Punjab-Haryana High Court
Manjit Kaur And Another vs State Of Punjab on 4 February, 2010
Author: Hemant Gupta
Bench: Hemant Gupta, Jaswant Singh
Criminal Appeal No. 430-DB of 2001 [1]
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: February 4, 2010
(i) Criminal Appeal No. 430-DB of 2001.
Manjit Kaur and another .....Appellants
Versus
State of Punjab .......Respondents
Present: Shri R.S. Cheema, Senior Advocate, with
Shri M.S. Sidhu, Advocate &
Shri Vivek Kapoor, Advocate, for the appellants.
Shri Kamldeep Singh Sidhu, DAG, Punjab.
(ii) Criminal Revision No. 347-DB of 2002.
Tapinder Singh .....Petitioner
Versus
Manjit Kaur and another .....Respondents
Present: Ms. Baljeet K. Mann, Advocate, for the petitioner.
Shri R.S. Cheema, Senior Advocate, with
Shri M.S. Sidhu, Advocate &
Shri Vivek Kapoor, Advocate, for the respondents.
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE JASWANT SINGH
1. Whether Reporters of local papers may be allowed to see the
judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Criminal Appeal No. 430-DB of 2001 [2]
HEMANT GUPTA, J.
This order shall dispose of Criminal Appeal No. 430-DB of 2001 filed by appellants-Manjit Kaur and Pritinder Singh against the judgment and order dated 10.7.2001 passed by the learned Additional Sessions Judge, Bathinda, whereby the appellants have been convicted under Section 302/34 IPC and have been sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- each and in default of payment of fine to further undergo RI for a period of one month, and Criminal Revision No. 347-DB of 2002 filed by Tapinder Singh for enhancement of the sentence and imposition of fine of Rs.3,00,000/- upon the appellants.
The prosecution case was set in motion on the statement of Tapinder Singh (Exhibit PC) to Amritpal Singh, SI/SHO, Police Station Dayalpura, District Bathinda on 4.9.1998. He has deposed that he is resident of village Jawadi in District Ludhiana. His father Harbhajan Singh alias Narain Dass was earlier residing in Dera Mahanta near village Maluka. He solemnised two marriages. The first marriage was with his mother Sukhwinder Kaur. Out of the said wedlock, they are four brothers and sisters. His two elder sisters, namely, Jatinder Kaur and Satinder Kaur have already been married. Then, he and Ravinder Singh were born. Thereafter, his father married second time with Manjit Kaur daughter of Harchand Singh, resident of Gandu Kalan. Out of the said wedlock, two daughters were born. His father, had strained relations with his mother Sukhwinder Kaur. In the Criminal Appeal No. 430-DB of 2001 [3] year 1990, he migrated to America. About three years ago, he also called his mother to America. His brother Ravinder Singh was residing at village Jawadi. He returned back to his village from America about 1-1/2 years ago. The moral character of his step mother Manjit Kaur was not good. His brother Ravinder Singh objected to the same. On this account Ravinder Singh had beaten Manjit Kaur two days ago. Manjit Kaur asked Ravinder Singh that he had not done good and that he would not survive . On 3.9.1998, he was present in his house when his step mother Manjit Kaur along with Pritinder Singh alias Lovely son of Manjit Singh, resident of Model Town Ludhiana came in a car No. HR- 21/7778 and took his brother Ravinder Singh on the pretext to purchase shoes. At the time of departure, Manjit Kaur took her licenced 12 bore double barrel gun and kept the same in the car. He asked her the purpose for taking the gun. Manjit Kaur told him that it is not necessary for him to know about it. He suspected some foul play when they did not come back till evening.
