Punjab-Haryana High Court
Dilbag Singh vs State Of Haryana on 26 February, 2009
Author: Jora Singh
Bench: Jasbir Singh
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No. 43-DB of 2000.
DECIDED ON : 26.2.2009
Dilbag Singh
Appellant.
VERSUS
State of Haryana
Respondent.
Crl. Appeal No.44-DB of 2000.
DECIDED ON : 26.2.2009
Kuldeep Singh
Appellant.
VERSUS
State of Haryana
Respondent.
CORAM :HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. R.S.Cheema, Sr.Advocate, with
Ms. Tanu Bedi, Advocate, for
appellants.
Mr. K.S.Godara, Deputy Advocate
General, Haryana.
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 2
JORA SINGH,J.
Dilbag Singh filed Criminal Appeal No. 43-DB of 2000 and Kuldeep Singh filed Criminal Appeal No. 44-DB of 2000 to impugn the judgment dated 4.12.1999 and order dated 8.12.1999 rendered by Additional Sessions Judge, Karnal in Sessions Case No. 157 of 1999; Sessions Trial No. 210 of 1999 bearing First Information Report No. 1093 dated 26.12.1990, registered under Section 460 of the Indian Penal Code, at Police Station City Karnal whereby they were convicted under Section 460 of the Indian Penal Code. Dilbag Singh also convicted for the offence punishable under Section 25 of the Arms Act. Appellants-accused were sentenced as under:-
"Both the accused were sentenced to undergo life imprisonment for life under Section 460 of the Indian Penal Code;
Further more accused Dilbag Singh was hereby sentenced to undergo rigorous imprisonment for one year for the commission of offence punishable under Section 25 of the Arms Act."
Separate challan was presented against Joginder Singh accused. Vide judgment dated Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 316.11.1999, he was acquitted of the charge levelled against him.
Against acquittal of Joginder Singh, no appeal was preferred by the State.
Prosecution story, in brief, is that Surinder Kumar complainant was serving in PWD B&R as S.D.O. Accordingly to him, his office was situated near I.T.I Chowk Kunjpura Road, Karnal. On 21,12,1990 Surinder Kumar had withdrawn amount from State Bank of India, Mall Road, Karnal for making payment to the labourers. Out of the above said amount, an amount of Rs.1,30,000/- was got transferred from the chest of Provisional Division No.3 to his own chest. Payment was kept in the chest in the presence of Zile Singh SDC. One key of the chest was with the complainant and the second key was with Zile Singh SDC. On 22.12.1990 complainant had distributed some payment to the local labour at about 7.30 P.M. and Muster roll was placed in the chest after payment. On Sunday, Rs.37,000/- was distributed amongst the labourer. Balance amount was in the chest. Rs.30,000/- brought from the Bank was already in the chest for payment to the labourers and payment of Petrol and Diesel bills etc. Payment was to be distributed on 26.12.1990.On 22.12.1990 complainant Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 4and Zile Singh SDC had gone to their respective houses. Shugan Chand Beldar was on duty as Chowkidar since 14.12.1990 in place of Nand Ram Chowkidar. On 26.12.1990 at 9 A.M. complainant came and the office was found locked. Shugan Chand Chowkidar was not present there. Sultan Beldar was sent to locate Shugan Chand Chowkidar but Shugan Chand Chowkidar was not available. Lock of the office was broken. Shugan Chand Chowkidar was found lying dead on the cot with injuries on his person. The chest was found open and about Rs.1,12,000/- were stolen from the chest. An iron rod was lying near the chest. Some unknown assailants had stolen the cash by damaging the chest, after murdering Shugan Chand Chowkidar. Statement of Surinder Kumar SDO was recorded by Fateh Singh Sub Inspector when he had gone to the Police Station.
In view of the statement of Surinder Singh SDO, formal First Information Report was registered. Special Report was sent to the Ilaqa Magistrate. Wireless message was sent to summon Forensic Science Laboratory team and dog squad.
