Punjab-Haryana High Court
Gurcharan Singh vs Charna Singh And Others on 10 January, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
Crl. Misc. No. 1159-MA- of 2010 {1}
In the High Court of Punjab and Haryana at Chandigarh
Crl. Misc. No. 60089 of 2010 and
Crl. Misc. No. 1159-MA- of 2010
Date of Decision: January 10, 2011
Gurcharan Singh
---applicant-appellant
versus
Charna Singh and others
---Respondents
Coram: HONBLE MR. JUSTICE HEMANT GUPTA
HONBLE MR. JUSTICE GURDEV SINGH
***
Present: Mr.J.P.S.Sodhi, Advocate,
for the applicant-appellant
***
GURDEV SINGH, J.
Crl. Misc. No. 60089 of 2010 For the reasons disclosed in the application, which is supported by an affidavit, the delay of 3 days in filing the appeal is hereby condoned.
Application stands disposed of accordingly.
Crl. Misc. No. 1159-MA of 2010 This application under Section 378(4) of the Code of Criminal Procedure is for grant of leave for filing the accompanied appeal against the judgment of acquittal passed by learned Sessions Judge, Bathinda, acquitting -Charna Singh and Malkit Kaur-respondents-accused of the Crl. Misc. No. 1159-MA- of 2010 {2} offences under Sections 302/34 and 201 IPC.
The facts, in brief, are that Gurmail Singh, brother of the petitioner/complainant, Gurcharan Singh alias Charna used to visit the house of Jarnail Singh, who had died about two years before the present occurrence, and developed illicit relations with Malkit Kaur-accused, widow of that Jarnail Singh. Charna Singh-accused, is the son of Jarnail Singh, who had been preventing Gurmail Singh from visiting their house. In spite of the fact that he was admonished by Jagdev Singh and Randhir Singh, still he kept on visiting Malkit Kaur. The Bhog ceremony of the mother of the complainant took place on 18.1.2009 and Gurmail Singh went missing from the next date of that Bhog ceremony. The complainant searched for him for a number of days at the places of his relatives and others but did not find any clue. On 3.2.2009,he was told by Paramjit Singh of his village that about 10/12 days back he had seen Gurmail Singh and Randhir Singh-standing together in bus stand of village Fatta Balu and having an altercation at that place and that thereafter he had gone to see his relatives and forgot to disclose the said fact to him. On the receipt of that information from Paramjit Singh, the complainant went to village Fatta Balu on 4.2.2009 and came to know that one body in a drum was found lying in the canal which was recovered by the workers of Sahara Club, Bathinda, and was removed to Civil Hospital of that city. Thereafter, he went to that hospital where the dead body was shown to him by the workers of the said club and he identified the same to be that of his brother, Gurmail Singh. Thereafter, he became confident that it were Charna Singh-accused, Jagdev Singh and Randhir Singh @ Deera, who caused death of his brother, on account of his having illicit relations with Malkit Kaur. On the same date, Crl. Misc. No. 1159-MA- of 2010 {3} he made statement Ex. PA about all these facts before Sanjeev Goyal SI, Police Station, Talwandi Sabo, who after making his endorsement Ex, PA/1 upon the same sent that to the Police Station, on the basis of which formal FIR, Ex. PA/2, was recorded. The SI prepared the inquest report, Ex. PS in respect of the dead body and sent the same, along with his application Ex. PF, to the Senior Medical Officer of the hospital for post mortem examination. Jagga Singh, one of the members of the Sahara Club, produced one drum and jute sheet, Ex. P.17 and P.18, respectively, which were taken into possession vide memo Ex. PT. Thereafter, he proceeded to village Kalalwala from where the dead body was recovered and prepared the rough site plan Ex. PU with correct marginal notes. Photographs Ex. P3 to P 16 were handed over to him by said Jagga Singh and those were taken into possession, vide Memo Ex. PV. On 5.2.2009, autopsy on the dead body of the deceased was conducted by the Board of Doctors, consisting of Dr. Ramesh Maheshwari, PW-5, Dr. Ashok Monga and Dr. Rajan, who