Punjab-Haryana High Court
Sucha Singh vs State Of Punjab on 27 July, 2009
Author: Jitendra Chauhan
Bench: Mehtab S. Gill, Jitendra Chauhan
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl.Appeal No.250-DB of 2001
Date of Decision: July 27, 2009
Sucha Singh .......Appellant
Versus
State of Punjab .......Respondent
and
Crl.Appeal No.328-DB of 2001
Kirpal Kaur .......Appellant
Versus
State of Punjab .......Respondent
CORAM:- HON'BLE MR.JUSTICE MEHTAB S. GILL
HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.Vineet Sharma, Advocate for the appellants.
Mr.Satinder Singh Gill, Additional Advocate General, Punjab.
---
JITENDRA CHAUHAN, J.
1. We will be deciding Crl.Appeal No.250-DB of 2001 and Crl.Appeal No.328-DB of 2001 as both have arisen out of a common judgment and order dated 12.4.2001 passed by the Additional Sessions Judge, Amritsar convicting and sentencing the appellants as under:
Sucha Singh u/s 302/34 IPC. Imprisonment for life and to pay fine of Rs.1000/-. In default of payment of fine, to undergo further R.I. for six months.Crl.Appeal No.250-DB of 2001 -2-
U/s 201 IPC Rigorous imprisonment for five years. Kirpal Kaur u/s 302 IPC Imprisonment for life and to pay fine of
Rs.1000/-. In default of payment of fine, to undergo further R.I. for six months.
U/s 201 IPC Rigorous imprisonment for five years. All the sentences were ordered to run concurrently.
2. The facts, in brief, are that on 15.9.1998, at about 2.30 p.m., a secret informer approached the police party headed by Inspector Dharam Singh in the area of turning point of Baba Bakala and informed that Kirpal Kaur wife of Mohinder Singh son of Amar Singh, resident of Badala Kalan, had illicit relations with Sucha Singh son of Karam Singh of the same village since long. This resulted into a dispute between Mohinder Singh and his wife. Mohinder Singh, the husband of Kirpal Kaur objected to their relationship. However, Sucha Singh and Kirpal Kaur did not mend their ways, on account of which, they had become very hostile towards Mohinder Singh. There was a rumour that Sucha Singh and Kirpal Kaur in the month of March, 1998 after having killed Mohinder Singh in the house had buried his body somewhere. Thereafter, they spread in the village that Mohinder Singh had gone to Jamna Nagar in connection with labour. In fact, they had been concealing the murder of Mohinder Singh. If they are arrested and interrogated, then truth could be ascertained. After completing the statement, ruqa was sent to the police station for registering the case.
3. On the basis of afore-mentioned writing, an FIR under Section 302/34 of the Indian Penal Code was registered in this regard on 15.9.1998 by SI Hardev Singh, Police Station Beas at 2.55 p.m. Special report was received by Sub Divisional Judicial Magistrate, Baba Bakala at 5.00 p.m. Crl.Appeal No.250-DB of 2001 -3-
4. Inspector Dharam Singh, PW9, investigated the matter. Both the accused were arrested on 17.9.1998. On interrogation, the accused- appellant Sucha Singh suffered a disclosure statement that he had kept concealed the dead body of Mohinder Singh in Avey Wala Chhapar (pond). In pursuance of the disclosure statement, skeleton was recovered in the presence of Naib Tehsildar Baba Bakala and other witnesses. One karra, on which deceased Mohinder Singh's name was inscribed and one Payjama were also got recovered. Rough site plan of the place of recovery was prepared. Photographs were also taken.
5. The skeleton was sent for examination to Medical College Amritsar. Extra-judicial confession was made before Harjinder Singh, PW6. Statement of Gurbax Singh, PW5, who claimed to have seen the accused carrying something wrapped in a canvas cloth on the carrier of bicycle, was also recorded.
6. After completion of investigation, the accused were charge- sheeted under Section 302/201 of the Indian Penal Code on 3.2.1999 by Additional Sessions Judge, Amritsar.
7. The prosecution examined Parkash Singh, Naib Tehsildar as PW1, Rishi Ram Draftsman a PW2, Jaswant Singh Photographer as PW3, Surjan Singh as PW4, Gurbax Singh as PW5, Harjinder Singh as PW6, Inderjit Singh as PW7, Head Constable Mohinder Singh as PW8 and Inspector Dharam Singh Investigating Officer as PW9.
