Punjab-Haryana High Court
Jaswinder Kaur vs State Of Punjab on 21 March, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
Criminal Appeal No. 704-DB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 704-DB of 2001
DATE OF DECISION: 21.3.2011
***
Jaswinder Kaur
..APPELLANT
VS.
State of Punjab
..RESPONDENT
with Criminal Appeal No. 2-DB of 2002
***
Sukhwant Singh
..APPELLANT
VS.
State of Punjab
..RESPONDENT
and Criminal Appeal No. 42-DB of 2002
***
Gurdit Singh
..APPELLANT
VS.
State of Punjab
..RESPONDENT
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA.
HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:- Ms. B.K. Mann, Advocate
for appellant Jaswinder Kaur.
Mr. P.S. Brar, Advocate and
Mr. J.S. Bhatti, Advocate
for appellant Sukhwant Singh.
Mr. Rakesh Nagpal, Advocate
for appellant Gurditt Singh.
Mr. Pavit Singh Mattewal, Addl. A.G. Punjab.
Criminal Appeal No. 704-DB of 2001 2
ARVIND KUMAR, J.
The appellants, named above, have been held guilty under Sections 364, 302 read with Section 34 IPC for having firstly kidnapped Sarwan Singh and then committed his murder. They have been sentenced to undergo imprisonment for life under both the heads with each of them directed to pay a fine of Rs.10,000/- each(Rs.5000/- under each head). In default of payment of fine, the defaulter is required to undergo further rigorous imprisonment for six months under each head. The sentences are ordered to run concurrently.
Since in all the appeals, one and the same judgment rendered by learned Sessions Judge, Faridkot, are under challenge, we propose to dispose of the same by this common judgment passed in Crl. Appeal No. 704-DB of 2001.
The brief facts of the case are that one Sarwan Singh(since deceased) along with his wife Jaswinder Kaur (appellant) and their four children were residing at the back of spinning mill, in which Sarwan Singh was working. His working hours were from 10:00 p.m. to 7:00 a.m. On 28.7.1995 he had left his home to attend the duties, but did not return despite lapse of duty time. Jagjit Singh (PW4), the son of Sarwan Singh told about not returning of his father to Sukhdev Singh (PW3), cousin of Sarwan Singh and on enquiry they came to know that Sarwan Singh had not attended his duties previous night. Consequently, in the morning of 29.7.1995 Sukhdev Singh got his statement (Ex.PD) recorded to ASI Gurbachan Singh(PW14) and therein he disclosed about the missing of his brother. Besides, he narrated to the police that Jaswinder Kaur, wife of Sarwan Singh had developed illicit relations with Gurdit Singh and Sukhwant Singh, working as SPOs in Punjab Home Guard. Even the last night both of the them were seen by him sitting with Jaswinder Kaur in her house that too in the presence of Sarwan Singh. Not only he, but Sarwan Singh felt shy with this attitude of Jaswinder Kaur and her paramours. When he objected the presence of Sukhwant Singh and Gurdit Singh in their house, then Jaswinder Kaur asked her as to who was he to prevent them from coming to their house and further added that they will be coming to her house and they cannot be stopped. On this, he left the house of Sarwan Criminal Appeal No. 704-DB of 2001 3 Singh. According to the complainant, Jagjit Singh also told him that after his return, Sarwan Singh also objected to the visit of Sukhwant Singh and Gurdit Singh and after some time Jaswinder Kaur had left the house along with the said persons while his father had went to attend his duty, but did not return. The complainant raised suspicion in the missing of Sarwan Singh at the hands of Jaswinder Kaur, Gurdit Singh and Sukhwant Singh. The said statement (Ex.PD) was reduced into writing upto 10:15 a.m. and then sent to the police station through HC Hardip Singh, on the basis of which ASI Bohar Singh (PW5) recorded the FIR of the case under Sections 364/34 IPC at about 10:30 a.m. and necessary investigations were carried out.
