Punjab-Haryana High Court
State Of Haryana vs Shamsher & Ors on 10 December, 2014
MURDER REFERENCE NO.5 OF 2013 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. MURDER REFERENCE NO.5 OF 2013
DATE OF DECISION: DECEMBER 10, 2014
STATE OF HARYANA ...PROSECUTOR
VERSUS
SHAMSHER & OTHERS ...RESPONDENTS
2. CRA-D-1010-DB OF 2013
INDER SINGH & OTHERS ...APPELLANTS
VERSUS
STATE OF HARYANA ...RESPONDENT
CORAM: HON'BLE MR. JUSTICE M. JEYAPAUL.
HON'BLE MR. JUSTICE DARSHAN SINGH.
1. Whether the judgement should be reported in the digest? Yes
----
PRESENT: MR. DHRUV DAYAL, DAG, HARYANA
FOR THE PROSECUTOR IN MRC-5 OF 2013 &
FOR THE RESPONDENT IN CRA-D-1010-DB OF 2013.
MR. VINOD GHAI, SR.ADVOCATE
WITH MR. SIMARDEEP SINGH, ADVOCATE
AND MR. MANDEEP KAUSHIK, ADVOCATE
FOR THE RESPONDENTS IN MRC-5 OF 2013 &
FOR APPELLANTS NO.1 TO 4 AND 6 TO 14
IN CRA-D-1010-DB OF 2013.
MR. R.S. CHEEMA, SR.ADVOCATE
WITH MR. A.S.CHEEMA, ADVOCATE
FOR APPELLANT NO.5-VIJAY IN CRA-D-1010-DB OF 2013.
M. JEYAPAUL, J.
1. Accused Shamsher, Kuldeep, Hari Singh and Dalbir were convicted under Sections 148, 120-B and 302 read with Section 34 IPC. They have been sentenced as follows:-
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Under Sentence Fine In default of payment of
Section fine
302/34 IPC Death sentence to be `25,000/- S.I. for 3 months
hanged by neck till each
death subject to
confirmation by the
Hon'ble High Court.
120-B IPC R.I. for Life, i.e. till `25,000/- S.I. for 3 months
remainder of life. each
148 IPC R.I. for 3 years `5000/- each S.I. for 1 month
2. Having handed down a sentence of death to the above four accused, the trial Court referred the death sentence imposed for confirmation by this Court.
3. The remaining accused, Inder Singh, Dhoop Singh, Ram Kumar, Manjeet, Vijay, Bimla, Santosh, Sunita, Neelam and Jagat Singh were convicted under Section 148 and 120-B IPC. They were sentenced by the trial Court as follows:-
Under Sentence Fine In default of payment of
Section fine
120-B IPC R.I. for Life, i.e. till `25,000/- S.I. for 3 months
remainder of life. each
148 IPC R.I. for 3 years `5000/- each S.I. for 1 month
4. All the 14 accused jointly have jointly preferred CRA-D-1010- DB of 2013 aggrieved by the judgement of conviction and sentence passed as referred to by the trial Court.
5. The brief case of the prosecution is that on 10.7.2011, Rajinder Singh, Sarpanch of village Patwan, District Bhiwani arrived at the police station and passed an oral intimation that house of Santosh widow of Sukhbir was found closed from inside. He apprehended that some untoward incident SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -3- had taken place. PW22 Inspector/SHO Ashok Kumar alongwith the other police officials reached village Patwan and proceeded to the roof of the house of Santosh and found that Santosh and her two sons, Rajesh and Jaswant were lying dead. He passed on intimation to the legal representatives of the Santosh. PW2 Ajit, brother of deceased Santosh arrived at the scene of occurrence and suffered a statement. He had stated that his sister Santosh was given in marriage to late Sukhbir son of Bhim Singh about 25 years ago. Deceased Rajesh and Jaswant were the sons of late Santosh. Sukhbir passed away about 13 years go. Though the share of Santosh came to 22.5 acres, the in-laws of Santosh had given her land measuring only 18 acres. Husband of Santosh had four brothers, out of which Inder Singh and Dhoop Singh were alive. The other brother Satbir had also passed away. Santosh was residing in village Patwan alongwith the her sons. Her in-laws were residing in the house constructed in the fields. Out of 5 acres of land in the said fields, Santosh and her son Rajesh sold 1 acre of land about 20 days prior to the occurrence. Accused Inder Singh, his wife, Shamsher son of Inder Singh and his wife, accused Kuldeep son of Jasbir, his wife, wife of Satbir, accused Dhoop Singh son of Bhim Singh, Pardeep son of Dhoop Singh and wife of accused Dhoop Singh were annoyed by the alienation of 1 acre of land by Santosh and her son Rajesh.
