Punjab-Haryana High Court
Criminal Appeal No.20-Db Of 2006 vs Pathar Dass Chela Son Of Nirman Muni Son ... on 28 January, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and
Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Date of decision: January 28,2011
1. Criminal Appeal No.20-DB of 2006
Ram Dhari alias Rama son of Jagan Nath Pandit son of Rulia Ram
resident of village Aakarh, Police Station Sadar Rajpura, District
Patiala.
V.
State of Punjab
2.Criminal Appeal No.27-DB of 2006(O&M)
Shaminder Singh alias Bittu son of Sarwan Singh resident of
Dittupur Fakiran, Police Station Mulepur, District Fatehgarh Sahib.
V.
State of Punjab
3.Criminal Appeal No.190-DB of 2006(O&M)
1. Pathar Dass Chela son of Nirman Muni son of Pritam Dass
resident of Dera Udasian, resident of villager Aakarh, Police Station
Rajpura.
2. Balbir Singh alias Bira son of Sarwan Nath son of Mam Chand
resident of Village Aakarhi,Police Station Sadar, Rajpura.
3. Sarwan Nath son of Mam Chand son of Rikhi Ram, resident of
Aakarh,Police Station Sadar Rajpura.
V.
State of Punjab
Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and
Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 2
4.Criminal Appeal No.173-SB of 2006
Pardeep Kumar aged 27 years, son of Late S.Madan Lal son of
Puran Chand,Balmiki,Hospital,Patiala.
V.
State of Punjab
5.Criminal Appeal No.620-SB of 2006
Rai Singh alias Neeta son of Ram Gopal son of Dasondhi Ram,
resident of Aakarh Police Station Rajpura.
V.
State of Punjab
6. Criminal Appeal No.2234-SB of 2005
Jagtar Singh son of Pal Singh son of Mansudan Singh, resident of
Village Chanarthal Police Station Kot Fatta, District Bathinda, at
present Hareri Road, Basti Chumiaran, Sangrur
V.
State of Punjab
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE M. JEYAPAUL
Present: Mr. Hardip Singh, Advocate for the appellant
in Criminal Appeal No.20-DB of 2006.
Mr.R.S.Bains,Advocate for the appellants in
Criminal Appeal Nos.27-DB of 2006 and 190-DB of 2006.
Mr. Manoj Kumar,Advocate for the appellants in Criminal
Appeals No.173-SB of 2006 and 620-SB of 2006.
Mr.Harsh Aggarwal,Advocate for the appellant in
Criminal Appeal No.2234-SB of 2005.
Mr. K.D.S.Sidhu,DAG, Punjab for the respondent-State.
M.Jeyapaul,J.
Introduction Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 3 All these six Criminal Appeals arise out of the judgment of conviction rendered by the Court of Additional Sessions Judge (Adhoc), Patiala. Totally eight accused faced the trial. The details of convictions under various offences and the imprisonment imposed upon the accused are mentioned as follows:
Name of Penal Term of Fine Default Accused Provision Imprisonment imposed sentence A-1 302 IPC Life Rs. 1000/- One Pathar Dass Imprisonment years Pathar Dass 120-B IPC Rs. 1000/- Life One year Imprisonment Pathar Dass 201 IPC Rs. 1000/- One year Ten years Pathar Dass 27-A Act Rs. 500/- Six Two years months A-2 Ram Dhari 302/34 IPC Life Rs. 1000/- One year Ram Dhari 120- B IPC Imprisonment Rs. 1000/- One year Ram Dhari 201 IPC Life Rs. 1000/- One year Imprisonment Ram Dhari 27 Arms Act. Rs. 500/- Six Ten years months Two years A-3 Balbir Singh 302/34 IPC Life Rs. 1000/- One year Balbir Singh 120-B IPC Imprisonment Rs. 1000/- One year Balbir Singh 201 IPC Life Rs. 1000/- One year Imprisonment Ten years A-4 Sarwan Nath 302/34 IPC Life Rs. 1000/- One year Sarwan Nath 120-B IPC Imprisonment Rs. 1000/- One year Sarwan Nath 201 IPC Life Rs. 1000/- One year Imprisonment Ten years
Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 4 Name of Penal Term of Fine Default Accused Provision Imprisonment imposed sentence A-5 Shaminder 302/34 IPC Life Rs. 1000/- One year Singh 120-B IPC Imprisonment Rs. 1000/- One year Shaminder 201 IPC Life Rs. 1000/- One year Singh Imprisonment Shaminder Ten years Singh A-6 Pardeep 118 IPC Seven Years Rs. 1000/- One year Kumar 27 Arms Act. Two years Rs. 500/- Six Pardeep month.
Kumar A-7 Rai Singh 118 IPC Seven years Rs. 1000/- One Year Rai Singh 27 Arms Act Two years Rs. 500/- Six month A-8 Jagtar Singh 118 IPC Seven years Rs. 1000/- One year.
