Punjab-Haryana High Court
Jatinder Kumar And Anr vs State Of Punjab on 26 August, 2014
Author: Rajive Bhalla
Bench: Rajive Bhalla, Surinder Gupta
CRA-D-73-DB-2003 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-D-73-DB-2003
Date of Decision: 26.08.2014
1. Jatinder Kumar and
2. Mohd. Yakub ..... Appellants
VERSUS
State of Punjab ..... Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Ms.Aditi Girdhar, Advocate, Amicus Curiae,
for the appellants.
Mr.P.P.S.Thethi, Addl.A.G., Punjab.
*******
RAJIVE BHALLA, J.
The appellants challenge judgment and order, both dated 21.11.2002, passed by the Additional Sessions Judge, Sangrur, convicting and sentencing them in the following terms: -
Jatinder Kumar U/s 302 of To undergo imprisonment for life each and the IPC and to pay fine of Rs.10,000/- each, in Mohd.Yakub default whereof to further undergo RI for two years each.
U/s 404 of To undergo one year RI each and to pay the IPC fine of Rs.2,000/- each, in default whereof to further undergo three months RI each.
Jatinder Kumar U/s 25 of To undergo one year RI and to pay a the Arms fine of Rs.2,000/-, in default whereof to Act further undergo three months RI.
The deceased Leela Krishan alongwith his brother Madan CRA-D-73-DB-2003 [2] Lal was owner of a Dhaba on Club Road, Malerkotla. Leela Krishan was brought dead, to Civil Hospital, Malerkotla, at around 11:30 PM on 16.09.1999, with a gun shot injury. The hospital forwarded intimation, dated 16.09.1999 at 11:30 PM to Police Station City Malerkotla. In the meanwhile, PW-2 Madan Lal, brother of the deceased who was proceeding to the police station, to report the matter met, PW-12 ASI Kulwant Singh, who was on patrol duty with a police party, at Satta Chowk, Malerkotla and at 2:15 AM on 17.09.1999, recorded a statement that he and his elder brother Leela Krishan run a Dhaba at Club Chowk, Malerkotla. Leela Krishan maintains and checks the accounts and returns home by about 11 PM, in his car bearing No.CH-01B-1791. At about 11:15 PM on the night of 16.09.1999, he and Raj Kumar @ Bittu, brother-in-law of Leela Krishan were standing outside their house waiting for Leela Krishan when they heard the sound of a gun shot. Both of them began walking towards the sound of gun shot and saw Leela Krishan's car had stopped near the house of Harnam Singh, with its headlights on.
The streetlights were also on. They saw two Hindu men one slim and the other heavy, wearing jeans, shirts and black shoes running away from the car. Madan Lal and Raj Kumar rushed to the car and found that Leela Krishan had collapsed in the driver's seat. The window of the driver's seat was rolled down. The mark of a gun shot injury was visible on the right side of Leela Krishan's neck and blood was oozing out. Madan Lal and Raj Kumar removed Leela Krishan CRA-D-73-DB-2003 [3] to Civil Hospital, Malerkotla where the doctors declared him dead. Madan Lal further stated that his brother has been murdered by two unknown persons on account of some grudge. The statement Ex.PE, was attested by PW-12 ASI Kulwant Singh and forwarded to Police Station Malerkotla where it led to registration of FIR No.200, dated 16.09.1999, under Sections 302/34 of the IPC.
PW-12, ASI Kulwant Singh proceeded to the mortuary of Civil Hospital, Malerkotla, took possession of the dead body, prepared an inquest report Ex.PC and forwarded the dead body for postmortem, through Head Constable Surinder Singh. ASI Kulwant Singh thereafter visited the spot, prepared a rough site plan Ex.PEE and took the car into possession. The car was photographed, blood stained seat covers of the car were removed and taken into possession alongwith a small blood stained towel lying between the front seats of the car. The blood stained mat of the car and v-shape blue coloured slippers were also taken into possession. HC Surinder Singh produced a parcel containing the clothes of the deceased and a parcel containing a bullet which were also taken into possession alongwith the postmortem report. The investigation, however, did not make any headway as the police were unable to ascertain the identity of the assailants.
