Punjab-Haryana High Court
Nikka Singh vs State Of Haryana on 16 July, 2013
Author: S.S.Saron
Bench: S.S.Saron
THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Murder Reference No. 4 of 2012
State of Haryana
.......Prosecutor
Versus
Nikka Singh
......Convict/respondent
CRA.No.D-372 DB of 2012.
Date of Decision: 16.7.2013.
Nikka Singh
......Appellant
Versus
State of Haryana
.......Respondent
CORAM: HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present:- Ms. Divya Sharma, Advocate (Amicus Curiae)
and Mr. Ankush Kalia, Advocate, for the
respondent in the murder reference and for the
appellant in appeal.
Mr. H.S. Sran, Additional Advocate General,
Haryana for the State.
****
S.S.SARON, J.
This order will dispose of the reference made by the learned Additional Sessions Judge, Sirsa in terms of Section 366 (1) of the Code of Criminal Procedure, 1973 ('Cr.PC' - for short) for confirmation of the death sentence imposed upon Nikka Singh respondent and the appeal filed by Nikka Singh (hereinafter referred Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [2] to as the 'appellant') against the judgment and order dated 13.3.2012 passed by the learned Additional Sessions Judge, Sirsa whereby the appellant has been convicted for the offences punishable under Sections 302 and 376 of the Indian Penal Code ('IPC' - for short) and has been sentenced to death, as these arise out of the same judgment and order.
FIR (Ex.PJ) has been registered on the statement (Ex.PA) of the complainant Harmeek Singh (PW1) son of Chinder Pal Singh (PW3) resident of village Sawant Khera, Police Station City Dabwali, District Sirsa. It has been alleged by the complainant Harmeek Singh that he is 10+2 pass and agriculturist by profession. Gurdev Kaur (deceased) was his aunt ('Bhua' - sister of his father) and was married with Harnek Singh of village Khudia Gulab Singh Wala. Harnek Singh had died about 35 years earlier without any issue. Gurdev Kaur had been residing with Jai Singh (PW4) (brother of the grandfather of the complainant) for the past 10 years in village Sawant Khera. She used to daily go for a walk on the Masita Road at about 12.00/1.00 p.m. during the day time. At about 1.00 p.m. on the date of the incident i.e. 11.2.2011, Gurdev Kaur had gone for a walk on the Masita Road; however, she did not return back till 4.00 p.m. Complainant Harmeek Singh (PW1) and his brother Harjit Singh went to Masita Road to search for her. They reached the mustard fields of Mal Singh, resident of village Dabwali and saw that Gurdev Kaur was lying dead in the fields. There was a knot of the 'salwar' around her neck and her hands were tied with the same 'salwar' and her feet were tied with a shawl and a very slight corner of the shawl was stuffed in her mouth and there were mustard plant leaves in her Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [3] nose. Harjit Singh, brother of the complainant, was standing on the road and he was called at the spot where Gurdev Kaur lay. The complainant Harmeek Singh (PW1) and his brother Harjit Singh then arranged a private vehicle and carried Gurdev Kaur to Aggarwal private hospital at Dabwali and later she was taken to Gulati Hospital where she was declared dead by Dr. Gulati. They then took her to their home and took off the clothes that she was wearing and put on another set of clothes. Then they informed the matter to Sarpanch Ranjit Singh. They had strong reasons to believe that some unknown person had committed something wrong with her and murdered her in the mustard field. Action was asked to be taken against the unknown person. Statement of complainant Harmeek Singh (PW1) was recorded by SI/SHO Balwant Singh, Police Station City Dabwali (PW11), which was accepted as correct. SI/SHO Balwant Singh, Police Station City Dabwali (PW11) then recorded the police proceedings that he along with ASI Satbir Singh, ASI Raj Kumar and Constable Vijay Kumar were on a Government vehicle No.HR-57- 3346 which was driven by Constable Raj Kumar No.362. They were present at Bathinda Chowk for patrolling and detection of crime. At that time, Moharrar of the Police Station informed that a woman had been murdered in village Sawant Khera. On this information, SI/SHO Balwant Singh (PW11) along with other police officials reached the house of Jai Singh. Harmeek Singh complainant (PW1) met him there and he got his statement recorded. After recording his statement, it was explained to him and he signed it in English after accepting the same as correct which was attested by SI/SHO Balwant Singh. On the basis of the said statement, a case for the offences Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [4] under Sections 302 and 376 read with Section 34 IPC was made out. Accordingly, a 'ruqa' (memo) was sent through Constable Vijay Kumar for registration of a case (FIR). After registration of the case, its number was asked to be intimated and special report was asked to be sent to the higher officers and crime team as well as dog squad were asked to be sent at the spot. SI/SHO Balwant Singh (PW11) conducted investigations at the spot. On the basis of the aforesaid 'ruqa' (memo), a case under the aforesaid Sections of the IPC was registered. Copy of the police file and original 'ruqa' (memo) were sent back through Constable Vijay Kumar to the SI/SHO Balwant Singh (PW11) at the spot. Besides, special reports of the case were sent through special messenger EHC Surjit Singh to the Illaqa Magistrate and higher officers. SI/SHO Balwant Singh (PW11) conducted investigations in the case at the house of Jai Singh (PW4) at village Sawant Khera. He found the dead body of Gurdev Kaur lying on a cot. He recorded the statement (Ex.PA) of the complainant Harmeek Singh (PW1). Inquest proceedings (Ex.PBB) were conducted. Harmeek Singh complainant (PW1) produced the clothes of deceased i.e. shawl, 'jutti' (country made shoes) besides 'salwar- kameej' which contained blood stains. He also produced an undershirt ('shameej') that had been worn by Gurdev Kaur. The same were converted into a parcel and sealed with seal of 'BS' and taken in police possession vide recovery memo (Ex.PB) which was attested by Harmeek Singh complainant (PW1) and Harjit Singh. Their statements were recorded. A photographer (Roshan Lal constable PW9) was called at the spot who took photographs of the dead body. On 12.2.2011, SI/SHO Balwant Singh (PW11) reached Civil Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [5] Hospital, Dabwali for getting the postmortem examination of Gurdev Kaur (deceased) conducted. He submitted an application (Ex.PF) for this purpose. On his application, a Board of doctors was constituted for conducting the postmortem examination of Gurdev Kaur. After conducting the postmortem examination, the doctor produced two phials of swab of deceased Gurdev Kaur and one envelope and sample seal, which were taken in police possession vide recovery memo (Ex.PX). Thereafter, SI/SHO Balwant Singh (PW11) visited the place of occurrence and prepared a rough site plan (Ex.PCC) as pointed out by complainant Harmeek Singh (PW1). He lifted one wooden stick, one piece of gold ear ring, one eye-sight glass. These were converted into a sealed parcel and taken in possession vide recovery memo (Ex.PD). Statements of witnesses were recorded.
