Punjab-Haryana High Court
Daljit Singh vs State Of Punjab on 10 February, 2009
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Daya Chaudhary
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 980-DB of 2007
DATE OF DECISION : 10.02.2009
Daljit Singh
.... APPELLANT
Versus
State of Punjab
..... RESPONDENT
Crl. A. No. 981-DB of 2007
DATE OF DECISION : 10.02.2009
Lakhwinder Singh & another
.... APPELLANTS
Versus
State of Punjab
..... RESPONDENT
Crl. A. No. 984-DB of 2007
DATE OF DECISION : 10.02.2009
Tarsem Singh
.... APPELLANT
Versus
State of Punjab
..... RESPONDENT
Crl. A. No. 1081-DB of 2007
DATE OF DECISION : 10.02.2009
Kabal Singh
.... APPELLANT
Versus
State of Punjab
..... RESPONDENT
Crl. A. No. 980-DB of 2007 -2-
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present: Mr. D.S. Pheruman, Advocate,
for the appellant (in Crl. A. No. 980-DB of 2007)
Mr. Puneet Bali, Advocate, with
Mr. G.K. Khanna, Advocate,
for the appellant (in Crl. A. No. 981-DB of 2007)
Mr. Jasdeep Singh Gill, Advocate,
for the appellant (in Crl. A. No. 984-DB of 2007)
Mr. Rajdeep Singh Cheema, Advocate,
for the appellant (in Crl. A. No. 1081 of 2007)
Mr. Rajesh Bhardwaj, Addl. A.G., Punjab,
for the respondent-State.
***
SATISH KUMAR MITTAL , J.
In this case, vide judgment dated 5.11.2007, passed by Additional Sessions Judge, Amritsar in Sessions Case No. 33 of 5.5.2006/07 arising from FIR No. 181 dated 24.11.2005 registered at Police Station Beas, Amritsar, five police officials have been convicted for the commission of offence under Sections 342, 364 and 302 IPC, for wrongful confinement, abduction and murder of one Sukhwinder Singh alias Shinda, a boy of about 21 years of age and vide order dated 7.11.2007, each of them has been sentenced to undergo imprisonment for a period of one year under Section 342 IPC; to undergo rigorous imprisonment for 5 years and to pay a fine of Rs. 1,000/- under Section 364 IPC; and imprisonment for life and to pay a fine of Rs. 2,000/- under Section 302 IPC. All the sentences have been Crl. A. No. 980-DB of 2007 -3- ordered to run concurrently.
2. Against the aforesaid judgment of conviction and order of sentence, Criminal Appeals No. 980-DB, 984-DB and 1081-DB of 2007 have been filed by convicts Daljit Singh, Tarsem Singh and Kabal Singh, respectively, and Criminal Appeal No. 981-DB of 2007 has been filed by convicts Lakhwinder Singh and Kulwant Singh.
3. In brief, the aforesaid FIR was registered at Police Station Beas on the basis of statement (Ex.PA) made by Mohinder Singh (grand-father of deceased Sukhwinder Singh @ Shinda), which was recorded by Gurbhinder Singh, SHO Police Station Beas, on 23.11.2005 at 11.30 P.M. In his statement, he stated that he was a resident of Rayya and running a cloth shop. His grand-son Sukhwinder Singh @ Shinda was also running a stall of readymade garments near his shop. He stated that previously on two occasions (first time on 7.10.2005 and second time on 4.11.2005), Rayya Police had taken away his grand-son Sukhwinder Singh to Police Post Rayya, and after giving beating and keeping him in Police Station for night, he was left in the morning. At that time, no FIR was registered against his grand-son, but one watch and Rs. 900/- were snatched from his grand-son by Kewal Singh PCR. He further stated that today i.e. on 23.11.2005, at about 5.00 P.M., when his grand-son Sukhwinder Singh @ Shinda was selling garments at his stall, Daljit Singh PCR, Tarsem Singh PCR and Kabal Singh HC and another Constable came at his stall and they pulled, pushed and gave beating to Sukhwinder Singh and took him away from his Crl. A. No. 980-DB of 2007 -4- stall in police van Sumo to the Police Station. Thereafter, he and his son Baldev Singh went to Police Post Rayya, where Police Post In-charge met them. When they complained to him that all the above said four police officials had given severe beatings to Sukhwinder Singh alias Shinda, then Police Post In-charge and Constable Daljit Singh said that they (complainants) have come there to put pressure on them. The complainant Mohinder Singh and his son Baldev Singh said that if Sukhwinder Singh is at fault, then he be challaned. It was further stated that the police asked them to come in the morning. He further stated that after an hour, Amarjit Kaur mother of Sukhwinder Singh @ Shinda went to Police Post Rayya, but she was not allowed to enter the Police Post and then she returned home. It was further stated that Amarjit Kaur then went to Gagandeep Singh Juj, who gave her a letter and while again going to Police Post, she came to know that her son Sukhwinder Singh had expired due to the torture given to him in Police Post Rayya. His dead body was lying at Bath Hospital as unknown dead body, whereas his death was caused due to inhuman torture given to him in Police Post Rayya. On the basis of the said statement, an FIR (Ex.PA/2) was registered under Section 302 read with Section 34 IPC. The control room was informed. The special report was sent to the Magistrate, and the police officials along with complainant proceeded towards Bath Hospital.