6. A week prior to the occurrence Rajesh (since deceased) informed his uncle PW2 that Kuldeep son of Satbir, Shamsher son of Inder Singh and Jaswant @ Jamnu threatened Santosh and her sons threatened that they would teach a lesson to them for selling the land. On 10.7.2011 around 12.15 p.m. SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -4- Hawa Singh, resident of village Patwan telephonically informed PW2 that police had arrived at the village as his sister and her sons had been murdered. Upon receiving the said information PW2 alongwith his brother Dharambir, Kitab Singh, Sarpanch and Wazir Singh reached village Patwan and saw the dead bodies of Santosh and her sons. They came to know that Santosh and her sons had been murdered by Inder Singh, Dhoop Singh, wife of Inder Singh, wife of Dhoop Singh, Shamsher, wife of Satbir Singh, wife of Kuldeep Singh, wife of Shamsher Singh, Pardeep and Jaswant @ Jamnu with sharp edged weapons on account of a grudge they nursed because of sale of 1 acre of land by Santosh and Rajesh. The murder had been committed on the intervening night of 8/9.7.2011. PW22 Inspector Ashok Kumar took up the case for investigation.
7. PW18 Dr.Sandeep Kumar, Medical Officer attached to General Hospital, Bhiwani conducted post mortem examination on the dead body of Rajesh on 11.7.2011 at 10.00 a.m. He found maggots scrawling on the dead body. Rigor mortis was completely absent in all limbs. He found the following injuries on the dead body of Rajesh:-
"1. Incised wound 15cm x 6cm over right parietal region of scalp directly going into the cranial cavity with brain matter exposed.
2. Mid metcarpel amputation of forth & fifth finger on right side with 15cm x 5cm incised wound.
3. Incised wound 7cm x 2cm over right side of forehead extending upto right eye, bone deep with fracture of right SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -5- frontal bone.
4. Incised wound of 7c x 3cm over right side of upper part of neck which is skin deep.
5. Incised wound of 4cm x 2cm over lower lip which is full thickness deep."
8. On the very same day he also conducted the post mortem examination on the female dead body of Santosh. Rigor mortis was completely absent in all llimbs. He found the following injuries on the dead body of Santosh:-
"1. Incised wound of 4cm x 2cm over right side of face extending upto right eye, which is muscle deep.
2. Incised wound of 14inch x 6inch. At lower abdomen, transversely placed with part of small intestine and omentum line outside the wound.
3. Small intestines having juices and chime. Large intestines them having ges facal matter."
9. On the same day, he also conducted post mortem examination on the dead body of Jaswant. He found that rigor mortis was completely absent in all limbs. He found the following injuries on the dead body:-
"1. Incised wound 7cm x 2cm below left eye extending upto the base of noise and on further dissection there is fracture of maxilla bone.
2. Incised wound 8cm x 2cm below the left side of mandible and is muscle deep.
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3. Incised wound 10cm x 2cm over left side of neck deep upto trachea.
4. Incised wound of 4cm x 2cm left anterior chest wall and on further dissection there is fracture of left clavicle with laceration of 2cm x 2cm in left lung.
5. Incised wound of 8cm x 2cm dorsum of right hand on radial aspect on and further dissection there is disarticulation of right thumb.
6. Incised wound of 6cm x 3cm over left temporo-parietal region and on further dissection there is fracture of parietal bone."
10. In his opinion, Rajesh, Santosh and Jaswant had died due to shock and haemorrhage on account of injuries found on their respective dead bodies. All the injuries were ante mortem in nature and sufficient to cause death in the ordinary course of life.
11. PW1 Karam Singh who was a brother in relation to deceased Santosh proceeded to village Patwan for collecting household articles of deceased Santosh. When he was loading the articles, number of villagers collected over there. He came to know that Hari Singh, Ram Kumar, Dalbir, Shamsher, Sunita, Dhoop Singh and Bimla alongwith their relatives conspired with each other for grabbing the land of Santosh and committed murder of Santosh, Rajesh and Jaswant. Accused Manjeet and Inder Singh hatched out a plan to kill the deceased.
12. PW3 Dharambir was the other brother of deceased Santosh. He SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -7- has testified that on 5.8.2011 accused Hari Singh and accuswd Dalbir were interrogated in police custody. Based on the disclosure statements suffered by accused Hari Singh, a trouser of light grey colour and one shirt of brown colour with blood stains were recovered from the plastic sack of the tubewell of accused Dalbir. On the basis of the disclosure statement suffered by Dalbir, a red and white colour shirt and blue colour trouser with blood stains were recovered from the plastic sack in the tubewell of accused Dalbir. He also spoke about the arrest of accused Jagat Singh who was arrested on 2.10.2011 by the police and recovery of mobile phone vide recovery memo Ex.PN/I.
