Punjab-Haryana High Court
Gulshan Kumar Alias Golu vs State Of Punjab on 11 August, 2008
Author: S.S. Saron
Bench: S.S. Saron, Mohinder Pal
In the High Court of Punjab and Haryana at Chandigarh
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(1) Criminal Appeal No.765-DB of 2003
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Date of decision:11.8.2008
Gulshan Kumar alias Golu
...Appellant
v.
State of Punjab
...Respondent
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(2) Criminal Appeal No.809-DB of 2003
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Varinder Kumar alias Vicky
...Appellant
v.
State of Punjab
...Respondent
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Coram: Hon'ble Mr. Justice S.S. Saron
Hon'ble Mr. Justice Mohinder Pal
Present: Mr. Sunil Chadha, Advocate for the appellant in Cr. A. No.765-
DB of 2003.
Mr. K.S. Hissowal, Advocate for the appellant in Cr. A.
No.809-DB of 2003.
Mr. S.S. Gill, Additional Advocate General, Punjab for
the respondent-State.
....
S.S. Saron, J.
This order will dispose of Criminal Appeal No.765-DB of 2003 filed by Gulshan Kumar alias Golu and Criminal Appeal No.809-DB of 2003 filed by Varinder Kumar alias Vicky as they relate to the same Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [2] occurrence and arise out of the same judgment and order dated 23.7.2003 passed by the learned Additional Sessions Judge, Fast Track Court, Ludhiana whereby the respective appellants have been held guilty for the offences under Sections 302/34 Indian Penal Code (`IPC' - for short) and sentenced to undergo rigorous imprisonment for life; besides to pay a fine of Rs.5,000/- each and in case of default in payment of fine to undergo further rigorous imprisonment for two years.
Harbans Singh, ASI (PW-5) made a statement Ex.PG at 1.20 a.m. on 4.11.2000 at CMC Hospital, Ludhiana to the effect that he was posted as In-Charge of Police Picket Tajpur Road under Police Station Focal Point, Ludhiana. A day earlier i.e. on 3.11.2000 he along with Constable Balwinder Singh and Constable Hardeep Singh were on patrol duty and carrying out checking in a private car. Constable Gurpal Singh and Constable Jasbir Singh were on night duty on foot in the area of Sanjay Gandhi Colony, Sector 32-A and Baba Jiwan Singh Nagar etc. At about 11.00 p.m. at night when Harbans Singh ASI was carrying out patrolling and checking, he reached the road near Sanjay Gandhi Colony, Ludhiana leading to Sector 32-A. He then heard a sound of firing gun shots from the side of Sector 32-A and on hearing the same, he went towards that side where he found that some constructions of kothi type houses was going on there. From the said side Constable Gurpal Singh came in perplexed condition towards the vehicle of Harbans Singh, ASI (PW-5). He informed Harbans Singh, ASI (PW-5) that he and Constable Jasbir Singh were on patrol on foot at Sanjay Gandhi Colony, Baba Jiwan Singh Nagar and Sector 32-A Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [3] Chandigarh Road, Ludhiana that some `Bhaiya' had met them a little while ago and informed that some time ago four suspicious persons were sitting in the pits and bushes under the tower line. Then he (Constable Gurpal Singh) along with Constable Jasbir Singh went to enquire about them and ask as to who were they. Jasbir Singh, Constable made Gurpal Singh Constable stand some distance behind and asked him (Gurpal Singh) to come from the other side as he would keep a check on them from that side. Jasbir Singh had hardly gone some distance from there when he (Gurpal Singh) heard the sound of shots being fired. Gurpal Singh also ran towards the side from where the sound of shots being fired was heard and then he (Gurpal Singh) saw that Jasbir Singh Constable had fallen on the ground and he had been hit by a fire arm shot near the right side arm pit. Jasbir Singh had suffered injuries due to the shots being fired and blood was oozing out. He was gasping for breath and the suspects had left their Bajaj Chetak scooter bearing registration No.PB-10P-1449 near him. He was looking on either side for help and then Harbans Singh, ASI (PW-5) had come at the spot and he (Gurpal Singh) narrated the entire occurrence to him. The incident had been committed by the said suspicious persons. Harbans Singh, ASI (PW-5) along with the other officials who were with him put Jasbir Singh in a car and while taking him to CMC Hospital for treatment, he informed SHO, Police Station Focal