Punjab-Haryana High Court
Amarjit Singh And Others vs State Of Punjab on 12 December, 2008
Author: Sabina
Bench: S.S.Saron, Sabina
Criminal Appeal No.118-DB of 2005 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.118-DB of 2005
Date of decision: 12.12.2008
Amarjit Singh and others
......Appellants
Versus
State of Punjab
.......Respondent
CORAM: HON'BLE MR.JUSTICE S.S.SARON
HON'BLE MRS. JUSTICE SABINA
Present: Ms.Satpreet Grewal Kapila, Advocate,
for the appellants.
Mr.S.S.Gill, Addl.A.G. Punjab.
****
JUDGMENT
SABINA, J.
Amarjit Singh, Dr.Rajinder Singh and Basant Singh have filed this appeal challenging their conviction and sentence vide impugned judgment and order dated 20.11.2004 passed by Additional Sessions Judge, (Adhoc) Patiala.
Prosecution story in brief is that complainant Baljinder Singh were four brothers, his youngest brother Surinder Pal Singh @ Chinda was doing agricultural work. On 17.12.2002, complainant was going to his house on foot via Sarpanch Wali Street, village Main. At about 7.30 p.m. a Maruti Car bearing No.PB-10-E-0428 came there. Dr.Rajinder Singh, his compounder Sonu, Nihang Amarjit Singh @ Gora and Basant Singh were siting in the car and Criminal Appeal No.118-DB of 2005 2 took Surinder Pal Singh @ Chinda with them. He told this incident to his sister-in-law Simranjit Kaur. His brother, however, did not return home and they searched for him in the morning. Then complainant along with his brother Tarlok Singh went to village of Amarjit Singh @ Gora Nihang and enquired from him about their brother but he did not give them any answer. Even two days back Amarjit Singh @ Gora came to the house of the complainant enquiring about his brother. Complainant then also made enquiry from Dr.Rajinder Singh and his compounder Sonu regarding the whereabouts of his brother but they could not disclose anything to him. Complainant had full belief that his brother had been abducted by the above said four persons with intention to kill him at the instance of Kuldeep Singh. Motive behind the occurrence was that at the time of fair of Guga Naumi in their village, a quarrel had occurred between the complainant and his brother with Kuldeep Singh relating to caste matter. The matter was settled with the intervention of Panchayat. However, Kuldeep Singh had been proclaiming that he would take revenge for his insult and would not spare Chinda. Due to this reason, Kuldeep Singh had got abducted Surinder Pal Singh @ Chinda with intention to kill him with the help of Dr.Rajinder Singh and others.
On the basis of the statement of the complainant formal FIR No.687 dated 20.12.2002 was registered by the police of police Station Sadar Patiala.
ASI Kaur Singh inspected the spot and prepared the rough site plan. He also recorded supplementary statement of complainant Baljinder Singh. He raided the houses of accused but Criminal Appeal No.118-DB of 2005 3 they could not be apprehended as they were absconding. On 22.12.2002 Ujjagar Singh, Sarpanch of village Jalalkhera, disclosed to ASI Kaur Singh regarding extra judicial confession suffered by the accused before him and hence, offence under Section 302 IPC was added. On 23.12.2002, Ujjagar Singh produced accused Amarjit Singh, Dr.Rajinder Singh, Sonu, and Basant Singh before ASI Kaur Singh. All the said accused were formerly arrested. A Maruti Car No.PB-10-E-0428 was taken in possession. From the dash board of the car a leather bag was recovered which contained two containers of injections, two syringes, two needles and one small vial containing 23 tablets.
On 25.12.2002 accused Sonu suffered a disclosure statement that he had kept concealed Rs.200/- and offered to get the same recovered. On the basis of the said statement accused Sonu got recovered Rs.200/- (two currency notes of Rs.100/- each) from the disclosed place, and they were taken in possession. On the same day accused Amarjit Singh also suffered a disclosure statement that he had kept concealed one wrist watch and offered to get the same recovered. On the basis of the said statement accused Amarjit Singh got recovered a wrist watch from the disclosed place, and it was taken in possession. Accused Dr.Rajinder Singh also suffered a disclosure statement on the same day that he had kept concealed one gold ring, one purse and Rs.200/- and offered to get the same recovered. On the basis of the said statement, the articles were got recovered by the accused from the disclosed place and were taken in possession.