After more than an year, investigation of the case was handed over to PW-10 SI Kamikar Singh, on 19.10.2000 and suddenly on 20.11.2000 PW-6 Baba Shanti Nath appeared before SI CRA-D-73-DB-2003 [4] Kamikar Singh and made a statement that the appellants had appeared before him and suffered an extra judicial confession that they had murdered Leela Krishan. SI Kamikar Singh recorded the statement and began searching for the appellants. SI Kamikar Singh received secret information, on 24.11.2000 about the whereabouts of Mohd. Yakub (appellant No.2) and apprehended him from the bridge of a semnala (a drain) on Nabha Road, Malerkotla.
After interrogation, Mohd. Yakub suffered a disclosure statement Ex.P1, that he had concealed a golden bracelet looted from the deceased, in his clothes, in a cupboard, in the northern wall of his house which he could get recovered. The disclosure statement Ex.P1, was read over to Mohd. Yakub, who signed in token of its correctness and was attested by witnesses. Mohd. Yakub led the police party to the place where he had concealed the golden bracelet and got a golden bracelet Ex.P6, recovered. The bracelet was taken into possession, vide memo Ex.PJ, and attested by witnesses. The site plan of the place of recovery of the bracelet is Ex.PX.
SI Kamikar Singh, received secret information on 06.12.2000 about the whereabouts of Jatinder Kumar, appellant, from an informer leading to the arrest of Jatinder Kumar. Upon interrogation, Jatinder Kumar suffered a disclosure statement, Ex.PT, that he had concealed a .315 bore pistol alongwith two cartridges, a black coloured purse (wallet) in a plastic bag beneath the ground near bushes, adjoining Vinod Paper Mills, on Adamwal Road and could CRA-D-73-DB-2003 [5] get them recovered. The statement Ex.PT was reduced into writing, was signed by Jatinder Kumar and attested by witnesses. Jatinder Kumar led the police party to the place of concealment and got a .315 bore pistol, two live cartridges of the same bore and a black coloured wallet recovered. The police recovered Leela Krishan's driving licence and a photograph from the wallet, vide memo Ex.PQ. A rough sketch of the pistol is Ex.PU. The cartridges and the articles were taken into possession, vide memo Ex.PV, attested by witnesses. The driving licence and the wallet were taken into possession, vide memo Ex.PW also attested by the witnesses. The wallet is Ex.P5, the pistol is Ex.P12 and the cartridges are Ex.P13 and Ex.P14, respectively. A rough site plan of the place of recovery is Ex.PAA. A separate FIR No.257, dated 12.03.2001, was registered under Section 25 of the Arms Act, against appellant No.1-Jatinder Kumar.
Upon completion of investigation, the investigating officer filed final reports under Section 173 Cr.P.C. but as the reports disclosed the commission of an offence under Section 302 of the IPC exclusively triable by a Court of Sessions, the cases were committed to the Additional Sessions Judge, Sangrur.
The learned Additional Sessions Judge framed charges under Sections 302/404 of the IPC. A separate charge was framed under Section 25 of the Arms Act against appellant No.1-Jatinder Kumar. The appellants pleaded not guilty and claimed trial. The cases were thereafter consolidated, vide order dated 12.04.2002 and CRA-D-73-DB-2003 [6] the prosecution was directed to adduce evidence. The prosecution, in order to prove its case, has examined the following witnesses: -
PW-1 is Dr.K.S.Khurana, who conducted postmortem and deposed that Leela Krishan died due to a gun shot injury. Dr.K.S.Khurana also deposed that the injury was sufficient to cause death in the ordinary course of nature.