Point, Ludhiana about the incident on mobile phone. On reaching CMC Hospital, the doctor declared that Jasbir Singh had died. Inspector Balwinder Singh, SHO, Police Station, Focal Point, Ludhiana had reached CMC Hospital and Harbans Singh, ASI (PW-5) got his statement Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [4] recorded on the basis of which FIR was registered. The Police investigated the case. Balwinder Singh, Inspector/SHO, Police Station, Focal Point, Ludhiana was in fact earlier informed by Harbans Singh, ASI (PW-5) on his mobile phone that some suspected persons had injured Constable Jasbir Singh (deceased) by firing shots at him and that Harbans Singh, ASI (PW-5) was taking him to CMC Hospital for treatment. Inspector Balwinder Singh at that time was in a private `gypsy' in connection with patrolling and checking when he was informed about Jasbir Singh being injured. The statement of Harbans Singh ASI was recorded. The dead body of Constable Jasbir Singh was handed over to Harbans Singh, ASI (PW-5) and Constable Hardeep Singh for post-mortem examination. The dead body was taken to Civil Hospital, Ludhiana and the post-mortem was got conducted. On 1.12.2000, Inspector Balwinder Singh in the presence of Harbans Singh, ASI (PW-5) had interrogated Varinder Kumar alias Vicky (appellant), who was in police custody. He made a disclosure statement (Ex.PA) regarding the concealment of a country made .12 bore pistol along with a live cartridge which had been concealed in the bushes on the eastern side of water tank after wrapping the same in a handkerchief. According to Varinder Kumar alias Vicky (appellant) only he knew about it and could get it recovered. Gulshan Kumar (appellant) who was in police custody was also interrogated by Inspector Balwinder Singh in the presence of ASI Harbans Singh (PW-5). He disclosed that he had concealed a gold ring over which the words "JS" had been written along with registration certificate of Scooter No.PB-10P-1449 in the rear room of his residential Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [5] room under the mattress over his double bed which was known only to him and could get it recovered. His statement (Ex.PL) was recorded by Inspector Balwinder Singh which was signed by Gulshan Kumar alias Golu and attested by Harbans Singh, ASI (PW-5) along with Lachhman Singh. The accused then led the Police party to the place that he had disclosed in Sector 32-A, Ludhiana. Varinder Kumar (appellant) first got the pistol and cartridge recovered. Rough sketch plan (Ex.PK/1) of the pistol was prepared. The weapon and cartridge were sealed by Inspector Balwinder Singh in a parcel with a seal bearing impression `BS'. Sample seal and the parcel were taken in possession vide memo (Ex.PK/2) which were attested by ASI Harbans Singh and Lachhman Singh. Thereafter, Gulshan Kumar (appellant) got the gold ring along with registration book of the scooter recovered from the place which he had disclosed. The ring had the words `JS' engraved upon it. Harbans Singh, ASI (PW-5) had identified the ring to be that of Jasbir Singh, Constable (deceased). The ring was sealed in a parcel by Balwinder Singh bearing impression `BS'. The registration certificate (Ex.PM) along with parcel containing the ring were taken in possession vide memo Ex.PL/2 which were attested by Harbans Singh, ASI (PW-5) and Lachhman Singh. The seal after use was handed over to Harbans Singh, ASI (PW-5).
Dr. Manjit Singh (PW-1) had conducted post-mortem examination on the dead body of Constable Jasbir Singh (deceased) and he found the following injuries:-
"1. Lacerated wound 2" x 1" oval in shape obliquely placed Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [6] with abraded and inverted margin on right interior auxiliary fold with multiple rounds and oval shaped lacerated wounds in an area of 7" x 7" extended from right mid axillary line to right mid clevicular line. Each of the small wound measured 1/4th"
x 1/3rd inch. Depth of small wound vary from subcutaneous deep, to muscle deep. Central big wound which was 2" x 1"
whose track was going backward and to the left side cozing the laceration of underneath muscle, right subsclevian vessels are lacerated and big haematoma was present. Track further entered into the upper part of right chest cavity causing laceration of pleurae and right side of chest cavity. 21 round metallic pellets were extracted out from the subcutaneous tissues, muscle, vessels and upper part of right lung."