4. Further, as per the prosecution version, on 24.11.2005 at 10.20 AM, the dead body of the deceased, which was found lying in the Bath Crl. A. No. 980-DB of 2007 -5- Hospital, was taken to Amritsar for conducting the post-mortem. The inquest report (Ex.PB) was prepared, in which it was mentioned that in Bath Hospital, dead body was lying and the cause of death recorded was due to torture at the hands of the police. As per the statement of Dr. Ashok Chanana (PW.5), Assistant Professor, Department of Forensic Medicine, Govt. Medical College, Amritsar, post-mortem of the deceased was conducted by a Board of Doctors on 24.11.2005 at 10.45 A.M. On examination of the dead body, the rigor mortis was found present in the whole body of the deceased. Post mortem staining was present on the back, except in areas of contact flattering and it was fixed bluish, discolouration of nales was present. Eyes were open and right eye was congested. Mouth was slightly open with whitish froth in between the lips. Dried whitish discharge was coming out from right nostril which was present on right cheek. But on moving the head blood strained froth came out from right nostrils. Both nostrils contained froth. The following injuries were found on the dead body :
1. Multiple partly healed (some completely healed), scar marks were present on the right leg, right knee, right medial malleolous and left knee. These were circular in shape with margins hyper pigmented and centre was whitish in appearance (more than 15).
2. A dark reddish abrasion 0.5 x 0.4 cm was present on the front and centre of chest. 9 cm below supra sternal notch.
3. A rounded abrasion 0.2 x 0.2 cm dark reddish in colour was present on the outer aspect of right upper arm 3 cm below the point of shoulder.Crl. A. No. 980-DB of 2007 -6-
4. A dark coloured bruise 10 x 3 cm was present on the outer aspect of right hip in its centre.
5. An oblique dark colour bruise 4 x 3 cm was present on the back of right abdomen in its centre.
6. A dark colour irregular confluent bruise 6 x 4 cm was present on the inner aspect of right upper arm. 5 cm below posterior axillary fold.
7. A dark coloured bruise 0.4 x 0.3 cm was present on the left lateral aspect of neck. 12 cm below the left ear lobule.
8. A dark coloured bruise 1.3 x 0.4 cm was present on the left lateral aspect of the neck. 4 cm posterior to injury no.7.
In the opinion of the Doctors, the cause of death was strangulation leading to asphyxia due to constriction of neck as a result of injury No.8, which was sufficient to cause death in the ordinary course of nature. The probable time of the death was about 12 to 24 hours. Except injury No.1, all other injuries were ante-mortem in nature and the duration of those injuries was within 12 hours.
5. During investigation, the matter was also enquired into by Mr. S.K. Agnihotri SP (D) (DW.3). He gave his report that the alleged offence was not an offence under Section 302 IPC, rather in his opinion, the alleged offence falls under Section 306 IPC. He further came to the conclusion that Lakhwinder Singh and Kulwant Singh were not involved in the alleged offence. After the investigation, the police filed challan against four accused, namely Kabal Singh, Daljit Singh, Tarsem Singh and Lakhwinder Crl. A. No. 980-DB of 2007 -7- Singh under Section 306 IPC. However, subsequently, the police filed an application for discharge of Lakhwinder Singh ASI, In-charge Police Post Rayya and on that application, he was discharged. Thereafter, charges were framed against Kabal Singh, Daljit Singh and Tarsem Singh for the offences punishable under Sections 342, 364, 302 IPC and in the alternative under Section 306 IPC, to which they pleaded not guilty and claimed trial.
6. After recording of examination-in-chief of PW.1 Mohinder Singh and PW.2 Baldev Singh, father and uncle of the deceased, Lakhwinder Singh and Kulwant Singh were also summoned under Section 319 Cr.P.C., to face the trial. Thereafter, charges for the aforesaid offences were also framed against them, to which the accused pleaded not guilty and claimed trial.