Police party headed by Fateh Singh Sub Inspector had gone to the spot. Inquest report was
prepared. Photographer was also arranged. Dead body Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 5was sent for post mortem examination. Rough site plan with correct marginal notes was prepared. Blood stained earth, locks Darri, iron rod, pair of shoes were lifted from the spot. Blood stained earth was lifted from the spot and made into a sealed parcel. Sealed parcel along with other articles lifted from the spot were taken into police possession vide separate memos attested by the witnesses. Sealed parcel of the clothes worn by the deceased was produced before Fateh Singh Sub Inspector . Parcel was taken inot police possession vide memo attested by the witnesses.
After that, Om Parkash Inspector had carried out the investigation of the case. On 26.12.1990 Om Parkash Inspector had recorded the statement of Zile Singh SDC. On 1.1.1991 police party headed by Om Parkash was present near Railway Chowk, Gharaunda. Surinder Kumar SDO met the police party at about 9.30 A.M. In the meantime, Dilbag Singh was noticed near the chowk. He was apprehended. On search of the accused one revolver and two live cartridges were recovered. Regarding recovery of armed and ammunition, separate case was registered against Dilbag Singh. Accused was interrogated and on interrogation accused suffered disclosure statement that Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 6he has kept concealed the stolen money in the "Turi Wala Kotha". He knew about the same and can get the same recovered. As per disclosure statement suffered by the accused, accused got recovered Rs.47403/- from the specified place along with acquaintance roll. Cash along with acquaintance roll was taken into police possession vide separate memo attested by the witnesses. After that police party had gone to the fields of Kuldeep Singh. He was also apprehended and interrogated. Accused suffered disclosure statement that he has kept concealed cash in envelop in the kotha. He knew about the same and can get the same recovered. As per disclosure statement, accused got recovered Rs.63,803/- from the specified place. Amount with envelope was taken into police possession vide separate memo attested by the witnesses.
Third accused Joginder Singh was arrested from village Staundi. Accused was interrogated but no recovery was effected from him.
On return to the Police Station, case property was deposited with the MHC.
On 2.1.1999 accused Dilbag Singh was again interrogated. He suffered disclosure statement that he has kept concealed a bunch of keys near the Krishna Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 7Mandir, Kunjpura Road. He told that he knew about the same and could get the same recovered. In pursuance of the disclosure statement, accused got recovered bunch of keys from the specified place. Keys were taken into police possession vide separate memo attested by the witnesses.
On 3.1.1999 Dilbag Singh accused was again interrogated. Dilbag Singh suffered disclosure statement that he has kept concealed a knife in his house. He knew about the same and could get the same recovered. In pursuance of the disclosure statement, accused got recovered a spring actuated knife . Sketch of the spring actuated knife was prepared and was taken into police possession vide separate memo attested by the witnesses. Case property was deposited with the MHC.
After completion of investigation, accused were challaned.
The Case was committed to the Court of Session for trial.
All the accused were charged under Sections 460 I.P.C. to which they pleaded not guilty and claimed trial.
Dilbag Singh accused was separately charged Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 8under Section 25 of the Arms Act. Accused pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined PW-1 Dr. R.A.Mittal who had conducted post mortem examination on the dead body of Shugan Chand son of Shri Parsa Jhinwar on 26.12.1990 and found the following injuries on his person:-
1. Incised wound 1.5 cm x 1.5 cm was present over left side of neck on anterior-lateral aspect in the middle. It was 5 cm deep and horizontally probing could be done upto 10 cm. Major vessels on this side were cut.
2. Incised wound of 2 cm x 1 cm size was present over left side of neck running transversely 1 cm from mid line in middle part of neck. It was 5 cm deep.
3. Incised wound 3 cm x 1.5 cm was present over left side of lower part of abdomen 9 cm infero-lateral to umbilicus. It was 1 cm deep.
4. 1 cm above and lateral to injury No.3, there was another incised wound of 3 cm x 1.5 cm size it was 9 cm deep, small intestine had come out of it.
5. Incised wound of 2.5 cm x .5 cm was present Crl. Appeal No.43-DB of 2000.Crl. Appeal No. 44-DB of 2000. 9
over left side of abdomen in upper part. It was 5 cm supero-lateral to umbilicus. It was .5 cm deep.
6. Incised wound of 3 cm x 2 cm size was present over right side of abdomen in lower part. It was 9 cm deep and was 10 cm lateral to umbilicus.