On 27.2.2011, SI/SHO Balwant Singh (PW11) recorded the statement of Chinder Pal Singh (PW3) son of Maghar Singh. Chinder Pal Singh (PW3) disclosed that Nikka Singh (appellant) had admitted before him regarding rape and murder of Gurdev Kaur by him. On 28.2.2011, the appellant was arrested and on inquiry, he made a disclosure statement (Ex.PY) wherein he inter alia stated that he had concealed one gold ear-ring and he could get the same recovered; besides, he could demarcate the place of occurrence. He also admitted his involvement in the commission of the crime. Nikka Singh (appellant) was produced before the Illaqa Magistrate and his police remand was obtained. On further interrogation, he made another disclosure statement (Ex.PZ). The appellant then led the police party at the place of occurrence and identified the same. A memo (Ex.PAA) as per the demarcation given by the appellant was Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [6] prepared. The documents (Ex.PY, Ex.PZ and Ex.PAA) were attested by the witnesses. On the same day, the appellant Nikka Singh was produced before the Medical Officer with an application (Ex.PDD) for getting his medical examination conducted. On the said application, the doctor made his endorsement (Ex.PEE). (This during the examination of SI/SHO Balwant Singh PW11 was objected to by the defence). During investigations, a scaled site plan was prepared and statements of witnesses were recorded. After completion of investigation, a police report in terms of Section 173 Cr.PC was prepared and the same was filed in the Court of Sub-Divisional Judicial Magistrate, Dabwali on 13.5.2011. The learned Magistrate vide order dated 27.5.2011, in view of the offences under Sections 302 and 376 IPC being prima-facie made out which were exclusively triable by the Court of Session, committed the case to the Court of learned Sessions Judge, Sirsa. The appellant was directed to be produced in the said Court on 3.6.2011.
The case was assigned to the Court of learned Additional Sessions Judge, Sirsa who on 18.11.2011 charge-sheeted the appellant Nikka Singh on the allegations that he on 11.2.2011 at about 1.00 p.m. in the area of village Sawant Khera committed rape on Gurdev Kaur (since deceased) and thereby committed an offence punishable under Section 376 IPC. Secondly, on the same date, time and place, he committed murder of Gurdev Kaur by causing her death and committed an offence punishable under Section 302 IPC. It was directed that the appellant be tried by the Court of the said charges. The contents of the charges were heard and understood by the appellant and he pleaded not guilty and claimed trial.
Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [7]
The prosecution, in order to establish its case, examined complainant Harmeek Singh (PW1) who deposed on the lines as made in his statement (Ex.PA) before SI/SHO Balwant Singh (PW11).
Dr. Amardeep Jassi, Medical Officer, CHC, Dabwali (PW2) was examined. He had conducted the postmortem examination of the deceased. According to him, the cause of death in this case as per his opinion was asphyxia which was sufficient to cause death in the ordinary course of life. Besides, he stated that he had seen the FSL report (Ex.PH) and opined that human semen was detected on the vaginal swab (marked as exhibit-2 in the FSL). Therefore, it was stated that possibility of rape on the person of Gurdev Kaur (deceased) could not be ruled out.
Chhinder Pal Singh (PW3) (father of the complainant Harmeek Singh) was examined and in his deposition he stated that Nikka Singh (appellant) on 27.2.2011 made an extra-judicial confession before him that when he was going to get fodder from his fields, then he saw that 'bhua' (father's sister) of Chhinder Pal Singh (PW3) was going ahead of him at Masita Road and when they reached near the fields of Mal Singh, then he pushed her due to which she fell down. Then he pulled her in the mustard fields of Mal Singh and after removing her 'salwar', he committed rape on her and put a knot on her neck and after committing rape, he put mustard leaves in her nose and by causing asphyxia/stopping her breath, he murdered her. He further sated that after murdering the 'bhua' (father's sister) of Chhinder Pal Singh (PW3), he remained mentally disturbed and could not sleep properly. He further stated that he wanted to suppress Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [8] this murder and he informed Chhinder Pal Singh (PW3) so that the police may not harass him by beating him. Thereafter, he asked Chhinder Pal Singh (PW3) to inform the police regarding the incident of murder.
Jai Singh (PW4) was examined by the prosecution. He is the brother of Maghar Singh who is the father of Chhinder Pal Singh (PW3). He stated that Gurdev Kaur (deceased) was his sister and used to reside with him. On the date of the incident his wife had told him that his sister Gurdev Kaur had gone for a walk and she had not returned back. He was informed that Harmeek Singh (PW1) and Harjit Singh had taken the dead body of Gurdev Kaur to Aggarwal Hospital, Dabwali. He saw her clothes at the house and on seeing them; he came to know that she was raped. A gold ear-ring and a spectacle were found from the spot while the other ear-ring was missing. There was no dispute whatsoever with Gurdev Kaur. Nikka Singh (appellant), it is stated, had raped and murdered his sister Gurdev Kaur.
EHC Surjit Singh (PW5) delivered the special report to the Sub-Divisional Judicial Magistrate, Dabwali and also copy of the same to DSP, Dabwali.
Puran Chand, DSP (Detective), Sirsa (PW6) conducted an inquiry in this case on the complaint (Ex.PK) of Karnail Singh and submitted his report (Ex.PS). In his inquiry, he recorded the statements (Ex.PL and Ex.PM) of two ladies namely S.D. and R.R. (full names are withheld) who stated that Nikka Singh (appellant) had outraged their modesty but to avoid social stigma they had not reported the matter. Puran Chand, DSP (PW6) in his inquiry Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [9] report (Ex.PS) came to the conclusion that Nikka Singh (appellant) was indeed the culprit in the case and the complaint (Ex.PK) had been filed with a view to save him and with the intention to put pressure, in which there was no truth.
Subhash Chander EHC (PW7) tendered in evidence his affidavit (Ex.PT) which is to the effect that on 3.3.2011, MHC Krishan Kumar (PW12) handed over to him the parcels relating to the present case. One parcel of 'kameej' (shirt), 'salwar' of deceased Gurdev Kaur sealed with seal 'BS' with specimen seal and two small bottles of swab with one envelope sealed with seal of mortuary along with specimen seal through RC No.80 dated 3.3.2011 for depositing the same in DFSL, Madhuban. All these articles were handed over to him by taking out from Malkhana of the Police Station. On the same day, on reaching the DFSL, Madhuban, he deposited the articles and got a receipt in lieu of this, which was handed over by him to the MHC of the Police Station. So long as the parcels remained with him there was no tampering of the same.