After completion of investigation the challan was filed in the Court of learned Chief Judicial Magistrate, Ludhiana. The learned Magistrate vide his order dated 15.3.2001 observed that the accused appeared to have committed an offence punishable under Sections 302/34 IPC and Section 25 of the Arms Act, 1959. The offence under Section 302 IPC was exclusively triable by the Court of Session. Therefore, the case was committed for trial to the Court of Session. The learned Additional Sessions Judge, Ludhiana to whom the case was assigned vide order dated 30.4.2001 charged the respective appellants Gulshan Kumar and Varinder Kumar on the allegations that on 3.11.2000 at about 11.00 p.m. in the area of Sanjay Gandhi colony (Jamalpur) in furtherance of the common intention which was to cause the Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [7] death of Constable Jasbir Singh, Varinder Kumar (appellant) did commit murder by intentionally causing the death of Constable Jasbir Singh by firing at him from his .12 bore pistol and thereby committed an offence punishable under Section 302 IPC whereas Gulshan Kumar committed an offence under Section 302 read with Section 34 IPC. Secondly, on the said day, time and place and on 1.12.2000, one .12 bore country made pistol with one cartridge of the same bore without any licence or permit was found in possession thereby an offence punishable under Section 25 of the Arms Act had been committed. Thirdly, both the appellants on the aforesaid day, time and place in furtherance of their common intention dishonestly misappropriated certain property i.e. gold ring knowing that the said property was in the possession of Constable Jasbir Singh a deceased person and thereby committed an offence punishable under Section 404 IPC. The prosecution in order to prove its case examined as many as six witnesses.
The statements of the appellants Gulshan Kumar alias Golu and Varinder Kumar alias Vicky in terms of Section 313 of the Code of Criminal Procedure (`Cr.P.C.' - for short) were recorded. Gulshan Kumar alias Golu stated that he was innocent and had been falsely implicated on wrong suspicion. He did not commit any offence nor he knew his co-accused. Varinder Kumar alias Vicky stated that he was innocent. His brother Rakesh Kumar was taken into illegal custody by the Police of Police Station Division No.3, Ludhiana on 18.11.1996 from their house. Later on they came to know that the Police officials have murdered him. His post-mortem was conducted on 23.12.1996. A criminal petition i.e. Criminal Writ Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [8] Petition No.22 of 1997 was filed by the father of Varinder Kumar alias Vicky in the High Court for registration of a case against the guilty officials for the offences under Sections 302/120/34 IPC. The SSP, Ludhiana and some other police officials were also made party in the said writ petition. The Police officials had a grudge against him and had falsely involved him in the present case.
The learned Additional Sessions Judge, Ludhiana after considering the evidence and material on record, as already noticed, convicted the appellants for the offence under Sections 302/34 IPC and sentenced him to undergo life imprisonment; besides to pay a fine of Rs.5,000/- each and in the event of default in payment of fine to undergo rigorous imprisonment for a period of two years more. The said orders of the learned Sessions Judge is assailed in this appeal.
Shri Sunil Chadha, Advocate, learned counsel appearing for appellant Gulshan Kumar alias Golu and Shri K.S. Hissowal, Advocate, learned counsel appearing for Varinder Kumar alias Vicky have referred to the statement of Rajbalwinder Singh, Sub Inspector/SHO (PW-3) and contended that the respective appellants were arrested in case FIR No.171 dated 27.11.2000 registered at Police Station Basti Jodhewal for the offences under Sections 382/34 IPC after the occurrence in the present case on 3.11.2000. It is during their interrogation in the said case that they were involved in the present case. It is stated by SI Rajbalwinder Singh (PW-3), then SHO, Police Station, Basti Jodhewal, Ludhiana that during interrogation Varinder Kumar and Gulshan Kumar as also Naresh Kumar Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [9] and Swaranjit Singh had disclosed that they had killed Constable Jasbir Singh as they apprehended their arrest by him. They also disclosed that the scooter which was used by them on the day had been abandoned at the spot. It is submitted that the alleged disclosure statement of the appellants while in Police custody and having not led to discovery of a fact or any recovery is inadmissible in evidence. It is further contended that recovery from Gulshan Kumar of a ring on which `JS' is stated to have inscribed is hardly of any significance as such rings are easily available and is not, in any way, connected to Constable Jasbir Singh (deceased). The recovery of .12 bore country made pistol according to Shri K.S. Hissowal, Advocate for Varinder Kumar alias Vicky is hardly of any significance and is not proved and does not connect him with the case. In fact, it is submitted that Rakesh Kumar- brother of Varinder Kumar alias Vicky-appellant had been killed by the Police of Police Division No.3 after he was taken from his house on 18.11.1996. He was later murdered by the Police and his post-mortem was conducted on 23.12.1996. Criminal Writ Petition No.22 of 1997 was filed in the High Court for taking action against the guilty. Varinder Kumar alias Vicky had also filed a contempt petition against the SSP, Ludhiana. It is contended by both the learned counsel for the respective appellants that two other accused, who are named by Rajbalwinder Singh, SI/SHO (PW-3) i.e. Naresh Kumar and Swaranjit Singh have not been challaned. Besides, no independent witness was examined regarding effecting the alleged recoveries. Even Inspector Balwinder Singh, SHO, to whom information was given by ASI Harbans Singh (PW-5) regarding the occurrence and who Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [10] recorded the statement of ASI Harbans Singh (PW-5) has not been examined.