deferred their opinion regarding the cause of death till the receipt of the reports of the Chemical Examiner and Histopathology Department of Medical College, Faridkot, to whom the viscera of the dead body was sent. On receipt of the report of the Chemical Examiner and Histopathology Department, it was opined by the Board of Doctors that the cause of death was asphyxia due to the drowning and constriction force used at the neck before drowning, which was ante mortem in nature and was sufficient to cause the death in the ordinary course of nature. On 10.2.2009, accused Charna Singh, was seen coming on a tractor and was identified by the complainant. The SI arrested him and prepared the Memo of Arrest Ex. PY. Tractor was also taken into possession, Vide Memo Ex. PE. On 12.2.2009, Crl. Misc. No. 1159-MA- of 2010 {4} this accused was interrogated by SI, upon which he made a disclosure statement that he had kept concealed one wooden round batten (Sota) in the room meant for storing chaff about which only he had the knowledge and could get the same recovered from that place. In pursuance of that disclosure statement,he got recovered the "sota" and the same was taken into possession, vide Memo Ex. PC. Statement of Avtar Singh, Chairman, Block Samiti, was recorded under Section 161 Cr.P.C. He came out with the version that on 5.2.2009, Charna Singh, accused, came to him and made extra judicial confession to the effect that on 19.1.2009, when he came back to his house at about 9- 00 p.m., he found Gurmail Singh standing near the bath room of his house and that he caused his death by giving a blow with the help of a sota on his head and that he asked his mother/co-accused, Malkit Kaur, to help him in disposing of the dead body and accordingly both of them put that dead body in a drum and that the same was thrown in the canal minor of village Kalalwala, and that when they came to know that the deceased was still breathing, he gave to him blows with a brick 3-4 times and thereafter covered the mouth of the drum with the help of Jute sheet. On 6.3.2010, Malkit Kaur, accused, was produced by Sadhu Singh before Gamdoor Singh, SI, who arrested her and prepared the Memo of her arrest Ex. PW 12/A. On interrogation, she suffered, disclosure statement Ex. PE 12/D that she had kept concealed one ring of gold in a peti (big iron box) lying in her house, about which only she had the knowledge and could get the same recovered from that place. In pursuance of that disclosure statement, she got recovered gold ring from the said place which was converted into a parcel and was sealed with the seal "GS". The sealed parcel was taken into possession, vide Memo Ex. PP. In the course of Crl. Misc. No. 1159-MA- of 2010 {5} investigation, statement of Sahdu Singh son of Sarwan Singh was recorded under Section 161 Cr.P.C. and he came out with the version that on 6.3.2010, Malkit Kaur came to him and made an extra judicial confession that on 19.1.2009, the deceased came to her house with a bad intention and at the same time her son Charna Singh came from outside and that Charna Singh gave a blow with the help of wooden log (tamba) on the head of the deceased and that thereafter they had thrown the body of the deceased, after putting the same in an iron drum, in the canal of village Kalalwala, after removing the same on a tractor. After the completion of the investigation, the challan was put in before the Sub Divisional Judicial Magistrate, Talwandi Sabo, who committed the same to the Court of Sessions.
After prima facie case was found against the accused, they were charged by the trial court for the offences under Sections 302/34 and 201 IPC, to which they pleaded not guilty and claimed trial. To prove their guilt, prosecution examined Gurcharan Singh, complainant, PW-1, Rakesh Kumar, PW-2, Gurtej Singh, PW-3, Sadhu Singh, PW-4, Dr. Ramesh Maheshwari, Medical Officer, PW-5, Balbir Singh HC, PW-6, Bagha Singh HC, PW-7, Lal Singh, PW-8, Jagga Singh, PW-9, Avtar Singh, PW-10, Sanjeev Goyal SI, PW-11 and Gamdoor Singh, SI CIA Staff, PW-12.