8. All the witnesses cited by prosecution supported the case. Parkash Singh, Naib Tehsildar, PW1, made a statement that he was present at the pond when Sucha Singh accused got recovered the human bones from the pond. The bones so collected from the pond were converted into parcel Crl.Appeal No.250-DB of 2001 -4- which was attested by him along with other witnesses. He is also a witness to the recovery of one payjama and one karra (iron bangle), on which the name of deceased Mohinder Singh was inscribed.
9. Surjan Singh, PW4, cousin of deceased Mohinder Singh deposed that Sucha Singh and Kirpal Kaur had illicit relations for the last 15 years. Many people including Mohinder Singh had the knowledge of their illicit relations. He further deposed that he visited Mohinder Singh also 3-4 days after Baisakhi in the year 1998. Kirpal Kaur told him that Mohinder Singh had gone to Jamna Nagar. He again visited village Badala on 4.9.1998. Mohinder Singh had not yet returned. There he came to know that Mohinder Singh had been killed and his dead body was disposed of. On his next visit on 15.9.1998 to village Badala, police met him and took thumb impressions.
10. Gurbax Singh, PW5, stated that he knew the accused for the last about one year. He saw something wrapped in a canvas cloth being carried by both the accused on bicycle carrier. Sucha Singh was holding handle of the bicycle, whereas Kirpal Kaur was holding the bundle on the carrier.
11. Harjinder Singh, PW6, stated that both the accused came to him at about 11.00 p.m. on 15.9.1998 and revealed that they had illicit relations with each other for the last 15-16 years. As Mohinder Singh was an obstacle in their illicit relationship, therefore, Sucha Singh caught hold of Mohinder Singh from legs and Kirpal Kaur strangulated him with parna and killed him. Both of them buried the dead body in the verandah of house of Mohinder Singh. About two months back, the dead body of Mohinder Singh was taken out and again buried near the village pond. A request was Crl.Appeal No.250-DB of 2001 -5- also made by both of them to produce them before the police.
12. Inspector Dharam Singh, PW9, also supported the case of the prosecution and made a statement regarding recovery of skeleton, sending it to the Forensic Medicine Department, Medical College, Amritsar; preparing the rough site plan of place of recovery; recovery of bicycle and obtaining medical report prepared by the doctor regarding skeleton. Thereafter, the prosecution closed its evidence.
13. The accused were examined under Section 313 of the Code of Criminal Procedure. All the incriminating evidence was put to them. The accused claimed trial. They denied the allegations and pleaded false implication.
14. Before the learned trial Court, it was submitted that in the present case, the chain of circumstantial evidence was complete. Kirpal Kaur accused had illicit relations with Sucha Singh. Mohinder Singh, the husband of Kirpal Kaur was killed. Dead body was buried in the courtyard of the house. Thereafter, the body was taken out and again buried near the pond. Both the accused made extra-judicial confession which is proved from the statement of Harjinder Singh, PW6. Gurbax Singh, PW5, also supported the case of prosecution as this witness had seen the accused carrying a bundle wrapped in a canvas cloth on the bicycle. During the investigation, accused Sucha Singh suffered a disclosure statement, on the basis of which, skeleton was recovered. The said skeleton was sent to the Forensic Medicine Department, Medical College, Amritsar. As per report, Exhibit PN, the skeleton taken out from the pond at the instance of Sucha Singh, was found to be of human body.
15. Learned defence counsel contended that it was a case of blind Crl.Appeal No.250-DB of 2001 -6- murder. The story put forth by the prosecution was highly improbable. The prosecution failed to pin-point the date or month of the occurrence. Surjan Singh, PW4, belonged to village Kaji Kot which is admitted by him, however, denied by the Investigating Officer. Further, it was argued that there were material improvements as regards extra-judicial confession, which in itself, was a weak type of evidence. During examination, this witness has stated that Kipal Kaur and Sucha Singh made extra-judicial confession turn by turn, which does not find mention in his statement recorded by the Investigating Officer under Section 161 of the Code of Criminal Procedure. Sucha Singh was falsely implicated in the present case on account of political rivalry between this witness and accused Sucha Singh. Harjinder Singh, PW6, belonged to Akali Party, whereas accused belonged to Congress Party. Further argument raised before the trial Court was that the statement of Gurbax Singh, PW5, could not be believed as the dead body cannot be taken out. The name of Mohinder Singh was not legible on the karra (iron bangle) produced before the Court. It was not established that the skeleton recovered from the village pond was that of Mohinder Singh. Parkash Singh, PW1, stated that before he reached the pond in question, Sucha Singh was already standing there. Surjan Singh, complainant remained silent for six months.