On 4.9.1998, he along with Gurdeep Singh alias Deepa son of Gurmit Singh resident of village Jawadi went to Dera Mahanta in search of his brother where Mahant told him that last night they (three) had come in a car. Manjit Kaur and Pritinder Singh took meals, whereas Ravinder Singh did not take the meal. Ravinder Singh and Manjit Kaur were arguing with each other and they (three) said that they were going to the house of Surjit Singh belonging to village Kotha Guru in a car. He started for the house of Surjit Singh and reached the Criminal Appeal No. 430-DB of 2001 [4] bridge of the canal minor from where katcha path crosses the canal minor in the area of Kotha Guru at about 8.30 a.m. The dead body of Ravinder Singh was found lying on the canal bank. One fire arm injury on the chest and the other on the back were found present and the said car was also found parked nearby. Manjit Kaur's licenced 12 bore double barrel gun and cartridges were also found lying in the car. He alleged that Manjit Kaur in connivance with Pritinder Singh, murdered his brother Ravinder Singh by fire shots.
On receipt of the said complaint, SHO sent information to the Police Station vide endorsement Exhibit PC/1 at 10.15 a.m. on the basis of which, FIR was recorded at 11.00 a.m. The special report was received by the Magistrate at 2.15 p.m. Accused Manjit Kaur and Pritinder Singh, were arrested on 4.9.1998 and subjected to medical examination by Medical Officer of Primary Health Centre Bhagta Bhai Ke at 8.45 p.m. On examination, in respect of accused-Ravinder Singh, vide his report Exhibit PA/1, the Doctor found horizontal abrasion, line right wrist extensor surface and bruise (Punitati Type) at front of lower part of chest. Age of wound appeared to be within 24 hours. In respect of Manjit Kaur, the Doctor vide his report Exhibit PB/1, found 9 injuries i.e. bluish mark on right upper arm; bluish mark on left upper arm; bluish mark on right shoulder; swelling on the back of right palm; bluish mark on right hip; bluish mark on outer portion of right thigh; bluish mark on left buttock; swelling on the back side of head and swelling near left ankle.
Criminal Appeal No. 430-DB of 2001 [5]
The inquest report, Exhibit PD, records the date and hour of the discovery of death as 4.9.1998 at about 9.00 a.m. The post mortem report on the body of the deceased is Exhibit PL and the cause of death is due to shock, haemorrhage and injury to vital organs. Injury Nos. 1 and 2 are caused by fire arm. Exhibit PP is the report of the Forensic Science Laboratory. As per the said report one 12 bore K.F. Cartridge contained in parcel `A' has been fired from right barrel of 12 bore double barrel licenced gun. Another similar cartridge has been fired from left barrel of 12 bore double barrel licenced gun.
The prosecution case is of circumstantial evidence; evidence of last seen and extra judicial confession of the appellants. PW3-Tapinder Singh and PW9-Jagtar Singh were examined by the prosecution in support of its case of last seen, whereas PW2-Mal Singh was examined to prove the extra-judicial confession of the present appellants. The prosecution examined other witnesses to prove the other formal and informal aspects of the case. Cross-examination of Tapinder Singh and that of Jagtar Singh read with the statements of the appellants under Section 313 Cr.P.C. shows that the appellants have tried to build up a case of false involvement on account of political interference with a motive to disinherit Manjit Kaur from the estate of Harbhajan Singh. It is also sought to be suggested that Ravinder Singh and Manjit Kaur were having cordial relations and in fact, Ravinder Singh was acting as a body guard of accused Manjit Kaur, to provide protection to her in her political pursuits and that Ravinder Singh might Criminal Appeal No. 430-DB of 2001 [6] have been done to death by smugglers from whom Ravinder Singh might have gone to purchase opium for his opium addict father Harbhajan Singh.
The defence has produced two witnesses. DW1-Surjit Singh, has produced the medical record of indoor patient, Harbhajan Singh, to prove that Harbhajan Singh was an opium addict and left hospital against the medical advice on 1.10.1998. He died on 2.10.1998. DW2-Dharamvir Sharma, Advocate, has produced a plaint dated 23.4.1999, Exhibit DW2/A, filed on behalf of Manjit Kaur against her step son Tapinder Singh (complainant) claiming declaration of joint ownership and possession of 1/3rd share in the property of the deceased on the basis of a registered Will dated 13.10.1997 by disputing the Will propounded by defendant Tapinder Singh dated 23.9.1998. Apart from the said plaint, the accused Manjit Kaur has produced documents Exhibits D.1 to D.9 in respect of litigation by Manjit Kaur inclusive of litigation jointly filed by Manjit Kaur along with Ravinder Singh.