After the evidence was concluded by the prosecution, the accused were examined and their statements were recorded under Section 313 Cr.P.C. The incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their innocence and false implication. It was stated by Charna Singh, accused, that the deceased used to remain under depression even before the death of his Crl. Misc. No. 1159-MA- of 2010 {6} mother and after the death of his mother his mental condition deteriorated and he used to remain out of the house for a couple of days. Due to mental condition he had become a man of quarrelsome nature. He had developed illicit relations with his mother, Malkit Kaur. The lady members of the family of the complainant used to throw the cow dung, manure and garbage in front of his house with an object to block the passage and on that account hot words were exchanged by him with the deceased a number of times. He was arrested from the house itself in the presence of his mother and his wife on 5.2.2009. After many days of his arrest, his mother Malkit Kaur was also arrested. Similar statement was made by Malkit Kaur, accused. They were called upon to enter on their defence but they did not produce any evidence in their defence. After going through the evidence, so produced on the record and hearing learned Public Prosecutor for the State and learned defence counsel for the accused, learned trial court acquitted the accused.
We have heard learned counsel for the applicant-appellant. It has been submitted by counsel for the applicant-appellant that prosecution examined Avtar Singh, PW-10 and Sadhu Singh, PW-4, who made categorical statements that both the accused on different dates made extra judicial confession before them, in which it was admitted by the accused that Charna Singh, accused caused the death of Gurmail Singh, deceased, by giving a blow with the help of sota and further giving blows with the help of brick and that he with the help of his co accused, removed the dead body and threw the same in the canal for destroying the evidence of murder in order to screen himself of that offence. The motive on the part of the accused was also proved by producing evidence to the effect that the Crl. Misc. No. 1159-MA- of 2010 {7} deceased had developed illicit relations with Malkit Kaur, accused, mother of Charna Singh, accused. The accused in pursuance of their disclosure statements got recovered the weapon of offence and gold ring of the deceased. No doubt, the prosecution relied upon the circumstantial evidence but the circumstances stand proved by convincing evidence and the chain of circumstances clearly points towards the guilt of the accused. The learned trial court committed an illegality by ignoring all the above said evidence while acquitting the accused. From that evidence the guilt of the accused stands proved and as such the leave of this Court is to be granted to the applicant-appellant for filing the present appeal against acquittal.
In a case based on circumstantial evidence, the motive becomes very material. In the present case, the motive put forward by the prosecution is that the deceased had developed illicit relations with Malkit Kaur and those relations were not acceptable to her son Charna Singh, accused. The trial court came to the conclusion that the prosecution failed to produce any evidence for proving that motive. It was also observed that in case Malkit Kaur had such illicit relations with the deceased she would not allow her son to commit the murder of the deceased.
The testimony of Avtar Singh, PW-10, before whom Charna Singh is alleged to have made extra judicial confession, was not believed by the trial court on the ground that his conduct itself goes to belie his testimony and that he was a man having criminal background. Similarly, the extra judicial confession made by Malkit Kaur before Sadhu Singh, PW-4 was not accepted by the trial court. The ground recorded by the trial court for not accepting that extra judicial confession is that the said witness Crl. Misc. No. 1159-MA- of 2010 {8} though is the real maternal uncle of the deceased yet he never showed any interest in his death and he was on visiting terms with the deceased and still did not attend his cremation and Bhog ceremony. No reason was found as to why Malkit Kaur confined in that witness to make such damaging extra judicial confession.
Lal Singh, PW-8, made a statement before the trial court that on 19.1.2009, he had seen both the accused coming on a tractor carrying something in a drum, which was put on the lift of the tractor. His statement was not believed by the trial court on the ground that it was not possible for him to identify the tractor when the head lights thereof were on, as the same creates dashing impression on the rider of the scooter.
It also weighed with the trial court that there was delay in reporting the matter to the police and that the dead body after the expiry of 15 days was bound to completely decomposed so as to render unworthy of identification.
While granting the leave applied for, this Court is to bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the Fundamental principles of criminal jurisprudence that every person is presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured acquittal, the presumption of his innocence is certainly not weakened but re-inforced, re-affirmed and strengthened by the trial court. When two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. The submission so raised by the counsel for the applicant-
Crl. Misc. No. 1159-MA- of 2010 {9} appellant will amount to taking a different view on the basis of the evidence so produced before the trial court. After having gone through the judgment of the trial court and keeping in view the submissions of the counsel for the applicant-appellant, we have come to the conclusion that no ground is made out for granting leave to appeal against this judgment of acquittal.
The application and the appeal are dismissed accordingly.
(HEMANT GUPTA) JUDGE (GURDEV SINGH) JUDGE January 10, 2011 PARAMJIT