Cause of death as per opinion of the Doctor was due to shock and haemorrhage. Injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature. Probable duration that elapsed between death and post mortem was within 48 hours.
PW-2 Manohar Lal had prepared scaled site plan Ex. PD.
PW-3 Kanshi Ram Clerk stated that he used to prepare TA bill and acquaintance roll. Ex.PE was prepared by him on 19.12.1990.
PW-4 Kiru Ram brother of the deceased had identified the dead body of Shugan Chand PW-5Head Constable Om Parkash had delivered special report to the Ilaqa Magistrate at 1.55 P.M. on 26.12.1990.
PW-6 Ram Singh Clerk stated that he had sent Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 10sanction order of crossing the efficiency bar of Shri R.P.Sharma, Sub Divisional Engineer after making entry in the despatch register on 29.11.1990.
PW-7 Constable Siri Krishan; PW-8 Constable Jai Ram; PW-9 Head Constable Chand Singh and PW-10 MHC Bhim Singh had tendered their affidavits Ex. PH, Ex.PJ. Ex.PE and Ex.PL respectively.
PW-11 Zile Singh SDC and PW-12 Surinder Kumar SDO (complainant) in this case have supported the prosecution story by saying that Sughan Chand was Chowkidar in the office. On the intervening night of 21/22.12.1990 Dilbag Singh and Kuldeep Singh came to office at 3 A.M. On 26.12.1990. Sughan Chand was found murdered in the office. Surinder Kumar SDO further stated that he had withdrawn payment from the bank for making payment to the labourers. Rs.30,000/- was already lying in the chest. Some of the amount was brought from Divisional Office. On 21.12.1990 total cash in the chest was Rs.1,30,000/-. An amount of Rs.37000/- was distributed to the labourers. Remaining cash was to be distributed on 23.12.1999. On that day, Junior Engineer was not available. Amount was to be distributed on 26.12.1990. Shugan Chand was murdered in the office. Chest was found broken. Cash was stolen.
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 11He had lodged report to the police and later on in his presence, Dilbag Singh got recovered cash, acquaintance roll. Kuldeep Singh also got recovered cash, and one envelope.
PW-13 Head Constable Raghbir Singh had tendered his affidavit Ex.PV.
PW-14 Assistant Sub Inspector Raghbir Singh was with the police party of Om Parksash and in his presence case was investigated.
PW-15 Inspector Fateh Singh had initially investigated the case in hand.
PW-16 Inspector Om Parkash had partly investigated the case. He had arrested Dilbag Singh and Kuldeep Singh on 1.1.1991 and as per disclosure statement got recovered cash, Muster Role, key and envelop etc. After close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the allegations levelled against them. Accused denied all the allegations and claimed to be innocent.
Defence version of Kuldeep Singh was that half killa of land was owned by Bijay Singh and the same was to be purchased by them. Bijay Singh had demanded Rs.75,000/- but they were ready to pay Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 12Rs.60,000/-. An amount of Rs. 50,000/- was borrowed from Daya Nand son of his maternal uncle, Arjan. An amount of Rs.65,000/- was taken away by the police from his house on the allegation that number of currency notes are to be tallied with the currency notes stolen from the PWD office. Money was not returned inspite of repeated requests and the same was utilized to implicate him in the present case.
Defence version of Dilbag Singh and Joginder Singh was that they were innocent.
In defence, Doctor P.K.Bhatia appeared and stated that he had medico legally examined Dilbag Singh. Disability certificate Ex.PE was issued. Disability was 70%.
DW-2 Daya Nand stated that he was owning land. Suger Cane was supplied to the mill. Payment was received from the mill. Rs.50,000/- was given to Kuldeep Singh to purchase land.
DW-3 Bijay Singh stated that he was owning about 8-1/2 killas of land. ½ killa was to be sold to Kuldeelp Singh in the sum of Rs.80,000/- but Kuldeep Singh was ready to pay Rs.50,000/-.
DW-4 Mange Ram stated that he was going towards the fields. Police was seen near the house of Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 13Kuldeep Singh. Police had recovered some amount. He was requested to sign the document but he had not agreed to sign.
DW-5 Samay Singh Record keeper had brought record of Sugar mill and proved payment sheets Ex.DF, Ex. DG and Ex.DH.