PW-2 Madan Lal and PW-3 Raj Kumar @ Bittu, eye- witnesses of the occurrence and have deposed in consonance with their statements recorded by the police.
PW-4 is HC Pritpal Singh, who filed an affidavit Ex.PO regarding deposit of case property. PW-5 is Constable Bhupinder Singh, who filed an affidavit Ex.PP, regarding deposit of various articles with the forensic science laboratory after taking them from the Moharrar Head Constable, of the police station.
PW-6 is Baba Shanti Nath Chela Baiz Nath, who has deposed about the extra judicial confession suffered by the appellants before him that they had murdered a person namely Leela.
PW-7 is Rajesh Sood, Registration Clerk, who proved the registration certificate of car bearing No.CH-01B-1791 Ex.PK. PW- 8 is Naresh Kumar, Junior Assistant, who proved the driving licence belonging to the deceased-Leela Krishan, Ex.PJJ. PW-9 is ASI Amrik Singh, who was part of the police party headed by SI Kamikar Singh, when secret information was received with respect to Mohd.
Yakub and a witness to the latter's arrest, his disclosure statement and CRA-D-73-DB-2003 [7] recovery of a bracelet by and at the behest of Mohd. Yakub. PW-9 is also a witness to the arrest, disclosure statement and recoveries affected by and at the behest of Jatinder Kumar.
PW-10 is SI Kamikar Singh, who was entrusted with investigation on 19.10.2000, recorded the statement of PW-6 about the appellants having suffered an extra judicial confession, arrested both accused, interrogated them, recorded their disclosure statements and took into possession articles recovered by and at the behest of the appellants namely a bracelet, a .315 bore pistol, two cartridges, a black wallet, a licence belonging to the deceased and his photograph.
PW-11 is Constable Siara Singh, who tendered his affidavit Ex.PBB, that he forwarded the case property to the chemical examiner. PW-12 is ASI Kulwant Singh, who recorded the statement Ex.PE, made by Madan Lal, complainant, took into possession the dead body, carried out inquest proceedings, recorded statements of witnesses, inspected the site where the occurrence had taken place, took possession of various blood stained articles from the car, got the postmortem conducted, received the clothes of the deceased and a bullet from the doctor and recorded the statements of witnesses etc. PW-13 is HC Nahar Singh, who tendered into evidence his affidavit Ex.PHH. PW-14 ASI Chander Hans, Armour, Police Line, Sangrur, who deposed that pistol Ex.P12 was in working order. PW-15 is ASI Gurcharan Singh, who deposed with respect to recording of statements of Constable Hoshiara Singh, Constable CRA-D-73-DB-2003 [8] Gurmail Singh, Pawan Kumar son of Ramji Dass, photographer, who produced photographs and negatives and proved memo Ex.P11 etc. , on 22.01.2001. PW-16 is Constable Baldev Singh, who deposed with respect to deposit of case property with the Moharrar Head Constable.
In case FIR No.257, dated 06.12.2000, under Section 25 of the Arms Act, the prosecution has examined PW-1 Baldev Raj, Senior Assistant, Office of District Magistrate, Sangrur, who proved the sanction order Ex.PA.
Upon conclusion of the prosecution evidence, the incriminating circumstances were put to the appellants in their statements recorded under Section 313 of the Cr.P.C., who denied their involvement and pleaded their innocence.
After considering the evidence on record and arguments addressed, the trial Court convicted and sentenced the appellants as referred to in the opening paragraph of this judgment.
