Deras in the rural side is being maintained. Be that as it may,
the fact remains that accused Bibi Jagir Kaur still being head
(Mukh Prabhandhak) of the said Dera could easily produce
the record in defence to show that PW27 never remained in
their dispensary, but nothing of this sort was done, and
therefore, criticism of Dr. Sohal by defence on that account is
without any basis. Besides the oral testimony of PW27 Dr.
Balwinder Singh Sohal regarding his employment as Doctor
with the dispensary of Dera Sant Prem Singh Begowal from
January 1996 to September 1996 prior to his joining
government job as PCMS Doctor, the prosecution cited PW36
Dr. Balwinder Singh Pandori as a witness who was to prove
that PW27 Dr. Balwinder Singh Sohal had been working in
the dispensary of the Dera Sant Prem Singh Begowal but to
the ill-luck of the prosecution he turned hostile by not
supporting the case of the prosecution and claiming that he
was the first doctor who joined the said dispensary but the
said version given by this hostile does not find corroboration
by any oral and documentary reliable evidence and therefore,
cannot be believed, besides he was Ayurvedic doctor and
seems to have coined the said explanation, as a reason for his
turning hostile but as noticed the same could not be
substantiated."
31. Perusal of the above finding shows that the trial Court has
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given concession to PW27 as well as CBI for not producing any
documentary evidence to show his appointment or receipt of salary from
the Dera from January 1996 to September 1996. Significantly, the trial
Court did not want to believe PW36 because his version did not find
corroboration by oral or documentary evidence and he was Ayurvedic
doctor. In rural area, Ayurvedic doctors are easily available. But then he
was the prosecution witness and it was for CBI to produce oral or
documentary evidence. Similar is the case with PW27, where there was no
oral or documentary evidence. This is absolutely fallacious. Not only that
without any evidence from the prosecution or from the Investigating
Officer and on his figment of imagination, the trial Court has observed
that Dera being a religious Dera and the dispensary being a charitable
dispensary, no record of such type of Deras in the rural side is being
maintained. Neither the CBI nor a single witness said so. Strangely, it is
then stated that the accused Bibi Jagir Kaur could have easily produced
the record in defence that PW27 never remained in the dispensary. In
other words, the trial Court has put the burden of proof on the accused and
secondly, the trial Court expected that accused Bibi Jagir Kaur should
have produced negative evidence that PW27 was not in the dispensary.
This is preposterous. The trial Court has also stated that it was ill-luck as
PW36-Dr. Balwinder Singh Pandori was declared hostile.
32. It is then significant to note that in Para-86 of the judgment,
the trial Court with great difficulty has tried to establish connection of
accused Bibi Jagir Kaur with PW27-Dr. Balwinder Singh Sohal. However,
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even in that the nurse Surinder Kaur referred by PW27 was never
examined about which PW27 stated that she was maintaining the register.
In this connection, it is significant to note that PW27 claimed that he used
to keep in touch with Bibi Jagir Kaur after resigning which is an
improvement. The trial Court in the same paragraph has wrongly stated
that there was no much dispute that the younger daughter of accused Bibi
Jagir Kaur, namely Rajneet Kaur alias Daizy was under the treatment of
PW27. That is factually wrong as his statement that he used to attend
Rajneet Kaur for her epilepsy disease is an improvement/ omission in
Exhibit PW27/DA. In the first place, it is mystery and rather strange as to
why the CBI did not produce Rajneet Kaur, an adult girl, as a witness
before the Court. The reliance placed on the omissions/ improvements by
the trial Court is wholly misplaced and misconceived. In fact, on the
overall reading of the judgment of the trial Court, we find that omissions/
improvements in the evidence of the witnesses at least material have been
simply ignored without assigning any reason.
33. The reading of the examination-in-chief of PW27 particularly
for establishing connection with the accused Bibi Jagir Kaur shows that
CBI led such evidence from his mouth as if PW27 knew and was in
contact with accused Bibi Jagir Kaur, her children, her relatives etc.
personally right from January 1996 till the date of incident vide Paras 2, 3
and 4 of the examination-in-chief and thereafter. A stranger to law reading
the above evidence would make unimpeachable impression that he was
really close to accused Bibi Jagir Kaur and her children. But having
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carefully perused his entire evidence including cross-examination, we find
that his evidence is deceptive. His statement under Section 161 Cr. P.C.
was recorded on 09.11.2000 by the Investigating Officer which was
placed before the Court as previous statement for the purposes of Section
145 of the Evidence Act, 1872 (for short 'Evidence Act'). The very
introduction/acquaintance/connection of PW27-Dr. Balwinder Singh
Sohal with Bibi Jagir Kaur and others was in serious dispute. But in Para-
86 of the judgment, the trial Court has stated that PW27 told how he came
to know about vacancy of the doctor at Dera at Begowal and how he
applied and the manner how he was selected for interview and thus had
been in employment in the charitable dispensary of the Dera. To check the
correctness thereof, we have gone through his entire evidence but we find
that the same is not to be found anywhere in his evidence. In the light of
the above discussion about the claim of PW27-Dr. Balwinder Singh Sohal
that he was acquainted/connected/ interviewed and that he was in
employment of the Dera could not be said to have been proved at all much
less beyond reasonable doubt.
34. The deposition of PW27 in examination-in-chief that he knew
Bibi Jagir Kaur personally, that Charanjit Singh was her husband, Baba
Harnam Singh was her father, Sant Baba Prem Singh and sant Harnam
Singh were her real brothers, Bibi Jagir Kaur had residence in the campus
of Dera, Balbir Singh (Manager of Dera) was husband of sister of Bibi
Jagir Kaur, Bibi Jagir Kaur belongs to lubana sikh caste, that during his
employment in the dispensary he had occasion to meet Bibi Jaigr Kaur
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when there was some problem regarding Hospital, that he had developed
family relations with Bibi Jagir Kaur, that he used to pay visit to Bibi Jagir
Kaur apart from the official work, that husband of Bibi Jagir Kaur died
10/15 years prior to his joining dispensary, that before joining with Bibi
Jagir Kaur at Begowal Dera, he had applied for job in PCS, that before he
joined Government service in February 1997, he intimated about his
selection to Bibi Jagir Kaur and Manager, that in September 1996, he
having got PCM job he resigned at Dera Prem Singh Begowal, that Bibi
Jagir Kaur was elected as a Member of Punjab Legislative assembly and
that prior thereto, she was member of Siromani Gurudwara Prabandhak
Committee, that Bibi Jagir Kaur became minister and got house No.955 in
Sector 39, Chandigarh, that in 1999, Bibi Jagir Kaur had become president
of SGPC, that son of Dalwinder Kaur Dhesi was studying in U.K. and his
name is Channi, that there was proposed alliance between Channi and
Harpreet Kaur, that Harvinder Kumar alias Binder was driver of
Dalwinder Kaur Dhesi, that on 09.03.2000, he had visited the house of
Bibi Jagir Kaur in Sector 39, Chandigarh, that none of the daughters of
Bibi Jagir Kaur were married at that time, are all the material omissions
duly proved on record vide Exhibit PW27/DA dated 09.11.2000. It is
strange to note that all the above omissions, which were most material
regarding the alleged establishment of connection sought to be built up by
this witness were completely and casually ignored by the learned trial
Court from consideration that too without giving any reason as to why
they were ignored. Vide para-157 of the impugned judgment, the trial
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Court has made a mention about some omissions/improvements but
cursorily, but even then did not apply the effect of the improvements as to
his claim about employment in Dera dispensary or with Bibi Jagir Kaur.