PW3-Tapinder Singh has supported the prosecution case in his examination-in-chief. In cross-examination, it has come on record that Ravinder Singh was born to his mother after about three months of marriage of Manjit Kaur with his father, which was solemnised in the year 1975. He has deposed that Harbhajan Singh was beating his mother even after his second marriage. Though he denied any knowledge if Manjit Kaur ever instigated his father to beat his mother. Criminal Appeal No. 430-DB of 2001 [7] He denied the suggestion that Ravinder Singh was brought up and educated by Manjit Kaur. Two daughters of Manjit Kaur from the loins of his father, used to stay at Shimla and Kirpal Sagar Academy Rahon, near Nawan Shahar. His brother Ravinder Singh used to perform the duties of leaving the girls to such institutes after he learnt car driving. The family was having two cars, one of them was Contessa and the other was Tata Esteem. He went to USA in 1990 and had taken his mother to USA three years later. He denied the suggestion of purchase or sale of plots by his father or by Manjit Kaur with Ravinder Singh, jointly. He also denied knowledge of a suit filed by Manjit Kaur and Ravinder Singh against Sukhwinder Singh, HC, for not taking forcible possession of 10 kanals 8 marlas of plot in village Jawadi and also filing of a joint Civil Writ Petition in the High Court on 20.9.1997 against Head Constable Sukhwinder Singh, ASP Ludhiana and DIG, Ludhiana, for not taking forcible possession of the aforesaid land. He denied that Jagdish Singh Garcha and his brother Mann Singh, are sons of sister's son of his father Harbhajan Singh. He denied that said Jagdish Singh Garcha is a Punjab Minister as he has recently come from America. He was cross-examined about the beatings of Manjit Kaur by Ravinder Singh. He deposed that Manjit Kaur was beaten by Ravinder Singh two days prior to the occurrence in the presence of his father. Ravinder Singh pulled her hairs and also gave 4-5 fist blows. He had hit on her right and left phalanx. His father and he stopped Ravinder Singh from beating Manjit Kaur, but the police was not Criminal Appeal No. 430-DB of 2001 [8] informed.
He has deposed that Bhagta is at a distance of 100 kilometres from village Jawadi and that Ludhiana is a big market for all types of shoes. Neither the father nor the daughters were in the house at the time when Ravinder Singh and Manjit Kaur are said to have left house for Dera and that he did not receive any telephone call from his brother. He denied having received any telephone message from Dera of Nikku Ram in village Maluka during the night of 3/4.9.1998 and he he did not go out in search of his brother as he used to come back by night. He also did not enquire from the house of Pritinder Singh as he did not know his house. He also does not know as to how many brothers he has. It was at 8.15 a.m. on 4.9.1998, he reached Dear of Nikku Ram and on seeing the dead body of his brother, he became perplexed and did not inform his father or other relatives, but informed the police about the same. In further cross-examination, he admitted that Manjit Kaur, contested Municipal Elections on the Congress ticket against Baldev Singh Akali candidate and she was appointed President of Rural Mahila Wing of Congress of Ludhiana District. He stated that he and Ravinder Singh did not campaign for Manjit Kaur and denied the suggestion that Ravinder Singh not only campaigned for Manjit Kaur for 21 days, but he used to be a body guard of Manjit Kaur, while carrying her gun. He denied the suggestion if Manjit Kaur was organising meeting of lady members in the villages and making appointment of their President. He also denied that Manjit Kaur has Criminal Appeal No. 430-DB of 2001 [9] gone to the constituency of S. Tej Partap Singh Kairon to oppose him and to support the Congress candidate. He denied if Manjit Kaur attended the Congress Rally held at Ludhiana on 28.8.1998. He denied that his brother Ravinder Singh accompanied Manjit Kaur in the said rally. He volunteered to depose that he had