Counsel for the appellants submits that the evidence produced by the prosecution, consists of (a) depositions by two alleged eye-witnesses i.e. PW-2 Madan Lal and PW-3 Raj Kumar @ Bittu; (b) an extra judicial confession said to have been suffered by the appellants before PW-6 Baba Shanti Nath Chela Baiz Nath; (c) medical evidence to prove death by a gun shot; (d) recoveries affected from the appellants; (e) report Ex.PKK with respect to the bullet recovered from the body of the deceased; (f) report Ex.PLL CRA-D-73-DB-2003 [9] received from the forensic science laboratory; and (g) the site plan. Counsel for the appellants submits that a perusal of the evidence reveals that for about an year the police were not aware of the identity of the assailants. PW-6 Baba Shanti Nath Chela Baiz Nath suddenly appeared before the police on 20.11.2000 and made a statement that the appellants have suffered an extra judicial confession, before him, while visiting his dera. The appellants were not known to PW-6. On the alleged date of the extra judicial confession the police were not aware of the identity of the assailants nor had it nominated the appellants as accused. Thus, there was no reason for the appellants to suffer an extra judicial confession. PW-6 has admitted that the appellants came to his dera for the first time but stated that he knows the name of the father of Mohd. Yakub. PW-6 is a procured witness whose deposition must be discarded. This apart, PW-6 did not produce the appellants before the police. Counsel for the appellants further submits that admittedly, the eye- witnesses did not see the faces of the assailants in their statements. The eye-witnesses have specifically deposed that the assailants were running away from the car. Even if it is accepted that the eye- witnesses saw two men running away from the car, all that they saw, were the backs of these two men and as they did not see the faces or the actual firing of the gun shot, their identification of the appellants in Court is of no help of the prosecution and must be discarded. The depositions by the so called eye-witnesses when read with the site CRA-D-73-DB-2003 [ 10 ] plan, showing the spot where the witnesses were standing, reveals that the house where they heard the gun shot is situated in a side lane whereas the occurrence is alleged to have taken place on a main road, near the house of Harnam Singh. The eye-witnesses, therefore, could not have seen the appellants running away. The spot indicated in the site plan, where the eye-witnesses were standing, is at a distance of 20 karams and in view of intervening houses, the eye-witnesses could not have seen the appellants' running away much less could they have made a positive identification in Court more than an year after the occurrence. It is also argued that though the appellants were arrested more than an year after the occurrence, the police did not conduct a test identification parade. The appellants were shown to the eye-witnesses, after their arrest enabling them to effect an identification in Court. It is also argued that the so-called recoveries affected from the appellants namely a golden bracelet, a black wallet containing Leela Krishan's licence and his photograph, have been foisted upon the appellants as there was no reason for them to retain these articles for one year. Even otherwise, these articles were not identified during investigation or the trial by mixing them with articles of a similar make and nature. The identification of these articles, by PWs-2 and 3, in Court, is meaningless as the wife of the deceased, who made a statement before the police that a bracelet and a wallet were missing, was not produced by the prosecution. The statement by the wife of the deceased has even otherwise been ante CRA-D-73-DB-2003 [ 11 ] dated. The prosecution has also failed to prove that the bracelet and the wallet were purchased before the death of Leela Krishan, thereby proving that these articles were purchased after the death of Leela Krishan or obtained from the deceased's wife and foisted upon the appellants. It is argued that the most significant flaw in the prosecution case is that the .315 bore pistol said to have been used to fire the gun shot and allegedly recovered from Jatinder Kumar was not sent for forensic examination to match it with the bullet recovered from the dead body of Leela Krishan. In the absence of any evidence that the bullet recovered from the dead body of Leela Krihan was fired from the .315 bore pistol allegedly recovered from the appellant-Jatinder Kumar, the recovery of the pistol is of no consequence. The recoveries affected from the appellants one year after the occurrence, cannot be pressed into service much less can they be used to convict the appellants.
Counsel for the State of Punjab submits that the depositions by two eye-witnesses, the recoveries of articles belonging to the deceased from the appellants, the recovery of a pistol, the bullet, the extra judicial confession prove the appellants' culpability to a hilt and, therefore, the trial Court has rightly convicted and sentenced the appellants.