In response, Shri S.S. Gill, learned Additional Advocate General, Punjab appearing for the State has contended that the case against the accused stands proved in all material aspects. It is submitted that the learned trial Court has recorded a clear finding of guilt against the respective appellants which would not warrant any interference by this Court. A reference has been made to the defence witness Banarsi Dass (DW-1) who is the father of Varinder Kumar-appellant. Banarsi Dass (DW-
1) was provided security by the Police and, therefore, it was unlikely that his son Varinder Kumar would be falsely implicated. Therefore, the defence set-up by the appellants, it is stated, is absolutely false.
We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance gone through the records. ASI Harbans Singh (PW-5) in his deposition in Court has reiterated the version as given by him in the FIR that was registered on 4.11.2000. It is stated by him that on 3.11.2000, he was posted as In-charge, Picket Tajpur Road, P.S. Focal Point, Ludhiana. On that day, he was on patrolling duty and was present at T-Point Sanjay Gandhi Colony Tajpur Road. Constable Hardeep Singh and Balwinder Singh were with him. Constable Jasbir Singh deceased and Constable Gurpal Singh were on patrol duty in Sanjay Gandhi Colony, Sector 32-A, Bawa Jiwan Singh Nagar. At about 11.00 p.m. when he (Harbans Singh) was in Sanjay Gandhi Colony, he heard a fire arm shot. He proceeded towards the place from Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [11] where the sound of fire arm had come and Constable Gurpal Singh met him near the newly constructed houses who told him about the murder of Constable Jasbir Singh by some unknown persons and about his dead body lying in Sector 32-A under the high tension electricity wires. When ASI Harbans Singh (PW-5) reached the spot along with Constable Gurpal Singh, it appeared that Jasbir Singh was still alive and he had a fire arm shot injury on the right side of his chest and scooter bearing registration No.PB-10P- 1449 Bajaj Chetak was also lying there. Constable Jasbir Singh was taken to CMC, Ludhiana where the doctor declared him as dead. On the way to the hospital Harbans Singh, ASI (PW-5) had given intimation to Inspector Balwinder Singh, SHO on his phone. He arrived at the hospital at about 12.40 midnight and recorded the statement (Ex.PG) of ASI Harbans Singh (PW-5). The said statement was read over to ASI Harbans Singh (PW-5) and he signed the same in token of its correctness. Inspector Balwinder Singh had prepared inquest report (Ex.PH) of Constable Jasbir Singh on the identification of ASI Harbans Singh (PW-5). The statement of ASI Harbans Singh was also recorded under Section 175 Cr.P.C. The dead body of Jasbir Singh was handed over to ASI Harbans Singh (PW-5) and Constable Hardeep Singh for post-mortem vide request (Ex.PB) by Inspector Balwinder Singh. They took the dead body to Civil Hospital, Ludhiana and got the post-mortem conducted. Copy of the post-mortem report along with clothes of the deceased and the packet containing the pellets recovered from the body along with belt of the Constable were handed over to Harbans Singh, ASI. The clothes along with belt and parcel containing pellets were Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [12] handed over to Inspector Balwinder Singh. He had prepared a parcel of the clothes and sealed the same with his seal bearing impression `BS' and took the said parcel along with parcel containing pellets in his possession vide memo (Ex.PJ) which was attested by Harbans Singh, ASI and his statement was also recorded. It is further stated that on 1.12.2000 Inspector Balwinder Singh in his (Harbans Singh, ASI) presence had interrogated Varinder Kumar alias Vicky (appellant) who was in Police custody. He made a disclosure statement (Ex.PA) regarding concealment of a country made .12 bore pistol along with live cartridge concealed in the bushes on the eastern side of water tank after wrapping the same in handkerchief which according to him only he knew and was in a position of getting it recovered. Thereafter, Gulshan Kumar (appellant) was also interrogated by Inspector Balwinder Singh and he disclosed regarding the concealment of a gold ring with words `JS' written on it as also the registration copy of scooter bearing No.PB-10P-1449 in the rear room of his residential house under the mattress over his double bed of which only he knew and could get it recovered. Statement (Ex.PL) of Gulshan Kumar (appellant) was recorded in this regard by Inspector Balwinder Singh. Thereafter, Varinder Kumar got recovered the pistol and cartridge. Rough sketch (Ex.PK/1) of the pistol was prepared. The pistol and the cartridge were sealed by him in a parcel with his seal bearing impression `BS'. Sample seal was prepared and the parcel was taken in possession vide memo (Ex.PK/2) attested by Harbans Singh ASI and Lachhman Singh. Thereafter, Gulshan Kumar (appellant) got the gold ring along with registration book of the scooter recovered. The Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [13] ring was engraved with the words `JS'. Harbans Singh, ASI (PW-5) identified the said ring as that of Constable Jasbir Singh. The ring was sealed by SI Balwinder Singh in a parcel with his seal bearing impression `BS'. The registration copy (Ex.PM) along with parcel containing the ring were taken in possession by Balwinder Singh vide memo (Ex.PL/2), which was attested by ASI Harbans Singh and Lachhman Singh. ASI Harbans Singh (PW-5) was cross-examined in which he stated that he did not know if Devki Rani, mother of the appellant Varinder Kumar had filed any writ petition against the SSP, Ludhiana and other Police officials in the High Court. He also did not know if Rajesh Kumar (sic. Rakesh Kumar), brother of Varinder Kumar-appellant had died in Police custody. He did not know if Police was putting pressure on Devki Rani to withdraw the writ petition and on her refusal to do so, the accused had been falsely involved in the present case. He did not inquire about the ownership of the scooter. He had noticed the scooter lying at the spot. He had also seen the registration number of the scooter at the spot. He denied the suggestion that the accused had not been interrogated in his presence nor made any recovery of pistol, gold ring, registration book of the scooter effected by them.
It may be noticed that there is no eye witness to the occurrence and no one had deposed regarding Constable Jasbir Singh being shot by Varinder Kumar alias Vicky (appellant). As, has already been noticed, the appellant-Varinder Kumar was charged for the offence under Section 302 IPC whereas Gulshan Kumar (appellant) was charged for having committed the offence under Section 302 read with Section 34 IPC.
Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [14] It is on record that Criminal Writ Petition No.22 of 1997 was filed by Banarsi Dass, father of Varinder Kumar alias Vicky (appellant). It was alleged by petitioner Banarsi Dass in the said criminal writ petition that he had three sons, namely, Rakesh Kumar, Surinder Kumar alias Sonu and Varinder Kumar alias Vicky (appellant). His second son Surinder Kumar alias Sonu had been since 1993 working in the shop of one Jaspal Singh Billa at Gill Road, Ludhiana. The employer of Surinder Kumar alias Sonu did not pay him wages for which he filed a case in the Labour Court. The employer Jaspal Singh Billa wanted Surinder Kumar alias Sonu back at his shop as he had gained sufficient experience in the line. The petitioner Banarsi Dass, however, did not allow his son Surinder Kumar alias Sonu to go and join employment with the aforesaid Jaspal Singh Billa. Said Jaspal Singh was very close to Sub Inspector Surinder Singh and Assistant Sub Inspector Paramjit Singh both posted at Police Post Atam Bagh, Ludhiana. They apprehended Surinder Kumar and put him behind bars. Later they foisted a false case of encounter with the Police under Sections 307/120-B IPC. It was alleged by the petitioner Banarsi Dass that the respondents in the said writ petition, who are Police officials, committed atrocities upon him and his family members so much that his other two sons were taken into custody in an illegal manner as a result of which Criminal Writ Petition No.253 of 1998 was filed by the wife of the petitioner Banarsi Dass. It is also alleged by the petitioner Banarsi Dass that on 18.11.1996, Shri Narinder Kumar Sood, Station House Officer, Police Station Division No.3, Ludhiana and Shri Des Raj, Additional Station House Officer, Division Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [15] No.3, Ludhiana came to their house. The petitioner Banarsi Dass and his son Rakesh Kumar were beaten mercilessly and they were taken to Police Station, Division No.3, Ludhiana. The petitioner Banarsi Dass was let off at 11.00 p.m. but Rakesh Kumar was kept in illegal confinement. It was alleged that a severe beating was given to Rakesh Kumar. Ultimately he died while in the jail premises on 21.12.1996. It was alleged that the death of Rakesh Kumar had not taken place in a natural manner but he died in abnormal circumstances on account of the ill-treatment meted out by the Police force. The State contradicted and denied the allegations of petitioner Banarsi Dass. During the course of submissions, it was admitted by the petitioner Banarsi Das in the presence of his counsel that his two sons were at that time not in the custody of the Police. The grouse of the petitioner Banarsi Dass and his wife, who was also present in Court at the time of hearing in the Criminal Writ Petition No.22 of 1997 on 6.11.1998 was that the Police was still harassing them and their family members so that they