INADMISSIBLE EVIDENCE
35. We have discussed earlier with reference to Section 306 to
Section 308 of Cr. P.C. and Section 21 of Evidence Act about the status of
a "approver witness" and an ordinary witness qua the admissibility of
evidence in the form of "Inculpatory Statements" of the accused made to
the approver-witness.
36. As stated earlier, it is the case of CBI that PW27 was a
"participant" in the alleged crime alongiwth other accused persons, but
was made a "approver". This Court finds it strange that the trial Court
recorded "inadmissible evidence" despite objection by the defence and it
never decided the objection and at the height of it has taken into account
such evidence. For example, in his examination-in-chief, he stated:-
"Paramjit (accused) told me to find solution of the problem
aforesaid (Harpreet Kaur being pregnant), Paramjit told me
that the problem about pregnancy is to be solved and they
(accused persons) had planned to terminate the pregnancy,
and the mode of termination was planned (abortion), Bibi
Jagir Kaur (accused) asked me to cooperate for getting the
abortion done, I was also told (by the accused Paramjit) that
the girl Harpreet Kaur was not willing for the abortion, I was
further told by Paramjit Singh, she was to be brought on the
pretext of purchasing wedding clothes from Patiala and will
be administered some sedative pills by mixing in the
'chat' ............."
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37. A careful perusal of his examination-in-chief as to the
recording of "inadmissible evidence" will show that in relation to almost
all the accused, such evidence despite objections was recorded. The
evidence was in the nature of admission by accused to another "accused",
PW27-Dr. Balwinder Singh Sohal, who had participated in the crime from
the beginning till the end, but enjoyed the protection of Section 306 Cr.
P.C. In our opinion, in the peculiar facts of the present case, PW27-Dr.
Balwinder Singh Sohal's participation in the crime did partake the
character of co-accused, though, he was actually. Hence the "inculpatory
statements" by Paramjit Singh Raipur or Bibi Jagir Kaur or by any other
accused to him would not at all be admissible in evidence. We really
wonder as to how the trial Court went on recording the inadmissible
evidence despite objections.
APPROVER ENSNARED:
38. Exhibit PW27/DA dated 09.11.2000 is the statement of PW27
under Section 161 Cr. P.C. recorded by the Investigating Officer, Shri
Anurag Garg. It is significant to note that PW27 had made an application
for grant of anticipatory bail in respect of the same incident on 02.11.2000
and the same was rejected on 07.11.2000 by the Sessions Court on the
opposition of CBI. It is most important to note that the Investigating
Officer, Shri Anurag Garg on 09.11.2000, i.e. immediately after two days
of rejection of application for anticipatory bail of PW27, recorded his first
statement under Section 161 Cr. P.C. (Exhibit PW27/DA), and he appears
to have made incriminating statements. It is in this context, the idea to
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project him as a approver in the fear of his impending arrest after
07.11.2000 due to rejection of his application for anticipatory bail appears
to have taken the birth. This is further corroborated by the fact that he
immediately filed second bail application on 24.11.2000. In ordinary
course, after rejection of anticipatory bail application by the Sessions
Court, the accused would approach the higher Court, i.e. High Court as
there is remote or rather no possibility of the same Court entertaining the
second application for grant of anticipatory bail within the span of 17 days
only in the absence of plausible reasons. What further happened is again
significant, namely that the Sessions Court in its second order had
categorically recorded no objection given by the CBI for granting him
anticipatory bail and hence it granted bail.
39. These events clearly show that when the first application for
anticipatory bail was filed, CBI treated PW27 as the accused and opposed
his plea for anticipatory bail and sessions Court accepted the opposition
by CBI and rejected the application on 07.11.2000. But when on
09.11.2000, PW27 supported the CBI or rather surrendered to the dictates
of CBI, he filed second bail application and CBI gave no objection. The
theory that CBI thus made PW27 their approver-witness is further
strengthened by the following narration.
40. The evidence regarding unauthorised absence of PW27 from
duty without any explanation and his trips to the office of CBI at New
Delhi and also about threats imparted by CBI to him is interesting. As to
the threats, he stated thus:-
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(extracts from pages 385, 386, 387 of record)
"...............During this period from 9/11 to 17.12.2000 I went
on roaming here and there to get anticipatory bail in this
case. After 17.12.2000 I joined my duty again said I had
joined the duty earlier before getting the bail. I do not
remember the exact date when I joined my duty. I applied for
bail for the first time on 2.11.2000.................... The CBI
officers had given me threat after recording my statement on
31.10.2000 but I do not remember their names, regarding my
arrest. I do not remember whether the CBI Officers threatened
me that I had been concealing this fact, so I should disclose
the true facts otherwise I would be arrested. The CBI Officer
had threatened about my arrest 2/3 times till I got my
anticipatory bail......................... At this stage I do not
remember as to what were the important events in the change
of circumstances which resulted into filing of second bail
application. As I had fear in my mind that CBI might arrest
me, so I did not personally go to file my first bail application.
It is wrong to say that I had been given status of approver by
the CBI and then I filed the second application personally. I
do not know that the aforesaid were the only circumstances to
file second application for bail. I also do not know that while
granting bail the Hon'ble Judge has given remarks with the
observation that there is no change in circumstance but the
CBI counsel has not opposed the bail application..............."
41. The trial Court recorded the finding about conduct of PW27
and the CBI, which is based on evidence and the cross-examination of this
witness about the manner and the modalities adopted by the CBI in unfair
manner to make him approver in the case. The same is evident from the
following findings in the impugned judgment:-
"150. Before taking up the evidence of the approver
PW27 Dr. Sohal, I would like to take up discussion regarding
the circumstances, leading to the declaration of Dr. B.S. Sohal
as an approver and whether the same inspires confidence.
151. It has come on record that Balwinder Singh who
was doctor, posted as SHC Pattar Kalan, which was under
Primary Health Centre, Kartarpur, remained unauthorized
absent from his official duty at SHC Patter Kalan from
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23.10.2000 to 6.11.2000 and then from 9.11.2000 to
17.12.2000. This fact was admitted by PW27 approver in his
cross-examination and is even otherwise stated by PW28 Ravi
Kumar, Pharmacist posted at SHC, Patter Kalan on the basis
of the attendance register maintained at Patter Kalan. Dr.