2. The first accused Pathar Dass, third accused Balbir Singh and fourth accused Sarwan Nath have preferred Criminal appeal No.190-DB of 2006; the second accused Ram Dhari alias Rama has filed criminal appeal No.20-DB of 2006; the fifth accused Shaminder Singh alias Bittu has preferred Criminal AppealNo.27-DB of 2006; the sixth accused Pardeep Pumar has filed Criminal Appeal No.173-SB of 2006; the seventh accused Rai Singh alias Neeta has filed Criminal Appeal No.620-SB of 2006 and eighth accused Jagtar Singh has preferred Criminal Appeal No.2234-SB of 2005. Brief case of the prosecution
3. (a) Nirman Muni deceased was the Mahant of Dera Udassin near village Aakarh. The other deceased Gurcharan Singh was his personal driver. PW2 Suresh Kumar has Singla Medical Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 5 Store on Gurdwara Road, Rajpura Town. On 2.5.2003 first accused Pathar Dass came to his shop and purchased sleeping pills i.e. zyloric, diclomol, neurodion fort and ativan. He issued original bill to to the first accused Pathar Dass. PW2 in fact produced photocopy Ex.PA of the carbon copy maintained by him.
(b) PW9 Surjit Singh is an electrical goods businessman. On 5.5.2003 he visited Dera in Aakarh. He found the deceased Mahant Nirman Muni and his driver deceased Gurcharan Singh in the said Dera. Pathar Dass A-1, Ram Dhari A-2, Balbir Singh A-3, Sarwan Dass A-4 and Shaminder Singh alias Bittu A-5 were also found over there. He took his lunch and remained there for about an hour and thereafter he left the Dera. In the evening when the sun was setting he again came down to the Dera. Pathar Dass A-1, Ram Dhari,A-2, Balbir Singh alias Bira A-3, Sarwan Nath A-4 and Shaminder Singh alias Bittu A-5 were loading two bags in a jeep. A Ceilo car of green colour was also parked nearby. After putting the bags in the jeep, Pathar Dass locked the Dera. PW9 Surjit Singh sought permission to stay during night at Dera but Pathar Dass A-1 informed PW9 that he could not stay there as Mahant Nirman Muni and his driver Gurcharan Singh had alread left Dera. Pathar Dass A- 1 started the jeep . Ram Dhari A-2 and Balbir Singh alias Bira A-3 took their seat in the said jeep. Shaminder Singh A-5 started the Ceilo Car and all of them went away from the Dera.
( c) PW12 Kewal Dass Mahant used to visit Dera Udasian near village Aakar. On 5.5.2003 he came to know that Mahant Nirman Muni was missing. PW6 Surjan Singh was also informed of Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 6 the disappearance of Mahant Nirman Muni. He along with Pathar Dass A-1 accompanied by about 50 persons proceeded to the Police Station and submitted "man missing" complaint.
(d) On 14.5.2003 PW25 Inspector Didar Singh who was in charge of the Economic Offences Wing, Patiala was on petrol duty along with police party. When he came down to the Bus Stand at Basantpura, he received secret information to the effect that Nirman Muni who was incharge of Dera Udasian of village Aakarh along with his driver Gurcharan Singh had gone on a jeep and were murdered by Pathar Dass, A-1, Ram Dhari alias Rama A-2,Balbir Singh alias Bira A-3, Swaran Singh A-4, and Shaminder Singh alias Bittu A-5 on 5.5.2003 in the Dera itself. He got further secret information that the dead bodies which were put in the jeep were disposed of in the Bhakhra Canal near villlage Pabri along with the said jeep. The informer also disclosed to him that Jagtar Singh A-8 and one Nirmal Singh alias Nimma also helped them in committing the murder after taking huge amount. He was also informed that Rai Singh A-7 and Pooja arranged arms and ammunition. In order to grab large extent of land owned by Dera, they committed the murder. On receipt of such a secret information PW25 Inspector Didar Singh prepared a ruqa Ex.PMM, on the basis whereof formal FIR Ex.PMM/1 was recorded by Sub Inspector Tejpal.
(e ) Pathar Dass A-1, Ram Dhari alias Rama A-2 and Shaminder Singh alias Bittu A-5 were appeared before PW12 Kewal Dass Mahant. Pathar Dass A-1 informed PW12 that he committed a sin as he had murdered Muhant Nirman Muni and Gurcharan Singh. Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 7 The said accused also requested him to produce them before the police as he( PW12) had influence in Police circle. Accordingly PW12 took them to PW25 Inspector Didar Singh. Pathar Dass A- 1,Ram Dhari A-2 and Shaminder Singh A-5 were arrested by PW 25 Inspector Didar Singh on informing them about the ground of arrest. The personal search of the above accused resulted in the recovery of a sum of Rs.115/-, Rs.30/- and Rs.55/- respectively. The same were recovered under the respective memos Ex.PNN, Ex.PNN/1 and Ex.PNN/2.