may be able to withdraw their allegations contained in the said writ petition. The further apprehension of the petitioner Banarsi Dass and his wife was that they may be involved in some false cases and further their life and property be protected; besides providing security to their family members. This Court in terms of the order dated 6.11.1998 held that directions for Habeas Corpus and for the production of two sons of the petitioner Banarsi Dass cannot be granted because two sons of the petitioner Banarsi Dass were with him and the third had died. It was held to be the accepted position that Rakesh Kumar alias Babbu died when he was in custody of the Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [16] jail authorities. Whether his death had taken place under abnormal circumstances or otherwise it was observed was a matter which could be investigated by an independent agency. Accordingly, directions were given to the CBI to make a fact finding investigation as to under what circumstances the death of Rakesh Kumar alias Babbu had taken place. The investigating agency of the CBI, it was observed, would be free to inquire into the allegations of the FIR in which the said Rakesh Kumar alias Babbu was arrested. Besides, SHO, Police Station Division No.3, Sadar, Ludhiana was directed to provide protection and security to the wife and daughter of the petitioner Banarsi Dass. There are other litigations also between Banarsi Dass, father of Varinder Kumar alias Vicky (appellant) and the Police authorities which also includes the filing of Criminal Original Contempt Petition No.5 of 1999 by name against the (1) Senior Superintendent of Police, Ludhiana, (2) Inspector of Police Station Division No.6, Ludhiana, (3) Sub Inspector of Police Post, Janakpuri, Ludhiana and (4) Sub Inspector of Police Post, Basant Park, Ludhiana. It was alleged that the said respondents in Criminal Original Contempt Petition No.5 of 1999 had disobeyed the order dated 6.11.1998 passed in Criminal Writ Petition No.22 of 1997. It was was alleged by the petitioner Banarsi Dass that the Police had conducted a raid on 9.4.1999 in the house of the petitioner Banarsi Dass where the petitioner Banarsi Dass along with his family members was residing. It was alleged that the Police took away all the belongings and locked the house. Since then Banarsi Dass and his family members had shifted to a house constructed on plot No.102, Shanti Vihar, Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [17] Bambhian Kalan, Ludhiana.
Therefore, in the backdrop of the allegations of there being litigation between the parties it is to be seen as to whether the appellants are involved in the murder of Constable Jasbir Singh on 3.11.2000 at 11.00 p.m. It is not in dispute that Constable Jasbir Singh had died. His death was caused with a fire arm and from the spot one empty cartridge of .12 bore was recovered by the Investigating Officer which was taken in possession vide recovery memo. Varinder Kumar (appellant) is stated to have made a disclosure statement (Ex.PK) which has been proved by Harbans Singh, ASI (PW-5). In pursuance of the disclosure statement a .12 bore country made pistol, one live cartridge wrapped in handkerchief was recovered from the bushes in Sector 32-A, Chandigarh Road, Ludhiana. The country made pistol and the recovered cartridge was sent by the Police to the Forensic Science Laboratory. In terms of the F.S.L. report (Ex.PO) it has been opined that the .12 bore K.F. special cartridge case marked C/1 contained in parcel `A' could have been fired from .12 bore country made pistol Mark W/1 under reference. Therefore, it is not a clear opinion that the cartridge that was recovered from the spot where Jasbir Singh, Constable was murdered was indeed fired from the .12 bore country made pistol which was recovered in pursuance of the disclosure statement of Varinder Kumar alias Vicky (appellant). The opinion (Ex.PO) merely mentions that the cartridge could have been fired from the .12 bore country made pistol. It is not definite that it was fired. In order to establish the guilt of the accused in a criminal case specially in a case like the present one where there is no eye witness account Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [18] and the case is based only on circumstantial evidence, the finding of FSL report that the cartridge recovered from the place of occurrence could have been fired from the .12 bore country made pistol recovered in pursuance of the disclosure statement of the appellant is not an evidence which can be said to prove the fire of the shot from the .12 bore country made pistol beyond shadow of reasonable doubt. Therefore, mere recovery of the .12 bore country made pistol on the disclosure statement of Varinder Kumar (appellant) is not such a circumstance which by itself would connect him with the occurrence.