never gone with her in that rally. He denied the knowledge if Ravinder Singh along with Manjit Kaur went to Chandigarh to attend the Martyrdom day of S. Beant Singh on 31.8.1998 and also the suggestion that Manjit Kaur attended the rally of Congress at Ludhiana on 3.9.1998 along with Dr. Malti Thakur and Gurkamal Kaur daughter of S.Beant Singh and that Manjit Kaur served meal to 50-60 ladies at their house in the evening. He denied the suggestion that he wanted to dispose of the whole of the property in order to purchase the petrol pump in USA and therefore, he had quarrels with Manjit Kaur and then he was separated. He denied the suggestion that he is registered as a voter in a separate house. He denied the suggestion that any guard was provided to Manjit Kaur by Sarabha Nagar Police, who was withdrawn just about one month prior to the occurrence. He denied the suggestion that Ravinder Singh had illicit relations with one Deepa, daughter of Paramjit Kaur, resident of Jawadi and that he did not provide any opium to his father as opium was at their house for his consumption. It was Manjit Kaur, who used to provide opium to his father. He denied the suggestion that it was Ravinder Singh, who used to provide opium. He also denied the suggestion that Balbir Singh resides with him in his house, prosecuting Criminal Appeal No. 430-DB of 2001 [10] his case. He has deposed that the consumption of liquor in Dera of Nikku Ram is prohibited and his brother Ravinder Singh used to drink off and on. He denied the suggestion that Ravinder Singh armed with gun accompanied by unknown smugglers had gone to Kotha Guru to fetch opium for his father without notice of Manjit Kaur and that they have been involved in a false case with the help of Man Singh and Jagdish Singh Garcha.
PW9- Jagtar Singh has deposed that on 3.9.1998 at about 9.30 p.m. he visited Dera. Manjit Kaur and Pritinder Singh accused came their in esteem car along with deceased. Both the accused were having altercations with Ravinder Singh. Ravinder Singh went out for urination. Manjit Kaur exhorted her co-accused Pritinder Singh that Ravinder Singh should be done away with. Pritinder Singh agreed for it and after sometime, Ravinder Singh, came back. The accused took meals in community kitchen.
In cross-examination, the witness was confronted with the history of various criminal cases in which he was involved for the offences under Section 302 and 307. He deposed that he remained in jail. He admitted that during his custody in jail, he came in contact with Mohan Singh Garcha. He denied that husband of Manjit Kaur was maternal uncle of Mohan Singh Garcha. He did not inform the police about the talk with the accused nor to Nikku Ram regarding the talk between the accused. The distance of Dera is 30 kilometres as the crow flies. He did not disclose this fact to his father in the house. He has Criminal Appeal No. 430-DB of 2001 [11] denied the suggestion that he has deposed falsely at the instance of Mohan Singh Garcha or he has sold car of Manjit Kaur at Bhiwani Khera.
PW11- Amritpal Singh is the Investigating Officer, who reached the place of occurrence at 10.30 a.m. He did not observe any footprint at the spot or any struggle mark and the dead body was left at the canal minor. Dog squad was not called from the police lines and Ludhiana is at a distance of 100 kilometres from the place of occurrence. He denied the suggestion that Manjit Kaur, Harbhajan Singh and both the accused were present at the place of occurrence, when he visited the said place and that it is wrong that they were called by Nikku Ram, through telephone. He denied the suggestion that the time of occurrence has been advanced from the evening of 3.9.1998 to the night of 3/4.9.1998 to make it prompt and denied that the accused were tortured by him. He denied that the accused have been falsely implicated at the instance of Jagdish Singh Garcha, who was a minister and was MLA at that time. The registration certificate of the car is in the name of Upkar Kaur and that Upkar Kaur was not joined in investigation.