13. PW4 Shree Bhagwan was the Registration Clerk attachad to the office of Sub Registrar, Behal. Photocopies of sale deed dated 1.7.2011 executed by Inder Singh son of Bhim Singh in favour of Jaswanti, sale deed dated 17.6.2011 executed by Santosh Devi and Kuldeep in favour of Jaswanti Devi, Santosh and Manju Devi and the sale deed dated 24.6.2011 executed by deceased Santosh and her son Rajesh in favour of Kamla. He has also stated that respective shares in the total land were sold through the above documents.
14. PW5 Ram Singh, Patwari, Revenue Estate Patwan spoke to the fact that he handed over a copy of jamabandi for the year 2005-2006, computerized copy of mutation and copy of khasra girdawari marked respectively as P16, P17 and P18 to the investigating official. He would also state that as per jamabadi, the land referred to in the jamabandi was a joint holding of all the share holders. In khasra girdwari also, joint holding of all the cultivators had been shown.
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15. PW6 Rajbir has deposed that on 24.6.2011, he purchased 8 kanals of land from deceased Rajesh in the name of Kamla wife of Banwari. The possession of the land was with Santosh and Rajesh. Inder Singh and Sunita wife of Dhoop Singh lodged a protest. They also burnt the bundles of millet. In that regard a complaint also was moved against PW6 and his family members at police station Behal. But the matter was compromised at the intervention of panchayatdars. He had deposed that the said land was in his possession.
16. PW7 Satbir son of Phool Singh has testified that his sister-in-law was married to PW3 Dharambir. Therefore, deceased Santosh was his sister in relation. On 31.7.2011, at about 10.00 a.m., he was present in his house at village Dandma. Accused Hari Singh and Dalbir came to his house and requested him with folded hands to save them. They disclosed that both of them alongwith Shamsher, Kuldeep, Manjeet, Dhoopa and many others committed the murder of Santosh, Rajesh and Jaswant with axes for they had sold the land. He produced Hari Singh and Dalbir to the police.
17. PW8 Satbir son of Uday Singh has deposed that Santosh was his sister in relation. On 22.7.2011 at about 11.00 a.m., he was present in his house. Accused Inder Singh, Ram Kumar and Dhoopa came to his house at village Kumbha and disclosed that they had murdered Santosh, Rajesh and Jaswant due to sale of land. They took PW8 Satbir to Behal to get the matter compromised. When he was proceeding, he found police vehicle at Behal and handed over the accused to the police and moved an application. As per the personal search of accused Inder Singh, one mobile phone and diary were SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -9- recovered by the police. From the personal search of accused Ram Kumar, a mobile phone was recovered.
18. PW10 Hari Kishan was the father of deceased Santosh. He testified that deceased Rajesh had sold 1 acre of land. Accused Inder Singh agitated over the sale on the ground that the land was sold to their enemies. Accused Inder Singh and others quarreled with Santosh and her sons. Deceased Rajesh made telephonic call on 3.11.2014. He and his grandson convened a panchayat at the house of Rajinder Sarpanch. The panchayat was attended by accused Inder Singh, accused Dhoopa , Dalbir, Manjeet, Hari Singh, Ram Kumar and 5 other family members and some relatives. In the panchayat accused Dalbir, Manjeet, Hari Singh and Ram Kumar sought for transfer of land in their names so that they would take care of the persons who took possession of the land. After pacifying them PW10 returned to his house.
19. PW11 Hawa Singh deposed on that on 8.7.2011 he proceeded alongwith Zile Singh to the fields of Inder Singh. Accused Inder Singh and Dhoop Singh were present at that time. Accused Inder Singh proclaimed that the other party had sold the land to their enemy and that the matter would be solved only by finishing them. PW11 met Inder Singh to make him understand the issue. Thereafter accused Inder Singh assured him that they would not do anything wrong.
20. PW12 HC Mohan Lal joined the investigation on 27.7.2011. When the police party proceeded to bus stand of village Baoran, 4 persons tried to run away. Accused Vijay produced a motorcycle and the same was SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -10- recovered. Accused Shamsher also suffered a disclosure statement. Thereafter accused Shamsher and accused Kuldeep were interrogated and their disclosure statements were made. On 29.7.2011, on the basis of disclosure statements suffered by accused Vijay and Manjeet, mobile phones were recovered from them. On 30.7.2011, accused Kuldeep and accused Shamsher were again interrogated. They suffered disclosure statements.