Jaswant Singh, Revenue Patwari, Halqa Neela Wali, Dabwali (PW8) was examined. He proved the site plan (Ex.PU) which was prepared by him on the pointing out by the Inspector/SHO Balwant Singh (PW11).
Roshan Lal Constable (PW9) of Police Station, City Dabwali stated that he took the photographs of the dead body of Gurdev Kaur which are Ex.PV/1 and Ex.PV/2 and also took the photographs of the place of occurrence which are Ex.PV/3 to Ex.PV/6. He signed all the photographs which were handed over to the Investigating Officer.
Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [10]
Raj Kumar ASI (PW10) deposed that he was joined in the investigation with Inspector/SHO Balwant Singh (PW11). He got the postmortem examination on the dead body of Gurdev Kaur conducted on 12.2.2011. After the postmortem examination, parcels of swabs and one envelope containing papers were produced before the SHO by the Medical Officer, which were taken in possession vide memo (Ex.PX) which was attested by him and the witnesses.
Balwant Singh Inspector (PW11) was the SI/SHO at Police Station, Dabwali at the time of the incident and he conducted the investigations in the case. He deposed regarding the investigations conducted by him.
EASI Krishan Kumar (PW12) was posted as MHC, Police Station City Dabwali on 12.2.2011. He tendered in evidence his affidavit (Ex.PFF) which is regarding the case property deposited in the Malkhana on 12.2.2011. The articles that were deposited are one parcel of pair of black colour shoes, one shawl, one shirt of deceased Gurdev Kaur sealed with seal 'BS' with sample seal, one parcel of wooden stick sealed with seal 'BS', one parcel of gold ear ring of deceased Gurdev Kaur, one parcel of pink colour spectacles of deceased Gurdev Kaur some white hair and 1-2 black hair sealed with seal 'BS' and one envelope PMR No.ADJ/DB/1/11 dated 12.2.2011 and two small bottles of swabs sealed with seal of mortuary with sample seal. On 3.3.2011 EASI Krishan Kumar (PW12) handed over all the parcels to EHC Subhash Chander (PW7) for depositing the same in DFSL Madhuban. The latter after depositing the articles handed over the receipt to him.
Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [11]
Apart from the witnesses that were examined, documentary evidence including the FSL reports (Ex.PH and Ex.PH/1) were tendered in evidence. In terms of the FSL report (Ex.PH), the articles were received in the division where the tests were conducted on 3.3.2011. Two parcels were received, which contained sealed airtight glass vials containing exhibit-2 and exhibit-3 respectively stated to be of deceased Gurdev Kaur. Exhibit-2 is mentioned as one cotton wool swab without stick described as vaginal swab. Exhibit-3 is mentioned as one blackish damp cotton wool swab without stick along with fungus like material described as vaginal swab. After laboratory examinations were carried out to detect the presence of semen on the exhibits, it was opined that; human semen was detected on exhibit-2 (vaginal swab). However, semen could not be detected on exhibit-3 (vaginal swab). As per the other FSL report (Ex.PH/1), human blood was found on lady's shirt (exhibit-1a) and 'salwar' (exhibit-1b). The prosecution evidence was closed.
The statement of the appellant in terms of Section 313 Cr.PC was recorded and the substance of the evidence appearing against him was put to him. In his defence, the appellant stated that the present case was registered against him at the instance of Harmeek Singh complainant (PW1) and his family members as they wanted to grab land of Gurdev Kaur (deceased). She owned land at village Sawant Khera and also owned land at village Khudia Gulab Singh Wala which came in her name from the family of her in-laws or her husband. Besides, Gurdev Kaur also had bank balance. She was issueless lady and the complainant party wanted to grab her land Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [12] and bank balance. They killed her and his name had been disclosed falsely by Chhinder Pal Singh (PW3) who was also close relative of the complainant. The complainant party, it is stated, was having doubts that Gurdev Kaur (deceased) could transfer her land and bank balance in favour of someone out of the family of complainant.
The learned Additional Sessions Judge after considering the evidence and the material on record has convicted the appellant for the offences punishable under Sections 376 and 302 IPC and sentenced him to death. The appellant feeling aggrieved of the same has filed the present appeal.
Ms. Divya Sharma, Advocate (amicus curiae) for Nikka Singh respondent in the murder reference and appellant in the appeal has submitted that the present is a case of blind murder in which no accused is named in the FIR (Ex.PJ). In any case the prosecution case is based solely on the statement of Chhinder Pal Singh (PW-3) before whom Nikka Singh (appellant) is said to have made an extra-judicial confession. It is submitted that an extra- judicial confession is a weak type of evidence and not much reliance can be placed on the same; especially when Chhinder Pal Singh (PW-3) before whom the extra-judicial confession was made is none else but the father of Harmeek Singh, complainant (PW-1) and nephew of Gurdev Kaur (deceased). Therefore, the appellant would not make an extra-judicial confession before such a person. It is also submitted that there is considerable delay in lodging the FIR inasmuch as the incident according to complainant Harmeek Singh (PW-1) had occurred in the noon time and the information Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [13] was given at the Police Station at 11.00 p.m. and thereafter, the special report was received by the Sub-Divisional Judicial Magistrate at 1.25 a.m. on 12.2.2011. Therefore, this time, it is submitted, was used for deliberations and preparing a false case inasmuch as the delay is sought to be explained by the prosecution by stating that Gurdev Kaur (deceased) was first taken to Aggarwal Hospital, then to Dr. Gulati who declared her brought dead and thereafter, her dead body was taken home where her clothes were changed and information was given to the Sarpanch who then informed the Police. Therefore, all this time has been mentioned as having been consumed so as to cover the delay. It is also submitted that the allegations of rape are absolutely false as Dr. Amardeep Jassi, Medical Officer, CHC Dabwali (PW-3) has merely stated that possibility of rape cannot be ruled out. It is submitted that Gurdev Kaur (deceased) was 73-75 years old and the appellant would not commit rape on her. Besides, a reference has been made to the affidavit (Ex.PE) of Dr. Amardeep Jassi (PW-3) wherein he has inter alia stated that on performing PV examination, vault was found closed, no cervix was present which suggested surgical removal of uterus. It is submitted that the cause of death has been opined to be due to asphyxia. However, to create a false case, blood was put on the clothes of the deceased Gurdev Kaur after she was taken home which clothes were handed over to the police and were taken in possession vide recovery memo (Ex.PB). However, the said recovery memo (Ex.PB) would show that the undershirt ('shameej') of Gurdev Kaur (deceased) was not Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [14] taken in possession as it did not have any blood-stains, which is indicative of the fact that the blood on the shirt and the 'salwar' were put later on and this is more so for the reason that there were no such injuries on the person of Gurdev Kaur, which resulted in bleeding. It is also submitted that there is considerable delay in sending the vaginal swabs to the FSL inasmuch as Dr. Amardeep Jassi (PW2) conducted the post-mortem examination on 12.2.2011 and he had handed over the vaginal swabs to the police on the same day but the swabs were given to EHC Subhash Chander (PW7) on 3.3.2011 who deposited them with the DFSL, Madhuban on the same day and were received at the FSL in the division where the tests were carried out on 3.3.2011. According to the FSL reports Ex.PH and Ex.PH/1 examination of the vaginal swabs; and lady's shirt and 'salwar' was conducted on 27.4.2011 and 29.4.2011. In terms of FSL report (Ex.PH), both the swabs were without sticks and one of them had developed fungus. A reference has been made to the confessional statements Ex.PY and Ex.PZ respectively of the appellant Nikka Singh, which it is stated have been made before the Police and are hit by Section 25 of the Evidence Act. In any case, in the confessional statements (Ex.PY and Ex.PZ) there is no reference to any rape having been committed by the appellant. It is also submitted that the past character of the appellant regarding him as per the report (Ex.PS) of DSP Puran Chand (PW6) is not liable to be taken into consideration in view of the provisions of Section 54 of the Evidence Act. It is also submitted that the complaint side in fact Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [15] had a strong motive to kill Gurdev Kaur as they would benefit from the land in her name. A reference has been made to the Jamabandi (Ex.DA) in this regard in which Gurdev Kaur is shown to be owner of land measuring 25 kanals 19 marlas in the revenue estate of Sawant Khera. Therefore, it is submitted that no case whatsoever is made out against the appellant and the entire case is false and he is liable to be acquitted. In any case, it is submitted that the order of the learned trial Court imposing the sentence of death is unsustainable and is liable to be set aside as it is clearly not a case which can be said to fall in the category of 'rarest of the rare'.