ASI Gurbachan Singh firstly went to the house of Sarwan Singh and recorded the statement of Jagjit Singh. After this the investigations were taken over by SHO Shavinder Singh (PW15). The accused, who were produced by Avtar Singh Sarpanch, were interrogated during which they suffered their respective disclosure statement regarding concealing of dead body of Sarwan Singh near the spinning mill. On this, the investigating officer sent an application before the SDM, Malout for deputing some gazetted officer to be present at the time of recovery of dead body. Consequently, on the said application Gursewak Singh(PW7), Executive Magistrate was appointed to remain present with the police during recovery of dead body. Pursuant to their disclosure statements, the accused took the police party to the pointed place and got recovered the dead body of Sarwan Singh from the cotton fields of one Bhola Singh in village Ena Khera. The dead body was lying wrapped in a Khes and was hidden. The bundle also contained blood stained "Toka" with which murder of Sarwan Singh was committed. The Khes and Toka were taken into police possession. Section 302 IPC was added in the aforesaid FIR. The dead body, after inquest, was sent to the hospital for autopsy. The blood stained earth as well as turban stained with blood belonging to the deceased and his slippers were also taken into police possession. Thereafter the accused led the police party and got recovered the scooter bearing registration No. PB03-4946. On completion of usual formalities of investigations, challan against them was filed and the accused were put to trial.
Charge under Sections 364, 302 read with Section 34 IPC was framed against the accused, to which they pleaded not guilty and claimed Criminal Appeal No. 704-DB of 2001 4 trial.
During trial, the prosecution examined the following witnesses:-
PW1 Dr. R.S. Randhawa, Medical Officer conducted post- mortem examination on the dead body of Sarwan Singh and found six injuries on the dead body, which were ante-mortem in nature and sufficient to cause death in ordinary course of nature.
PW2 Hakam Singh son of Nand Singh identified the dead body of Sarwan Singh.
PW3 Sukhdev Singh is the author of the FIR and deposed on the lines of prosecution case.
PW4 Jagjit Singh is the son of deceased deposed after the altercation took place between his mother and uncle Sukhdev Singh over coming of Sukhwant Singh and Gurdit Singh to their house and after between his mother and father. He further deposed that after the quarrel his mother had went away with Gurdit Singh and Sukhwant Singh while his father left the house to attend his duty, but did not return.
PW5 ASI Bohar Singh had recorded the formal FIR of the case. PW6 Inspector Beera Singh was one of the members of investigating team. In his presence the accused were interrogated and suffered disclosure statements, which were attested by this witness. He also attested the recovery of dead body pursuant to the disclosure statements made by the accused. In his presence, blood stained earth and belongings of deceased were taken into police possession.
PW7 Gursewak Singh Tehsildar also attested the recovery of dead body by the accused pursuant to their disclosure statements.
PW8 Shavinder Singh Constable, PW9 Constable Surjit Singh and PW10 ASI Bant Singh tendered their respective affidavits in evidence.
PW11 Chhinderpal Singh clicked the snaps of the dead body. PW12 Bhim Singh Patwari prepared the scaled site plan of the place from where the dead body was recovered.
PW13 HC Hardip Singh took the ruqa to the police statement for getting the case registered.
PW14 ASI Gurbachan Singh initially investigated the case and also attested the recovery of scooter got effected by the accused pursuant to Criminal Appeal No. 704-DB of 2001 5 their disclosure statements.
PW15 SI Shavinder Singh investigated the case after the registration of the case and deposed about the investigations carried out by him, including the suffering of disclosure statements; recovery of dead body, the belongings of the deceased and the scooter.
PW16 LC Jaswinder Singh, PW17 Const. Gurmeet Singh and PW18 HC Amrik Singh also tendered their affidavits in the evidence.