7. In order to prove its case, the prosecution examined 9 witnesses. PW.1 Mohinder Singh, in his statement before the Court, stated that earlier on two occasions i.e. on 7.10.1995 and 4.11.1995, his grand-son Sukhwinder Singh alias Shinda was taken by the police officials to the Police Post and after giving him beating and keeping him in the Police Post for night, he was released. Thereafter, on 23.11.1995, at about 5.00 P.M., his grand-son was taken to Police Post Rayya, after giving him beating there, by accused Tarsem Singh, Daljit Singh and Kabal Singh along with one more police official. Lateron, this witness (PW.1) came to know that his name was Kulwant Singh. He further stated that when he along with his son Baldev Singh went to Police Post Rayya and requested Lakhwinder Singh, Crl. A. No. 980-DB of 2007 -8- the in-charge of the Police Post, that his grand-son should be released, as he was not at fault, Lakhwinder Singh replied that they were brow-beating Sukhwinder Singh. It was further stated by this witness (PW.1) that when they went inside the Police Post, they saw that arms of his grand-son were tied and he was made to stand alongside the wall of the room. On assurance that his grand-son will be released next morning, he and Baldev Singh returned to their home. This witness further stated that after some time, Amarjit Kaur, mother of Sukhwinder Singh, also went to Police Post Rayya, but she was not allowed to go inside the Police Post, as the main gate was closed. Thereafter, Amarjit Kaur approached a local politician, who had handed over a letter to her. With that letter, Amarjit Kaur again went to Police Post Rayya, but in the way she came to know that her son had expired in the Police Post and his dead body was lying in Bath Hospital, Rayya. This witness further stated that when they went to the Hospital, where the dead body of Sukhwinder Singh @ Shinda was lying, and the police people were standing there. SHO, PS Beas and S.P. Agnihotri had also reached there. Thereafter, SHO, PS Beas recorded the statement of this witness on the direction of S.P. Agnihotri and case was registered for committing the murder of his grand-son. The similar statement was made by PW.2 Baldev Singh.
8. PW.3 Amarjit Kaur, in her statement before the Court, stated that her son Sukhjinder Singh was running a Farri of readymade garments at Rayya. On 23.11.2005, her father-in-law Mohinder Singh (PW.1) informed Crl. A. No. 980-DB of 2007 -9- her that her son was taken by HC Kabal Singh, Constable Tarsem Singh and Constable Daljit Singh to Police Post Rayya. Then she went to the Police Post to enquire about her son. Kulwant Singh was on sanitary duty at Police Post Rayya. She heard the shrieks of her son Sukhjinder Singh from inside the Police Post. She requested Kulwant Singh Sanitary to let her go inside the Police Post, but he did not allow her. Then she came back and met one Gagandeep Singh alias Juj and narrated the entire incident to him. Thereafter, she again went to Police Post Rayya, but again she was not allowed to go inside and when she was coming back, she came to know that her son was killed by the accused and his dead body was lying in Bath Hospital. She stated that Lakhwinder Singh, in-charge of Police Post, Rayya was also present inside the Police Post, when the police officials were giving beatings to her son. The prosecution has also examined PW.4 Rishi Pal Draftsman, who proved the site plan Ex.PC. PW.5 Dr. Ashok Chanana was member of the Board of Doctors, who conducted the post mortem of the dead body of the deceased. PW.6 HC Baldev Raj got conducted the post mortem of the dead body of the deceased. PW.7 HC Harpal Singh proved the special report. PW.8 SI Gurbhinder Singh was the Investigating Officer of the case and PW.9 HC Gulshanbir Singh proved the posting of various police officials at Police Post Rayya. PW.4, PW.6, PW.7 and PW.9 are the formal witnesses.
9. PW.8 SI Gurbhinder Singh, the Investigating Officer, in his statement, stated that on 23.11.2005, he was posted as SHO, P.S. Beas. He Crl. A. No. 980-DB of 2007 -10- recorded the statement (Ex.PA) of Mohinder Singh complainant at Chowk Pheruman (Rayya) regarding the murder of his grand-son Sukhjinder Singh. On the basis of the said statement, formal FIR Ex.PA/2 was recorded by SI Swaran Singh. After recording the statement, he along with police officials and Mohinder Singh complainant went to Bath Hospital, Rayya, where the dead body of Sukhjinder Singh @ Shinda was lying. The inquest report (Ex.PB) was prepared and the dead body was sent to Amritsar for post mortem examination. He further stated that he arrested accused Lakhwinder Singh, Tarsem Singh, Daljit Singh and Kabal Singh and challan was filed against them. In cross-examination, he stated that the challan was filed under Section 306 IPC on the recommendation of SP, as it was found during investigation that the deceased had committed suicide. He further admitted that during investigation, an enquiry was conducted by Mr. S.K. Agnihotri, SP (D) and on the basis of his report, an application for discharge of accused Lakhwinder Singh was moved and he was discharged by the court.