Manjit Kaur in her statement under Section 313 Cr.P.C., has deposed about her political activities and then proceeded to say as under:-
"I along with Ravinder Singh attended Congress Rally at Ludhiana on 28.8.1998 and 3.9.1998. My Criminal Appeal No. 430-DB of 2001 [12] husband was opium addict. Ravinder Singh went with some unknown smuggler on 3.9.1998 to bring opium for his father with my licenced Gun without my knowledge. On 3.9.1998 at about 8/9.00 p.m., a telephone message was received from Nikku Ram about serious condition of Ravinder Singh. I alongwith Tapinder Singh and my husband Harbhajan Singh, Pritinder Singh and my mother relations came to the place where the dead body of Ravinder Singh was lying. Political opponents and other enemies with whom I have civil litigation pressurized the police to register this false case on the statement of Tapinder Singh who has already annoyed with me. I and Pritinder Singh were tortured by the police in the dera of Nikku Ram before arrest on 4.8.98. I did not go to Mal Singh as he was not known to me. All the witnesses are inimical and have deposed under police pressure. Tapinder Singh got his false case registered in order to grab my urban property."
On the other hand, Pritinder Singh in his statement under Section 313 Cr.P.C. admitted that Ravinder Singh was his friend and received a message about serious condition of Ravinder Singh from Nikku Ram on telephone and he accompanied Manjit Kaur and others to enquire about the well being of Ravinder Singh. He has stated to the following effect:-
"...Ravinder Singh deceased was my friend. I received a message about serious condition of Ravinder Singh at about 8/9.00 p.m. on 3.9.98 from Nikku Ram on our telephone. I accompanied Manjit Criminal Appeal No. 430-DB of 2001 [13] Kaur and others to enquire about the well being of Ravinder Singh. I was got involved by Tapinder Singh along with Manjit Kaur at the spot because Tapinder Singh was annoyed with me as he suspected that I instigated Ravinder Singh to get Tapinder Singh separated. I and Manjit Kaur were tortured by the police in the Dera of Nikku Ram and falsely involved in the case."
We have heard learned counsel for the parties at some length, but do not find any merit in the present appeal. It is not disputed on record that Harbhajan Singh was opium addict. The evidence of the prosecution is to be examined keeping in view the principle that the prosecution is to discharge the onus to prove the culpability of the appellants in commission of the crime beyond a reasonable doubt.
We find that the evidence of PW2-Mal Singh to prove the extra-judicial confession, is not of a reliable and trustworthy witness. The accused are resident of an urban area in Ludhiana, whereas the witness is an agriculturist. It is admitted by PW3-Tapinder Singh that accused Manjit Kaur has contested Municipal Elections and that she was the President of the Rural Mahila Wing of the Congress of Ludhiana District. If the accused has that status, she would not go to an agriculturist residing in village Maluka at a distance of 100 kilometres to confess the alleged crime. Still further, he deposed that such extra judicial confession was made on 4.9.1998, but reference was made in respect of such extra-judicial confession only on 9.9.1998. He claimed to be close to the family of Harbhajan Singh, but did not attend Criminal Appeal No. 430-DB of 2001 [14] his Bhog ceremony. But even if such extra judicial confession is excluded from consideration, in our opinion, the evidence of PW3- Tapinder Singh and other attending circumstances, prove beyond the reasonable doubt the culpability of the appellants in commission of the crime.
It is argued by the learned counsel for the appellants that Manjit Kaur used to take care of Ravinder Singh as he was born just three months after her marriage with Harbhajan Singh. Therefore, the relations between the parties were cordial in nature. The said argument is not sustainable for the reason that natural mother of Ravinder Singh i.e. Sukhwinder Kaur, stayed in her matrimonial home even after marriage of Manjit Kaur with her husband Harbhajan Singh in the year 1975 till she went to USA in the year 1993 or so. Therefore, Sukhwinder Kaur is a person, who has brought up her son. The statement of the witness that his father used to beat his mother, cannot be doubted as there is no evidence to the contrary. Harbhajan Singh married Manjit Kaur even though he had a living spouse, which shows discord in the family. May be, as against the third person to protect the property, Ravinder Singh and Manjit Kaur, have initiated proceedings jointly, but that is not an inference of cordial relations between Manjit Kaur and Ravinder Singh. Though, it is the stand of the appellant that Ravinder Singh was her gun man and has attended many political rallies, but she has not examined a single witness in support of her statement made under Section 313 Cr.P.C. and as per the suggestion in Criminal Appeal No. 430-DB of 2001 [15] the cross-examination of the prosecution witnesses. Tapinder Singh has denied participation of Ravinder Singh in any of the rallies. Therefore, the prosecution case that Ravinder Singh was not happy with Manjit Kaur, cannot be said to be unbelievable.