In their statements under Section 313 Cr.P.C. the case of the accused was of false implication. According to them it was a blind murder. Neither of them suffered any disclosure statements nor got the dead body of Sarwan Singh recovered pursuant thereto and that the recovery was foisted upon them. Accused denied having any connection with each other. However, no evidence in defence was led by them.
After analyzing the evidence adduced by the prosecution, learned trial court vide the impugned judgment convicted and sentenced the accused-appellants in the manner indicated above.
We have heard learned counsel for the parties and with their assistance have also gone through the record carefully.
The case in hand rests on the circumstantial evidence. For a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed. When a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.
In Bhagat Ram v. State of Punjab (AIR 1954 SC 621), it was laid down that where the case depends upon the conclusion drawn from Criminal Appeal No. 704-DB of 2001 6 circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring the offences home beyond any reasonable doubt.
We may also make a reference to a decision of the Hon'ble Apex Court in C. Chenga Reddy and Ors. v. State of A.P. (1996) 10 SCC 193, wherein it has been observed thus :
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence....".
Let us advert to the facts of the case in hand and the circumstances pointing towards the guilt of the appellants. In the instant case the unnatural death of Sarwan Singh is not in dispute. PW1 Dr. R.S. Randhawa during the course of autopsy on the dead body found as many as six injuries viz. a lacerated wound on the right parietal area of head, an incised wound in the occipital region in the midline, a further incised wound behind and towards the left of midline, an incised wound on posterior lateral aspect of left forearm about 12 cms away from the wrist joint, a raddish blue contusion on the left sub scapular region and a reddish blue contusion on the left side of neck horizontally placed. The probable time that elapsed between injuries and death was within few minutes while the time gap between death and post-mortem was within 24 hours. It was conducted in the evening of 29.7.1995. It is in consonance with the time of occurrence as per the case of the prosecution.
To further complete the chain of circumstances, the prosecution has produced on record two material witnesses namely PW3 Sukhdev Singh and PW4 Jagjit Singh.
PW3 Sukhdev Singh is the cousin of the deceased as well as the author of the first information report. In his statement he stated that on the Criminal Appeal No. 704-DB of 2001 7 fateful day he went to the house of his cousin Sarwan Singh where Jaswinder Kaur wife of Sarwan Singh was sitting along with accused Gurdit Singh and Sukhwant Singh, who were taking liquor in the house. When he went there, he noticed that Sarwan Singh was quarreling with Gurdit Singh and Sukhwant Singh regarding their presence in his house. When this witness also tried to persuade Jaswinder Kaur to not allow Sukhwant Singh and Gurdit Singh in her house, then Jaswinder Kaur retaliate by questioning him as to who he is to say like this. Thereafter, he went to his house. The tenor and manner of deposition made by this witness clearly reveals that not only he but Sarwan Singh also was not happy with the visit of Gurdit Singh and Sukhwant Singh in his house. The case of the prosecution is that both of them were having illicit relations with Jaswinder Kaur and for this they usually visited their house. This witness further deposed that in the morning Jagjit Singh met him and told about non-return of Sarwan Singh after the duty. On enquiry from the spinning mill, they learnt that Sarwan Singh had not attended his duties last night. Accordingly, they lodged the FIR.
PW4 Jagjit Singh son of the deceased stated that about two years and eight months back he along with his mother, Gurdit Singh, Sukhwant Singh accused and his father were present in the house. At about 8:00 p.m. his uncle Sukhdev Singh came there and noticed his mother Jaswinder Kaur talking with Gurdit Singh and Sukhwant Singh. His uncle asked his mother not to allow these two persons to come to the house, on which Jaswinder Kaur replied that they would come in this manner. On this Sukhdev Singh left to his home. Thereafter, a quarrel had taken place between his mother and father, on which his mother Jaswinder Kaur went away along with Gurdit Singh and Sukhwant Singh while at about 10:00 p.m. his father had also gone to attend his duty at spinning mill. Next morning, his father did not return to the house so also his mother Jaswinder Kaur, who had gone with the accused. Then he narrated about this to his uncle and they learnt that his father had not gone to attend his duties previous night. This witness further stated that since his mother had illicit relations with Sukhwant Singh and Gurdit Singh, finding Sarwan Singh as an obstacle, he apprehends that they had kidnapped his father in order to murder him and accordingly they lodged the report with the police.