We have heard counsel for the parties, appraised the entire evidence and upon due consideration of the impugned judgment and order, find that as per the prosecution case, at about CRA-D-73-DB-2003 [ 12 ] 11:15 PM on 16.09.1999, the appellants way laid Leela Krishan and fired a gun shot that led to the latter's death. The prosecution alleges that PW-2 Madan Lal and PW-3 Raj Kumar saw the assailants running away from the car. About an year after the incident, PW-6 Baba Shanti Nath Chela Baiz Nath suddenly appeared before the police on 20.11.2000 and made a statement that the appellants had suffered an extra judicial confession before him admitting that they had murdered Leela Krishan. The appellants were arrested, the gun allegedly used in the offence, a wallet and a gold bracelet belonging to the deceased were recovered from the appellants as evidence of their culpability.
The prosecution, thus, bases its case against the appellants upon: -(a) depositions by PW-2 Madan Lal and PW-3 Raj Kumar @ Bittu, as eye witnesses; (b) medical evidence in the shape of deposition by PW-1 Dr. K.S.Khurana, who conducted postmortem; (c) an extra judicial confession suffered by the appellants before PW-6 Baba Shanti Nath Chela Baiz Nath; (d) disclosure statements suffered by the appellants that led to recovery of the pistol allegedly used to inflict the fatal gun shot and recovery of a bracelet, a wallet, a driving licence and a photograph, all belonging to the deceased; (e) reports received from the forensic science laboratory and the chemical examiner; (f) the rough site plan Ex.PEE and various other link evidence.
Before we examine the depositions by eye-witnesses, the CRA-D-73-DB-2003 [ 13 ] recoveries and the extra judicial confession, which are the fulcrum of the prosecution case, it would be appropriate to breifly refer to the medical evidence.
Dr.K.S.Khurana found the following injury: -
"1. Lacerated wound with inverted margins and skin around the wound blackened and contued. The wound was 3 cm x 1.75 cm running obliquely towards left side and toward downward. Wound on right side of neck and 13 cm from right shoulder joint medical to it and 9 cm below right earpina. Bleeding came out when body was tilted. Clot present on exploration track seen and underlying tissues and major right blood wersels found ruptured. Trachea ruptured. Bullet recovered from the left should region. Clots present in the neck also."
The doctor proved the postmortem report and carbon copy of the postmortem report Ex.PA, the pictorial diagram Ex.PA/1, police request Ex.PB, endoresement Ex.PB/1 by the SMO Dr.V.P.Goyal and also opined that the time that elapsed between injury and death was about 15 minutes. A perusal of the injury reveals an entry wound 3 cm and 1.75 cm wide with inverted margins and blackening around the entry located on the right side of the neck. The doctor also recovered a bullet from the left side of shoulder of the deceased and handed it over to the police. The deposition by PW-1 Dr.K.S.Khurana, the postmortem report, the pictorial diagram, the recovery of a bullet from the left side of the shoulder, the inverted CRA-D-73-DB-2003 [ 14 ] margins of the entry wound, the blackening around the wound, prove that Leela Krishan died as a result of a gun shot injury, fired from close range, which was ante mortem in nature and sufficient to cause death in the ordinary course of nature.
The prosecution having proved a homicidal death, by a gun shot, is required to prove the identity of the assailants and to discharge this onus, relies primarily upon the depositions by PW-2 Madan Lal, the complainant and PW-3 Raj Kumar @ Bittu, as eye- witnesses.
At this stage, it would be appropriate to point out that for more than an year, the police was not aware of the identity of the assailants and only began looking for the appellants when PW-6 Baba Shanti Nath Chela Baiz Nath made a statement before the police on 20.11.2000 that the appellants had suffered an extra judicial confession before him admitting to the murder of Leela Krishan.