(f ) Pathar Dass A-1 made a disclosure statement Ex.PV in the presence of PW12 Kewal Dass Mahant and PW19 ASI Sukhwinder Singh. Ram Dhari A-2 made a disclosure statement Ex.PX and Shaminder Singh A-5 also made a disclosure statement Ex.PY
(g) Cranes and divers were arranged. PW10 Jaspal Singh, Executive Magistrate was summoned. PW25 Inspector Didar Singh inspected the Dera and the place of occurrence in the presence of PW12 Mahant Kewal Dass. He prepared a rough site plan Ex.POO .The Ceilo car bearing registration No.CH-01-U-4485 of green colour was also taken into possession vide Memo PBB.
( h) Based on the disclosure statements made by Pathar Dass A-1, Ram Dhari alias Rama A-2 and Shaminder Singh alias Bittu A-5, the police party along with the said accused and PW10 Jaspal Singh, Executive Magistrate arrived at Bhakhra Canal. All the above three accused pointed out the place from where the jeep along with the dead bodies was disposed of by them. Crane owned Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 8 PW3 Amarjit Singh was used to lift the jeep with two dead bodies found inside the said jeep.
( i ) In the rear cabin of the jeep two gunny bags were found lying. Both the bundles of gunny bags were unloaded and their mouths were opened one by one. Dead bodies of Mahant Nirman Muni and Gurcharan Singh were found in those two bags. The dead bodies were wrapped in blankets. The dead body of Mahant Nirman Muni was identified by Manohar Dass and Swami Surinder Muni Chela Mahant Niku Ram.
( j ) The dead body of Gurcharan Singh was identified by Lakhwinder Singh and Pal Singh. PW25 Inspector Didar Singh also prepared inquest report Ex.PKK/1. The jeep, dead bodies and other materials found over there were taken into possession vide memo Ex.PP. PW10 Jaspal Singh, Executive Magistrate remained present through out and attested the memo. PW25 also prepared site plan Ex.PQQ of the place of recovery.
( k) Dr. I.C. Taneja,,Medical Oficer attached to A.P. Jain Civil Hospital, Rajpura conducted post mortem examination on the dead body of Mahant Nirman Muni aged about 85 years on 16.5.2003 at 11.45 am. The dead body was found in a decomposed stage. Superficial skin of the body was peeled of. Greenish discoloration of the body was present. Both the upper limps and knees were flexed. A wound measuring 2.5 cms x 2 cms on the right side of parietal region and a wound measuring 4 cms x 2.5 cms on the left side of parietal region were found. One of the said wounds was entry wound and the other one was exit wound. There were also Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 9 fractures of left parietal and right parietal region. The entire stomach, small and large intestines were found in a decomposed stage. He opined that the death would have been caused due to hemorrhage and shock on account of injuries No.1 and 2. The injuries were found to be ante mortem in nature. He opined that those injuries were sufficient to cause death in the ordinary course of nature. The death would have been caused within 12 days prior to the post mortem examination. The post mortem report is Ex.PJJ/2.
( l) On the very same day he also conducted post mortem examination on the dead body of Gurcharan Singh aged about 47 years. The dead body was in a decomposed stage. Superficial skin of the body was peeled off and greenish discoloration of the body was present. He found a wound measuring 2 cms x 2 cms over the top of scalp and another wound measuring 3 cm x 2 cms over the right side of the neck. The scalp was found fractured into multiple pieces. The stomach, small intestine and large intestines were in a decomposed stage. The doctor opined that death was caused due to shock and haemorrhage on account of the aforesaid two injuries which were found sufficient to cause death in the ordinary course of nature. The reports of the chemical examiner were received. Those reports would reflect that no poison was recovered in the contents of the viscera sent for examination.
(k) On 17.5.2003 Balbir Singh A-3, Sarwan Nath A-4, Pardeep Kumar A-6 and Rai Singh alias Neeta A-7 met PW4 Santokh Singh. Pardeep Kumar A-6 informed PW4 Santokh Singh that Rai Singh A-7 was his friend. Pardeep Kumar A-6 was Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 10 introduced to Pathar Dass A-1 and Ram Dhari A-2. Pardeep Kumar A-6 further disclosed to PW4 Santokh Singh that Pathar Dass A-1 informed Pardeep Kumar A-6 that he had a plan to murder Mahant Nirman Muni to grab the land of Dera and,therefore there were in need of arms. Pardeep Kumar A-6 further disclosed him that he received a sum of Rs.60,000/- from Pathar Dass A-1 and arranged a pistol from Muzaffarnagar along with cartridges. It is further disclosed that Rai Singh A-7 accompanied Pardeep Kumar A-6 when the weapon was brought from Muzaffarnagar. The weapon was handed over to Pathar Dass A-1 and Ram Dhari A-2 about a month prior to the occurrence. Rai Singh A-7 also endorsed the disclosure statement made by Pardeep Kumar A-6. Balbir Singh A-3 also disclosed that Pathar Dass A-1 and Ram Dhari A-2 offered him money for committing murder of Mahant Nirman Muni. He further disclosed that on 5.5.2003 Pathar Dass A-1 called him from his house. Ram Dhari A-2 and Sarwan Nath A-4 were already present in the Dera. Pathar Dass A-1 mixed sleeping pills in tea of Mahant Nirman Muni and Gurcharan Singh. Shaminder Singh A-5 came to Dera in a Ceilo car. Balbir Singh A-3 further disclosed that on the direction of Pathar Singh A-1 at about 4 pm he raised the volume of loud speaker at Dera. Pathar Dass A-1 fired at Mahant Nirman Muni and Gurcharan Singh in their heads. Pathar Dass A-1, Ram Dhari A-2 and Shaminder Singh A-5 put the polythene bags on the head of dead bodies of Mahant Nirman Muni and Gurcharan Singh. Both the dead bodies were wrapped in blankets and put in two bags. The dead bodies were loaded in a Mahindra Jeep and were thrown Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 11 along with the jeep in the river near Brauli Gujran. Balbir Singh A-3 further disclosed that after coming back to Dera blood stains were cleaned and his father Sarwan Nath A-4 also participated in cleaning the blood stains. Sarwan Nath A-4 also disclosed the same facts to PW4 Santokh Singh. All the above four accused informed PW4 that the police was in search of them and therefore, he should make arrangements for producing them before CIA staff Patiala. Balbir Singh A-3, Sarwan Nath A-4, Pardeep Ikumar A-6 and Rai Singh A-7 were accordingly produced by PW4 before PW25 Inspector Didar Singh on 17.5.2003. PW25 arrested the above accused.