From the testimonies of both these witnesses, it is clear that on Criminal Appeal No. 704-DB of 2001 8 the night of 28.7.1995 at about 8:00 p.m. both the appellants namely Gurdit Singh and Sukhwant Singh were present in the house of deceased Sarwan Singh and their presence was questioned by the deceased as well as Sukhdev Singh, following which there was a quarrel between the husband and wife as also between Jaswinder Kaur and Sukhdev Singh. It is also clear that Jaswinder Kaur had left the house along with Gurdit Singh and Sukhwant Singh in the night and she also did not return to the house till morning. It has also apparent from the testimonies of both the witnesses that the duty hours of Sarwan Singh were from 11:00 p.m. till 7:00 a.m. and in the night he had left the house as usual to attend his duties. But he did not reach his office as is clear from the statements of both the witnesses. None else but the own son of appellant Jaswinder Kaur i.e. PW4 Jagjit Singh has stated in so many words that his mother were having illicit relations with Sukhwant Singh and Gurdit Singh. The testimony of both the witnesses is natural, consistent and corroborative. Their presence at the house in no way can be doubted. The above sequence of events which have been proved beyond reasonable doubt clearly shows close connection with the principal fact sought to be inferred from those circumstances i.e. the first kidnapping of Sarwan Singh by all the accused and his murder. The FIR which was lodged with utmost promptness also speaks about the involvement of the appellants in the commission of crime. They have every reason to wash off Sarwan Singh, who was an obstacle in their relationship. Thus, there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else.
What has been contended by the learned counsel for the appellant is that the alleged disclosure statements suffered by the appellants are not admissible in evidence and once the same are excluded from the zone of consideration, there is nothing on record to connect the appellants with the alleged crime.
Section 25 of Evidence Act mandates that no confession made to a police officer shall be proved as against a person accused of an offence. Similarly Section 26 of the Evidence Act provides that confession by the accused person while in custody of police cannot be proved against him. However, to the aforesaid rule of Sections 25 to 26 of the Evidence Act, there is an exception carved out by Section 27 the Evidence Act providing Criminal Appeal No. 704-DB of 2001 9 that when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 27 is a proviso to Sections 25 and 26. Such statements are generally termed as disclosure statements leading to the discovery of facts which are presumably in the exclusive knowledge of the maker. Section 27 appears to be based on the view that if a fact is actually discovered in consequence of information given, some guarantee is afforded thereby that the information was true and accordingly it can be safely allowed to be given in evidence.
In the instant case, immediately after the registration of the FIR at about 10:35 a.m. the accused-appellants were interrogated by the police. Consequently, appellant Gurdit Singh suffered disclosure statement (Ex.PE), Sukhwant Singh (Ex,PF) and that of Jaswinder Kaur (Ex.PG) regarding concealing of dead body of Sarwan Singh in the cotton fields after wrapping the same in a blanket. The said statements were made by the accused in the presence of investigating officer Sawinder Singh and Sub Inspector Beera Singh as also one Avtar Singh Sarpanch. No doubt Avtar Singh, Sarpanch who also attested the disclosure statement, was not examined by the prosecution, but it has come on record that this witness was given up being won over by the accused. He might have succumbed to the pressure being exerted by the accused persons. The non-examination of this witness also makes no difference because both the official witnesses, PW-6 Inspector Beera Singh and PW-15 SI Shavinder Singh, have specifically stated about the disclosure statements made by the accused and their statements are consistent and corroborative. Not only this pursuant to the disclosure statements made by the accused, they not only pointed the place where they concealed the dead body of Sarwan Singh, but also got the dead body recovered, wrapped in a blanket along with the "Toka" with which the murder was committed by them. Not only this blood stained turban of the deceased as well as his slippers were also recovered.