Criminal Appeal No.118-DB of 2005 4
On 26.12.2002 dead body of Surinder Pal Singh @ Chinda was recovered from Bhakhra canal lying near the bank. Dead body after identification was sent for postmortem examination.
Dr. Harjinder Singh conducted the postmortem examination on the dead body of Surinder Pal Singh @ Chinda on 26.12.2002 and found as under:-
" Dead body of male moderately built and moderately nourished, wearing pent and underwear. Body was in the moderate state of decomposition. Clothes were wet. Skin was wet. Postmortem staining was light pink in colour. Face was swollen, tongue was protruded, eyes were swollen and congested, froth was present on the nostrils and mouth nostrils. (Fine froth).
Sutures of the skull were loose, washer women hands, feet, skin, shoes wrinkling, bleaching and soddening. Grass and leaves were present in the hand, Gentiles were swollen, scalp hair were taken out easily, teeth and skull sutures were loosened. Larynx and Trachea contains muddy fluid, lungs were voluminous showing ballooning impression of the ribs were present on the lungs. They pit on pressure on cut section frothy bloody secretions were exude out. A sample of blood in jar No.3 was sent to Chemical Examiner, Reddish patch 4x3 cm was present on the front of lower third of left fore arm and ½ cm wide groove was present around the right wrist joint and on the back of right hand. Abdominal walls Criminal Appeal No.118-DB of 2005 5 were distended and hissing sound was present on incision. Bluish green discoloration was present on the abdomen. Mouth pharynx and esophagus showing muddy secretions and congested. Stomach and its contents showing water, muddy water and debris. Small intestine showing muddy water. Liver, spleen and kidneys were congested. Part of each i.e. Liver, spleen and kidny was sent for Chemical Examination."
In his opinion the death was on account of asphyxia due to drowning which was ante mortem in nature and was sufficient to cause death in the ordinary course of nature. After receipt of report of Chemical Examiner dated 24.2.2003 he gave his opinion that the cause of death in this case was Aluminium Phosphide poisoning After completion of investigation and necessary formalities accused were sent up for trial. So far as accused Sonu is concerned his case was sent up for trial before the Juvenile Court. Charge against accused Amarjit Singh, Dr.Rajinder Singh and Basant Singh was framed under Sections 120-B, 302, 201 IPC on 25.2.2004 by Additional Sessions Judge, Patiala. Accused did not plead guilty and claimed trial.
Prosecution in order to prove its case at the trial examined ten witnesses. After close of prosecution evidence accused, when examined under Section 313 Cr.P.C. prayed that they were innocent and had been falsely involved in this case on account of enmity and party faction. In their defence the accused examined Navdeep Gupta (DW-1).
Criminal Appeal No.118-DB of 2005 6
Learned trial Judge believed the prosecution version and convicted accused Amarjit Singh and Dr.Rajinder Singh under Section 302 IPC and sentenced them to undergo imprisonment for life and a fine of Rs.1,000/-each. They were also convicted under Section 201 IPC and were sentenced to undergo imprisonment for six years and a fine of Rs.1000/- each. They were also convicted under Section 120-B IPC and were sentenced to undergo imprisonment for seven years and a fine of Rs.1000/- each. Accused Basant Singh was convicted under Section 201 IPC and was sentenced to undergo imprisonment for six years and a fine of Rs.1,000/-. He was also convicted under Section 120-B IPC and was sentenced to undergo imprisonment for seven years and a fine of Rs.1,000/-. All the sentences were ordered to run concurrently. Hence, the present appeal.
In appeal, it has been argued that there was no motive with the accused to have committed the murder of deceased Surinder Pal Singh @ Chinda. Kuldeep Singh, with whom a fight had allegedly occurred, was not sent up for trial. As per the prosecution case, accused were last seen with the deceased taking liquor but as per the medical evidence no liquor was found in the contents of the stomach sent to the chemical examiner along with small intestine and its contents. Death in this case was due to Aluminium Phosphide poisoning. The said insecticide was only available in the form of tablet and not in an injection form. As such the same could not have been administered to the deceased by way of injection. Accused and deceased belonged to the same caste.
Criminal Appeal No.118-DB of 2005 7
Learned State counsel, on the other hand, has submitted that murder of the deceased by the accused was duly established on record. Since the dead body had been recovered after about ten days, no liquor could be detected by the doctor and the chemical examiner.