Sohal as per his own showing did not apply for leave or even
for station leave before leaving from Delhi. Though it was
claimed by this witness that his summons from the CBI had
been received through SMO, PHC Kartarpur at his
dispensary which were noted by him in his hand by making
entry in the attendance register Ex.PW28/A, when he joined
duty but nonetheless it was obligatory on the part of Dr. Sohal
who was a government officer to have obtained the prior
permission from the Office Controlling Authority before
leaving for Delhi may be to attend the office of the CBI
consequent upon the summons having been received by him
through his senior officer on 21st October 2010 and made
endorsement of point X to X1 in register Ex.PW28/A. Further
more he does not offer any explanation regarding his
continued absence from 23.10.2000 to 17.12.2000 from duty
at SHC Patter Kalan except for brief spell of 2 days. Even the
investigating agency could not explain the reason for
recording of successive statements of approver Dr. Sohal first
on 31.10.2000 Ex.PW27/DH, second on 9.11.2000
Ex.PW27/DA and the third on 17.12.2000 Ex.PW27/DB, all
under sections 161 Cr. P.C. and then his first statement
Ex.P79 under section 164 Cr. P.C. as a witness was recorded
by ld. Metropolitan Magistrate on 10.11.2000 on the basis of
his application Ex.P78.
..................................
152. Now if the above mentioned facts and
circumstances are analysed, we find that continued
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unauthorized absence for the period 23.10.2000 to 17.12.2000
from his official duty by Dr. Sohal, his not being able to tell
in his cross examination as to where he remained during his
stay at Delhi in connection with his appearance before the
investigating officers of the CBI, during that interval and also
before the Court of Metropolitan Magistrate, New Delhi,
coupled by the fact that recording of the successive statements
of Dr. Sohal by the CBI under section 161 Cr. P.C. and then
by the Court, and not arresting Dr. Sohal despite the initial
statements showing his implication, as an accused and the
manner in which the second anticipatory bail application was
got allowed by the CBI, from the Court after dismissal of the
first bail application, without change in circumstances,
thereafter confessional statement of Dr. Sohal was got
recorded from the Court and on the same day he expressed his
desire to the CBI by moving application in this behalf for
being made an approver, collectively, lends support to the
argument advanced on behalf of the defence, that for the
entire period Dr. Sohal remained with the CBI nearly under
custodial supervision and was subjected to sustained
pressure. Dr. Sohal was involved in the conspiracy for
abduction, secretly confining and terminating the pregnancy
of Harpreet Kaur, and participated for achieving the object of
the said conspiracy and his role having been revealed only
during investigation, it therefore, was apparent that he was
left with no other option because of the afore discussed
circumstances but to confess his guilt by becoming an
approver and also readily agreed to give the tutored version
regarding the alleged conspiracy for murder and the manner
of its execution, as per the version of the prosecution, by way
of price of his liberty in this case and also to save his job.
Otherwise also conduct of Dr. Sohal, is not natural that of an
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accused of a murder case............................ This also further
points out that the confession made by the approver PW27
before the ld. Metropolitan Magistrate, and then his prayer
for being made approver by granting pardon to him is not his
voluntary act.
153. There are other circumstances showing undue
favours having been conferred upon Dr. Sohal approver. As
already noticed Dr. Sohal remained unauthorisely absent
from his duty for a considerable period during his posting as
doctor at SHC Patter Kalan and therefore, could not have got
away without any departmental action but according to his
own showing in his cross-examination, he admitted that a
notice was issued to him, after he was allowed to join duty in
the office of Civil Surgeon on 29.11.2000. The witness,
however, could not explain on what grounds he was let
off.........
............................
156. A bare perusal of the afore quoted relevant extract
of the statement of PW27 indicates that he has claimed to be a
spectator at every moment but has not participated at any
stage. The story as stated by him is also apparently
unnatural......................."
42. We agree with the above findings in Paras 150 to 153 and 156.
43. Apropos, the evidence of PW27-Dr. Balwinder Singh Sohal as
discussed above, we also have reason to believe that he was made
approver witness by practising pressure tactics, threats etc. in a
professional manner and he tendered his evidence accordingly. He was
given a Hobson's choice to be a approver or be accused. He chose the
former. We also find that he improved his testimony by major
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improvements which were unfortunately ignored by the trial Court. Rather
the trial Court relied on those improvements. Not only that; his major
evidence was inadmissible but was recorded despite objection and was
also relied upon. To sum-up, since we have found that PW27-Dr.
Balwinder Singh Sohal, approver is a planted witness and his testimony is
not worthy of credence and is uninspiring and unacceptable justifying its
rejection outright; it will be futile and wholly unnecessary to dwell upon
his evidence as to phone calls, call details between the accused persons
and himself. The question of looking for any corroboration to his
testimony also does not arise. We reject his evidence.
PW77-Kamaljeet Singh son of Darshan Singh
44. Kamaljeet Singh, the complainant (PW77) after having filed
petitions in the High Court on 24.04.2000, an order was made by the High
Court to provide security to him. PW77 stated in his evidence that the
security that was ordered to be provided by the Court to him in the year
2000 remained with him and was never withdrawn by the Court or the
police nor he made any request for withdrawal to anybody. Thus, all the
while he was under full security and there was hardly any chance of
anybody pressurizing him or doing any mischief to him.
45. The examination-in-chief of PW77 commenced on 25.04.2009
and continued. On 25.02.2010, i.e. almost after 10 months, the special
public prosecutor sought permission to declare him hostile, which was
granted and he was accordingly declared hostile. After declaring him
hostile on 25.02.2010, the special public prosecutor for CBI did not leave
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in putting to him a single piece of the prosecution case in the form of
suggestions or otherwise even minor details, which PW77 categorically,
firmly and stoutly denied thereby falsifying the case of the prosecution.
The cross-examination by Special Public Prosecutor ended on 30.07.2010
on which date defence started cross-examination. It is significant to note
that his cross-examination by special public prosecutor runs from Page
697 to Page 784. PW77 was discredited by the special public prosecutor in
the cross-examination to unimaginable extent, which can be seen from
some of the pieces of cross-examination starting from the last paragraph
of his cross-examination in which special public prosecutor charged him
of accepting `3 crores. It would be proper to quote the stand taken by CBI
by way of suggestions to him:-
"..................It is wrong to suggest that I had not asking CBI
because the investigation to the CBI was entrusted by the
High Court on the basis of the writ petitions filed by me.
Volunteered I had not filed ay such petitions. It is wrong to
suggest that I am making the false statement under the
influence of the accused .
Question": I have the information that you have charged
about a few Crors Rupees to be precise Rs.3
crores from the accused for resiling from your
previous statement before the CBI and the High
Court.
Ans. It is your information, but so far as I am concerned it is
absolutely wrong."