(l) On the basis of the disclosure statement made by Pathar Dass A-1, SI Swaran Singh PW18 recovered one pistol .9 mm loaded with six cartridges Ex.P-2 to P-7 vide memo Ex.PB. On the basis of the disclosure statement given by Ram Dhari A-2, PW 23 ASI Satnam Singh recovered four live cartridges Ex.P67 to Ex.P70 and two empty cartridges Ex.P71 and Ex.P72 vide memo Ex.P13. On the basis of the disclosure statement made by Pardeep Kumar A- 6, PW19 ASI Sukhwinder Singh recovered .32 bore revolver loaded with four cartridges, and 16 cartridges . PW25 Inspector Didar Singh recovered pass-ports and other documents Ex.P.32 to Ex.P50 vide recovery memo Ex.PS/1 on the basis of the disclosure statement given by Balbir Singh A-3. On the basis of the disclosure statement given by Shaminder Singh A-5, he recovered a gold ring under recovery memo Ex.PT/1. PW25 arrested Jagtar Singh A-8 on production by PW22 Pritam Dass. Further investigation was completed and challan was prepared and filed by ASI Harpreet Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 12 Singh.
Statement of accused under Section 313 Cr.P.C. Pathar Dass A-1:
(m) He was innocent. He was falsely implicated at the instance of the present Mahant of the Dera who wanted to succeed to Mahantship of the Dera after the death of Mahant Nirman Muni.
No conspiracy was entered into by him. He did not commit the murder of Mahant Nirman Muni and driver Gurcharan Singh. He was arrested by the police on 11.5.2003 in the presence of respectable persons of the village by the police of CIA Staff, Patiala. He was kept in illegal custody and was tortured and was compelled to sign blank papers. The police have fabricated confessional statement on those papers. He was not produced by Mahant Kewal Dass. He had not led the police party to recover the dead bodies. No disclosure statement also was made by him. The pistol and dead bodies had been planted by the police in collusion with present Mahant of Dera. Ram Dhari alias Rama A-2
(n) He was innocent. On 11.5.2003 he proceeded to CIA Staff,Patiala along with respectable persons of the area. He was detained there and was falsely implicated. False recoveries were projected to strengthen the case of the prosecution. Balbir Singh,A-3, Sarwan Nath A-4, Shaminder Sigh A-5 and Rai Singh A-7
(o) They were innocent. They were falsely involved in this case. No recovery was effected from them. They were arrested by the police from their respective houses.
Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 13 Pardeep Kumar A-6 ( p ) He was innocent. He was falsely implicated. He had not committed any offence. He had not played any role in the murder of the deceased. He was busy in Jagran organized by Shri Brij Lal Goel in factory area, Patiala. He had not supplied any weapon to the accused.
Jagtar Singh A-8
(q) He was innocent. He was taken into custody from his house on 15.5.2003 in the presence of Ashok Kumar, Bhagwant Singh and others. He was kept in illegal custody in C.I.A.Staff, Patiala. His arrest was subsequently shown. He was falsely involved in the present case.
Verdict of trial Court:
4. The trial Court having relied upon the motive for the murder, the last scene theory projected by the prosecution, the extra judicial confession of the accused, the disclosure statements leading to the recoveries and other circumstantial evidence in the background of the medical testimony rendered a verdict of conviction as stated supra against all the accused.