Present case rests on circumstantial evidence. Prosecution has placed reliance on the circumstance of last seen and thereafter, recoveries effected from the accused on the basis of their disclosure statements. During investigation statement of Ujjagar Singh, Sarpanch of village Jalalkhera, was recorded before whom accused had allegedly suffered an extra judicial confession but he could not be examined during trial as he died on 20.2.2004. His name was deleted from the list of witnesses at the request of learned public prosecutor and complainant on 13.7.2004.
It has been held in Vasa Chandrasekhar Rao v. Ponna Satyanarayana, 2000(3) Recent Criminal Reports 96 (SC) that in a case of circumstantial evidence, in order to establish the guilt of the accused, it was necessary to prove the circumstances fully and it was further held as under:-
(i) "Circumstances should be conclusive in nature.
(ii) All facts so established, should be consistent only with hypothesis of the guilt and inconsistent with innocence.
(iii) Circumstances should exclude the possibility of guilt of any person other than the accused.Criminal Appeal No.118-DB of 2005 8
(iv) In order to justify an inference of guilt, circumstances must be incompatible with innocence of accused.
(v) Cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring home the offence beyond reasonable doubt.
(vi) Where accused on being asked, offers no explanation or explanation is found to be false, then that itself forms an additional link in chain of circumstances."
The prosecution case is to be examined in this perspective as to whether prosecution has been successful in completing the chain of circumstances/events which only leads to the hypothesis of the guilt of the accused and inconsistent with their innocence.
Complainant, while appearing in the witness box as PW-1, has deposed as per the contents of the FIR. As per the said witness he had seen accused taking his brother Surinder Pal Singh @ Chinda in their car on 17.12.2002 at about 7.30 p.m. The said witness further attributed motive to the accused for committing murder of his brother. As per this witness during Guga Naumi fair, a dispute had arisen between him and his brother Surinder Pal Singh @ Chinda with Kuldeep Singh regarding their being of lower caste. Although the matter was settled before the Panchayat yet Kuldeep Singh proclaimed that he would take a revenge in this regard. However, the said Kuldeep Singh was not sent up for trial. When the final report was presented by the police under Section 173 Cr.P.C. Kuldeep Singh was kept in column No.2 of the report. During trial an Criminal Appeal No.118-DB of 2005 9 application under Section 319 Cr.P.C. was filed on 28.4.2004 for summoning Kuldeep Singh to face the trial as an accused. However, the said application was later withdrawn by the Additional Public Prosecutor and it was dismissed as withdrawn by the trial Judge vide order dated 7.6.2004. There is also nothing on record to suggest that accused had committed the murder of deceased at the instance of Kuldeep Singh. Hence, motive put forth by the complainant, which instigated the accused to commit murder of the deceased, is not established by the prosecution. However, as per this witness, he had last seen the accused taking his brother in their car on 17.12.2002 at 7.30 p.m. Although the complainant has deposed that accused took his brother in their car at 7.30 p.m. on 17.12.2002, PW-2 Kashmir Singh, on the other hand, had deposed that on the said day at 7.15 p.m. he had seen the accused and the deceased taking liquor in the shop of accused Rajinder Singh. As per PW-2 when he returned to the said shop after taking medicine, he saw that all the accused were talking with each other slowly and were saying that Chinda had become drunk and he should be finished. He went away and later came to know that Chinda was not traceable. Statement of this witness was recorded on 21.12.2002 by the police. The said witness in his cross-examination deposed that he was friendly with deceased Chinda as they used to work together on a combine. They had worked together for the last 2/3 seasons. The said witness did not bother to inform the police immediately after coming to know about the disappearance of Surinder Pal Singh @ Chinda. The said Criminal Appeal No.118-DB of 2005 10 witness in his cross-examination deposed that he had informed about the talk heard by him to the brother of deceased on the next day and had not told about the same to anyone else. However, complainant has not corroborated the version of PW-2 in this regard that he had been informed by Kashmir Singh that all the accused were taking liquor with the deceased in the shop of accused Rajinder Singh and were also talking about finishing his brother after making him drunk.
Complainant had lodged the FIR on 20.12.2002, whereas, as per Kashmir Singh (PW-2), he had informed the complainant about the talk heard by him on 18.12.2002. Hence, the possibility that Kashmir Singh (PW-2) has been introduced later on as a witness being a friend of the deceased cannot be ruled out.