As already noticed Gulshan Kumar has been charged for the offence under Section 302 read with Section 34 IPC. It has not been shown by the prosecution as to how respective appellants in the two appeals Varinder Kumar alias Vicky and Gulshan Kumar alias Golu were known to each other and what is their connection and motive to commit the murder of Jasbir Singh Constable. One scooter No PB-10P-1449 was recovered from the place where Constable Jasbir Singh had been murdered. A gold ring of Jasbir Singh Constable who died in the incident was found to be missing. Gulshan Kumar alias Golu (appellant) is said to have made a disclosure statement Ex.PL and he disclosed the place where he had concealed gold ring with the inscription of the words `JS' as well as one registration copy of scooter No.PB-10P-1449. On the basis of the disclosure statement Gulshan Kumar alias Golu is alleged to have got recovered one gold ring with the inscription of the words `JS' as well as the registration copy of the scooter. However, mere recovery of the registration copy and the gold ring is by Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [19] itself not such a circumstance to connect the accused with the murder. The contention of the learned counsel appearing for the appellant Gulshan Kumar that it is not possible that the accused after having committed the murder would drop the scooter and take out its registration copy as also take out the ring that was worn by the deceased Constable Jasbir Singh is not without basis. The said circumstances are indeed not quite probable. It may be noticed that the registration copy of the scooter which has been recovered in pursuance of recovery memo (Ex.PL/2) the name of the registered owner is recorded as that of one Vijay Bhatia son of Mohinder Pal Bhatia. Therefore, the scooter which has been recovered from the place of the incident is not shown to be owned by any of the appellants. The learned trial Court has observed that the scooter was found to be stolen later on and since it was lying at the spot near the dead body it can be said that the accused had come on the scooter and when they were intending to commit some offence in the colony of Sector 32-A, the Police was patrolling and as soon as Constable Jasbir Singh noticed them he chased these accused as a result of which Varinder Kumar (appellant) fired from his country made pistol and then ran from the spot leaving the scooter there. The said presumption on the premise that the scooter which is recorded as registered in the ownership of one Vijay Bhatia was stolen, however, nothing had been placed on record by the prosecution to show the alleged theft of the scooter on any complaint in that regard. In case the scooter was indeed stolen some report or DDR entry was liable to be placed on record with respect to the said theft. Therefore, mere recovery of the registration copy of the scooter Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [20] from Gulshan Kumar alias Golu (appellant) is not such a circumstance to connect him with the occurrence relating to the murder of Constable Jasbir Singh. This is more so for the reason that the ring with the inscription of `JS' on it has not been conclusively proved to be owned and possessed by Constable Jasbir Singh. The only evidence to prove that the ring was that of Constable Jasbir Singh (deceased) is the statement of ASI Harbans Singh (PW-5). Harbans Singh(PW-5) is Assistant Sub Inspector of Police and it is not shown as to how he was in a position to recognize the ring of a Constable who at the time of the occurrence was not patrolling with him but he had reached the place of occurrence on hearing a fire arm shot while patrolling independently from the beat of Jasbir Singh Constable (deceased) and Gurpal Singh Constable. Therefore, for him to be identifying the ring bearing inscription of `JS to be that of Constable Jasbir Singh is too far fetched. It may also be noticed that the time of effecting recovery of the registration copy of the scooter and the ring of Constable Jasbir Singh in pursuance of the disclosure statement (Ex.PL) of Gulshan Kumar alias Golu is witnessed by one Lachhman Singh son of Roop Singh, resident of Gali No.2, Kailash Nagar Opposite Cancer Hospital, Ludhiana. The recovery memo (Ex.PL/2) is also witnessed by said Lachhman Singh. However, Lachhman Singh, who is an independent witness of the disclosure statement (Ex.PL) and the recovery memo (Ex.PL/2) has not been examined. Therefore, there is no independent corroboration of the alleged recoveries that have been effected which would also include the recovery of the .12 bore country made pistol along with one cartridge in pursuance of recovery Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [21] memo (Ex.PK/2) which is also attested by aforesaid Lachhman Singh as also disclosure statement (Ex.PK) of Varinder Kumar alias Vicky (appellant).