Brief submissions made on the side of the accused-appellants
5. It is irregular on the part of the complainant PW25 to investigate the entire case. PW25 who was attached with Economic Offences Wing has not been specially authorized to investigate the present case. The extra judicial confession alleged to have been given almost jointly by all the accused is not dependable. The material link evidence is missing. The evidence of the witnesses Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 14 does not inspire confidence. There was no reason for the accused to confess the crime before PW4 Santokh Singh and PW12 Kewal Dass Mahant. Further the evidence of PW12 is found to be contradictory Charan Singh PW5 could not identify Jagtar Singh A-8. PW9 Surjit Singh is a busy business man. He is a chance witness. Therefore, his evidence is not trust worthy. The arrest of the accused and the recovery made allegedly at the instance of the accused are found to be quite artificial. The weapons recovered were not connected with the crime. It would have been quite impossible to shoot down simultaneously two persons who boarded in two different rooms in the Dera. Therefore, no credence could be attached to the recoveries made. PW19 ASI Sukhwinder Singh who actively participated in the investigation had already got a copy of the D.D.R., even before the secret information was allegedly received by PW25 Inspector Didar Singh. A-8 was not identified by PW5, PW12 Mahant Dewal Dass and PW22 Pritam Dass. The name of Shaminder Singh alias Bittu A-5 was not found in the first information report. His name figured for the first time only during the course of investigation. The prosecution story is highly doubtful. Therefore, all the accused are entitled to acquittal.
Brief submission on the side of the prosecution
6. The last scene theory, the extra judicial confession, arrest of the accused, disclosure statements made by them, the recovery of the material objects at the instance of the accused, the medical evidence available on record and the other circumstances projected by the prosecution established beyond reasonable doubt that the Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 15 accused committed the crime alleged as against them. Discussion
7. PW2 Suresh Kumar is a chemist. Pathar Dass A-1 had purchased four types of sleeping pills, zyloric, diclomol, neurodion fort and ativan on 2.5.2003 from PW2 Suresh Kumar. PW2 has deposed before the Court on the basis of the carbon copy of the original bill issued to Pathar Dass A-1 for purchase of the aforesaid medicines. No explanation is forth-coming from the first accused as to the purpose for which those medicines were purchased on 2.5.2003 from the medical shop of PW2 Suresh Kumar.
8. PW9 Surjit Singh is a very important witness in this case. He is an electrical goods businessman. He used to visit the Dera at village Aakarh. As usual he visited the Dera on 5.5.2003, the material day on which Mahant Nirman Muni and Gurcharan Singh disappeared. He has spotted Pathar Dass A-1, Ram Dhari A-2, Balbir Singh A-3 , Sarwan Nath A-4 and Shaminder Singh A-5 along with Mahant Nirman Muni and Gurcharan Singh. After he came back to Dera in the evening on the very same day, he found Pathar Dass A-1 Ram Dhari A-2, Balbir Singh A-3 and Sarwan Nath A-4 loading bags in the jeep parked outside the Dera. He has also spotted a car Ceilo of green colour standing over there. As usual he wanted to stay during night at the Dera but Pathar Dass A-1 had informed PW9 Surjit Singh that he could not stay as Mant Nirmal Muni and his driver had already left. He has also spotted Pathar Dass A-1, Ram Dhari A-2 and Balbir Singh A-3 going by jeep and Shaminder Singh A-5 by Ceilo car.
Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 16
9. There is no reason for the business man PW9 Surjit Singh to implicate A-1 to A-8 falsely in this case. He is found to be a natural witness. He might have hailed from a different place but people used to come from different location to the Dera to satisfy their religious sentiments. At any rate the evidence of PW9 cannot be rejected on the spurious ground that he was a chance witness. The evidence of PW9 would establish that Pathar Dass A-1, Ram Dhari A-2, Balbir Singh A-3 and Shaminder Singh A-5 were seen at the last moment with the deceased. They had been actively doing something fishy. Their suspected activity noted down by PW9 had been exposed later by the prosecution. Though Sarwan Nath A-4 also was found in the company of other accused at Dera on 5.5.2003 it is to be noted that no active role has been played by him.
10. PW4 Santokh Singh is yet another star witness in this case. It is true that PW4 Santokh Singh is found to be the sister's husband of the deceased Gurcharan Singh. Balbir Singh A-3, Sarwan Nath A-4, Pardeep Kumar A-6 and Rai Singh A-7 were also not related to him. He also had not occupied any public position. But it appears that he was known to Balbir Singh A-3, Sarwan Nath A-4 and Rai Singh A-7 though not to Pardeep Kumar A-6. Pardeep Kumar A-6 would have accompanied the other accused who were known to PW4 Santokh Singh. The accused who were gripped with guilty consciousness had approached the person known to some of them to ease their tension by unburdening their heart. The Court cannot unravel the reason why an accused choose to confess the crime before a particular person as the reason is quite Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 17 privy to the accused concerned. At any rate it is not unnatural to confess crime to a person known to the accused, even if such a person was related to the deceased. The police had already started searching for the accused. Therefore, the accused had thought it fit to surrender through an acquittance. In view of the above we, are not inclined to accept the plea of the defence that the evidence of PW4 Santokh Singh was not trustworthy.