Not only that, the CBI also filed an application under Section
340 of Cr. P.C. against him for perjury. It was also suggested to him by
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CBI that in order to blackmail Bibi Jagir Kaur he had prepared video
cassettes for the alleged betrothal ceremony. That he had led a trap for
Harpreet Kaur and then impregnated her in furtherance of his object. That
when he was not successful in his plot for extracting money from Bibi
Jaigr Kaur, he filed writ petitions in the High Court for obtaining ill-
gotten money. As a matter of fact, the Investigating agency having
decided to take a stand by putting the suggestions as above in respect of
its own prosecution case cannot be allowed to argue to the contrary as
otherwise there would be no sanctity to the conscious stand taken by the
prosecuting agency, namely the CBI. If the said stand is taken into
consideration it is clear that CBI wants the Court to believe that the
videography that was got done by PW77 regarding betrothal ceremony
and impregnating Harpreet Kaur was out of a plot to extort money from
accused Bibi Jagir Kaur or with an eye on her property as she had only
two legal heirs to succeed to her estate. This stand taken by the CBI
clearly projects the motive on the part of PW77 in falsely roping the
accused persons in serious offence of murder in order to save himself from
the legal punishment. The prosecution atleast qua PW77 ought to have
come to an end with this event. Thereafter, the cross-examination of
PW77 by the defence was completed on 31.07.2010 and on the same date,
application under Section 340 of Cr. P.C. was filed by the CBI against
PW77. The trial Court made an order on the said application on
07.01.2011 that the same would be decided only after the pronouncement
of the judgment in the main trial, but the trial Court placed restriction on
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his travel in the same order dated 07.01.2011. On 21.03.2011, i.e. almost
after 7 months, an application purported to under Section 311 Cr. P.C. was
filed by him for his re-examination, on the following grounds:-
"That the complainant had been under pressure and mental
duress from various quarters; that the accused were wielding
immense political influence and were powerful persons having
connection with the ruling party in the State of Punjab as
accused No.1 Bibi Jagir Kaur who was the Ex-Minister of the
State, Ex-President of SGPC and the present Chairperson
District Planning Committee, Kapurthala and even other
accused persons were resourceful persons; that the father of
the applicant was expired on prolonged illness and earlier
thereto, his sister Manjit Kaur also expired loading to the
worries of the family of the complainant; that the complainant
had always been under threat whenever he was in the village,
because of which he was not even able to take proper care of
his ailing father; that due to pressure of the accused many
witnesses in this case examined by the CBI have turned
hostile; that complainant earlier knocked the door of the
Hon'ble High Court for seeking cancellation of anticipatory
bail granted to the accused on the assertions that the accused
persons were influencing witnesses of the prosecution for
pressing them to resile from their earlier statements by
advancing threats and using other coercive means and further
more Bibi Jagir Kaur was making efforts for getting the
complainant eliminated and in this connection, real nephew of
accused Bibi Jagir Kaur was arrested by the Delhi Police for
having abducted a person and in the interrogation of said
case, it was revealed that he had planned to kill the
complainant on account of the case in hand; that the
complainant even approached the Apex Court after dismissal
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of his petition by the Hon'ble High Court; that the
complainant, thus was under pressure and was not in normal
state of mind as noticed above to make his statement; that
when he appeared in the Court for making statement and thus,
could not depose truthfully due to the pressure of accused Bibi
Jagir Kaur and other co-accused as well as the authorities in
the power of the State; that after having lost his father and
sister realization has drawn on the complainant the futility of
not supporting the truth and wants to rectify his sin; that it
was also claimed that applications, documents and the
affidavits filed in the Hon'ble High Court and in the Supreme
Court, were true and duly signed by him; therefore, it was a fit
case for allowing his re-examination."
46. This application was hotly contested by the accused persons
on the ground that it was filed with ulterior motive and there was security
ordered to be provided by the High Court, throughout. His examination-
in-chief started from 24.04.2009 and continued till 31.07.2010, i.e. almost
one year and three months and he was represented by his separately
engaged private counsel. Since he was not appearing for sometime, the
Court had issued warrants for his appearance and therefore, he sought bail
from the High Court, but in the said proceedings also, he did not mention
any pressure, undue influence and so on and so forth. On the contrary, in
the cross-examination, he vehemently and stoutly denied about all those
suggestions about pressure, undue influence and so on and so forth. The
application was made with a view to delay the trial which started in the
year 2000 and for lame excuses advanced by the complainant, no such
application for re-examination could be entertained particularly with the
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background of the attempt to come out of his sworn testimony in relation
to the Court proceedings and hence, application was filed under Section
340 Cr. P.C. by the CBI.
47. The trial Court relied on the decision in the case of Zahira
Habibulla H. Sheikh and another versus State of Gujarat and others,
2004 (2) RCR (Criminal) 836 (SC), which decision, in our opinion on
facts, had no application at all. The trial Court allowed the said application
without giving a single, even prima-facie finding about any pressure,
influence or anything from the accused persons. He again reiterated that
PW77 belong to middle-class family while accused Bibi Jagir Kaur had
number of posts. The trial Court agreed that he was granted police
protection throughout. It cannot understood how he was subjected to any
threat or pressure in the absence of any specific averments or proof even
prima-facie except the bald statements made by him. The trial Court did
not indicate as to how the fresh recording of his evidence was essential for
the cause of justice in the public interest or for just decision except using
the general words in his order. In Para-16 of the order again, without any
specification about pressure or influence, the trial Court made general
statements and held that delay in the trial was no reason to reject the
application as the complainant was the star witness of the prosecution.
48. We have given our careful consideration to the provisions of
section 311 Cr. P.C. We have also noted the fact that right from the year
2000, PW77 was having security consisting of 10 officers that was
ordered to be provided by the High Court. He did not have any complaint
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about the persons imparting security to him nor against the State or the
police. He had engaged his own counsel apart from the special counsel for
CBI. Right from the date of his examination-in-chief from 25.04.2009 till
he filed the application under Section 311 Cr. P.C. on 21.03.2011, neither
orally nor in writing he or his counsel or counsel for the CBI made any
complaint to the Court or the High Court about the alleged pressure,
threat, influence etc. Admittedly, PW77 did not produce any evidence in
support of his prayer in the application nor any material as to how and
when and by whom and by what mode he was pressurized, threatened or
influenced. We are of the firm opinion that power under Section 311 Cr.