10. After the closing of evidence by the prosecution, statements of all the accused under Section 313 Cr.P.C., were recorded. In his statement, Kabal Singh denied the evidence appearing against him and pleaded that he was falsely implicated and made a scope goat to help the actual culprits. The witnesses are deposing against him because of suspicion and tutoring. He was totally innocent and had no hand in the mysterious death of the deceased. Daljit Singh in his statement, while denying all the allegations put against him, stated that he was only a PCR and remained on patrol duty and Crl. A. No. 980-DB of 2007 -11- had no role in the Police Post affairs. He further stated that he came to know later on that on the basis of some complaint, deceased was brought to the Police Post and after his death, the complainant lodged case apparently on suspicion. Tarsem Singh made similar statement. Lakhwinder Singh denied the entire evidence appearing against him and pleaded that on 23.11.2005, he was on VIP duty as per entries in the Daily Diary already placed on the judicial file by the prosecution. He returned from field at about 10.00 PM. During this period, according to wireless log book, he received wireless message from Kabal Singh at 6.32 PM by call signal Charlie 12, which was his call signal. He had no knowledge till his return to Police Post Rayya about the occurrence. On that day, the case was registered against Kabal Singh and three others. He further stated that prior to this occurrence, Sukhwinder Singh alias Shinda was complained against by one Surinder Singh son of Karnail Singh and that application was marked by him to Kabal Singh for action. Sukhwinder Singh alias Shinda was involved in small offences of thefts, and when he used to be detained, he was got released by the politicians with assurance that he will reform himself. He further stated that for that reason, the politicians got him involved in the case by holding Dharna and blockage of traffic. However, he was arrested and the enquiry was held by Mr. S.K. Agnihotri, SP (D), who after examining the record of the Police Station and wireless message, got him discharged. Kulwant Singh in his statement stated that he remained on duty with Lakhwinder Singh ASI as per Daily Diary. He has no connection with Crl. A. No. 980-DB of 2007 -12- the alleged offence.
11. In defence, the appellants examined six witnesses. DW.1 HC Mohan Singh was examined to prove the Daily Diary dated 23.11.2005 of Police Post Rayya. He stated that Ex.DD and Ex.DE, which are copies of the reports entered at serial No. 16 and 19 of the Daily Diary, are correct as per record. However, this witness has further stated that this Daily Diary commenced from 22.11.2005. This witness has also proved that as per the record of Police Post Rayya, an application was received on 20.11.2005 from Surinder Singh making complaint against the deceased for stealing a press from his shop. In cross-examination, this witness admitted that entry No. 16 dated 23.11.2005 is only for patrolling and no specific purpose has been mentioned. He also admitted that on 23.11.2005, ASI Lakhwinder Singh was in-charge of Police Post Rayya. He further admitted that in- charge Police Post Rayya is whole sole in-charge of the Roznamcha, which was presented by him in the court. He also stated that he cannot tell as to in whose hand-writing entries No. 16 and 19 were made. He admitted that there is no reference regarding the signatures/initials of ASI Lakhwinder Singh on the true copies of Ex.DD and Ex.DE, prepared by the then MHC Prabhjit Singh. He, however, denied the suggestion that signatures/initials of ASI Lakhwinder Singh were obtained lateron.
12. DW.2 Surinder Singh was examined by the appellants-accused to show that the deceased was a man of bad character and a complaint was filed by the said witness against him on 20.11.2005. DW.3 Sudesh Kumar Crl. A. No. 980-DB of 2007 -13- Agnihotri has been examined to prove that he conducted the enquiry and found Lakhwinder Singh and Kulwant Singh as innocent. This witness has stated that on the basis of his examination of the relevant record of Police Post Rayya, including the Daily Diary of the Police Station as well as the wireless record, he found that Lakhwinder Singh and Kulwant Singh were not present in the Police Post at the time of the alleged occurrence. This witness has further stated in his examination-in-chief that during enquiry, it also came to light that Mohinder Singh (PW.1) and Baldev Singh (PW.2) had thrashed Sukhjinder Singh alias Shinda, when he was in Police Post Rayya. He has also stated that during enquiry, he found that deceased Sukhjinder Singh alias Shinda committed suicide with the help of handcuff which was put on him by the police. He further stated that on his recommendation, Lakhwinder Singh was got discharged in this case. However, he recommended that departmental action be taken against him for negligence. In his cross-examination, he has admitted that DDR register starts from 23.11.2005 at 8.00 AM. He has also admitted that there is no certificate on the first page of the register. He further admitted that there is no page marking on the DDR register. He denied the suggestion that the new register was started on 23.11.2005 to save the accused. He admitted that Police Post Rayya was under his supervisory charge and all the accused were posted there on the day of occurrence. DW.4 Sukhwinder Singh was posted as Wireless Operator at Police Post Rayya on 23.11.2005, the day of occurrence. He has placed on record photo copy of the wireless log book Crl. A. No. 980-DB of 2007 -14- dated 23.11.2005 as Ex.DW4/C. According to this document, there are entries from 18.05 hours to 18.32 hours about calling of Charlie-12, which was the code of Lakhwinder Singh ASI. In cross-examination, this witness has admitted that the original of the aforesaid photo stat copy was destroyed a day before production of the photo stat copy in the court. This witness categorically stated that the original of Ex.DW4/A and Ex.DW4/B were handed over to him. He got photo copies and then got the same attested from Inspector and brought the same in the Court. This witness has categorically stated that he has not seen the original of Ex.DW4/C nor the same was brought by him in the court, though he denied the suggestion that Ex.DW4/C is a manipulated document. DW.5 Constable Nirvail Singh was posted in Police Station Beas and brought the DDR dated 22.11.2005 of Police Station Beas. This witness proved only entry No. 27 dated 24.11.2005, which in our opinion is not relevant. DW.6 HC Nachhatar Singh has produced the record of the posting of police officials of all the Police Stations in the jurisdiction of SSP, Rural, Amritsar.