In response, Sh. H.S. Sran, Additional Advocate General, Haryana learned counsel appearing for the State has submitted that the prosecution has clearly established its case by producing cogent and convincing evidence. It is submitted that the appellant had committed the murder of Gurdev Kaur (deceased) after he had committed rape on her. It is submitted that an independent inquiry was conducted by DSP Puran Chand (PW6) and he submitted his report (Ex.PS) in which he not only recorded the statement of the complainant side but also that of the accused. He had gone to the spot and examined all the witnesses and then come to the conclusion that the police proceedings were correct and that Nikka Singh (appellant) was the real culprit. The complaint (Ex.PK) filed by one Karnail Singh, it was observed, was only to save the appellant. The sentence of death it is submitted has been rightly imposed and the act of the appellant in Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [16] murdering an aged lady after committing rape on her, which is established from the deposition of Dr.Amardeep Jassi (PW2), would warrant that the same is upheld and sustained.
We have given our thoughtful consideration to the matter. The FIR (Ex.PJ) has been registered on the statement of Harmeek Singh, complainant (PW-1) who reported the matter to the Police inter alia alleging that some unknown person had committed something wrong with Gurdev Kaur (deceased) and murdered her in the mustard fields. In order to appreciate the case, the following pedigree table which is discernible from the deposition of Jai Singh @ Ajaib Singh (PW-4) who is the younger brother of Maghar Singh and with whom Gurdev Kaur (deceased) was living may be noticed:-
Daman Singh Maghar Jai Singh Resham Kaur Gurdev Kaur Singh (PW-4) Both married to (deceased) Harnek Singh of Gudia Gulab Singh (Died 35 years ago) Shivraj Chhinder Pal Singh Singh (PW-3) [His statement [before whom Nikka Singh Ex. PN recorded appellant made an extra-
by DSP Puran Chand judicial confession)
(PW-7)]
Harmeek Singh Harjit Singh
Complainant (PW-1) (given up by
the prosecution)
Amit Khanchi
2013.07.17 10:44
I attest to the accuracy and
integrity of this document
High Court,Chandigarh
Murder Ref. No.4 of 2012 &
CRA-372-DB of 2012 [17]
Jai Singh (PW-4) in his deposition has stated that they were two brothers and four sisters. Name of his elder brother was Maghar Singh who resides separately. His elder sister (Resham Kaur) was married to Harnek Singh at village Gudia Gulab Singh.
As Resham Kaur was issueless, his second sister Gurdev Kaur (deceased) was married to Harnek Singh and she too was issueless and his sisters were issueless. He was taken to their matrimonial home by his sisters and was married there. His brother-in-law (Harnek Singh) died in the year 1972 before his marriage and after his death 38-40 acres of agricultural land and residential house was sold. In the exchange of that land they purchased land at village Sawant Khera which was got transferred in the names of both the brothers (Jai Singh-PW4 and Maghar Singh) in equal share. Gurdev Kaur (deceased) used to reside with him. On 11.2.2011 she went for a walk in the afternoon on the Masita road. He had gone to Dabwali at that time. His wife told him that his sister had gone for a walk and had not returned back. He was informed that Harmeek Singh, complainant and Harjit Singh had taken the dead body of his sister to Aggarwal Hospital at Dabwali. Her clothes were lying at the house and on seeing them he immediately came to know that she was raped. A gold ear ring and spectacle were found at the spot while the other gold ear ring was missing. There was no land dispute whatsoever with Gurdev Kaur (deceased) Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [18] including them. Nikka Singh alias Bhola (appellant) had raped and murdered his sister Gurdev Kaur (deceased). In cross examination, it is stated that Nikka Singh (accused) was resident of their village Sawant Khera and he had not informed anybody in the village regarding the gold ear ring of his sister. He made his statement to the police which was recorded on 21.2.2011. He did not know as to whether police recorded in his statement that he could guess from the wearing clothes of his sister that she was raped. On 11.2.2011 he was not knowing as to whether Nikka Singh (appellant) had done all this or not. By 21.2.2011 it was clear that Nikka Singh had murdered his sister. They came to know that the accused (appellant) had committed rape on his sister and then murdered her. He did not know whether the police recorded his statement to this effect or not. Harmeek Singh, complainant (PW1) reiterated the prosecution case as was stated by him in his statement (Ex.PA) on the basis of which FIR (Ex.PJ) was registered.