P.C. in a trial that was almost at the fag end after 10 years, such
application could not be dealt with in such a casual and cavalier manner
based on no material and on the whims and fancies of Court. The delay in
trial is one of the aspects of the matter. But then the power cannot be
exercised to allow a witness to get re-examined for enabling him to make
a somersault as per his whims and fancies. In our considered opinion, the
application filed by PW77 under Section 311 Cr. P.C. under
circumstances was mala fide, without any basis or merit and for reasons
best known to him, which he honestly did not disclose to the Court and
were not the reasons stated in the application. He thus, indulged in
suppressio veri suggestio falsi. It is true that there is a judicial discretion
in the Court to deal with such application but that does not mean that such
a judicial discretion can be arbitrary and utilized on the whims and
fancies. In the backdrop of the facts as stated above, we are of the firm
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opinion that the trial Court made a grave mistake in allowing application
under Section 311 Cr. P.C. at the behest of the complainant that too
without obtaining any firm opinion from the prosecuting agency-CBI one
way or the other. It appears that the CBI was fully aware about such a ploy
adopted by the complainant and that is why it did not act fairly in either
favouring the application or opposing the same, but diplomatically leaving
it to the Court to decide. This is fortified from the fact that the CBI
brazenly brought out everything it wanted from the mouth of PW77 in a
diametrically opposite manner it had cross-examined vide Section 145 of
Evidence Act and discredited this witness after declaring him hostile. Not
only that the CBI forcefully buttressed before the trial Court and this
Court that PW77 was its star witness and must be believed. The trial Court
accepted the CBI's argument. We think CBI is a prosecuting agency and
not a persecuting agency. It must maintain the highest moral standards. It
ought to have in all fairness told the trial Court that the CBI having
condemned its witness PW77 to the hilt and having suggested that he was
a rank liar as he received `3 crores, did not want to rely on him. Not only
that CBI had filed application against PW77 under Section 340 Cr. P.C.
for taking action for perjury. In this behalf, it is interesting to note and
rather weird that CBI had never asked for recalling PW77 who himself
filed application, but it kept eye on the result of his application. No sooner
the application filed by PW77 for his recall was allowed, without any
permission from the Court and without the counsel for the complainant re-
examining him, the Special Public Prosecutor cross-examined him. It is
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unfathomable as to how CBI having already cross-examined him again
was allowed to cross-examine him under the garb of the order of recall of
PW77, particularly when CBI had never asked for recall of the witness.
The trial Court thus, violated the provisions of Section 138 of Evidence
Act.
49. It is necessary to look at the extract of his following evidence
in this connection regarding pressure etc.:-
(extracted portion from record page 849)
"I did not move any application before the trial court prior to
my appearance on 25.4.2009 claiming that I was under
pressure and therefore, will not be a position to depose freely.
Same is my reply regarding the dates 28.1.2010, 29.1.2010,
25.2.2010, 26.2.2010, 13.3.2010, 22.4.2010, 23.4.2010,
30.4.2010, 12.6.2010, 10.7.2010, 16.7.2010 and on 31.7.2010
for which dates my statement was recorded in the course of
trial. I did not file any separate petition in the Hon'ble High
Court during the period 25.4.2009 to 31.7.2010 claiming that
I was under pressure from the accused and therefore, I am not
in a position to make statement freely."
(extracted portion from record page 881 to 882)
"Today I am not in a position to orally tell date, time or place,
regarding the advancing of threats, or pressurizing me by
accused Bibi Jagir Kaur or any other accused, however, I can
produce newspaper cutting mentioning the said facts. It is
wrong to suggest that I am seeking time to prepare
appropriate answer for giving the same in future. The
recording of my statement continued on different dates
starting from 25.4.2009 to 31.7.2010 prior to re-examination.
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During the period 25.4.2009 to 31.7.2010, I did not move any
complaint to any police authority alleging that I had been
pressurized or threatened by any of the accused. Volunteered,
there was no use of doing so. However, I did not move any
application before the Court during the said interval. I moved
an application dated 25.2.2010 through my counsel Sh. K.S.
Nagra, Advocate, alleging threats and harassment from CBI
officers and from the political opponents of accused Bibi Jagir
Kaur and also demanding security from the Court.
Volunteered the said application was moved by me under
pressure."
50. The net result of the discussion is that we must hold that the
order dated 02.05.2011 allowing the application under Section 311 Cr.
P.C. is per se illegal and perverse. But then we think, it would not be just
and proper to set aside the said order as it was in fact, implemented and
was not put to challenge by any of the parties in the higher Court at the
relevant time.
51. The vista post order dated 02.05.2011 allowing the application
under Section 311 Cr. P.C., and upon reading of his cross-examination by
the special public prosecutor from record Pages 794 to 834, clearly leads
us to believe that the CBI joined hands with the complainant-PW77 and
acted in tandem with him by taking a somersault qua PW77. We think
CBI acted as a persecuting agency along with the complainant PW77 with
a view to secure the conviction.
52. We have perused the cross-examination made by the defence
after the cross-examination that was recorded. We find that the cross-
examination shows major omissions and improvements in his deposition.
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The trial Court has relied on some part of his testimony for coming to the
conclusion for awarding conviction. We are aware about the maxim falsus
in uno, falsus in omnibus. But then with the turn of the events in the
present case and the somersault taken by PW77, we are of the firm
opinion that he is a dishonest and deceptive witness and a liar. His story is
incredible and abounds in contradictions of the gravest kind. His evidence
is actuated with mala fides, enmity and a very strong motive and greed
coupled with enmity against the main accused Bibi Jagir Kaur. We,
therefore, reject his entire evidence being motivated and being dishonest.
PW20-Manjit Kaur and
PW26-Smt. Kulwinder Chohan
53. PW20-Manjit Kaur is the real sister of PW77-Kamaljeet Singh
who is obviously an interested witness. Her testimony is, therefore,
required to be carefully scrutinized. We have also seen her deposition and
at the outset, we find that her entire material evidence is in the form of
omissions or improvements duly brought on record by the defence. We
have noted down all the improvements while reading her evidence. At any
rate, upon reading of her evidence, we do not think she has testified as to
any incriminating material so as to constitute any offence against the
accused person. The only alleged incriminating portion that Harpreet Kaur
too might be killed or murdered is in the form of improvement. Otherwise
in her evidence, there is no incriminating material by which one could
arrive at any adverse evidence against the accused persons. Her evidence
that Harpreet Kaur had stated about administering of chat and that
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thereafter, she had become unconscious in Sector 22, Chandigarh would
not further the case of the prosecution since we have already rejected the
evidence of PW27 on this aspect apart from the improvement that she
became unconscious after having chat duly proved by way of omission in
the cross-examination. It is significant to note that this witness claimed to
have visited Jasdil Mansion at Phagwara in the night between
9/10.04.2000 in the dead hours at 1/1.30 a.m. and that Bibi Jagir Kaur had
threatened her and her brother that they should not think that she would
not exercise or use her power and in that case, she may set their house on
fire and also that of Kamaljeet Singh. According to this witness, she tried
to pacify Bibi Jagir Kaur in Jasdil Mansion at Phagwara, but she did not
accede to their request and started threatening her. She and her brother and
others felt frightened and not only that Dalwinder Kaur Dhesi, the
accused, threatened that she had lot of Inspectors for getting her confined.
She felt that they will not be allowed to go out of Mansion and therefore,
they went towards servant quarter. Thereafter, on the next day, they came
out of servant quarter and went away from the said place. The conduct on
the part of this witness and her brother who is said to have gone in Jasdil
Mansion in the dead hours of night in not making any report of the entire
incident to the police anywhere or approaching any Court, is wholly
unnatural and if she along with her brother were threatened with their life,
it is impossible to believe that they would not act to save themselves by
going to the police or the Court for protection. Apart from that, we do not
find in her evidence anything, which would constitute any crime or
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offence as such.