Learned counsel for the appellants has laid great stress to demolish the prosecution case by arguing that the prosecution has failed to prove illicit relations of Manjit Kaur. It is argued that neither the name of the person with whom Manjit Kaur had allegedly have illicit relations, nor the time when she allegedly involved herself in such relations, has been disclosed. In the absence of any such material, the allegation that Ravinder Singh was angry with Manjit Kaur and has given beatings to Manjit Kaur, cannot be said to be proved. Whether Manjit Kaur had illicit relations, is not a fundamental question of the case set up by the prosecution. It is, in fact, discord between Manjit Kaur and Ravinder Singh. The only evidence of cordial relations, if any, between Ravinder Singh and Manjit Kaur is dropping of her daughters by Ravinder Singh at Shimla and Kirpal Sagar Academy Rahon, near Nawan Shahar. The said dropping of his step sisters is said to be at the instance of their father, who earlier used to take them to the aforesaid institutions.
Though the reason for taking Ravinder Singh out of the house is purchase of shoes and it is alleged that Ludhiana is a big market for shoes, but the fact remains that Manjit Kaur and Ravinder Singh have gone to Dera of Nikku Ram to which admittedly, Harbhajan Criminal Appeal No. 430-DB of 2001 [16] Singh and his family used to visit frequently. The dead body has been found near Dera of Nikku Ram. The appellants claim to have denied knowledge of death on the basis of a telephone call from Nikku Ram about 8/9 p.m. Even though the knowledge of incident is said to have been received by them at 8/9 p.m., but still there is no evidence that the appellants went to village Maluka i.e. the area of Dera to find out and to identify the culprits soon thereafter. The Investigating Officer has denied the presence of the appellants at the time of his visit to the spot at around 11 a.m. Ravinder Singh has been fired from the licenced gun of Manjit Kaur. Such gun is found at a distance of 100 kilometres from her residence. Empties recovered from the gun are proved to have been fired from such gun. The stand of appellant-Manjit Kaur that her gun was taken by Ravinder Singh, unauthorisedly is unbelievable in view of the statement of PW3-Tapinder Singh that it is Manjit Kaur, who has taken licenced gun with her when she left home along with Ravinder Singh on 3.9.1998.
Still further, the allegation that smugglers might have attacked Ravinder Singh, is without any basis. Harbhajan Singh was opium addict. As per the prosecution, opium used to be supplied by appellant-Manjit Kaur to her husband. PW3-Tapinder Singh has denied the suggestion that opium was supplied by Ravinder Singh. Rather he has deposed that it was Manjit Kaur, who used to supply opium. He stated that there was sufficient stock of opium at home. Therefore, it is unbelievable that a regular customer of opium would be harmed by any Criminal Appeal No. 430-DB of 2001 [17] group of smugglers.
The argument that PW3-Tapinder Singh has denied most of the questions for want of knowledge and therefore, he is not a trustworthy witness, is again devoid of merit. He has denied the questions which relate to creation of assets of Manjit Kaur either singly or jointly with Harbhajan Singh or with Ravinder Singh. He also denied the political activities of Manjit Kaur. Such facts cannot be said to be in the knowledge of Tapinder Singh. An adverse inference can be taken against Tapinder Singh for not speaking truth only if a particular fact is within his knowledge. The questions which he denied for want of knowledge, are not expected to be in his knowledge. Therefore, the adverse inference cannot be drawn against the prosecution on the basis of such answers in the cross-examination of PW3-Tapinder Singh.
Though appellant-Manjit Kaur has sought to raise a line of defence that the prosecution has implicated her on account of political vendetta by Jagdish Singh Garcha, but apart from the suggestions to the witness, there is no evidence that in fact, Jagdish Singh Garcha is a relation of Harbhajan Singh, deceased.