13. Mr. Puneet Bali, Advocate, learned counsel appearing for appellants Lakhwinder Singh and Kulwant Singh submitted that as far as these two appellants are concerned, the prosecution has miserably failed to lead any cogent evidence to prove that at the time of the alleged occurrence, these two appellants were present in Police Post Rayya and had committed the alleged offence. Statements of Mohinder Singh (PW.1), Baldev Singh (PW.2) and Amarjit Kaur (PW.3), made before the police under Section 161 Crl. A. No. 980-DB of 2007 -15- Cr.P.C. and before the Court, are contradictory on material facts, which go to the root of the matter. In this regard, learned counsel submitted that there are three omissions in the statements of these witnesses before the police, which they have later on improved before the court, in order to falsely implicate both the appellants. Before the police, none of these witnesses had stated that they had seen the deceased in the Police Post. All the three witnesses specifically made improvement with regard to seeing of Sukhwinder Singh alias Shinda in Police Post Rayya, giving him beatings and chaining him. Secondly, learned counsel submitted that initially, the name of Kulwant Singh did not come in the statement (Ex.PA) of complainant Mohinder Singh, but later on, he was also named as the fourth police official, who came at the stall of the deceased and took him to the Police Post. He further submitted that the said witness has also not named Lakhwinder Singh as in-charge of the Police Post, when he along with Baldev Singh (PW.2) alleged to have went to the Police Station and talked to the in-charge of the Police Post, whereas in his cross-examination, this witness had stated that he knew Lakhwinder Singh, but he has not given any explanation as to why Lakhwinder Singh was not named in his statement before the police. Learned counsel further pointed out that this witness had disclosed the name of Kulwant Singh before the police, but he could not explain as to why his name was not mentioned in his statement (Ex.PA). Learned counsel further pointed out that the statement of Amarjit Kaur (PW.3) before the Court is also not trustworthy, because in the court she had Crl. A. No. 980-DB of 2007 -16- also made various material improvements with regard to the identification of Lakhwinder Singh and Kulwant Singh in the Police Post and about giving of beating to Sukhwinder Singh alias Shinda. Learned counsel submitted that in the beginning, this witness had stated before the police that when she went to the Police Post to meet her son, then the police officials did not allow her to meet him and they closed the door of the Police Post. Learned counsel submitted that the statements of these three witnesses are not trustworthy and reliable and the version given by these three witnesses has not been corroborated by any other independent witness. Learned counsel further submitted that on account of the alleged motive that on previous two occasions, the deceased was also taken to the Police Post and was given beating, the alleged crime could not have been committed. Learned counsel submitted that in this case the appellants were falsely implicated, under the political pressure because of the Dharna given by the people.
14. In the last, learned counsel for appellants Lakhwinder Singh and Kulwant Singh submitted that from the statement of SI Gurbhinder Singh (PW.8), the Investigating Officer, and the defence evidence led by the appellants, it has been clearly established on record that at the time of the alleged occurrence, both the appellants were not present in Police Post Rayya. In this regard, learned counsel referred to Ex.DD and Ex.DE, which have been duly proved by DW.1 HC Mohan Singh, as well as the entry of the wireless log book Ex.DW4/C. Learned counsel further pointed out that Crl. A. No. 980-DB of 2007 -17- during the investigation, an enquiry was also conducted by Mr. S.K. Agnihotri (DW.3), who found both the appellants as innocent. Learned counsel submitted that there is no cogent evidence available on the record, which indicates that both the appellants had caused any injury or gave any beating to Sukhwinder Singh alias Shinda in Police Post Rayya. There is also no evidence that the appellants had taken the deceased to Bath Hospital. Therefore, the conviction of appellants Lakhwinder Singh and Kulwant Singh under Sections 342, 364 and 302 IPC is not sustainable from any angle.
15. Mr. D.S. Pheruman, Mr. Jasdeep Singh Gill and Mr. Rajdeep Singh Cheema, Advocates, learned counsel for appellants Daljit Singh, Tarsem Singh and Kabal Singh, respectively, have also made the similar submissions, as made by Mr. Puneet Bali. Mr. Pheruman, appearing for appellant Daljit Singh, submitted that except the statement of Mohinder Singh (PW.1), there is no other evidence to involve appellant Daljit Singh, who was one of the members of the PCR. Only this witness has stated that appellant Daljit Singh along with other accused after giving beating to his grand-son took him to the Police Post. Learned counsel submitted that the testimony of the said witness has not been corroborated by any other independent witness. He further submitted that this witness was highly interested and inimical towards the police, as it is alleged that on earlier two occasions, the police gave beating to his grand-son and further the said witness has made major improvements, while making statement in the court. Crl. A. No. 980-DB of 2007 -18- Therefore, his statement cannot be taken as trustworthy and reliable.