The prosecution case, therefore, is that Gurdev Kaur (deceased) had gone for a walk at about 12/1 .00 p.m. on 11.2.2011 on the Masita road and she did not return back till 4.00 p.m. Then complainant Harmeek Singh (PW-1) along with his brother Harjit Singh went to Masita road to search for Gurdev Kaur (deceased). They reached the mustard fields of Mal Singh of village Dabwali and saw that Gurdev Kaur (deceased) was lying dead in the field. There was a knot of 'salwar' around her neck and both her hands were tied with the same 'salwar'. Besides, both her feet were tied Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [19] with a shawl. A slight corner of the shawl was stuffed in the mouth of Gurdev Kaur (deceased). There were mustard leaves put in her nose. Gurdev Kaur (deceased) was then taken to Aggarwal Private Hospital, Dabwali and then to Gulati Hospital. At Gulati Hospital she was declared dead by Dr. Gulati. They brought the dead body home and took off the clothes that she was wearing and dressed her with another set of clothes. The matter was then reported to Ranjit Singh, Sarpanch. It was a blind murder and they had strong reasons to believe that some unknown person had committed wrong with Gurdev Kaur and then murdered her in the mustard fields. Balwant Singh SI/SHO, Police Station City Dabwali (PW-11) on getting to know about the incident went to village Sawant Khera and recorded the statement (Ex.PA) of Harmeek Singh, complainant (PW-1). Harmeek Singh, complainant (PW-1) produced before him the clothes of the deceased i.e. shawl, and 'jutti' (country made shoes) and 'kameej salwar' containing blood-stains and also an undershirt (shameej) which were converted into a parcel and sealed with seal 'BS' and taken in possession vide recovery memo Ex.PB. The dead body was sent for post-mortem examination. The post mortem examination on the dead body was conducted by Dr. Amardeep Jassi, Medical Officer, Civil Hospital, Dabwali (PW-2). He observed Gurdev Kaur (deceased) to be aged about 73-75 years. He tendered in evidence his affidavit (Ex.PE). He conducted autopsy as per police request (Ex.PF) as directed by Dr. Balesh Bansal. Carbon copy of the postmortem report (Ex.PG) was Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [20] tendered in evidence. The cause of death according to Dr. Amardeep Jassi (PW-2) was 'asphyxia' which was sufficient to cause death in the ordinary course of life. He recorded the case history, which is to the effect that after rape had been committed on the person of Gurdev Kaur (deceased), she was murdered. On performing vaginal examination, he had sent the vaginal swabs to the police for sending them to the FSL Madhuban, Karnal. The police had taken vaginal swabs from him on the same day. He had seen the FSL report (Ex.PH) in terms of which human semen had been detected on the vaginal swab which was exhibit-2. Therefore, according to him possibility of rape on the person of Gurdev Kaur (deceased) was not ruled out. In the affidavit (Ex.PE) Dr. Amardeep Jassi (PW-2) on examination of Gurdev Kaur observed as follows:-
"1. Length of body was 5'.
2. There was mark of :-
(i) Multiple small abrasions
present on the font of neck in its
middle third. These were red in
colour.
(ii) Obliquely placed, Red in
colour abrasion present on both
sides of neck.
3. A body of elderly female of average built and nutrition wearing grayish brown salwar suit. Hair completely white and Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [21] long. Both eyes closed, face and neck appeared puffy.
4. I found following injuries on dead body:
(i) Obliquely placed abrasion on left knee of size 5 x 2 cm.
(ii) Bluish contusion of 3.5 x 2.5 cm on right thigh in the middle third.
(iii) Multiple abrasions present on the front of neck, in its middle third. These were red in colour.
(iv) Obliquely placed. Red in color abrasions present on both sides of neck.
On further dissection of tissues: Brain found congested and containing petechial haemorrhages.
On further dissection of injuries No.3 and 4 there was extra vesation of blood in subcutaneous tissues and muscles. There was laceration of sheath of carotid artery.
Post mortem staining present.
Rigor mortis present in all 4 limbs. Plurae congested, both lungs congested and showing petechial Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [22] haemorrhages and excluding dark fluid on section.
Larynx and Trachea congested, containing bloody forth.
Right side of heart found relatively empty, left side found containing dark colour blood.
Abdominal wall was bearing a subumblical vertical midline scar mark from umbilicus down upto just above monspubis (12 x 2 cm in size).
On performing PV examination, vault was found closed, no cervix present. Suggesting surgical removal of uterus."
A perusal of the above report shows that on dissections of injuries No. 3 and 4 there was extra vesation of blood in subcutaneous tissues and muscles. Besides, on performing PV examination, vault was found closed and no cervix was present which suggested removal of uterus. Therefore, none of the injuries which are there on the person of Gurdev Kaur (deceased) was found bleeding except that on dissection of injuries No.3 and 4 there was extra vesation of blood in subcutaneous tissues and muscles. In the circumstances, it is unclear as to how the clothes that were worn by deceased Gurdev Kaur i.e. 'salwar' and 'kameej' which were vide memo (Ex.PB) handed over to Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [23] SI/SHO Balwant Singh (PW-11) were stained with blood. In any case why was the undershirt ('shameej') not stained with blood and therefore, was not taken in possession by the police vide recovery memo (Ex.PB) wherein it is specifically mentioned that the undershirt ('shameej') did not have any stain.
The vaginal swabs that were taken by Dr. Amardeep Jassi were given to the Police on the same day i.e. 12.2.2011. Subash Chander EHC (PW-7) tendered in evidence his affidavit (Ex.PT). It is stated in the said affidavit (Ex.PT) that on 3.3.2011 MHC Krishan Kumar handed over to him the parcel relating to the above case, one parcel of 'kameej' (shirt) and 'salwar' of deceased Gurdev Kaur sealed with the seal 'BS' with specimen seal and two small bottles of swab with one envelope sealed with seal of mortuary with specimen seal through RC No.80 dated 3.3.2011 for depositing the same with DFSL, Madhuban. These were handed over to him after taking them out from the 'Malkhana' of the Police Station. On the same day on reaching DFSL Mahuban, he deposited the said parcels and got a receipt in lieu of it, which was handed over to the MHC of the Police Station. So long as the parcels remained with him, there was no tampering with them. In cross examination, it is stated that the sample parcels were handed over to him on 3.3.2011 at about 4.40 a.m. Sample parcels were affixed with the seal monogram 'BS'. No rapat (report) was made in the rapat roznamacha (Daily Diary Register) regarding collecting the sample. The receipt was returned to the MHC on the next day at about 11.00 a.m. The FSL report (Ex.PH) mentions Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [24] that the articles were received on 3.3.2011 which contained two sealed air tight glass vials containing exhibit-2 stated to be of deceased Gurdev Kaur. Exhibit-2 is mentioned as a cotton wool swab without stick described as vaginal swab. Exhibit-3 is mentioned as one blackish damp cotton wool swab without stick along with fungus like material described as vaginal swab. Laboratory examinations were conducted to detect the presence of semen on the exhibits by performing chemical tests and microscopy. Based upon the examination, the results were given as follows:-
"1. Human semen was detected on exhibit-2 (vaginal swab.). However, semen could not be detected on exhibit-3 (vaginal swab) as mentioned above."