PW-2 Madan Lal is a brother of the deceased whereas PW-3 Raj Kumar @ Bittu, is the deceased's wife's brother. Madan Lal stated before the police and deposed as PW-2 that he and his brother Leela Krishan were owners of a Dhaba at Club Chowk, Malerkotla. Leela Krishan was owner of a Maruti Car No.CH-01B- 1791. Leela Krishan used to return home by 11 PM. On 16.09.1999 as Leela Krishan was late, Madan Lal and Raj Kumar @ Bittu were standing outside Madan Lal's house waiting for Leela Krishan. At CRA-D-73-DB-2003 [ 15 ] 11:15 PM, they heard the sound of a gun shot and rushed towards the sound of the gun shot. They saw that Leela Krishan's car had stopped near the house of Harnam Singh. The headlights of the car were on. They saw two Hindu men one slim and the other heavy, wearing jeans, shirts and black shoes, running away. The door of the driver side was open. On approaching the car, they found that Leela Krishan had suffered a gun shot on the right side of his neck, was bent over to one side and blood was oozing from the injury. They rushed Leela Krishan to the emergency of Civil Hospital, Malerkotla but upon arrival, Leela Krishan was declared dead by the doctor. After recounting the aforesaid facts, PW-2 Madan Lal identified the accused as the persons they had seen running away from the spot and also identified the black coloured purse as "probably belonging to his brother". PW-2 also identified Ex.P6 golden bracelet with words "L Krishan" engraved, as belonging to Leela Krishan. Madan Lal, however, admitted during his cross-examination that the distance between his house and the house of Harnam Singh is about 30 feet and that the entire street has houses but stated that as there is a vacant plot from where they saw the appellants running away. Madan Lal admitted that they were not joined in any identification parade but denied a suggestion that the accused were shown to them by the police. Madan Lal stated that he saw the appellants for the first time when he appeared on the first date in this case. PW-3 Raj Kumar @ Bittu, the other eye-witness, has deposed in consonance with the CRA-D-73-DB-2003 [ 16 ] deposition by PW-2 and, therefore, we need not recount his deposition.
PWs 2 and 3 have deposed that they heard a gun shot, rushed in the direction of the sound of the gun shot, saw the car standing with its headlights on and also saw two persons running away. The depositions though clear and consistent raise a serious question namely whether PWs 2 and 3 could have made a positive identification of the appellants as the assailants?
The occurrence took place at about 11:15 PM and as per statements made before the police, the eye witnesses saw the assailants, one of whom was heavy and the other slim, wearing t- shirts, jeans and black shoes running away towards Kakkar Hospital. Apart from this sketchy description of the assailants, the eye witnesses did not reveal to the police or while deposing in Court any identifiable features by which they could identify the appellants as the assailants. The assailants were admittedly running away from the eye witnesses i.e. had their backs towards the eye-witnesses and, therefore, could not have and in fact, did not see the faces of the assailants. The eye-witnesses may have seen two men running away from the car but as these two men were running with their backs towards the eye-witnesses, they could not have possibly seen the faces of the assailants. It would also be appropriate to point out that the appellants were arrested more than one year after the occurrence. A perusal of the site plan and the depositions by eye-witnesses CRA-D-73-DB-2003 [ 17 ] reveals that when the gun shot was fired, the eye-witnesses were standing outside the house of Leela Krishan and thereafter rushed towards the sound of the gun shot and saw the assailants from point 'OC'. The assailants were at point 'OD' and running towards Kakkar Hospital. The site plan and the depositions by the eye-witnesses prove that the assailants were running away from the spot, towards Kakkar Hospital with their backs towards the eye-witnesses, thus, proving that the eye-witnesses could not have seen the faces of the assailants in the few seconds available and could only discern two male figures running away from the car. The site plan Ex.PEE demarcates the place where the car was standing (the place where the gun shot was fired), the spot from where PWs 2 and 3, saw two men running away towards Kakkar Hospital and the direction in which these two men ran away. A perusal of the site plan also reveals that it may not be entirely possible to effect a positive identification, from point 'C', of two persons running away, with their backs towards the eye-witnesses as the distance between point 'C' and 'D' even as per site plan Ex.PEE is about 20 karams i.e. more than 30 feet. We are, therefore, rather skeptical about this sudden identification of the appellants, as the assailants, without referring to any identifiable features.