Another factor which requires to be noticed is that initially four persons are stated to be involved in the occurrence. However, only two of the appellants have been challaned and no reason has been given for not challaning the other two. The involvement of two other accused and the fact that they have not been challaned is also a circumstance which casts doubt as regards the veracity of the prosecution case against the appellants. It may be noticed that the occurrence is of 3.11.2000 at 11.00 p.m. and the FIR was lodged on 4.11.2000 at 2.00 a.m. However, the appellants are stated to have been arrested thereafter in case FIR No.171 dated 27.11.2000 after about 13 days when during the course of investigation they are said to have made a statement regarding their involvement in the present case. Therefore, evidently it is not in pursuance of any direct evidence on record that the involvement of the appellants has come to the knowledge of the prosecution but it is during the course of investigation in another case that they alleged to have stated that they are involved in the present case as well. The statement of the appellants with regard to their involvement in the present case was made before SI Rajbalwinder Singh (PW-3) who has merely stated that on 27.11.2000 while he was posted as SHO, Police Station, Basti Jodhewal, Ludhiana, he arrested Naresh Kumar Kumar alias Sonu, Swaranjit Singh alias Sonu, Gulshan Kumar alias Gulla and Varinder Kumar alias Vicky in case FIR No.171 dated 27.11.2000 under Sections 382 Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [22] and 34 IPC. It is further stated that during investigation in Police custody the accused Varinder Kumar as well as Gulshan Kumar along with Naresh Kumar and Swaranjit Singh had disclosed that they had killed Constable Jasbir Singh as they apprehended their arrest by him. Besides, they disclosed that the scooter used by them on the date had been abandoned at the spot. It may be noticed that the said disclosure is a confession while in Police custody and it is during the course of interrogation. Besides, it is in the nature of a joint confession. Therefore, it is clearly inadmissible in evidence. The said confession or a disclosure in the facts and circumstances cannot be said to be a discovery of a fact in consequence of information received from a person accused of an offence who is in custody of a Police Officer. Normally, a fact discovered embraces the place from which an object is produced and the knowledge of the accused as regards this and the information given by him relates distinctly to the said fact. Therefore, it would be wholly unsafe to base a conviction of the appellants only on the basis of a confession said to have been made before Sub-Inspector Rajbalwinder Singh (PW-3) during interrogation in another criminal case which confession in our view is inadmissible.
Another factor which requires to be noticed that Balwinder Singh, SHO who recorded the statement of ASI Harbans Singh (PW-5) on the basis of which FIR had been registered has not been examined. The learned trial Court has observed that Inspector Balwinder Singh was removed from the service and after his removal his whereabouts could not be known to the Police and that summons were sent to him various times Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [23] but he could not be found at his ordinary address as he had left for some unknown place without giving his address. However, the non-examination of Balwinder Singh, SHO does affect the case of the prosecution, the benefit of which is to go to the appellants. The non-examination of Balwinder Singh, SHO is also a circumstance which does cast doubt in the prosecution case. Banarsi Dass, father of accused Varinder Kumar alias Vicky appeared as DW-1. He has made a statement to the effect that his other son Rakesh Kumar was killed in Police custody and Mark-A was copy of the post- mortem report regarding his son's death. He had filed Criminal Writ Petition No.253 of 1998 in the High Court on behalf of his wife Devki Rani which was still pending. SSP of Ludhiana was a party in that case. He had also filed a writ petition in the High Court and it was ordered that he be given security. It is stated that Varinder Kumar alias Vicky, his son has been falsely implicated in the case because he was not withdrawing the said writ petition. In cross-examination, it is submitted that the High Court had ordered the CBI to do fact finding inquiry in case vide order dated 6.11.1998. He accepted the position to be correct that the CBI has decided the inquiry against them. He also accepted that they were provided protection and security in terms of the High Court order by the Police Stations Division No.3 and Sadar, Ludhiana. Therefore, it is on record that there was litigation pending between family of Banarsi Dass and the Police on account of the death of Rakesh Kumar, the other son of Banarsi Dass. As such it can be said that the case of the prosecution as regards the murder of Jasbir Singh Constable (deceased) cannot be held to be established against Cr. Appeal No.765-DB/2003 & Cr. Appeal No.809-DB of 2003 [24] the appellants.
For the foregoing reasons, the appeals are allowed and by giving benefit of doubt to the respective appellants in the two appeals, the judgment and order dated 23.7.2003 passed by the learned Additional Sessions Judge, Fast Track Court, Ludhiana is set aside and the accused are acquitted of the charges attributed to them.
(S.S. Saron) Judge August 11, 2008. (Mohinder Pal) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No