The said report is dated 27.4.2011. The report Ex.PH/1 mentions that the articles mentioned therein were received in the division on 7.4.2011. The articles contained exhibit-1a and exhibit-1b. Exhibit-1a is a white lady's shirt stained with brownish stains and exhibit- 1b is a white 'salwar' stained with few medium and small brownish stains. After laboratory examination it was opined that exhibit-1a (lady's shirt) and exhibit-1b ('salwar') were stained with blood stains. In terms of the serological analysis, the lady's shirt and Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [25] 'salwar' contained human blood. The said report is dated 29.4.2011. It may be noticed that one of the vaginal swabs had developed fungus.
The police recorded the statement (Ex.PR) of Chhinder Pal Singh (PW-3) father of complainant Harmeek Singh (PW1) on 27.2.2011. According to Chhinder Pal Singh (PW-3) Gurdev Kaur (deceased) was his real 'bhua' (father's sister) and she used to reside with her brother Ajaib Singh (Jai Singh - PW 4). He used to reside in the nearby area. On 11.2.2011 his 'bhua' (father's sister) was murdered in the mustard fields of Mal Singh on the Masita road. They kept searching for the culprit in the village. On 27.2.2011 at about sunset time when he was returning to his fields and was near the bus stand of village Sawant Khera, then Nikka Singh (appellant) met him and informed him that he was going to get fodder from his fields then he saw his 'bhua' (father's sister) going ahead of him on the Masita road and when they reached near the fields of Mal Singh then he pushed his 'bhua' due to which she fell down and then he pulled her in the mustard fields of Mal Singh and after removing her 'salwar', he raped her and put a knot in her neck and after committing rape, he put mustard leaves in her nose and by causing asphyxia/stopping her breath, he murdered her and then he came to his house. He further informed Chhinder Pal Singh (PW-3) that after murdering his 'bhua', he was mentally disturbed and could not sleep properly. Nikka Singh (appellant) told Chhinder Pal Singh (PW-3) that he Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [26] wanted to hide this murder and he asked Chhinder Pal Singh (PW-
3) to inform the police so that they do not harass him and beat him. While Chinder Pal Singh (PW3) was taking Nikka Singh (appellant), the police was coming to his house and met him on the way. Nikka Singh (appellant) was handed over to the police by Chhinder Pal Singh (PW3). In cross-examination it is stated that his 'bhua' (father's sister) was not having any property in her name. His 'phufa' (father's sister's husband) was having 38-40 acres of land. She was living with her brother since the year 1994 as she was a widow. It is stated that the entire village came to know of the incident when Nikka Singh (appellant) was apprehended by the police. Only his statement was recorded by the police. He had not gone to the spot.
Apart from the aforesaid evidence, Puran Chand DSP (Detective), Sirsa (PW-6) conducted an inquiry on the complaint (Ex.PK) of one Karnail Singh who had alleged that Nikka Singh (appellant) had been falsely implicated. Puran Chand, DSP (D) (PW-6) deposed that he inquired into the matter by calling both the parties and recording their statements. He visited the place of occurrence at village Sawant Khera where he recorded the statement (Ex.PL) of a lady namely SD and statement Ex. PM of another lady namely RR (full names are not mentioned). Besides, he recorded the statement (Ex.PN) of Shiv Raj who is the brother of Chhinder Pal Singh (PW-3). Statement (Ex.PP) of Ranjit Singh and statement (Ex.PQ) of Karnail Singh on whose complaint, the inquiry was being conducted were recorded. Besides, statement Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [27] (Ex.PR) of Chhinder Pal Singh (PW-3) was recorded. He prepared his report (Ex.PS) and in his inquiry, he found that Nikka Singh (appellant) was being correctly charge-sheeted and was the culprit. In cross-examination it is stated by him that many people had told him that Nikka Singh had outraged the modesty of several ladies. Therefore, he recorded the statements (Ex. PL and Ex.PM) of victims of SD and RR whose modesty had been outraged by the appellant Nikka Singh sometimes ago. He had done investigation regarding the occurrence. It is stated that Nikka Singh (appellant) is married. A perusal of the statement (Ex.PN) of Shiv Raj Singh shows that it has been signed and thumbmarked by various persons of the village. It is stated that the ladies namely SD and RR had appeared on their own. The statements (Ex. PL and Ex. PM) that were recorded of the ladies by Puran Chand, DSP (D) (PW-6) are not substantive evidence in the trial inasmuch as they have not appeared to depose in the case. The statement (Ex.PN) of Shiv Raj Singh is signed by several persons. However, Shiv Raj Singh and the other persons who are signatories to the statement Ex.PN also did not appear in the case. From the said statements and the enquiry report (Ex.PS) of DSP Puran Chand (PW-6) an inference is sought to be drawn that Nikka Singh (appellant) had propensity towards outraging the modesty of women in the village and, therefore, he was the culprit in the present case. It may, however, be noticed that previous bad character of a person is not relevant for the purpose of recording a finding of guilt of the appellant Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [28] Nikka Singh in view of the provisions of Section 54 of the Indian Evidence Act 1872 which read as under :-
"54. Previous bad character not relevant, except in reply - In criminal proceedings the fact that the accused person has a bad character is irrelevant, unless evidence has been given that he has a good character, in which case it becomes relevant.
Explanation - 1. This section does not apply to cases in which the bad character of any person is itself a fact in issue. Explanation - 2. A previous conviction is relevant as evidence of bad character."
In terms of the above, in criminal proceedings the fact that the accused person has a bad character is irrelevant unless evidence has been given that he has a good character in which case it becomes relevant. In terms of the explanation, the section is inapplicable to cases in which the bad character of any person is itself a fact in issue. Besides, previous conviction is relevant as evidence of bad character. In criminal cases in view of the mandate of Section 54 of the Evidence Act, bad character of an accused for establishing his guilt is inconsequential. It is a protection given to an accused so as not to be put in the category of persons having bad character except to the extent the circumstances are mentioned in the provision. Even if the Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [29] evidence as to previous character has been admitted in evidence and it is taken to be merely a defect or irregularity, in that case even in the facts and circumstances it would occasion of failure of justice as the appellant has not been able to impeach the statements of those who had deposed before Puran Chand, DSP (D) (PW-6) by subjecting them to cross examination. Therefore, merely because two ladies SD and RR had stated before DSP Puran Chand (D) (PW-6) that the appellant had outraged their modesty that by itself would not warrant the drawing of an inference to hold that the appellant had committed rape and murder on Gurdev Kaur (deceased).