Admittedly, for about an year after the occurrence, the police was not aware about the identity of the assailants but suddenly on 20.11.2000 PW-6 Baba Shanti Nath Chela Baiz Nath approached CRA-D-73-DB-2003 [ 18 ] the police and made a statement that the appellants had suffered an extra judicial confession before him. Before the information supplied by PW-6 Baba Shanti Nath Chela Baiz Nath, neither the police nor the eye-witnesses were aware of the identity of the assailants and, therefore, it was imperative for the prosecution to have conducted an identification parade so as to positively identify the appellants as the persons who were seen running away from the car. The police did not conduct a test identification parade and, therefore, relies upon identification by the alleged two eye-witnesses in Court. We have already noticed that the eye-witnesses were at a distance of more than 30 feet from the assailants and the assailants were running away from the eye-witnesses with their backs towards the eye-witnesses. The eye-witnesses could not have possibly seen the faces of the assailants and only identified them as two Hindu persons wearing t-shirts, jeans and black shoes, one of whom was slim and other heavy. The failure to conduct a test identification parade, thus, assumes significance. In addition, PWs 2 and 3, the eye-witnesses, while deposing in Court merely referred to the appellants as the persons whom they had seen running away from the spot but have not deposed about any identifiable features that led them to affect a positive identification of the appellants as the persons they saw running away from the car. We are, therefore, not inclined to place reliance upon the depositions of PWs 2 and 3 that the assailants they saw running away from the car towards the CRA-D-73-DB-2003 [ 19 ] Kakkar Hospital, were the appellants.
Apart from the fact that we doubt the identification of the appellants as the assailants, there are other significant factors that compel us to observe against the prosecution.
A perusal of the evidence on record reveals that the occurrence took place on 16.09.1999. The police was unable to make any headway as to the identity of the assailants but suddenly on 20.11.2000 PW-6 Baba Shanti Nath Chela Baiz Nath appeared before the police and made a statement, under Section 161 of the Cr.P.C. that the appellants had suffered an extra judicial confession before him. The identity of the assailants was disclosed to the police for the first time on 20.11.2000. The fact that their identity was disclosed to the police an year after the occurrence by a person who has not been able to prove any credible connection with the appellants and who did not produce the appellants before the police, adds further doubt to the prosecution case.
PW-6 Baba Shanti Nath Chela Baiz Nath has deposed that many worshippers come to his dera to pray and, therefore, he knows the appellants. About one and a half year ago at 9:45/40 PM, the appellants came in his dera. One of the accused is Mohd. Yakub and the other is Jatinder Kumar. PW-6 identified Mohd. Yakub as the person who had come to visit him and told him that about one and a half year ago, they had killed a person by the name of Leela as he started grappling with them when they made an attempt to commit CRA-D-73-DB-2003 [ 20 ] a robbery. Mohd. Yakub also stated that the gun shot was fired by Jatinder Kumar and made a request that they may be produced before the police.
An extra judicial confession is but its very nature a weak piece of evidence of culpability and as PW-6 did not produce the appellants before the police and most significant of all on the date when the appellants are alleged to have suffered the extra judicial confession they had not been cited as accused by the police and there was no threat of the arrest, there was no reason for them to have confessed before PW-6. It is, therefore, rather surprising that the appellants suddenly approached PW-6, confessed before him and requested him to produce them before the police. The deposition by PW-6, in our considered opinion, is a crude attempt by the police to create evidence to implicate the appellants. The extra judicial confession is doubtful and must be ruled out of consideration.