DW-6 Rajinder Singh Clerk of Co-operative Sugar Mill stated that vide payment sheets Ex.DF, Ex.DG and Ex.DH. payment of sugar cane was given to the supplier.
We have heard learned defence counsel for the appellants, Mr. K.S.Godara, Deputy Advocate General, Haryana for the State and have gone through the file very carefully and thoroughly.
Defence counsel for the appellants-accused argued that case is based on circumstantial evidence. There is no direct evidence. According to the story Shugan Chand was Chowkidar in the office of PWD B&R. He was on duty on the intervening night of 25/26.12.1990. On the next day, he was found murdered in the office. Cash was found stolen from the chest. Only evidence on the file to connect the appellants- accused with the crime is that on the intervening night of 21/22.12.1990 Dilbag Singh and Kuldeep Singh had Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 14slept in the office from 3 A.M. to 6 A.M as per Zile Singh SDC. Second link is the recovery of cash as per disclosure statements but prosecution story inspires no confidence because Zile Singh was SDC. He was staying in village Charao situated at the distance of seven kilometer from the office. There was no cot or bed. Zile Singh was not expected to stay in the office. Zile Singh in his cross examination admitted that Kuldeep Singh did not work in his office. Finger prints were lifted. Lock of chest was intact but the chest was found open. He did not supply his finger prints. Police was requested not to take his finger prints. He did not disclose to anybody that on the intervening night of 21/22.12.1990 Dilbag Singh and Kuldeep Singh had slept in the office. Stay of Dilbag Singh and Kuldeep Singh from 3 A.M. to 6 A.M. on the intervening night of 21/22.12.1990 is not correct one. If finger prints were available then why Zile Singh SDC was not willing to supply his finger prints. Finger prints of the appellants- accused were not got compared with the disputed finger prints lifted from the spot. Surinder Kumar SDO is the next witness but his statement is also without any evidentiary value. There was no idea to withdraw heavy payment from the Bank on 21.12.1990, when 23, 24 and Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 1525.12.1990 were not the working days. An amount of Rs.37,000/- was distributed. Remaining amount was to be distributed on 23.12.1990 but no explanation why amount was not distributed. Explanation put forward by Surinder Kumar was that Junior Engineer was not available. But nothing on the record that concerned Junior Engineer was not on duty. On 1.1.1991 Surinder Kumar was present near Railway Chowk Gharonda and per chance police party was seen headed by Om Parkash Inspector. First disclosure statement suffered by Dilbag Singh is dated 1.1.1991. As per disclosure statement, an amount of Rs.47403/- with Muster roll was recovered. Muster roll was not a valuable document. There was no idea to keep Muster roll with cash. Then Kuldeep Singh got recovered cash and envelope as per disclosure statement but envelope not on the file. No explanation where envelope has gone. There was no identification mark on the cash. Appellants-accused were not expected to keep official envelope. Again, there is disclosure statement dated 2.1.1991 by Dilbag Singh. As per disclosure statement, bunch of keys was recovered. Third disclosure statement is dated 3.1.1991 and as per disclosure statement spring actuated knife was recovered but knife was not sealed as per Investigating Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 16Officer. Money was withdrawn on 21.12.1990. On 22.12.1990 was working day. Payment was distributed on that day. When Dilbag Singh and Kuldeep Singh were not known to Zile Singh SDC and no test identification parade was arranged then story is doubtful that Dilbag Singh and Kuldeep Singh had gone to the office of PWD B&R and had slept there from 3 A.M. to 6 A.M. When finger prints were available then question is why finger prints of Zile Singh SDC and Surinder Singh SDO were not taken for comparison. They were facing departmental inquiry. Possibility of mischief at the hands of Zile Singh SDC and Surinder Kumar SDO cannot be ruled out. One revolver and two cartridges were recovered from Dilbag Singh. Separate case was registered under the Arms Act. Dilbag Singh was acquitted of the charges levelled against him. That means story qua arrest, recovery of revolver and cartridges was found to be doubtful, that is why, Dilbag Slingh was acquitted of the charge levelled aginst him. One of the appellants-accused namely Dilbag Singh is handicapped. Disability was 70%. Recovery of cash was effected from a room which was not owned by Dilbag Singh, particularly, when he cannot walk properly without help. Recovery of cash from the "Turi Wala Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 17Kotha" is also doubtful. In fact, Zile Singh and Surinder Kumar SDO to save their skin had arranged the money and the same was shown to have recovered as per disclosure statement suffered by Kuldeep Singh and Dilbag Singh. No recovery from Joginder Singh. Chain of circumstantial evidence is not complete. Evidence on the file was not properly appreciated.