The other evidence that has been brought on record by the prosecution are the two confessional statements Ex.PY and Ex.PZ of Nikka Singh (appellant). The confessional statement dated 28.2.2011 (Ex.PY) of the appellant has been made before SI/SHO Balwant Singh (PW-11) and witnessed by ASI Raj Kumar who are both police officials. In terms of the said confessional statement it is stated by the appellant that he does labour work and on 11.2.2011 he was going to the fields for getting fodder. In the meantime, an old woman namely Gurdev Kaur (deceased) was seen coming on the Masita Road for a walk in front of him. When he reached near Masita Road in the fields of Harbans Singh, he lost his senses for a while and in anger he pushed Gurdev Kaur (deceased) as a result of which she fell down. When he saw her she was unconscious and he dragged her to the mustard fields of Mal Singh of village Dabwali. He removed her salwar and tied her Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [30] hands and put a knot on her neck and tied her feet with a shawl and stuffed a slight corner of the shawl in her mouth, besides, he stuffed mustards leaves in her nose and committed her murder. Due to greed he removed her gold ear rings and reached home. He could demarcate the place where he committed the murder of Gurdev Kaur (deceased) and get recovered the ring. About the said fact, none else except him knew about it. A perusal of the said confessional statement dated 28.2.2011 (Ex.PY) shows that it has been made before the Police, besides, it is marked as 'seen' by the Sub-Divisional Judicial Magistrate on 28.2.2011 itself. The other confessional statement is also dated 28.2.2011 (Ex.PZ) and is recorded by Balwant Singh SI/SHO (PW-11) and witnessed by ASI Raj Kumar. It is stated by the appellant that on that day i.e. 28.2.2011 during the day, he got recorded his confessional statement (Ex.PY) regarding gold ear ring. He had due to fear stated that the gold ear ring was concealed in his house. Now, he was speaking the truth that on 11.2.2011 he committed the murder of Gurdev Kaur (deceased) in the mustard fields but he did not now know anything about the gold ear ring. He dragged Gurdev Kaur (deceased) in the mustard fields and the ear ring probably fell in the mustard fields while dragging her. He could demarcate the place where he committed the murder of Gurdev Kaur (deceased). In the murder none else was with him and he was alone. He dragged Gurdev Kaur (deceased) in the mustard field with the intention to commit rape upon her but on hearing sounds of vehicles on the road he got perturbed and could not do anything Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [31] wrong act. He came to the house after committing the murder of Gurdev Kaur (deceased). His confessional statement was recorded. Thumb impression of his left hand was also appended on his said confessional statement (Ex.PZ) and witnesses had also appended their signatures. A perual of the said confessional statements (Ex.PY and Ex.PZ) show that these were made before police officials who were investigating the case. Therefore, these clearly are not proved as against a person accused of the offence in view of Section 25 of the Evidence Act. As such these were inadmissible in evidence. Merely because these have been marked as exhibit, it does not dispense with the procedure provided for proving documents. Besides, the said statements (Ex.PY and Ex.PZ) do not lead to discovery of any new fact or recovery of the gold ring. The place where the dead body of Gurdev Kaur (deceased) was lying in the mustard fields was in the knowledge of the police as Harmeek Singh, complainant (PW-1) had stated that the dead body was in the mustard fields of Mal Singh. From where he lifted it and took it to Aggarwal Hospital and then to Dr. Gulatis Hospital. Therefore, admittedly no new fact was discovered. The gold ear ring in pursuance of the disclosure statement (Ex.PY) was also not recovered. Moreover, in the said two confessional statements (Ex.PY and PZ) the appellant in any case does not admit his having committed rape upon Gurdev Kaur (deceased). In his statement (Ex.PZ) he states that he dragged Gurdev Kaur with the intention to commit rape. Therefore, even if the statements were to be relied upon, in respect of the allegation of Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [32] rape, the statement (Ex.PZ) is exculpatory as the appellant does not accept the fact of committing rape and only mentions of an intention to commit rape. In Palvinder Kaur v. State of Punjab, AIR 1952 SC 354 it was held that a confession must either admit in terms the offence, or at any rate substantially all the facts which constitute the offence. An admission of a gravely incriminating fact, even a conclusively incriminating fact is not of itself a confession. A statement that contains self-exculpatory matter cannot amount to a confession, if the exculpatory statement is of some fact, which if true, would negative the offence alleged to be confessed. Therefore, a perusal of the above, the confessional statements (Ex.PY and Ex.PZ) even if they are to be relied upon though there is nothing to rely on the same, the same would in any case be exculpatory insofar as the charge of rape is concerned, inasmuch as the appellant does not admit the commission of rape. Therefore, both the confessions are liable to be ruled out of consideration.
From the above said facts and circumstances, it may be noticed that:-
(1) The case is primarily based on the extra-
judicial confession said to have been made by Nikka Singh (appellant) before Chhinder Pal Singh (PW-3) who is none other than the father of the complainant Harmeek Singh (PW-1) and nephew of the deceased Gurdev Kaur. Therefore, it is quite unlikely that a Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [33] person would confess the crime to the father of the complainant and the nephew of the deceased Gurdev Kaur. Even otherwise, extra-judicial confession is a weak type of evidence. In Sahadevan v. State of T.N., (2012) 6 SCC 403 it was observed as follows:-
"Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
(ii) It should be made voluntarily and should be truthful.
(iii) It should inspire confidence. Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh
Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [34]
(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
(vi) Such statement essentially has to be proved like any other fact and in accordance with law."
Besides, the extra-judicial confession is not corroborated by independent evidence and it does not inspire confidence. There is no other circumstance to connect the appellant with the crime. Therefore, it would be quite unsafe to record a finding of guilt on the basis of such an extra-judicial confession.