The next flaw in the investigation, is failure of the prosecution to forward the pistol recovered from Jatinder Kumar for forensic examination. The police forwarded the apparel worn by the deceased, the blood stained towel recovered from the car, various other articles recovered from the car and the dead body but for reasons that have not been explained, did not forward the .315 bore pistol allegedly recovered from Jitender Kumar for forensic examination. The prosecution was required to prove that the bullet recovered from the body of Leela Krishan was fired from the pistol CRA-D-73-DB-2003 [ 21 ] recovered from Jatinder Kumar. The failure to forward the pistol for forensic examination or connect the bullet recovered from the body of Leela Krishan with the pistol recovered from Jatinder Kumar, is a significant flaw in the prosecution case that raises a serious doubt about the disclosure statements and the recoveries and when read alongwith facts referred to in the preceding paragraphs, leaves us with no doubt that the prosecution has failed to prove its case against the appellants.
To be fair to the prosecution, the pistol recovered from Jatinder Kumar was examined by PW-14 ASI Chander Hans, an armourer who deposed that the pistol Ex.P12 was in working order but during cross-examination, admitted that the cartridges cannot be easily inserted into the pistol. This apart, PW-14 did not state that the bullet recovered from the dead body of Leela Krishan was fired from the country-made pistol Ex.P12, recovered from Jatinder Kumar and, therefore, PW-14's deposition that the pistol was in working order, is irrelevant as it does not link the bullet with the pistol recovered from Jatinder Kumar. The prosecution having failed to link the bullet recovered from the dead body of Leela Krishan to the .315 bore country-made pistol recovered by and at the behest of Jatinder Kumar is irrelevant.
The other articles, a bracelet, a wallet containing a photograph and driving licence of the deceased, recovered from the appellants also require consideration but before referring to these CRA-D-73-DB-2003 [ 22 ] recoveries, it would be appropriate to point out that these recoveries were affected more than an year after the incident and, therefore, it is rather difficult to accept that the appellants would retain these incriminating articles for more than a year. This apart, the bracelet and the wallet were not identified during investigation by mixing them with articles of a similar nature. Madan Lal, brother of the deceased was made to identify these articles while deposing in Court. The bracelet undoubtedly, bears the initials of the deceased but it appears that the bracelet alongwith other articles may have been taken into possession by the police from the complainant and then foisted upon the appellants so as to show recovery of incriminating articles to link the appellants to the murder of Leela Krishan. PW-2 Madan Lal while deposing in Court and after examining the black wallet stated that "...I have seen the purse of black colour. Which probably belongs to my brother." The deposition by PW-2 does not indicate a positive identification of the wallet and, therefore, further strengthens our opinion that these recoveries were foisted upon the appellants so as to implicate them.
The depositions by eye-witnesses being doubtful, the .315 bore pistol recovered by and at the behest of Jatinder Kumar having not been forwarded for forensic examination, the bullet recovered from the dead body of the deceased having not been matched with the .315 bore pistol, the bracelet and the wallet having not been identified during investigation by mixing them with other articles of CRA-D-73-DB-2003 [ 23 ] similar nature, the identification of the wallet in Court being vague and the extra judicial confession being unreliable, the prosecution in our considered opinion, has failed to prove its case.
Consequently, the appeal is partly allowed, the judgment and order, both dated 21.11.2002, passed by the Additional Sessions Judge, Sangrur, convicting and sentencing the appellants under Sections 302 and 404 of the IPC, are partly set aside and the appellants are acquitted of charges under Sections 302 and 404 of the IPC. Mohd. Yakub be set free forthwith. However, as far as conviction and sentence of Jatinder Kumar, appellant, under the Arms Act is concerned, the impugned judgment and order are affirmed. Jatinder Kumar, however, be also set free as he has already undergone the sentence awarded to him.
[ RAJIVE BHALLA ]
JUDGE
26.08.2014 [ SURINDER GUPTA ]
Shamsher S.Sabharwal JUDGE
SHAMSHER SINGH
2014.12.01 14:37
I attest to the accuracy and
authenticity of this document
Chandigarh