Mr. K.S.Godara, Deputy Advocate General, Haryana argued that Shugan Chand was Chowkidar in the office of PWD B&R. On 21.12.1990, Surinder Kumar SDO had withdrawn payment from the Bank for distribution to the labourers. Some of the amount was distributed. Remaining amount was kept in the chest. On the intervening night of 21/22.12.1990, Dilbag Sing and Kuldeep Singh had slept in the office from 3 A.M. to 6 A.M. On 22.12.1990, Zile Singh SDC and Surinder Kumar SDO, had gone to their respective houses. Payment lying in the chest was to be distributed on 26.12.1990 but on the intervening night of 25/26.12.1990, Shugan Chand was found murdered in the office. As per disclosure statement suffered by Dilbag Singh and Kuldeep Singh, payment was recovered along with muster roll, bunch of keys and knife. Zile Singh, SDC and Surinder Kumar SDO had no Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 18enmity with the appellant-accused. Evidence on the file was rightly appreciated by the trial court to hold that chain of evidence is complete.
First submission of learned defence counsel was that case is based on circumstantial evidence. No eye witness but chain of circumstantial evidence is not complete. No documentary evidence on the file as to how much amount was withdrawn from State Bank of India on 21.12.1990 and how Rs.1,30,000/- was got transferred from the chest of Provisional Division No.3 to the chest of the complainant. As per story, some of the amount was distributed to the labourer on 22.12.1990 but regarding distribution, no documentary proof on the file Rs.37,000/- was distributed on Sunday but as per First Information Report on 22.12.1990, complainant and Zile Singh SDC had gone to their respective houses, regarding distribution of Rs.37,000/- on Sunday no proof on the file story qua withdrawal and distribution is doubtful. Submission of Learned defence counsel seems to be reasonable one. When payment is withdrawn from the Bank by any office, then cheque is issued. Regarding issuance of cheque and receipt of payment entry is made in the register, but no receipt on the file whether payment was against Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 19cheque and in case, payment was withdrawn from the Bank and how much payment was withdrawn then who had collected the payment. Regarding withdrawal of payment, no entry in the record. Rs.1,30,000/- was got transferred by the complainant to his own chest but regarding withdrawal of Rs.1,30,000/- from the main chest and transfer to his own chest by the complainant, again no record. Rs.30,000/-was already lying in the chest, but regarding this payment, again no proof. According to the First Information Report on 22.12.1990, after distributing some payment, Zile Singh SDC and Surinder Kumar SDO had gone to their houses, then the question is as to how much payment was kept in the chest by the complainant till the close of his office on 22.12.1990. If complainant had gone to his house on 22.12.1990, then how Rs.37,000/- was distributed on Sunday. Record is maintained in the office as to how many were the labourers and to whom payment was made. Without record, it is very easy to state that payment was withdrawn from the Bank. Some of the payment was distributed and remaining amount was kept in the chest. So, story qua withdrawal of payment from the State Bank of India, Karnal and distribution of some payment is not genuine one.
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 20Next submission of learned defence counsel was that as per evidence, Dilbag Singh and Kuldeep Singh had gone to the office of complainant on the intervening night of 21/22.12.1990 and had slept in the office from 3 A.M. to 6 A.M. Dilbag Singh and Kuldeep Singh were not known to Zile Singh SDC or the deceased, then there was no idea to allow Dilbag Singh and Kuldeep Singh to sleep in the office. Story qua last seen is also doubtful.