21. PW13 Constable Harender Singh testified that on 7.8.2011 accused Hari Singh and Dalbir were interrogated by the police in his presence.
22. PW14 HC Ramesh Chander deposed that accused Inder Singh and Ram Kumar suffered disclosure statements during interrogation by Investigating Officer. On 31.7.2011 accused Hari Singh got recovered one mobile phone and accused Dalbir also got recovered one mobile phone and one voter identity card. On 5.8.2011, accused Dalbir and Hari Singh were interrogated in the police lock-up. On the basis of the disclosure statements suffered by accused Hari Singh and Dalbir, clothes and axes were recovered.
23. PW16 ASI Jaipal Singh testified that when he was incharge of Cyber Cell, Bhiwani he provided call details of 10 mobile numbers to PW22 Ashok Kumar. The call details Ex.PBB/I were recovered by PW22 under recovery memo Ex.PBB on 6.8.2011.
24. PW22 Inspector Ashok Kumar who investigated the case has spoken about the details investigation done by him.
25. In his statement under Section 313 Cr.P.C., accused Inder Singh has stated that he was innocent, but he was implicated alongwith his other SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -11- family members in the false case. Santosh and another sold 1 acre of land which was in his physical possession for the last so many years for `25 lacs. PW6 Rajbir was instrumental in selling the said land. A sale deed was executed in favour of Kamla. When Kamla and others were not able to get the possession, they burnt the crops. That matter was settled in the panchayat. Rajbir, Kamla and others were mounting pressure on Santosh and another to return the money or deliver the possession of the land. Santosh and another could not return the money as Santosh had handed over the money to her parents at village Kumbha. Rajbir and Kamla felt aggrieved as they could not get back the money or the land. After the murder of Santosh, Rajesh and Jaswant the present false case was foisted on them, it was further contended.
26. The other family members of accused Inder Singh have set up a plea under Section 313 Cr.P.C. that they were innocent, but a false case was foisted on the entire family members.
27. The accused who were non-family members have contended in their statements under Section 313 Cr.P.C. that they were not concerned with the dispute of the family of Inder Singh and deceased Santosh. But they were falsely implicated.
28. On the side of defence, 5 witnesses were examined. DW1 Kanshi Ram deposed that accused Hari Singh who came to his house on 8.7.2011 remained with him in his house till 9.7.2011 at 2.00 p.m.
29. DW2 Suresh Kumar testified that accused Dalbir, his wife and two children resided in his house on rent. He was staying in the house on SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -12- 8.7.2011. He proceeded to village only on 10.7.2011.
30. DW3 Rajpal Singh deposed that accused Manjeet was invited by him to attend the Greh Parvesh performed by him on 8.7.2011. Responding to the invitation card marked as DW3/B, accused Manjeet remained in the new house of DW3 till 7.30 p.m. on 8.7.2011.
31. DW4 Narender Kumar deposed that accused Vijay who was working as a Teacher in Gayatri Shiksha Sansthan was present in the school on 8.7.2011 as per the entry in the attendance register.
32. DW5 Mahabir Singh testified that he was the registered owner of the motorcycle bearing Registration No.HR-19-E-2816 recovered in this case.
33. Though the trial Court disbelieved the evidence of PW8 Satbir son of Uday Singh as regards the extra judicial confession allegedly suffered before him by accused Inder Singh, Ram Kumar and accused Dhoop Singh, it chose to convict the accused and sentence them as stated supra having adverted to the other evidence on record in length.
34. Mr. Vinod Ghai, learned Sr.counsel for the appellants would submit that the motive for triple murder was not at all established by the prosecution. The prosecution has come out with a totally incredulous evidence as regards the extra-judicial confession allegedly suffered by accused Shamsher, Kuldeep, Hari Singh and Dalbir. PW2 and PW10 are interested witnesses. He would also submit that recovery of material objects have been completely stage managed. The call details had not been established as per the procedure known to law. The recovery of axes and the blood stained clothes also were doubtful. There was no blood grouping SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -13- found in the FSL report and therefore, the blood stained apparels allegedly recovered from accused Hari Singh and Dalbir would not also connect them to the crime. Further, there was no iota of evidence against accused Dhoop Singh, Bimla, Santosh, Sunita and Neelam, he submitted.
35. We also heard the submissions made by learned DAG, Haryana supporting the verdict of conviction and sentence passed by the trial Court.