11. PW4 Santokh Singh has categorically deposed before the Court that Balbir Singh A-3, Sarwan Nath A-4, Pardeep Kumar A-6 and Rai Singh A-7 appeared before him. Pardeep Kumar A-6 first confessed before PW4 that he was the friend of Rai Singh A-7. He had also disclosed to PW4 Santokh Singh that Pathar Dass A-1 and Ram Dhari A-2 had a plan to murder Manant Nirman Muni in order to grab the land. It appears that Pathar Dass A-1 and Ram Dhari A-2 were in need of arms to execute their evil design. Pardeep Kumar A- 6 has received a sum of Rs. 60,000/- from Pathar Dass A-1 and in fact procured weapon from Muzzaffarnagar. Rai Singh A-7 had also accompanied him for the purpose of procuring the weapon. The conspiracy hatched by them to commit the murder of Mahant Nirman Muni was also disclosed by them to PW4 Santokh Singh. It has also been disclosed by the above accused to PW4 that Pathar Dass A-1 having administered sleeping pills to Mahant Nirman Muni and Gurcharan Singh shot them dead, when Balbir Singh A-3 as per direction of Pathar Dass A-1 raised the volume of the loud-speaker The above accused also detailed the manner in which the dead bodies were wrapped in the blankets and put in a polythene bag and Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 18 despatched in a jeep and thrown into the river.
12. There is no reason to discard the evidence of PW4 Santokh Singh who has given graphic account of the conspiracy hatched by the accused and the actual murder of Mahant Nirman Muni and Gurcharan Singh committed by Pathar Dass A-1 after administering sleeping pills in the tea supplied to them. The manner in which the dead bodies were disposed of was also spoken to by Balbir Singh A-3 in his confessional statement before PW4 Santokh Singh. It is to be noted at this juncture that Sarwan Nath A-4 had just wiped out the blood stains as per the direction of other accused. After all Sarwan Nath A-4 who was none other than the father of Balbir Singh A-3 was just a sewadar in the Dera. He is bound to execute the orders emanated from Dera. It appears that Sarwan Nath A-4 had not played any vital role in the commission of the crime.
13. PW12 Kewal Dass Mahant has turned hostile to the version of the prosecution for reasons best known to him.Though he was treated as hostile he deposed that Pathar Das A-1 disclosed to him that he had committed a sin by committing the murder of Mahant Nirman Muni and Gurcharan Singh along with other accused. As PW12 had some influence in Police circle, Pathar Dass A-1 had asked him to produce him before the Police. The role of the other accused has not been clearly spoken to by PW12 Kewal Dass Mahant. The material version in the testimony of PW12 who in fact wanted to support the defence can very be made use of by the prosecution. Further his testimony that the first accused suffered Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 19 an extra judicial confession that he committed murder of Mahant Nirmal Muni and Gurcharan Singh is supported by the other material produced by the prosecution. Therefore, though the evidence of PW12 Kewal Dass Mahant with respect to the role of the other accused is found to be not reliable, his evidence with respect to the role of first accused Pathar Dass in the commission of murder of Mahant Nirman Muni and Gurcharan Singh could be safely relied upon by the Court.
14. PW5 Charan Singh was examined by the prosecution with a view to establish the role of Jagtar Singh A-8 but quite unfortunately PW5 has categorically deposed during the course of cross-examination that he did not know Jagtar Singh A-8 and he could not also identify him. Therefore as rightly pointed out by the learned Counsel for Jagtar Singh A-8, the evidence of PW5 that Jagtar Singh A-8 confessed the crime before PW5 Charan Singh inspires no confidence. In view of the above, the evidence of PW5 is rejected in toto as it was found totally untrustworthy.
15. The first accused having played a vital role in the murder of Mahant Nirman Muni and Gurcharan Singh has chosen to proceed with Surjan Singh PW6 to lodge a complaint to the Police as to the disappearance of Mahant Nirman Muni. In fact he had proceeded to the Police Station to lodge a complaint accompanied by about 50 persons. It appears that the first accused who has committed the double murder along with other accused has also planned to misdirect the course of investigation by lodging a false complaint before the Police.
Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 20
16. PW4 Santokh Singh who is an eye witness in this case and PW18 SI Sarwan Singh have spoken to the disclosure statement made by Pathar Dass A-1 before PW25 Inspector Didar Singh and the recovery of one pistol loaded with six live cartridges at the instance of Pathar Dass A-1. PW4 Santokh Singh also spoke to the disclosure statement made by Ram Dhari A-2 to PW25 Inspector Didar Singh and the recovery of live cartridges of .9mm pistol and two used cartridges found in a plastic envelope at the instance of Ram Dhari A-2. PW4 also has referred to the disclosure statements made by Pardeep Kumar A-6 and Rai Singh A-7 and the recovery made from them.
17. ASI Varinder Singh has spoken to the disclosure statements made by Balbir Singh A-3 and Shaminder Singh A-5 and the recovery made at their instance. PW19 ASI Sukhwinder Singh has deposed that Pathar Dass A-1, Ram Dhari A-2 and Pardeep Kumar A-6 made disclosure statements to PW25 Inspector Didar Singh and as a result of which recovery has also been effected at their instance.