54. Similarly, is the evidence of PW26-Kulwinder Chohan. We
have carefully seen her entire evidence and we again find that material
particulars in her evidence are in the form of improvements and omissions
duly brought on record by the defence, which we have noted while
reading her evidence. At ay rate, her evidence does not disclose a single
piece of incriminating evidence against any of the accused persons.
Looking at her evidence, we are of the opinion that her evidence is of no
assistance to the prosecution as there is nothing incriminating against
accused persons. She then claimed that statement was made by the
deceased Harpreet Kaur to her, which would not constitute any offence.
We, therefore, find that her evidence is also worthless.
Enmity and the interested witnesses
55. The trial Court has recorded a categorical finding that PW77
and his sister PW20 Manjit Kaur clearly had axe to grind against Bibi
Jagir Kaur and the finding recorded by the trial Court in the judgment
reads as under:-
(extracts from pages 202, 219, 220, 225, 226 of the
impugned judgment)
"...............This witness who was cited as a star witness of the
prosecution had a serious grudge against accused Bibi Jagir
Kaur for having not been able to marry Harpreet Kaur
because of her opposition and therefore could have
introduced certain untrue facts for the discomfort of accused
Bibi Jagir Kaur, especially when the initial and the first
version given by him in the writ petition copy Ex.PW79/1,
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does not find mention the names of accused Harvinder Kumar
alias Binder, accused Satya and accused Sanjeev Kumar
(since expired) nor any role was attributed to them. Besides he
had claimed that the said facts had been disclosed by
Harpreet Kaur, and he himself is not a witness to the alleged
role played by the said three accused in guarding Harpreet
Kaur. So far as PW20 Manjit Kaur is concerned, she being
elder sister of PW77 complainant Kamaljeet Singh must be
inclined to help her brother Kamaljeet Singh against accused
Bibi Jagir Kaur by giving the said version which as already
noticed does not find reflection in the earliest version of
Kamaljeet Singh in the writ petition. Besides the testimony of
PW20 Manjit Kaur, PW77 complainant Kamaljeet Singh and
PW26 Kulwinder Chauhan being sketchy and unreliable..........
Besides Kamaljeet Singh complainant because having
failed to marry Harpreet Kaur, who expired is certainly
expected to have develop bias against accused Bibi Jagir
Kaur because she even at the initial stage was against their
love affair and tried to prevail upon Harpreet Kaur and kept
her in isolation, so that she might abandon her relationship
with Kamaljeet Singh and therefore, can certainly exaggerate
the actual version by adding wrong facts for which he could
be supported by the adversories of accused Bibi Jagir
Kaur................... However, the aforesaid version is only
supported by his relation witnesses who like him also had
annoyance against accused Bibi Jagir Kaur and therefore,
their said version is unacceptable....................... However, the
version of the aforesaid witness is of interested nature and as
has already been discussed the testimony of PW77 Kamaljeet
Singh and his relation witnesses which is not credible and not
supported by independent and reliable evidence cannot be
accepted................................. Besides the testimony of PW77
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Kamaljeet Singh and his related persons and the testimony of
PW34 Harbhajan Singh does not inspire confidence because
his hostility to accused Bibi Jagir Kaur was brought out in his
cross-examination..................."
We agree with the above reasons given by the trial Court.
56. PW77 also deposed about Shri Sukhpal Singh Khaira who had
visited his house and that they were political opponent of Bibi Jagir Kaur
inasmuch as Sukhpal Singh Khaira had lost election for the post of MLA
against her, which reads as under:-
(extracts from Pages 785 upto 786, 789 and 843 of record)
"................ From the very beginning we had connection with
Congress party. It is correct that accused Bibi Jagir Kaur
belongs to Shiromani Akali Dal since long. Mr. Sukhpal Singh
Kheira was leader of the Congress party of our area who was
political opponent of Bibi Jagir Kaur. It is correct that Sh.
Sukhpal Singh Kheira lost two elections from Bibi Jagir Kaur
who was successful candidate. It is correct that Bibi Jagir Kaur
and Sukhpal Singh Kheira were strong opponent of each other
in all political activities of our area having political rivalry. I
had been meeting Sukhpal Singh Kheira being his supporter.
He also had been coming to our residence. My family i.e. my
father, myself, including my sisters are supporters of Sukhpal
Singh Kheira, he being heading the congress faction of our
area. Mr. Sukhpal Singh Kheira came to our residence after
death of Harpreet Kaur. Cremation of Harpreet Kaur was
attended by almost families residing at Begowal including our
family and relations. Mr. Sukhpal Kheira Congress Leader
however, was not present at the cremation of Harpreet Kaur.
Sukhpal Singh Kheira had a talk with my deceased sister
Manjit Kaur regarding the death of Harpreet Kaur. In fact, I
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was present when Sukhpal Singh Kheira was talking to Manjit
Kaur who in my presence told him that Harpreet Kaur had put
a condition for the marriage that I should become a baptized
sikh before the marriage (Objected to being hearsay).............
............... It beame issue in the area because of the political
importance of Bibi Jagir Kaur at the instance of the opponents
of Bibi Jagir Kaur. The said opponents of Bibi Jagir Kaur have
been frequenting my parents and my sister Manjit Kaur but not
much with me. It might be that Advocate was engaged by the
said political opponents of Bibi Jagir Kaur with the help of my
sister Manjit Kaur. As my sister Manjit Kaur was aware of my
love affair with Harpreet Kaur, the political opponents of Bibi
Jagir Kaur probably had taken benefit of the same and
prevailed upon with my sister Manjit Kaur for joining hands
with them for taking up the issue by emotionally blackmailing
her.................
.................. It is correct that Sh. Sukhpal Singh Khaira is the
same who earlier was defeated by accused Bibi Jagir Kaur in
the assembly election and is the present MLA of Congress
Party..........."
57. The obsession of the trial Court about Bibi Jagir Kaur as head
of Dera Sant Prem Singh, becoming MLA and then Minister in the Punjab
Government and subsequently being elected as President of SGPC,
Amritsar and the alleged lower middle class status of complainant PW77-
Kamaljeet Singh, clearly and unfortunately worked as an adverse
circumstance against Bibi Jagir Kaur in the mind of the learned Judge.
Having all those posts was no fault on her part. That was projected by
media vociferously and the learned Judge accepted it. Had there been any
evidence that Bibi Jagir Kaur utilised her position to influence one and all
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and PW77-Kamaljeet Singh, or that she had expressed to anybody that she
would not marry her daughter in a lower middle class family of PW77 to
any witness approaching her for such a proposal, one could perhaps draw
such inference. But there is not even a remote piece of evidence anywhere
to the above effect. Neither PW77-Kamaljeet Singh nor any witness had
claimed that they had approached Bibi Jagir Kaur with any marriage
proposal. To rely on the perception of PW77-Kamaljeet Singh, PW20-
Manjit Kaur or PW23-Paramjit Kaur about it is a 'one-sided' and 'biased'
view by the trial Court.