36. The entire case of the prosecution in a case of triple murder hinges on circumstantial evidence, namely, motive for the murder and extra judicial confession suffered by accused Hari Singh and Dalbir before PW7 Satbir son of Phool Singh and extra judicial confession suffered by accused Inder Singh, Ram Kumar, Dhoop Singh before PW8 Satbir son of Uday Singh, the recovery of axes from accused Shamsher, Kuldeep, Hari Singh and Dalbir and recovery of shirts and trousers from accused Hari Singh and Dalbir, recovery of mobile phones from the accused and the FSL report which disclosed blood stains on the trousers and shirts recovered from accused Hari Singh and Dalbir.
37. It is a well settled proposition of law that conviction can be based on circumstantial evidence. But all the circumstances relied upon by the prosecution must be clearly established. The proved circumstances must be such as would reasonably exclude the possibility of innocence of the accused. In other words, the circumstantial evidence should be consistent with the guilt of the accused and inconsistent with his innocence. The chain of circumstance should be so complete to lead to the only conclusion that it was the accused and none else had committed the crime. [Refer State of SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -14- Uttar Pardesh vs. Hari Mohan, 2000(4) RCR (Criminal) 667 (S.C.)]
38. Let us first take up the evidence available against accused Dhoop Singh, Bimla, Santosh, Sunita and Neelam. Though accused Sunita suffered disclosure statement, no recovery was shown on the basis thereof. But accused Dhoop Singh, Bimla, Santosh and Neelam never suffered any disclosure statement. Nor was any recovery made at their instance.
39. The entire evidence on record was thoroughly scanned by us. Not even a scrap of paper was produced by the prosecution to indicate their involvement in crime of triple murder. No witness examined before the trial Court has whispered that the above accused did actively participate in the occurrence. In our considered view, the trial Court has recorded unjustifiable conviction as against the above accused just because it was a case of triple murder which took place on account of the land dispute amongst the family members. Therefore, we have no hesitation to come to a conclusion that accused Dhoop Singh, Bimla, Santosh, Sunita and Neelam are entitled to acquittal of the charges framed against them.
40. PW2 Ajit, brother of deceased Santosh had set the law in motion by lodging the first information report. He had come down to the scene of crime immediately on receipt of the untoward incident at the house of Santosh from PW11 Hawa Singh, who, of course, turned partly hostile to the case of the prosecution. PW2 has categorically deposed that his sister Santosh alongwith her son Rajesh sold away 1 acre of land. Therefore, the family members of accused Inder Singh were not happy. A week prior to the occurrence, accused Kuldeep and Shamsher wielded a threat to his sister SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -15- Santosh as she alongwith her son Rajesh chose to sell away 1 acre of land.
41. PW10 Hari Kishan was the father of deceased Santosh. He has also deposed that accused Inder Singh objected to the sale of 1 acre of land by his daughter and his grandson. A quarrel erupted between the family of Inder Singh and family of his daughter. On 3.11.2011, deceased Rajesh contacted PW10 over phone and conveyed him of the development in the aftermath of sale of 1 acre of land. PW10 convened a panchayat in which accused Inder Singh, Dhoop Singh, Dalbir, Manjeet, Hari Singh and Ram Kumar attended.
42. It is true that PW2 and PW10 were closely related to the deceased. But in the instant case, there can be no better person other than the own relatives to speak about the motive arisen out of the sale of undivided portion of land of the family. Therefore, there is no reason to reject the evidence of PW2 and PW10 just because they were related to the deceased.
43. We also find from the evidence of PW6 Jasbir that he infact purchased 1 acre of land from deceased Santosh and Rajesh in the name of Kamla. It is to be noted that accused Inder Singh in his statement under Section 313 Cr.P.C. admitted the above factum. PW6 is an independent witness and therefore, his evidence cannot be simply ignored by the Court. He would depose that accused Inder Singh and Sunita lodged a protest for the purchase made by him in the name of Kamla. The bundles of millet were burnt. A complaint was lodged as against PW6 Rajbir. It is his evidence that there was some compromise of the issue arisen out of the purchase of land in the name of Kamla at the intervention of the panchayatdars. SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -16-
44. The evidence of PW4 Shree Bhagwan, an official from the Sub Registrar's office proves that deceased Santosh and Rajesh were infact sold 1 acre of land on 24.6.2011 a few days prior to the occurrence in favour of Kamla. The evidence of PW5 Ram Singh, Revenue Patwari would show that the property in dispute was in joint possession. The above evidence of the witnesses would go to show that there was a scramble between the rival groups for possession. No wonder, there had been a destruction of bundles of millet by fire at the instance of one party. Therefore, in our considered view, motive for the occurrence stood established by the prosecution.