(2) The report (Ex.PS) of Puran Chand, DSP (PW-
6) which is based on the statements recorded by him i.e. statements (Ex.PL) of SD, Ex.PM of RR, Ex.PN of Shiv Raj Singh, Ex.PP of Ranjit Singh, Ex.PQ of Karnail Singh and Ex.PR of Chhinder Pal Singh (PW-3) merely, go to project that the appellant is of not a good Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [35] character inasmuch as it has been alleged that he had attempted to outrage the modesty of SD and RR. However, they have not appeared in the witness box to depose in this regard. The said statements are not liable to be accepted only on the basis of the statement of Puran Chand, DSP (PW-6), in the absence of those making the statements being examined and subjected to cross-examination. These are in fact not of much significance. Shiv Raj Singh whose statement (Ex.PN) was recorded is the brother of Chhinder Pal Singh (PW-3). It is inter alia stated by Shiv Raj Singh that earlier also Nikka Singh (appellant) tried to outrage the modesty of 2/3 women but the Panchayat in order to save them from social stigma did not initiate any action. Besides, according to Shiv Raj Singh, his father's sister (bhua) Gurdev Kaur (deceased) resides in their house whereas according to Jai Singh (PW-4) who is the father's elder brother of Shiv Raj Singh has stated that she resided with him. Ranjit Singh whose statement (Ex.PP) was recorded has merely stated that he is Sarpanch of village Sawant Khera. On 11.2.2011 Gurdev Kaur (deceased) was murdered in their village. On Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [36] receipt of information from her family members, he informed the police of Police Station City Dabwali through telephone and got the case registered as per rules. Karnail Singh whose statement (Ex.PQ) was recorded is the person who submitted the application Ex.PK stating that Nikka Singh (appellant) was innocent and had been falsely implicated in the case. He had nothing to do with the family of Gurdev Kaur (deceased). Karnail Singh in his statement (Ex.PQ) states that the real culprit should not escape and an innocent person should not be implicated. The statement (Ex.PR) of Chhinder Pal Singh (PW-3) was recorded by Puran Chand, DSP (PW-6) in which he reiterates that the appellant had admitted before him that he committed murder of Gurdev Kaur. As per the inquiry report (Ex.PS), Nikka Singh (appellant) was the real culprit. In the inquiry DSP Puran Chand (PW-
6) records that Nikka Singh (appellant) had admitted before Chhinder Pal Singh (PW-3) that he dragged Gurdev Kaur (deceased) in the mustard fields of Mal Singh of village Dabwali with intention to commit rape on her but on hearing the noise of vehicles on the road he got Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [37] perturbed and did not commit any rape on her and that after committing the murder of Gurdev Kaur (deceased) he came to his house. It is mentioned that since respectables of the village stated that character of accused Nikka Singh (appellant) remained suspicious and earlier also he outraged the modesty of 2-3 persons but the villagers in order to avoid social stigma did not initiate any proceedings and proceedings under Sections 107/151 CrPC (security proceedings) were initiated against him on 17.4.2010. In this regard statements (Ex.PL and Ex.PM) of SD and RR were recorded which were attached.
Therefore, the conclusion that has been reached at is on the basis of previous bad character of the appellant Nikka Singh. However, in view of Section 54 of the Evidence Act, the previous bad character is not relevant. Section 54 prohibits the reception of evidence about the character and antecedents of an accused in a criminal trial. Even otherwise, the evidence as to previous character is in the context that the appellant had outraged the modesty of other ladies. However, the conclusion is that he did not commit any sexual offence on Gurdev Kaur Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [38] (deceased). The security proceedings that were initiated have not been brought on record.
(3) It is quite unlikely that the appellant who is aged about 22 years would commit a sexual assault on a lady aged about 73 years. Though cases of rape involving extreme viciousness and depravity are not uncommon, however, in the present case, the allegation of rape is not stated to have been made out in the report (Ex.PS) of Puran Chand DSP, (PW-6) and neither does the appellant confess the same in his so called confessions (Ex. PY and Ex.PZ). In fact Chhinder Pal Singh (PW-3) who in Court has stated that the appellant had pulled Gurdev Kaur (deceased) in the mustard fields of Mal Singh and after removing her salwar, he raped her; but in his statement Ex.PR before Puran Chand DSP (PW-6), he does not say that the appellant Nikka Singh had stated before him that he committed rape on Gurdev Kaur and it is stated by him that he had committed a mistake and he be pardoned.
(4) Dr. Amardeep Jassi (PW-2) on the basis of the FSL report (Ex.PH) in terms of which human semen had been detected on one of the vaginal swabs (exhibit 2) deposed that therefore, the Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [39] possibility of rape on the person of Gurdev Kaur is not ruled out. The same is only a possibility and not conclusive evidence.
Besides, the FSL report (Ex.PH) shows that the cotton swabs were without sticks and one of the cotton swab (exhibit 3) contained fungus like material. On the other swab (exhibit 2) human semen was detected. Mere detection of human semen on the cotton swab (exhibit 2) by itself is not such a circumstance to hold that rape had also been committed on Gurdev Kaur (deceased). Besides, there has been delay in despatch and examination of the cotton swabs in the FSL which may have resulted in fungus being there on one of the cotton swab (exhibit
3).
(5) Dr. Amardeep Jassi (PW-2) who conducted the post mortem examination of Gurdev Kaur opined the cause of death as 'asphyxia' which was sufficient to cause death. In terms of his affidavit (Ex.PE), blood was not noticed except in injuries No.3 and 4. It was noticed that there was extra vesation of blood in subcutaneous disease and muscles and there was laceration of sheath and carotid artery. In case these were to result in blood stains on the 'salwar' and Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [40] 'kameej' of Gurdev Kaur then it would have also resulted in blood 'stains' on the undershirt ('shameej'). As per the recovery memo (Ex.PB) regarding clothes and shoes, the undershirt ('shameej') did not have any blood stains and was not taken in possession. It is not understood as to why the clothes worn by the deceased were removed and changed.
According to Ms. Divya Sharma, Advocate (amicus curiae) for the appellant these were removed so as to foist a case of murder and create evidence, which possibility cannot entirely be ruled out.
(6) The appellant has also been charged for the offence under Section 376 IPC. However, in his so-called confessional statements (Ex.PY and Ex.PZ) he exculpates himself from the charge of rape and therefore, the statement is liable to be ruled out of consideration.
(7) The appellant Nikka Singh also raised a defence that Gurdev Kaur had been killed by the complainant side as she had land in her name. A reference was made to the copy of Jamabandi (Ex.DA) wherein she is recorded to be owner in possession of 25 kanals 19 marlas of land in village Sawant Khera. However, this Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [41] per se would not mean that the complainant side had committed her murder and it is only a defence which has been raised by the appellant. The case is based on circumstantial evidence and in order to record a finding of guilt on the basis of circumstantial evidence, the circumstances from which a conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established are to be consistent only with the hypothesis of the guilt of the accused. The circumstances are to be conclusive in nature and the tendency is to be such that these should exclude every hypothesis but the one proposed to be proved. In such cases there has always been a danger that conjecture or suspicion may take the place of legal proof. In case of circumstantial evidence there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
In the present case, the circumstances do not point out towards the guilt of the accused, but rather point to his innocence for which a benefit of doubt is liable to be extended in the facts and circumstances and the chain of evidence that has been considered and delineated upon. For the foregoing reasons, the appeal is liable to be allowed and the impugned judgment of the learned trial Court is liable to set aside.
Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh Murder Ref. No.4 of 2012 & CRA-372-DB of 2012 [42]
Accordingly, the appeal is allowed and the impugned judgment and order dated 13.3.2012 passed by the learned Additional Sessions Judge, Sirsa convicting and sentencing the appellant are set aside and the appellant is acquitted of the charges attributed to him. He be set at liberty if not wanted in any other case.
In view of the sentence being set aside, the murder reference for confirmation of the death sentence has been rendered infructuous and is accordingly declined.
(S. S. SARON) JUDGE (S.P. BANGARH) JUDGE 16.07.2013 amit Amit Khanchi 2013.07.17 10:44 I attest to the accuracy and integrity of this document High Court,Chandigarh