18. PW25 Inspector Didar Singh is the Investigating Officer in this case. He has also spoken to the disclosure statements made by Pathar Dass A-1, Ram Dhari A-2, Balbir Singh A-3, Shaminder Singh A-5, Pardeep Kumar A-6, and Rai Singh A-7 and the recovery of material objects made at the instance of those accused.
19. It is to be noted that Pathar Dass A-1,Ram Dhari A-2 and Shaminder Singh A-5 had shown the place where the jeep along with the dead bodies were thrown into the river. The jeep along with the Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 21 dead bodies and other materials was recovered in the presence of the Executive Magistrate (PW10 Jaspal Singh). The disposal of the dead body was within the knowledge of Pathar Dass A-1, Ram Dhari A-2 and Shaminder Singh A-5. It is only on the basis of their disclosure the dead bodies could be recovered with the help of divers. The recovery of the material objects at the instance of Pathar Dass A-1, Ram Dhari A-2, Shaminder Singh A-5, Pardeep Kumar A-6 and Rai Singh A-7 would go to establish their link they had a role in the crime alleged as against them.
20. The medical evidence would go to establish that both the deceased Mahant Nirman Muni and Gurcharan Singh received bullet injuries and met with an intestaneous death. The medical evidence also corroborates the other circumstantial piece of evidence projected in this case by the prosecution.
21. The prosecution has established beyond reasonable doubt that the conspiracy to commit the murder of Mahant Nirman Muni and Gurcharan Singh to grab the property of Dera was hatched by Pathar Dass A-1, Ram Dhari A-2, Balbir Singh A-3 and Shaminder Singh A-5. There had been motive for the murder of Mahant Nirman Muni. The last scene theory has been well established through the evidence of PW9 Surjit Singh. The extra judicial confession spoken to by PW4 Santokh Singh and PW12 Kewal Dass Mahant, discloses the role of Pathar Dass A-1, Ram Dhari A-2, Balbir Singh A-3 and Shaminder Singh A-5, Pardeep Kumar A-6 and Rai Singh A-7. The recovery made at the instance of the accused also lends corroboration to the case of the prosecution. Pathar Dass A-1 had Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 22 committed the murder of both the victims Mahant Nirman Muni and Gurcharan Singh in furtherance of the common intention of Pathar Dass A-1, Ram Dhari A-2, Balbir Singh A-3 and Shaminder Singh A-
5. The active role played by Ram Dhari A-2, Balbir Singh A-3 and Shaminder Singh A-5 amply demonstrates their common intention to commit the murder. Pathar Dass A-1, Ram Dhari A-2, Balbir Singh A- 3 and Shaminder Singh A-5 have also disposed the dead bodies with a view to screen the evidence. Pathar Dass A-1, Ram Dhari A-2 Pardeep Kumar A-6 and Rai Singh A-7 were found in possession of arm and ammunition as the case may be without any permit or licence. Pathar Dass A-6 and Rai Singh A-7 have concealed the plan disclosed to them by Pathar Dass A-1 and Ram Dhari A-2 to commit the murder of Mahant Nirman Muni with a view to facilitate the commission of murder.
22. There is no legal bar for the complainant/ Police Officer to investigate the crime by himself. The learned Counsel appearing for the accused-appellants cited a decision of the Supreme Court in Megha Singh V. State of Harya;na 1995 Crl. L.J. 3988(1) wherein it has been observed that a head constable who lodged the complaint on arresting the accused and recovering the pistol and cartridges from him, could not have proceeded with the process of investigation. But in the later decision in State represented by Inspector of Police, Vigilance and Anti Corruption, Tiruchirapalli, T.N. V. V. Jayapaul (2004)5 Supreme Court 223 , the Supreme Court has held that there is no bar for the Police Officer who lodged the First Information Report to investigate the case by himself. In S.Jeevanantham V. Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 23 State through Inspector of police, T.N. (2004)5 Supreme Court Cases 230, the Supreme Court has held that when nothing was shown that the investigation has caused prejudice or was biased against the accused, the investigation done by the complainant- Police Officer himself was valid. In a recent case in Bhaskar Ramappa Madar and others V. State of Karnataka (2009) 11 Supreme Court Cases 690, it has been categorically held that as there is no bar for the complainant-Police Officer to investigate the crime, no doubt can be cast on the prosecution version on the sole ground that the complainant-Police Officer himself investigated the case. In view of the above decisions, we find that there is no impediment for the Police Officer PW25 Inspector Didar Singh who received secret information and made a complaint to investigate the case.
23. An attack is made as against PW 25 Inspector Didar Singh as if he had no power to investigate the case. It is true that he was attached to Economic Offences Wing at the time when he took up the matter for investigation. Learned Counsel appearing for the accused-appellants could not show that there was any bar for the Police Officer attached to Economic Offences Wing to investigate the crime of murder. The learned Deputy Advocate General would submit that there was no bar imposed on the Police Officer attached to the Economic Offences Wing to investigate the other nature of crimes. Therefore, we find that there is no merit in the above submission made on the side of the defence.