We have gone through the evidence on the file and agree with the submission of learned defence counsel. Zile Singh SDC admitted in cross examination that his village is at a distance of 105 kilometer. He was staying in village Chayo situated at a distance of seven kilometers. Kuldeep Chand and Dilbag Singh were not known to him and admitted that Kuleep Singh did not work in his office. Zile Singh was confronted with the statement under Section 161 Cr.P.C. In the statement, Zile Singh SDC stated that Kuldeep Singh had worked in his office for few days. No record on the file whether Kuldeep Singh and Dilbag Singh had worked in the office of PWD B&R at any stage. Kuldeep Singh and Dilbag Singh were not from the village of the deceased. They are from village Gagsina, whereas the deceased Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 21was resident of village Uchha Samana. No evidence on the file that Kuldeep Singh and Dilbag Singh had ever worked with the deceased or Zile Singh SDC or Surinder Kumar SDO. Before the present occurrence, Dilbag Singh and Kuldeep Singh had no litigation either with the complainant and Zile Singh SDC or the deceased then the question is how Dilbag Singh and Kuldeep Singh had gone to the office of PWD B&R on the intervening night of 21/22.12.1990 and had slept in the office from 3 A.M. to 6 A.M. Zile Singh SDC was not in a position to state that Dilbag Singh and Kuldeep Singh came to his office on the intervening night of 21/22. 12.1990 and had slept from 3 A.M to 6 A.M. If Dilbag Singh and Kuldeep Singh had slept in the office from 3 A.M. to 6 A.M. then Zile Singh SDC should have told the police on 26.12.1990 that Dilbag Siongh and Kuldeep Singh residents of village Gagsina came to the office and had slept from 3 A.M. to 6 A.M. Statement of Zile Singh is doubtful.
Defence counsel for the appellants-accused submitted that lock of the chest was intact but the chest was found broken. There was sub-chest but the same was lying locked. Finger prints were available but no effort was made to have finger prints of the complainant Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 22and Zile Singh SDC. Zile Singh SDC in cross examination stated that finger prints were lifted from the chest but he did not supply his finger prints to the police. Surinder Kumar SDO had also not supplied his finger prints to the police. Police was also requested not to take their finger prints. Surinder Kumar SDO appearing as PW-12 in cross examination stated that he did not supply his finger prints to the police. In case, finger prints were lifted from the chest or any other article lying near the place of occurrence, then there was no hitch for the complainant and Zile Singh SDC to supply their finger prints for comparison.
As discussed earlier, finger prints were lifted from the spot but no effort was made to have the finger prints of the appellants-accused for comparison. Finger prints of the appellants-accused could easily be obtained before the Magistrate for comparison with the disputed finger prints. No explanation is forth-coming from the side of the prosecution as to why finger prints of the appellants-accused, Zile Singh SDC and Surinder Kumar SDO were not taken.
Next submission of the learned defence counsel was that an effort was made to connect the accused with the crime by effecting recovery of cash as per different Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 23disclosure statements, Dilbag Singh was arrested on 1.1.1991. Revolver along with two live cartridges was recovered. Separate case was registered again Dilbag Singh, but in the Arms case, Dilbag Singh was acquitted. Story qua arrest, recovery of arms and ammunition is doubtful. On 1.1.1991, a sum of Rs. 47,403/- and muster roll was recovered. As per disclosure statement, Kuldeep Singh got recovered Rs.63803/- with official envelope. But envelope is not on the file. No documentary proof that cash recovered is the same which was stolen from the official chest. On 2.1.1991 again Dilbag Singh was interrogated. As per disclosure statement, bunch of keys was recovered. Again on 3.1.1991, Dilbag Singh was interrogated. As per disclosure statement, Dilbag Singh got recovered knife on 4.1.1991. Dilbag Singh was handicapped. Disability was 70% as per doctor P.K.Bhatia, who appeared as DW-1. Recovery was from the kotha. Place of recovery was open and accessible. Owner of the kotha was not joined in the investigation of the case. With 70% disability, Dilbag Singh was not in a position to conceal cash in the kotha of some other person. Dilbag Singh was tortured. Disclosure statement was not made voluntarily. If Dilbag Singh and Kuldeep Singh had stolen cash from the official Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 24chest, then there was no idea to keep muster roll or bunch of keys with them. After committing crime, muster roll, keys or knife could easily be destroyed.