16. In the alternative, learned counsel for all the appellants argued that even if it is found that the appellants had given beating to the deceased in the Police Post and he died there due to the excessive beating given to him, at the most the appellants could be convicted under Section 304 IPC, as neither there was any motive nor any intention on the part of the appellants to kill the deceased. They further pointed out that there is no evidence as to which of the accused had caused the fatal injury to the deceased.
17. Mr. Rajesh Bhardwaj, Additional Advocate General, Punjab, appearing on behalf of the State of Punjab, submitted that in this case, the prosecution has fully established the guilt against all the appellants, beyond shadow of a reasonable doubt. He further submitted that there was no motive for false implication of the police officials. Learned counsel contended that the statements of Mohinder Singh (PW.1), Baldev Singh (PW.2) and Amarjit Kaur (PW.3) cannot be discarded merely on the ground that they are related to the deceased. Learned counsel, while referring to the statement of Dr. Ashok Chanana (PW.5), submitted that the deceased has died due to strangulation. He further pointed out that 8 injuries were noticed on the body of the deceased, which indicate that he was not only given severe beatings, but was also strangulated. Learned counsel further argued that the plea taken by appellants Lakhwinder Singh and Kulwant Singh that they were not present at the time of the alleged occurrence in the Police Post Crl. A. No. 980-DB of 2007 -19- is not supported by the evidence available on the record. The defence evidence led by the appellants-accused is totally unreliable and has been created later on, in order to escape from the criminal liability. In the last, learned counsel for the respondent-State argued that in the facts and circumstances of the case, the instant case does not fall under Section 304 IPC, as claimed by learned counsel for the appellants. The instant case is not covered by any exception to Section 300 IPC, which defines the cases when culpable homicide is not amounting to murder.
18. We have heard learned counsel for the parties and have perused the record of the case.
19. From the medical evidence i.e. Post Mortem Report (Ex.PD), it has been proved that the deceased has died due to strangulation, leading to asphyxia due to constriction of neck as a result of injury No.8, which was sufficient to cause death in the ordinary course of nature. Thus, a homicidal death of the deceased has been established. The Post Mortem Report further shows that there were 7 injuries on the body of the deceased, which indicate that the deceased was given beatings and torture before his death. Further, the facts stated in the Post Mortem Report i.e. eyes were open, right eye was congested, mouth was slightly open with whitish froth in between the lips, dried whitish discharge was coming out from right nostril which was present on right cheek and that both nostrils contained froth, as well as the opinion of the Doctor that the death was due to strangulation, clearly indicate that it was not a case of suicide, but a case of strangulation. Crl. A. No. 980-DB of 2007 -20- Therefore, the enquiry report submitted by Mr. S.K. Agnihotri, S.P. (D) (DW.3) to the effect that the deceased committed suicide in the Police Post with the help of handcuff which was put on him by the police, on the basis of which challan was presented under Section 306 IPC and which has been relied upon by the appellants in defence, is not reliable being contrary to the medical evidence.
20. In our opinion, the prosecution has proved the abduction of Sukhwinder Singh alias Shinda from his stall on 23.11.2005 by Daljit Singh PCR, Tarsem Singh PCR, Kabal Singh HC and Kulwant Singh and that he was kept confined in Police Post, Rayya, where he was given torture and beatings. From the statements of Mohinder Singh (PW.1), Baldev Singh (PW.2) and Amarjit Kaur (PW.3), it has been proved beyond reasonable doubt that on 23.11.2005 at about 5.00 P.M., a police party, consisting of Daljit Singh PCR, Tarsem Singh PCR, Kabal Singh HC and Kulwant Singh, who was later on recognized as such, had taken Sukhwinder Singh alias Shinda in the Police Sumo jeep to Police Post, Rayya, from his stall, after giving him beating. The statements of Mohinder Singh and Baldev Singh to the above said effect is neither contradictory nor unbelievable. Further, their statements to the effect that immediately thereafter, they went to the Police Post, met the in-charge of the Police Post and requested him to release Sukhwinder Singh alias Shinda and if he is involved in a crime, then to challan him and further they were asked to come in the next morning, also cannot be said to be contradictory and unbelievable. It is admitted fact that Crl. A. No. 980-DB of 2007 -21- Lakhwinder Singh was the in-charge of Police Post Rayya on the day of occurrence. The only improvement, which has been pointed out and argued by learned counsel for the appellants that these witnesses have stated that when they requested the in-charge, Police Post to meet Sukhwinder Singh alias Shinda, they were taken inside, where they saw that arms of Sukhwinder Singh were tied and he was made to stand alongside the wall of the room. PW.3 Amarjit Kaur, in her statement, has stated that when her father-in-law Mohinder Singh informed her that her son was taken by the accused, then she went to Police Post Rayya to enquire about her son. At that time, Kulwant Singh was on sanitary duty at Police Post Rayya. She had heard the shrieks of her son Sukhjinder Singh from inside the Police Post and requested Kulwant Singh Sanitary to let her go inside the Police Post, but he did not allow her. She further stated that after some time, she again went to the Police Post. Again she was not allowed to go inside and when she was coming back, she came to know that her son had been killed and his dead body was lying at Bath Hospital, Rayya. In one line of her cross-examination, she has stated that she had seen accused Kulwant Singh giving beating to her son. Except that, there is no other material contradiction or improvement. In our opinion, from the testimonies of these three witnesses, it has been proved that on the day of occurrence, at about 5.00 p.m., four accused, namely Daljit Singh, Tarsem Singh, Kabal Singh and Kulwant Singh had taken away Sukhwinder Singh alias Shinda from his stall to Police Post Rayya and he was kept confined there, where he was Crl. A. No. 980-DB of 2007 -22- tortured and given beating. The testimonies of these three witnesses are corroborated by the evidence coming on record to the effect that on 20.11.2005, a complaint was made against Sukhwinder Singh alias Shinda and this application was marked to appellant Kabal Singh for action. That was the purpose, for which Sukhwinder Singh alias Shinda was taken by the police officials to the Police Post. It has also come in evidence that on earlier two occasions, Sukhwinder Singh was taken to the Police Post and after giving beating and detaining him for a night, he was released, though no case on both the occasions was registered against him. Mr. S.K. Agnihotri, SP (D), who has appeared as DW.3, in his report has also come to the conclusion that Sukhwinder Singh alias Shinda was taken by the police officials to Police Post Rayya, where he was given beating, but according to him, the deceased committed suicide in the Police Post.