45. On a careful analysis of the entire evidence on record, we find that there is no legal evidence to establish the conspiracy theory projected by the prosecution. But unfortunately, the trial Court in its judgement elaborately dealt with the disclosure statements suffered by the accused and the statements suffered by the witnesses under Section 161 Cr.P.C. to rope in the accused for the charge under Section 120-B IPC.
46. It is a well settled proposition of law that under Section 27 of Indian Evidence Act, 1872 only that portion of information which leads to the discovery of fact is alone admissible in evidence. The trial Court has completely lost sight of the first Principle of Law found under Section 27 of the Indian Evidence Act. The entire incriminating disclosure made by accused in the course of disclosure statement had also been unfortunately relied upon by the trial Court to rope in the accused for the charge under Section 120-B IPC. The trial Court also completely ignored the embargo found under Section 162 Cr.P.C. restricting the use of the statements under Section 161 SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -17- Cr.P.C. recorded from the witnesses by the investigating official. The statement under Section 161 Cr.P.C. can be used only to contradict the witness who suffered such a statement. But unfortunately, the trial Court had elaborately relied upon the statement under Section 161 Cr.P.C. which was completely resiled by the witnesses to conclude the theory of conspiracy projected by the prosecution.
47. PW7 Satbir son of Phool Singh has spoken about the confessional statement allegedly suffered by accused Hari Singh and Dalbir on 31.7.2011. Learned Sr.counsel appearing for the appellants would attack the evidence of PW7 on the ground that the accused would not have travelled about 60 kms. to reach the village of PW7 to suffer extra judicial confession. It is his further submission that PW7 did not enjoy any social standing. He had never met the accused in their village. He did not even know any police official, even as per his own showing. Therefore, it his submission that the evidence of PW7 is liable to b rejected.
48. We find that there is merit in the submission made by learned Sr.counsel appearing for the appellants. PW7 was just 45 years old. It is his admission that he never occupied the position of Panch or Sarpanch. No police official was known to him. He was residing at a village located about 60 kms. away from the village of the accused. Only about 7 years ago he had an occasion to go to the village of the accused. In our considered view, the evidence of PW7 does not pass the test of credibility. Therefore, his evidence is rejected.
49. We also went through the evidence of PW8 Satbir son of Uday SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -18- Singh. His evidence was thoroughly rejected by the trial Court. We do not find any error in such a conclusion arrived at by the trial Court.
50. As against accused Inder Singh, Ram Kumar, Manjeet, Vijay and Jagat, the prosecution has come out with their disclosure statements and the recovery of mobile sets from them. Mobile sets also had been allegedly recovered from the prime accused Shamsher, Kuldeep, Hari Singh and Dalbir.
51. PW16 ASI Jaipal Singh had infact provided the call details of 10 mobile numbers to PW22 Ashok Kumar, the investigating official in this case. On a careful perusal of the call details, we find that the call details had not been attested by anyone. The names of the users had been inscribed by hand. Tower locations also had not been indicated therein. Such call details could be drawn by anyone for that matter. There is no evidence adduced by the prosecution to show from where PW16 ASI Jaipal obtained those call details. Of course, PW16 has deposed that identity of the users had been taken from the telephone company. But there is no material on record to show that such identity had been taken by PW16 from the mobile company. No data had also been collected from the mobile company to show as to whom the SIM Card used in the mobile belonged. Technically qualified person from the company had not supplied the required information directly to PW16.
52. Mr. R.S.Cheema, learned Sr.Advocate for appellant Vijay Kumar referred to the decision of Hon'ble Supreme Court in Anwar P.V. vs. P.K.Basheer and others, Civil Appeal 4226 of 2012 dated 18.9.2014, wherein it has been held as follows:-
"22. The evidence relating to electronic record, as noted herein SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -19- before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overrules and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc. the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
Unless a certificate was issued in terms of Section 65B of the Indian Evidence Act, the call details produced cannot be admitted as evidence. Even admitting for the sake of arguments that those mobile phones had been put to use effectively by the accused, it is found that most of them belong to the same family. Therefore, such a use of mobile phones will not lead to any SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -20- inference that they hatched a conspiracy and committed murder. Further, the mobile phones allegedly recovered from accused Inder Singh, Ram Kumar, Vijay and Jagat Singh were found to be not in working condition as per the admission made by PW22 Ashok Kumar. With such rickety evidence, accused Inder Singh, Ram Kumar, Manjeet, Vijay and Jagat Singh cannot be connected to the crime through the mobile phones allegedly recovered from them. Except the recovery of mobile phones, we do not find any other evidence as against Inder Singh, Ram Kumar, Manjeet, Vijay and Jagat. Therefore, they are also entitled to acquittal.