Submission of the learned defence counsel for the appellants-accused is genuine one. Occurrence was on the intervening night of 25/26.12.1990, Dilbag Singh and Kuldeep Singh were arrested on 1.1.1991. Presence of Surinder Kumar SDO at the time of arrest is not natural one. While posted as SDO in the office of PWD B&R, Karnal how Surinder Kumar had gone to the place of arrest of Dilbag Singh appellant-accused. After the arrest of Dilbag Singh on 1.1.1991, revolver with two live cartridges was recovered, but under the Arms Act, Dilbag Singh was acquitted of the charge levelled against him. This fact is clear from the copy of the judgment Ex.DA on the file. So, story regarding arrest of Dilbag Singh and recovery of revolver and two live cartridges is doubtful when story qua recovery is doubtful then not safe to opine that as per disclosure statement dated 1.1.1991. Dilbag Singh got recovered Rs.47,403/- with muster roll. On the same day, Kuldeep Singh got recovered Rs.63,800/- with official envelope but envelope is not on the file. Cash was expected to be retained by the appellants-accused and not the official Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 25envelope. On 2.1.1991, again Dilbag Singh handicapped was interrogated. As per disclosure statement, bunch of keys was got recovered. If appellants-accused had committed the crime, then there was no idea to keep bunch of keys. As per Zile Singh SDC, lock was intact. Chest was found open by breaking. On 3.1.1991 again Dilbag Singh suffered a disclosure statement and got recovered knife but knife was not found to be stained with human blood. As per report of Forensic Science Laboratory, Madhuban Ex.PEE/1 material was found to be disintegrated. Recovery of cash, bunch of keys and knife is doubtful.
Defence counsel for the appellants-accused argued that conduct of Zile Singh SDC and Surinder Kumar SDO is doubtful. Firstly, Zile Singh SDC had no occasion to stay in the office, if he was telling the truth, then he should have supplied his finger prints for comparison. Zile Singh SDC as per his statement under Section 161 Cr.P.C. used to sleep in the office, but in Court stated that he was not sleeping in the office daily. On the intervening night of 21/22.12.1990, Zile Singh SDC had stayed in the office as per his version, but he did not disclose this fact to the police. There was no bedding or cot in the office. When Zile Singh SDC was Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 26staying in the village situated at a distance of 7 kilometer from the office then he was not expected to stay in the office during night time. There were holidays after 22.12.1990 till 26.12.1990, then there was no idea to withdraw heavy amount on 21.12.1990. If payment was withdrawn on 21.12.1990, then it was very easy to disburse the amount amongst the labourers. No request should have been made to the police not to take their finger prints. That means, there was something in the mind of Zile Singh SDC that is why he was not ready to supply his finger prints for comparison. Surinder Kumar SDO was present at the time of recoveries, but his statement is also without any evidentiary value because he was facing inquiry qua the present occurrence. He did not supply his finger prints. Submission of learned defence counsel seems to be reasonable one. Occurrence was on the intervening night of 25/26.12.1990. Zile Singh had stayed in the office on the night of 21/22.12.1990, but there was not cot or bedding for stay in the office when finger prints were lifted from the spot, then there was no idea not to supply finger prints . Zile Singh SDC and Surinder Kumar SDO were facing inquiry. Both seemed to be behind the seen. At the instance of Zile Singh SDC and Surinder Kumar SDO, Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 27appellants-accused were implicated by showing recovery of cash in pursuance of the disclosure statement. Dilbag Singh was handicapped. Disability was 70%. Chaff in room was up to the hight 6/7 feet. Dilbag Singh was not in a position to walk properly without help. Dilbag Singh was not expected to conceal cash in the chaff stored in the room owned by some other persons. If Dilbag Singh was to conceal cash, then it was very easy for him to conceal the same in his own house. So, recovery of cash etc in the presence of Surinder Kumar SDO, is doubtful. Statements of Zile Singh SDC and Surinder Kumar SDO inspire no confidence.
No other contention was put forward.
In view of all discussed, we are of the opinion that impugned judgment suffers from infirmity and illegality and the same is set aside. Appellants-accused are acquitted of the charges levelled against them.
Crl. Appeal No.43-DB of 2000.and Crl. Appeal No. 44-DB of 2000, are hereby allowed.
( JORA SINGH ) JUDGE 26.02.2009. ( JASBIR SINGH ) JUDGE Anoop Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 28