21. Now, the question left for consideration is who had tortured and strangulated the deceased. There is no direct evidence in this regard. No body has seen the deceased strangulated. However, PW.1 Mohinder Singh and PW.2 Baldev Singh had stated that in the Police Post, the deceased was given beating and he was chained. PW.3 Amarjit Kaur had stated that when she went to the Police Post, she heard the shrieks of her son from inside the Police Post. It has also been established that when PW.1 and PW.2 visited the Police Post, appellant-accused Lakhwinder Singh being in-charge of the Police Post was present there. Merely because in the initial version, specific name of Lakhwinder Singh was not given and only it was mentioned that in- Crl. A. No. 980-DB of 2007 -23- charge of Police Post was there, it cannot be concluded that Lakhwinder Singh was not present in the Police Post. As far as taking of Sukhwinder Singh alias Shinda by four accused, including Kulwant Singh, in a Sumo jeep after giving him beating, is concerned, the same has been proved from the statements of PW.1 Mohinder Singh and PW.2 Baldev Singh. The only argument that Kulwant Singh was not named in the initial version, in our opinion, has no force, because it was specifically named that there were four police officials and name of the four police official was not known, which was subsequently told to the police. Merely on this ground, it cannot be assumed that Kulwant Singh was not member of the police party, who had taken Sukhwinder Singh from his stall. When it has been established that on 23.11.2005, Sukhwinder Singh was taken from his stall to Police Post Rayya by appellants Daljit Singh, Tarsem Singh, Kabal Singh and Kulwant Singh, after pulling and pushing him, where he was tortured and appellant Lakhwinder Singh was present in the Police Post, then it was for the appellants to explain that how Sukhwinder Singh has died. As per the medical evidence, he has died due to strangulation. 8 injuries were found on his person, which clearly indicate that before strangulation, he was given severe beating and torture.
22. In our opinion, when the abduction of Sukhwinder Singh alias Shinda and his illegal confinement in Police Post Rayya has been proved, then it is for the abductors alone to tell to the Court as to what happened to Sukhwinder Singh alias Shinda, after his abduction. When the abductors Crl. A. No. 980-DB of 2007 -24- withhold the information from the Court, then it is justified to draw the inference in the facts and circumstances of the case that the abductors have committed murder of the deceased. It is true that the burden of proof is always on the prosecution to prove the guilt of the accused, but Section 106 of the Indian Evidence Act is an exception, where in certain circumstances, a presumption of a fact can be drawn against the accused. The Supreme Court in Sucha Singh v. State of Punjab, AIR 2001 Supreme Court 1436, while relying upon its earlier decision in State of West Bengal v. Mir Mohammad Omar, AIR 2000 SC 2988, held that Section 106 of the Evidence Act is not intended to relieve the prosecution of its burden to prove the guilt of the accused beyond reasonable doubt, but the section would apply to cases where prosecution has succeeded in proving facts for which a reasonable inference can be drawn regarding the existence of certain other facts, unless the accused by virtue of special knowledge regarding such facts failed to offer any explanation which might drive the Court to draw a different inference. When more persons than one have abducted the victim, who was later murdered it is within the legal province of the Court to justifiably draw a presumption depending on the factual situation, that all the abductors are responsible for the murder. It was further held that Section 34 of the IPC could be invoked for the aid of that end, unless any particular abductor satisfies the Court with his explanation as to what else he did with the victim subsequently, i.e. whether he left his associates en-route or whether he dissuaded others from doing the extreme Crl. A. No. 980-DB of 2007 -25- act etc. etc. The abductors alone could tell the Court as to what happened to the deceased after he was abducted. When the abductors withheld that information from the Court there is every justification for drawing the inference, in the light of all preceding and succeeding circumstances that the abductors are murderers of the deceased.