58. The trial Court has recorded a finding that there was love
affair between Harpreet Kaur and PW77-Kamaljeet Singh, due to which
she became pregnant vide point (b) & (c). For the purpose of the present
trial, we do not find any significance whether there was love affair or not,
since we agree with the finding recorded by the trial Court, that in fact
Harpreet Kaur became pregnant from Kamaljeet Singh. It is difficult to
come to any conclusion about the 'love affair' by relying on the interested
testimony of PW77, PW20, PW23, the brother and sisters, or the so called
'love letters' and greeting cards. As is the case of CBI, itself in suggestions
to PW77-Kamaljeet Singh that he had laid a trap on the girl with a view to
blackmail Bibi Jagir Kaur and also made a video as well, and had taken `3
crore from Bibi Jagir Kaur, it would be unwise to record affirmatively a
finding about 'love affair'. Nevertheless, we are prepared to record a
finding agreeing with the trial Court that Harpreet Kaur became pregnant
as deposed by independent witnesses PW7-Dr. Jyoti Rana and PW8-Dr.
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Vikramjit Singh. It may not be relevant whether she became pregnant due
to love affair or due to deception practised on her by PW77-Kamaljeet
Singh.
We do not agree with the trial Court who placed reliance on
the testimony of PW77-Kamaljeet Singh, a dishonest and liar witness, as
described by CBI itself.
59. The trial Court has relied on the photographs mark H1 to mark
H16 and mark H18 and mark A & B exhibited subsequently and the video
of the alleged betrothal ceremony, despite absence of the legal proof
thereof in the absence of primary evidence. Since the videographer was
not produced, the defence was denied opportunity to cross-examine him.
The trial Court knew it and observed as under, but still relied on this
evidence:-
"It may also be that the negatives of the photographs
Mark H1 to mark H16 and H18 and mark A and B which were
subsequently exhibited as Ex.P76/4 to Ex.P76/17, Ex.P77/4 to
Ex.P77/17, Ex.P77/18 to Ex.P77/21, Ex.P84/4, Ex.PW35/1
(P61) are not proved on record but the non production of the
negatives is explained by the PWs who deposed that the said
photographs were clicked with the camera of Harpreet Kaur.
Thus, the negatives of the photographs being not available
with the complainant he could not produce the same. It may
also be that no videographer had been examined but it has
come in the evidence of PWs that the video was being taken of
the ceremony by Simarjit Singh brother of the complainant
Kamaljeet Singh, this seems to have been done with the sole
object of not involving any outsider to keep the betrothal
ceremony as secret till accused Bibi Jagir Kaur agrees for
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their marriage.".
Section-6 and
Section 32 of the Evidence Act
60. Since we have found that the evidence of PW27 is
untrustworthy, and that PW77-Kamaljeet Singh, the complainant is a liar
and a perjurer, their evidence about the alleged statements made by the
deceased to them must be rejected. Similar is the case with PW20-Manjit
Kaur and PW26-Smt. Kulwinder Chohan whose evidence we have
rejected and it also suffers from the vice of interested witnesses. Even
otherwise, at any rate, the alleged statements to them about forcible
termination of pregnancy are unreliable. In fact, to save her life due to
dead foetus, the foetus was removed, is the finding and as such, no offence
is constituted. That the deceased generally apprehended any danger to her
life is in the nature of perception but not in the nature of any transaction
resulting into death.
61. We think there is therefore no need to discuss the submissions
on Section 6 or Section 32 of the Evidence Act, as we have rejected the
entire evidence brought by the prosecution which failed to discharge its
initial burden of proof. As to Mr. Saxena, learned Senior Standing counsel
who raised a question how Harpreet Kaur died should be explained by
Bibi Jagir Kaur, we think it is begging a question. There is evidence of
PW39-Dr. Tarsem Singh who stated that she suffered from acute
dehydration and she was being taken away to CMC, Ludhiana, but died on
way. This evidence is probable and acceptable. He was a prosecution
witness. Testing the prosecution case that to save her reputation, Bibi Jagir
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Kaur wanted to terminate the pregnancy secretly, the pregnancy was
terminated on 20.03.2000; and none knew about it. Harpreet Kaur was all
well. No occasion then arose, nor there is any evidence that it became
absolutely necessary to eliminate her after almost a month on 20.04.2000.
Why a mother would even think of eliminating her beloved elder
daughter!, when as alleged she had succeeded in secretly terminating the
pregnancy.
Call details and the evidence to it
62. Learned Special Standing counsel for the CBI as well as
learned Senior counsel for the complainant strenuously contended that
record of call details brought on record was duly proved and the objection
by the defence that the same was not proved in accordance with section
65-B of the Evidence Act is misplaced and misconceived. According to
them, all the call details produced before the Court right from 18.03.2000,
i.e. the date when Harpreet Kaur was abducted from the house at
Chandigarh on the orders of Bibi Jagir Kaur till termination of pregnancy
on 19.03.2000 and thereafter, her death on 20.04.2000 clearly indicated
the movements and the presence of all the accused persons for conspiring
and thereafter, executing the conspiracy for committing offence for which
they have been charged. As stated earlier, we have with the assistance of
the learned Special Standing counsel for the CBI and the learned Senior
counsel for the complainant carefully seen the entire record of all the call
details and the prosecution evidence in that context. According to us, it is
not necessary for us to determine whether the call details etc. were proved
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by the prosecution in accordance with law and therefore, we do not want
to go into the said issue. Assuming that the prosecution has proved all the
call details and the record thereof, what we find is that the reliance placed
by the prosecution on the said evidence is of no use or assistance to the
prosecution.
63. The first reason is that the investigating officer did not seize
any of the mobile phones or the SIM cards in respect of which the
evidence of call details has been relied upon. There is no explanation as to
why that was not done. Secondly, except the mobile phone of Dalwinder
Kaur Dhesi, the prosecution did not prove that the mobile phones
allegedly used by other accused persons including Bibi Jagir Kaur were
registered in their name or owned by them or that they were physically in
possession of those mobile phones registered or belonging to somebody
else. Not a single witness by the prosecution was examined nor any
evidence has been brought on record that anybody saw mobile phones
having SIM cards of the numbers allegedly used by the accused persons.
There is thus, no direct evidence to that effect. In so far as Bibi Jagir Kaur
is concerned, the defence examined DW1-Kirpal Singh Chauhan who
stated that it was he who was using the mobile phone No.98140-04127
which cellphone was provided by SGPC and registered in the name of
SGPC he being incharge of Sub-Office, Chandigarh of SGPC at the
relevant time. In clear term, he stated in his evidence that mobile phone
was used by him and he denied all the allegations about talk with other
accused persons on the mobile phone. He also stated that said mobile
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phone number was used by members of SGPC, officer bearers and the
president of SGPC. When he was cross-examined, nothing was brought on
record to show that Bibi Jagir Kaur had used the said mobile phone
number, except for a general statement that the office bearers including
the president were using the said mobile phone. But then he asserted that
said mobile phone which used to remain in his custody throughout and he
was making the use of said mobile phone. Similarly is the case with the
other accused persons in respect of the mobile phones which belonged to
and registered in somebody else's name. In our opinion, this was no
evidence which could have any incriminating nature.