53. Accused Shamsher and Kuldeep had wielded a threat to deceased Santosh a week prior to the occurrence as per the evidence of PW2. PW10 has deposed that accused Dalbir and Hari Singh also participated in the panchayat and directed the land to be transferred in their names so that they would take care of the persons who took possession of the land. Further, there is no reason to reject the disclosure statements made by accused Shamsher, Kuldeep, Hari Singh and Dalbir which led to the recovery of axes at their instance. Further, on the basis of disclosure statements suffered by accused Hari Singh and Dalbir, blood stained clothes also had been recovered. The FSL report would disclose that those material objects contained blood stains. There was no explanation from accused Shamsher, Kuldeep, Hari Singh and Dalbir as to how the weapons recovered at their instance did contain blood stains. Accused Hari Singh and Dalbir also did not offer any explanation for the blood stains found on the trousers and shirts recovered at their instance.
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54. Learned Sr.counsel appearing for the appellants would further submit that Kamla in whose name the property was purchased by PW6 Rajbir was not examined. In our considered view, non-examination of Kamla does not weaken the case of the prosecution. Sufficient evidence has also been adduced through PW6 as regards the purchase of property from deceased Santosh by PW6 Rajbir in the name of Kamla. The above factual aspect has been admitted by accused Inder Singh in his statement under Section 313 Cr.P.C. Therefore, non-examination of Kamla by the prosecution does not loom large.
55. It was also submitted by learned counsel appearing for the appellant that there would have been no compromise mooted without associating deceased Santosh. We find that there is no merit in the above submission. Santosh was a widow and her sons were bachelors who had just attained majority. Further, the father of Santosh had taken the lead. No wonder, they had not participated in the compromise.
56. It was further submitted by learned Sr.counsel appearing for the appellants that PW3 Dharambir had not spoken anything about the motive attributed for the crime of triple murder. In our view, Dharambir might not have participated in the panchayat convened prior to the occurrence. Therefore, he is not supposed to speak about the compromise which was struck in the panchayat.
57. It was submitted that the accused would have a grievance only as against PW6 Rabjbir who was instrumental in purchasing the property in the name of Kamla and against deceased Santosh. The evidence on record would SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -22- go to show that PW6 Rajbir having purchased the property in the name of Kamla had to assert his title to the property. Such an assertion had given rise to a tension between two sides. Accused might have thought that it was only Santosh who had sold the property was the source for the entire trouble. The accused might have grievance against PW6 as well. But the person who actually alienated the property had been targeted by her relatives.
58. It was submitted by learned counsel appearing for the appellants that the disclosure statements allegedly suffered by accused Shamsher, Kuldeep, Hari Singh and Dalbir will have to be disbelieved as the investigating official had wantonly shown the recovery to be effected in Rajasthan at the first instance in order to take judicial custody of those accused for a longer time.
59. There had been occasions when the accused thought it fit to mislead the investigating agency by furnishing wrong information in the disclosure statement. This may be one such case where the wrong location of the material objects had been indicated in the disclosure statements made by the above accused. Therefore, we do not find sufficient reason to reject the disclosure statements suffered by accused Shamsher, Kuldeep, Hari Singh and Dalbir and the recovery of the material objects effected at their instance.
60. It was also submitted on the side of the appellants that only in two axes and two shirts human blood was found. In other two axes and 2 pants though blood was found, it could not be classified as human blood as it had disintegrated. Therefore, it is submitted that unless grouping had been done the blood found in the weapons cannot be connected to the accused. SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -23-
61. Firstly, the prosecution has established that accused Shamsher, Kuldeep, Hari Singh and Dalbir had infact suffered disclosure statements pursuant to which the respective axes, shirts and pants had been recovered at their instance. They had been found with blood stains. The FSL report would indicate human blood in two weapons and two shirts. In the other two weapons and two pants, blood stains had been found. When there was no explanation from the accused concerned as to the blood stains found on the weapons and the apparels recovered at their instance, the Court can very well raise the presumption that those weapons had been used and the apparels were found with blood stains only on account of their participation in the crime.
62. Mr. R.S.Cheema, learned Sr.counsel appearing for appellant Vijay would vehemently contend that the alleged recovery of motorcycle at the instance of accused Vijay had no connection with the crime alleged. We find that there is merit in the submission made by learned counsel appearing for accused Vijay. It is not the case of the prosecution that the motorcycle recovered was used by the accused Vijay either to reach the scene of occurrence or to get away from there. Therefore, the motorcycle allegedly recovered from accused Vijay does not connect him to the crime of triple murder.
63. In the above facts and circumstances, we are of the considered view that the prosecution has established beyond reasonable doubt with the clinching circumstantial evidence adduced that it was only accused Shamsher, Kuldeep, Hari Singh and Dalbir who caused the murder of Santosh, Rajesh SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -24- and Jaswant.