24. It is true that the investigating official has not taken any Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 24 step to connect the weapons in this case to the crime committed. Even in a case where no weapon was recovered, the Court is competent to record conviction, if other materials establish beyond reasonable doubt that the crime was committed. In this case the medical evidence would show that the gun shot injuries found on both the dead bodies of the deceased had taken away their lives. Of Course pistol and cartridges were recovered from the accused. Those pistol and cartridges were not connected to the injuries caused to the victims but the fact remains that the other materials on record would establish that Pathar Dass A-1,Ram Dhari A-2, Balbair Singh A-3, Shaminder Singh A-5 and Pardeep Kumar A-6 and Rai Singh A-7 have committed the offence charged as against them. Pathar Singh A-1, Ram Dhari A-2, Pardeep Kumar A-6 and Rai Singh A-7 were also found in possession of arms and ammunition as the case may be, without any permit or licence. Therefore they are also liable to be convicted under Section 25 of the Arms Act.
25. Of course it has been held by a Division Bench of this Court in Hari Kant and another V. State of Haryana 1999 Crl.L.J. 2458 that extra judicial confession jointly made by the accused to two witnesses cannot be said to be credible. In the instant case, though the accused had come together, they had given confession before PW4 Santokh Singh one by one. Further the other circumstantial piece of evidence is also available to establish clinchingly the case of the prosecution. Therefore, the aforesaid decision would not apply to the facts and circumstances of the case.
26. In view of the above facts and circumstances, we find that Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 25 the prosecution has established beyond reasonable doubt that Pathar Dass A-1 has committed the offence punishable under Sections 302, 120-B, and 201 of the Indian Penal Code and 25 of the Arms Act; Ram Dhari A-2 has committed the offence punishable under Sections 302 read with Section 24, 120-B, 201 of the Indian penal Code and 25 of the Arms Act, Balbir Singh A-3 and Shaminder Singh A-5 have committed the offences punishable under Sections 302 read with Section 34, 120-B and 201 of the Indian Penal Code, Pardeep Kumar A-6 and Rai Singh A-7, have committed the offences punishable under Section 118 of the Indian Penal Code and 25 of the Arms Act. As we find that the sentence imposed on Pardep Kumar A-6 and Rai Singh A-7 for offence under Section 118 of the Indian Penal Code is on the higher side, we deemed it necessary to reduce it to five years rigorous imprisonment to meet the ends of justice. No case has been made out as against Sarwan Nath A-4 and Jagtar Singh A-8. Therefore, both of them are entitled to acquittal.
27. For the reasons recorded above, Criminal Appeal No.20- DB of 2006 filed by Ram Dhari alias Rama is dismissed with modification in the conviction, and instead of Section 149 IPC, he is convicted under Section 34 IPC; Criminal Appeal No.27-DB of 2006 filed by Shaminder Singh alias Bittu is dismissed with modification in the conviction, and instead of Section 149 IPC, he is convicted with Section 34 IPC; Criminal Appeal No.190-DB of 2006 filed by Pathar Dass chela, Balbir Singh alias Bira and Sarwan Nath is partly allowed; the impugned judgment of conviction and order of sentence Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 26 qua accused-appellants Pathar Dass Chela and Balbir Singh allias Bira is upheld with modification in the conviction of appellant Balbir Singh alias Bira, and instead of Section 149 IPC, he is convicted under Section 34 IPC and qua accused-appellant Sarwan Nath is allowed; Criminal Appeal No.173-SB of 2006 filed by Pardeep Kumar is dismissed and the order of sentence is modified to the extent that the sentence imposed upon him under Section 118 IPC is reduced to five years. However, the conviction of the appellant under Section 25 of the Arms Act is upheld; Criminal Appeal No.620-SB of 2006 filed by Rai Singh alias Neeta is dismissed and the order of sentence is modified to the extent that the sentence imposed upon him under Section 118 IPC is reduced to five years. However, conviction of the accused-appellant under Section 25 of the Arms Act is upheld; Criminal Appeal No.2234 -SB of 2005 filed by Jagtar Singh is allowed and the impugned judgment of conviction and order of sentence is set aside.
28. Appellant Sarwan Nath, who is in custody, be set at liberty forthwith,if not required in any other case. Since appeal filed by Jagtar Singh, who is on bail, stands allowed, his bail bonds stand discharged.
29. Since Ram Dhari alias Rama accused in Criminal Appeal No.20-DB of 2006, Pardeep Kumar accused in Criminal Appeal No.173-SB of 2006 , Pathar Dass Chela accused in Criminal Appeal No.190-DB of 2006 and Rai Singh accused in Criminal Appeal No.620-SB of 2006 are on bail, their bail bonds stand cancelled. They are directed to surrender themselves before the jail authorities Criminal Appeals No.20-DB, 27-DB and 190-DB of 2006 and Criminal Appeals No.173-SB of 2006, 620-SB of 2006 and 2234-SB of 2005 27 immediately for completing remainder of sentence, failing which the concerned authority shall proceed against them in accordance with law.
( M. Jeyapaul )
Judge
January 28,2011 (Satish Kumar Mittal )
sks ` Judge
1. To be referred to the Reporter or not ? Yes
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