64. It is then significant to note that admittedly, the prosecution
does not have a single piece of evidence to show, except the evidence of
PW27-Balwinder Singh Sohal, which we have already rejected outright,
that any of the accused persons had made movements from 18.03.2000 till
20.04.2000. Even PW27 did not say about all the accused persons making
phone calls right from 18.03.2000 till 20.04.2000 except for a solitary and
stray sentence which he stated about making of phone call to Bibi Jagir
Kaur. To put it in other words, the prosecution does not have any
evidence against any of the accused persons that in relation to alleged
conspiracy or alleged abduction or other acts thereafter, till the date of
death, the accused persons had factually moved from one place to another
as indicated in the call details which have been heavily relied upon. To
repeat, the prosecution cannot claim that by movement of SIM cards from
one place to another, that it has also proved the movement of the persons
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allegedly using the SIM cards in respect of which call details have been
produced on record nor that a particular person was moving. The
prosecution wants this Court to draw inference that if the call details
shows the movement of SIM cards from one place to another, necessarily,
the accused persons must be held to have moved alongwith SIM cards. We
find that the submission is fallacious and misconceived. We therefore,
reject the submissions regarding the call detail records.
Non-examination of material witnesses
65. Rajneet Kaur is the younger sister of deceased Harpreet Kaur.
The evidence shows that throughout, she was along with deceased being
the younger sister. Saheb Singh is the son of Dalwinder Kaur Dhesi who
was also present in Jasdil Mansion at Phagwara. It has come in the
evidence of the prosecution witnesses themselves that throughout, Rajneet
Kaur was present with her elder sister and atleast on number of occasions
when all these incidents are alleged to have taken place. At record page
1089, PW94-Anurag Garg stated that he recorded the statement of Saheb
Singh son of Dalwinder Kaur Dhesi, who was residing in Jasdil Mansion
at Phagwara. The statement of Rajneet Kaur was recorded as stated by
PW90-Harbhajan Ram, vide record page 1005, and that her statement was
handed over to PW94-Anurag Garg. It is significant to note that the
prosecution never examined these two material witnesses who were in
fact, the persons who could have unfolded the truth before the Court. The
prosecution has given no explanation as to why these two witnesses were
withheld from the Court. We also do not find any explanation on record
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anywhere. In our opinion, examination of both these witnesses to find out
the truth before the Court was essential and the prosecution was not at all
justified in withholding the witnesses. It is different matter as to whether
they would have supported the prosecution case or not, but then the CBI
should have left it to the Court rather than withholding these witnesses.
We have, therefore, no hesitation in drawing adverse inference against the
prosecution.
PW90-Harbhajan Ram and
PW94-Anurag Garg
66. PW90-Harbhajan Ram was the first officer of the CBI who
took over the investigation and registered P.E. And made some
investigation. He stated that he had investigated the murder of Sant
Harcharan Singh Longowal and also operation Blue-Star. He stated that
name of PW27-Dr. Balwinder Singh Sohal never figured in his inquiry. In
so far as the cause of death is concerned, he stated thus:-
extracts from record page 1002
"................It is wrong to suggest that despite knowing the
complete facts of police inquiry as well as my preliminary
inquiry I am intentionally denying the same. Jaswant Singh
and Dr. Tarsem Singh of Begowal were joined in the
preliminary inquiry by me whereas only Dr. Tarsem Singh
was joined in the police inquiry. In their statements in the
preliminary inquiry the said witnesses claimed that Harpreet
Kaur alias Rozy died due to dehydration. Likewise Dr. Tarsem
Singh at the police inquiry also claimed the death of Harpreet
Kaur alias Rozy because of dehydration..............."
67. His statement as above is also corroborated by which
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Preliminary Enquiry which is placed on record, which also shows that he
arrived at a conclusion that death of Harpreet Kaur was due to
dehydration.
68. PW94-Anurag Garg is the main investigating officer. He
stated that statement under Section 161 Cr. P.C. of PW27-Dr. Balwinder
Singh Sohal was recorded by him on 09.11.2000. He stated that conduct
of Dr. Balwinder Singh Sohal in helping abortion of Harpreet Kaur did not
amount to any offence because if a dead foetus was found and somebody
was helping the girl in getting her abortion done from the competent
doctor and nurse, no offence as such would be constituted as the act would
be to save the life of the girl. Dalbir Kaur was the trained nurse and her act
to save the life of Harpreet Kaur as the foetus was dead did not constitute
any offence. He stated that he did not arrest Dr. Balwinder Singh Sohal on
09.11.2000 as he was treating him as a witness. This was obviously false
statement because CBI had opposed his bail application of 02.11.2000
which was dismissed on 07.11.2000.
69. The upshot of the entire above discussion is that the
prosecution miserably failed to prove its case against all the accused
persons. The judgment impugned is illegal and must be set aside which we
do.
70. As a sequel to the reasons and the findings recorded by us, and
for the same reasons, the appeals against acquittal vide CRA-D-867-DB of
2012 and CRA-D-868-DB of 2012 must be dismissed.
71. In the result, we make the following order:-
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ORDER
(i) CRA-S-1431-SB of 2012, CRA-S-1500-SB of 2012, CRA-S-
1501-SB of 2012 and CRA-S-1538-SB of 2012 filed by Nishan Singh, Bibi Jagir Kaur, Paramjit Singh Raipur and Dalwinder Kaur Dhesi, respectively, are allowed. The impugned judgment and order dated 30.03.2012, in SC Case No.18T of 2010, dated 10.11.2001/29.09.2007, passed by the learned Additional Sessions Judge, Patiala, by which the above accused/appellants, namely Nishan Singh, Bibi Jagir Kaur, Paramjit Singh Raipur and Dalwinder Kaur Dhesi were convicted for commission of offence punishable under Sections 120-B, 313, 365 and 344 of IPC and were sentenced to undergo imprisonment as indicated against their names, by the learned trial Court, in the operative part of the impugned judgment and order, is set aside; and they all are acquitted of the charges for which they were convicted. Bail bonds stand discharged;
(ii) CRA-D-867-DB of 2012 and CRA-D-868-DB of 2012 filed by the CBI and Kamaljeet Singh, complainant, respectively, are dismissed;
(A.B. CHAUDHARI) JUDGE (KULDIP SINGH) JUDGE December 04, 2018 mahavir Whether speaking/ reasoned: Yes Whether Reportable: Yes 76 of 76 ::: Downloaded on - 06-01-2019 02:38:00 :::