64. Now let us take up the Murder Reference for critical consideration. The settled position of law on this serious issue is as follows:-
In the celebrated judgement in Bachan Singh vs. State of Punjab, AIR 1980 SC 898(1), it has been held as follows:-
"199. With great respect, we find ourselves unable to agree to this enunciation. As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973. it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court may pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -25- depravity that "special reasons" can legitimately be said to exist."
65. In the aforesaid decision, it has been categorically held that before making a delicate choice of recording conviction due regard will have to be given to the crime and the criminal. The aggravating and mitigating factors shall be critically considered by the Court before exercising a choice in the matter of awarding punishment.
66. In Gurmail Singh @ Gala vs. State of Punjab, 2013(2) SCC 713, it has been held that age of the accused is definitely a factor which cannot be ignored while choosing the sentence. The Court also should take into account the probability that the accused persons could not be reformed and rehabilitated while choosing the capital punishment of death.
67. In Sushil Sharma vs. State of N.C.T. of Delhi, 2013(4) RCR (Criminal) 653, it has been held as follows:-
"79. We notice from the above judgements that merely brutality of the murder or the number of persons killed or the manner in which the body is disposed of has not always persuaded this Court to impose death penalty. Similarly, at times, in the peculiar factual matrix, this Court has not thought it fit to award death penalty in cases, which rested on circumstantial evidence or solely on approver's evidence. Where murder, though brutal, is committed driven by extreme emotional disturbance and it does not have enormous proportion, the option of life imprisonment has been exercised in certain cases." SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -26-
68. The legal proposition found in the above decision of the Hon'ble Supreme Court is that number of persons killed, the manner of disposal of the dead body and brutality of the murder committed alone will not be the deciding factors to award death penalty. It has been categorically held by the Hon'ble Supreme Court that if a case of murder rested on circumstantial evidence or solely on approver's evidence, life sentence would be the proper sentence.
69. In Sangeet vs. State of Haryana, 2013 AIR (SC) 447 the Hon'ble Supreme Court was pleased not to endorse the approach of aggravating and mitigating circumstances adopted in Bachan Singh's case.
70. In Dilip Premnarayan Tiwari vs. State of Maharashtra, 2010(1) SCC 775, the fact that accused had a clean past sans involvement in any criminal case would also be taken as a factor to opt the choice of sentence.
71. Let us now apply the above settled principles to the instant case. We find that accused Shamsher was 23 years old, Kuldeep was 24 years old, Hari Singh was 40 years old and Dalbir was 30 years old. Accused Shamsher has two daughters one at the age group of 5 and another in the age group of 3. Accused Kuldeep has two daughters, at the age group of 4 and 3. Accused Hari Singh has a minor daughter and a son. Accused Dalbir has a son aged 8 years. Accused Shamsher, Kuldeep, Hari Singh and Dalbir did not have any criminal antecedents. There is no evidence on record to show that they cannot be rehabilitated or that their release from jail after completion of their life sentence would pose a threat to the society. Nothing was adduced to show that the above accused would tend to commit similar murders if they are SUMIT GULATI 2014.12.10 17:37 I attest to the accuracy and authenticity of this document MURDER REFERENCE NO.5 OF 2013 -27- released after the life sentence is completed.
72. Therefore, we are not inclined to confirm the death sentence awarded to accused Shamsher, Kuldeep, Hari Singh and Dalbir.
73. In the above facts and circumstances, accused Shamsher, Kuldeep, Hari Singh and Dalbir are acquitted of the charges under Sections 148 and 120-B IPC. But they are convicted under Section 302 read with Section 34 IPC and they are sentenced to undergo life imprisonment. The fine amount imposed and default sentence passed thereunder by the trial Court as against these accused are maintained. The judgement of conviction and sentence passed as against accused Inder Singh, Dhoop Singh, Ram Kumar, Manjeet, Vijay, Bimla, Santosh, Sunita, Neelam and Jagat Singh stands reversed and they are acquitted of all the charges framed as against them. The aforesaid appellants are in jail. They be set at liberty forthwith, if their custody is not required in connection with any other case.
74. Resultantly, the appeal qua appellants Shamsher, Kuldeep, Hari Singh and Dalbir in the aforesaid terms stands dismissed.
75. The Murder Reference is answered accordingly.
(M. JEYAPAUL)
JUDGE
December 10, 2014 (DARSHAN SINGH)
Gulati JUDGE
SUMIT GULATI
2014.12.10 17:37
I attest to the accuracy and
authenticity of this document