23. Keeping in view the aforesaid principle, we are of the opinion that in the facts and circumstances of the case and the evidence available on the record, the aforesaid presumption can safely be drawn against all the appellants-accused to the effect that all of them jointly gave beating and torture to Sukhwinder Singh alias Shinda and thereafter strangulated him in Police Post, Rayya. The defence taken by appellants Lakhwinder Singh and Kulwant Singh that they were not present in the Police Post has not been proved. In this regard, learned counsel for the appellants has relied upon the entries (Ex.DD and Ex.DE) in the Daily Diary Register dated 23.11.2005, which indicate that Lakhwinder Singh and Kulwant Singh had left the Police Post on 23.11.2005 at 4.15 PM for patrolling and they came back to the Police Post on the same day at 10.00 P.M. In our opinion, no reliance can be placed upon these entries, because it has come in the evidence that this register starts from 22.11.2005 itself. Further, it has also come in evidence that there was no certificate on the first page of this register and there was no page marking on the register. In this regard, no explanation has been given as to why this register was commenced only on 22.11.2005. In absence of any explanation, the entries made in this register appear to be Crl. A. No. 980-DB of 2007 -26- doubtful and this register appears to have been prepared after the alleged occurrence in order to give benefit to the accused, who are the police officials. In the evidence, it has also come that Lakhwinder Singh was over- all in-charge of this register. Similarly, no reliance can be placed on the entries made in the wireless log book Ex.DW4/C. DW.4 Sukhwinder Singh, who was posted as Wireless Operator at Police Post Rayya on 23.11.2005, has admitted in his cross-examination that this document is the photo-stat copy. On one hand, he has stated that he has not seen the original and on the other hand, he stated that the original was handed over to him and he after obtaining the copies has produced the photo-stat copy in the court. Though he has denied the suggestion put by the prosecution that this document was manipulated but we are of the opinion that from the photo-stat copy, the said entry has not been proved. Even if the said entry is proved, it only shows that a call was given to Lakhwinder Singh between 6.05 P.M. and 6.32 P.M. But, in our opinion, it does not establish that he was not present in the Police Post. Further, the enquiry report given by Mr. S.K. Agnihotri, SP (D) showing Lakhwinder Singh innocent also cannot be relied upon, because the said officer gave finding on the basis of the aforesaid two documents. Thus, we are not inclined to accept the contention of learned counsel for appellants that Lakhwinder Singh and Kulwant Singh were not present at the time of the alleged occurrence.
24. In the alternative, learned counsel for the appellants submitted that in the facts and circumstances of the case, the appellants can be Crl. A. No. 980-DB of 2007 -27- convicted under Section 304 IPC, as there was neither any motive nor any intention on the part of the appellants to kill the deceased. It was also argued by learned counsel for the appellants that there is no specific evidence on the record, which indicates as to who gave beating to Sukhwinder Singh alias Sukha and who strangulated him. It was also argued that if the deceased has died due to excessive beating given by the appellants, then their case falls under Exception 3 to Section 300 of the IPC.
25. We do not find any force in this alternative submission of learned counsel for the appellants. Section 300 IPC provides that a culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or if it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or if it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. In our opinion, in the instant case, the bodily injuries were caused by the appellants to the deceased with full knowledge that such injuries may cause his death, because as per the opinion of the Doctor, injury No.8 found on the body of the deceased, which was caused by the appellants, is sufficient to cause death in the ordinary course of nature. As far as Exception 3 to Section 300 IPC is concerned, in our opinion, the same is not applicable to the facts of this case. This Exception provides that a culpable homicide is not murder if the offender, being a public servant or aiding a public servant Crl. A. No. 980-DB of 2007 -28- acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. In our opinion, none of the ingredients of this Exception is present in the present case. Neither it can be said that the appellants being public servants were acting for the advancement of public justice, nor it can be said that they gave beatings and torture to the deceased in good faith, believing the same to be lawful and necessary for the due discharge of their duty. The law does not provide any right to the police officials to give beating and torture to an accused, while in their custody. Therefore, the act done by the appellants cannot be said to be an act, which was necessary for the due discharge of their duty. Faced with this situation, learned counsel for the appellants submitted that in the absence of any particular role attributed to a particular accused, the common intention of all, as defined in Section 34 of the IPC, will not be applicable in the instant case. Even though, there is no evidence with regard to a specific injury caused by a specific accused, but by invoking the said principle of `common intention', all the accused will be equally liable for the offence committed by an individual accused. Thus, we are of the opinion that conviction of the appellants recorded by the trial court under Sections 342, 364 and 302 IPC does not require any interference and the same is, therefore, upheld.
26. In view of the above, the impugned judgment of conviction and Crl. A. No. 980-DB of 2007 -29- order of sentence passed by the trial court is upheld. Accordingly, all the appeals filed by the appellants are dismissed.
( SATISH KUMAR MITTAL )
JUDGE
February 10, 2009 ( DAYA CHAUDHARY)
ndj JUDGE