Darshan Singh (PW-3) deposed that on 17.12.2002, he had come to Anardana Chowk, Patiala in connection with repair of his tractor. Since it was dark, he had gone to take his meals in Sahni Dhaba near Anardana Chowk. There he saw all the accused along with Kuldeep Singh. Except Kuldeep Singh accused Dr.Rajinder Singh, Amarjit Singh, Basant Singh and Sonu made Surinder Pal Singh @ Chinda sit in their car No.PB-10E-0428. The accused as well as Surinder Pal Singh were under the influence of liquor. He asked them to stop the car but they went towards Behra Road. Later he came to know about the death of Surinder Pal Singh. He narrated the occurrence to the police on 21.12.2002. He deposed in his cross-examination that deceased was son of his maternal uncle . Mother of this witness and father of the deceased were real sister and brother. Thus, the said witness is related to the deceased. His Criminal Appeal No.118-DB of 2005 11 conduct is unnatural as he got his statement recorded before the police on 21.12.2002 with regard to the incident witnessed by him on 17.12.2002. He further deposed in his cross-examination that he did not talk regarding the incident prior to recording of his statement nor went to the house of deceased to apprise his family members about the incident witnssed by him. He deposed in his cross-examination that he had told complainant Baljinder Singh about the incident before recording of the FIR. However, complainant when he lodged the FIR had made no reference to the effect that Darshan Singh had seen the accused taking away his brother in an intoxicated condition. In normal circumstances it was expected for the said witness to inform the police regarding the incident witnessed by him immediately after the disappearance of deceased Surinder Pal Singh. The said witness also made material improvement in his statement when he appeared in the witness box with regard to mentioning of names of Amarjit Singh, Sonu and Basant Singh. The said witness in order to substantiate his version that deceased was under the influence of liquor further deposed in his cross-examination that dead body was smelling of alcohol when it was taken out. However, this part of his statement is belied by the medical evidence. Dr.Harjinder Singh, on the other hand, has deposed that no smell of alcohol was coming from the dead body during postmortem examination of the deceased nor any liquor was found in the contents of stomach along with small intestine and its contents sent to the chemical examiner. In this circumstance, we are of the opinion that it would not be safe to place reliance on the testimony of this Criminal Appeal No.118-DB of 2005 12 witness.
So far as Simranjit Kaur (PW-6) is concerned, she is the widow of deceased Surinder Pal Singh. Her statement also fails to advance the prosecution case as she had been informed by complainant that he had seen the accused taking away her husband in a car on 17.12.2002 at 7.30 p.m. The fact that Kuldeep Singh and accused Amarjit Singh had come to her house two days prior to the occurrence in itself is not sufficient to provide a link in the chain of events which would lead to the finding of guilt against the accused.
As per the witnesses examined by the prosecution, accused had administered liquor to Surinderpal Singh. However, the doctor, who conducted the postmortem examination did not find that smell of alcohol was coming from the dead body. Moreover, no liquor was found in the contents of stomach and small intestine sent to the chemical examiner. It was the prosecution version that deceased after being administered liquor was thrown in the canal. However, during chemical examination it was found that death was result of Aluminium Phosphide intoxicate. The said report was given on 24.2.2003 and thereafter, Dr.Harjinder Singh gave his opinion that death in this case was due to Aluminium Phosphide poisoning. There is nothing on record to suggest that accused had administered poison to the deceased and thereafter, thrown him in the canal, more so when they had no motive to commit the murder of deceased. Motive was only available with Kuldeep Singh as per the complainant but the said person was never sent up for trial and application under Section 319 Cr.P.C. seeking to summon him as an accused was got Criminal Appeal No.118-DB of 2005 13 dismissed as withdrawn at the trial.
We have gone through the entire evidence of record and are of the opinion that the prosecution has failed to establish complete chain of circumstances which would lead to the finding of guilt against the accused and inconsistent with their innocence. In these circumstances the trial Judge had erred in convicting and sentencing the accused vide impugned judgment and order.
Accordingly, this appeal is allowed. The impugned judgment and order of the trial Court are set aside and the accused are acquitted of the charge framed against them. The appellants, who are in custody, be set at liberty forthwith if not wanted in any other case.
(SABINA) JUDGE (S.S.SARON) JUDGE December 12 , 2008 anita