In the case of State Govt. of NCT of Delhi Vs. Sunil 2001(1) RCR (Criminal) 56, while dealing with the trustiness and worthiness of the investigations, the Hon'ble Apex Court observed thus:-
Criminal Appeal No. 704-DB of 2001 10"21. We feel that it is an archaic notion that actions of the police officer should be approached with initial distrust. We are aware that such a notion was lavishly entertained during British period and policemen also knew about it. It hang over persisted during post- independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed in a wise principle of presumption and recognized even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case..."
Furthermore, the recovery of dead body was made in the presence of PW7 Gursewak Singh, a gazetted officer who was deputed for the same on an application made by the police. The status of this witness is of independent witness, having no axe to grind. He specifically stated that when in his presence as well as the police party, the accused got the dead body of Sarwan Singh recovered from the fields. Thus, the circumstance of suffering of disclosure statement and consequent recoveries, in no way, can be doubted.
It has next been contended by learned counsel for the appellants that the place from where the dead body was recovered was an open place, accessible to all and hence the disclosure statement is not admissible. There Criminal Appeal No. 704-DB of 2001 11 is no substance in this contention. In the case of State of Himachal Pradesh Vs. Jeet Singh 1999(2) RCR(Criminal) 167, the Hon'ble Apex Court, while dealing with the similar situation held as under:-
"26. There is nothing in S. 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery of the articles was made from any place which is "open or accessible to others." It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under S. 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others."
The Court further observed that :-
"27. It is now well settled that the discovery of fact referred to in S. 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it. The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir v. State of Maharashtra ((1969) 2 SCC 872) ; K. Chinnaswamy Reddy v. State of A.P. (AIR 1962 SC Criminal Appeal No. 704-DB of 2001 12 1788); Earabhadrappa v. State of Karnataka ((1983) 2 SCC 330) ; Shamshul Kanwar v. State of U.P. ((1995) 4 SCC 430); State of Rajasthan v. Bhup Singh ((1997) 10 SCC 675)."
In the instant case, it has come in the statement of PW7 Gursewak Singh, Tehsildar that the cotton fields from where the dead body was recovered was having standing crop of about 4 feet height. The dead body was wrapped in a blanket and in that situation it was very obvious that the same did not come into the notice of any passer-by. Moreover, the said place was at some distance from the main road, as is apparent from the site plan and it cannot be said that it was an open place accessible to all. The said place was in the exclusive knowledge of the appellants and hence pursuant to their disclosure statements they got the dead body recovered along with the weapon of offence.
Counsel for the appellants has questioned the admissibility of the disclosure statements under Section 27 of the Evidence Act on the ground that the disclosure statements are in similar fashion one after the other. This contention is again meritless because two or more accused would not have uttered informatory words in a chorus. At best, one person would have made the statement orally and the other person would have stated so substantially in similar terms a few seconds or minutes later, or the second person would have given unequivocal nod to what has been said by the first person. Or, two persons in custody may be interrogated separately and simultaneously and both of them may furnish similar information leading to the discovery of fact. We do not think that such disclosures by two or more persons in police custody go out of the purview of Section 27 altogether. If information is given one after the other without any break, almost simultaneously, and if such information is followed up by pointing out the material thing by both of them, we find no good reason to eschew such evidence from the regime of Section 27 of the Evidence Act.
As a sequel to the above discussion, the circumstances from which the conclusion of guilt is drawn are fully proved and are conclusive in nature. There is no gap left in the chain of evidence. The proved circumstances are consistent with the hypothesis of the guilt of the accused Criminal Appeal No. 704-DB of 2001 13 and totally inconsistent with their innocence. The instant appeals are accordingly dismissed.
(HEMANT GUPTA) (ARVIND KUMAR)
JUDGE JUDGE
March 21,2011
Jiten