In view of the above, we find that the testimony of PW3- Tapinder Singh, cannot be said to be of an untruthful witness or that of an unreliable person. He has deposed in respect of the activities of the deceased and Manjit Kaur at Ludhiana and the fact that they departed together along with Pritinder Singh. His testimony has not been shattered in cross-examination, though he has denied certain aspects of Criminal Appeal No. 430-DB of 2001 [18] the property owned by Manjit Kaur or Harbhajan Singh with Ravinder Singh deceased.
The argument that the time of death has been shifted from the afternoon of 3.9.1998 to the evening of 3.9.1998, is again in the realm of conjectures. Such argument is primarily raised on the basis of the testimony of PW5-Dr. Rakesh Kumar Goel. He has conducted post mortem examination on 4.9.1998 and the time lapse between death and post mortem was said to be 24 hours. He has deposed that the death in this case could take place on 3.9.1998 at 3 to 4 p.m. The said statement of PW5 is in respect of possibility of time of death, but it is not certain. The witnesses are clear and categorical that though Manjit Kaur and Pritinder Singh had taken food at Dera, but it was not so in the case of Ravinder Singh. The said witness has deposed that there was digested food in the stomach, which could be after 6-7 hours of its intake.
The said medical evidence supports the prosecution case that the deceased did not have food in evening of 3.9.1998. Mere fact that the possible timing of death can be 3 p.m. does not mean that he could not have died later than the said time as per the case set up by the prosecution. Therefore, on the face of reliable evidence of PW3- Tapinder Singh and PW9-Jagtar Singh, we do not find that medical evidence can be used to discredit the case set up by the prosecution.
Learned counsel for the appellants has vehemently argued that Upkar Kaur, the owner of vehicle bearing No. HR-21/7778, was not associated in investigation by the prosecution. Therefore, the Criminal Appeal No. 430-DB of 2001 [19] prosecution has failed to link the circumstances against the appellants. The said aspect is not tenable. PW3 has deposed that Ravinder Singh has left home along with Manjit Kaur and Pritinder Singh. Pritinder Singh in his statement under Section 313 Cr.P.C. has admitted his friendship with Ravinder Singh. It was also deposed that he accompanied Manjit Kaur-appellant to enquire about the well being of Ravinder Singh. Therefore, it cannot be said that Pritinder Singh was stranger to the family.
In the case, where the prosecution is said to prove the charge based upon circumstantial evidence, the prosecution is required to prove the following ingredients, as laid down in Sharad Birdhichand Sarda v. State of Maharashtra, (1984)4 Supreme Court Cases 116:-
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned `must or should' and not `may be' established. There is not only a grammatical but a legal distinction between `may be proved' and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v.
State of Maharashtra, (1973) 2 SCC 793, where the following observations were made:-
Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between `may be' and `must be' is long and divides vague conjectures from sure conclusions.
(2) the facts so established should be consistent Criminal Appeal No. 430-DB of 2001 [20] only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
The Court also considered an argument that if the case of the defence is false, it would constitute an additional link so as to fortify the prosecution case. The Court held that before a false explanation can be used as an additional link, the following essential conditions must be established:-
"(1) various links in the chain of evidence led by the prosecution have been satisfactorily proved, (2) the said circumstance points to the guilt of the accused with reasonable definiteness, and (3) the circumstance is in proximity to the time and situation."
Keeping in view the aforesaid circumstances, including the defence of the appellants, we are of the opinion that various links in the chain of evidence led by the prosecution, have been satisfactorily proved and the circumstances point to the guilt of the accused with reasonable definiteness. The chain of events is complete and does not Criminal Appeal No. 430-DB of 2001 [21] leave any reasonable ground for the conclusion consistent with the innocence of the accused and it shows that in all human probability the crime have been committed by the accused. The circumstances culminating in the presence of the gun belonging to Manjit Kaur near the dead body, completes the chain of circumstances of finding of guilt against the appellants and, thus, the prosecution has proved its case against the appellants beyond any shadow of reasonable doubt.
In view of the above, we do not find any merit in the present appeal or the revision claiming enhancement of sentence or fine. Hence, the same are dismissed.
[ HEMANT GUPTA ] JUDGE [ JASWANT SINGH ] JUDGE February 4, 2010 ds