16. Learned trial Court relied on the statement of Surjan Singh, PW4, who visited the house of accused 3-4 days prior to Baisakhi. On his second visit on 4.9.1998, Kartar Kaur told him that Mohinder Singh had gone to Jamna Nagar. He also made a mention of illicit relations between Sucha Singh and Kirpal Kaur. Report was lodged by him on 15.9.1998.
17. On the basis of disclosure statement, the skeleton was taken out Crl.Appeal No.250-DB of 2001 -7- from the pond in the presence of Naib Tehsildar Parkash Singh, who appeared as PW1. Payjama and iron karra, on which the name of Mohinder Singh was inscribed were also recovered. Harjinder Singh, PW6, before whom the extra-judicial confession was made, also supported the case of the prosecution. The learned trial Court also observed that the conduct of Kirpal Kaur was not normal regarding not reporting the absence of Mohinder Singh to the police. As regards the improvement in extra-judicial confession, the learned trial Court held that it was not a case of joint confession and the confession was made one by one by the accused persons.
18. As regards false implication on account of political rivalry, Harjinder Singh, PW6, in his cross-examination admitted that he contested elections against Chanchal Singh, brother of the accused, Sucha singh. The learned trial Court also rejected the contention raised regarding non- specification of day and month of occurrence and the manner in which the murder was committed, the actual date of occurrence could be known to them alone since there was no eye witness to the occurrence. Learned trial Court concluded that chain of circumstantial evidence produced on record leads to the conclusion that it were both the accused alone who had committed the murder of Mohinder Singh and no other conclusion was possible from the evidence on record.
19. Both the appeals were received through Jail. Crl.Appeal No.250-DB of 2001 was admitted on 13.8.2001. Crl.Appeal No.328-DB of 2001 was admitted on 14.9.2001.
20. Learned counsel for the appellants has argued that the present case was a result of false implication on account of political rivalry. The case was ridden with material inconsistencies and there was no material Crl.Appeal No.250-DB of 2001 -8- before the trial Court, on the basis of which, it could be concluded that the case against the appellants was proved beyond reasonable doubt.
21. The learned counsel for the appellants made a reference to the statement of Naib Tehsildar Parkash Singh, PW1, who categorically stated that accused-appellant Sucha Singh was already present at the side of pond when he reached the site for extracting skeleton of the deceased from the pond. It was further contended that no respectable person from the village was joined at the time of taking out the skeleton from the pond. No identification of bones was carried out. As per report, Exhibit P1, received regarding skeleton, the bones so recovered from the pond were stated to be of a person over 28 years. The name of deceased Mohinder Singh was also not legible on the karra (iron bangle) when it was produced before the Court. Nobody identified the payjama. The extra-judicial confession made before Harjinder Singh, PW6, carried many improvements over the statement recorded under Section 161 of the Code of Criminal Procedure. Statements of Surjan Singh, PW4, and Harjinder Singh, PW6, were recorded on the same day, i.e., on 15.9.1998. Harjinder Singh, PW6, and accused-appellant Sucha Singh belonged to the different political parties. Chanchal Singh, real brother of Sucha Singh had contested elections against Harjinder Singh. The appellants were not produced before the police in pursuance of alleged extra-judicial confession which was made after six months of the occurrence in question. The statement of Gurbax Singh, PW5, cannot be relied upon for carrying the dead body on bicycle by the accused in the village, particularly when everybody in the village allegedly knew about the illicit relations between the appellants.
22. On behalf of State, it was argued that the conduct of accused Crl.Appeal No.250-DB of 2001 -9- Kirpal Kaur was not normal in not sharing the absence of her husband with anybody in the village nor lodging the FIR with the police. The case was fully established against the accused on the basis of recovery of skeleton effected from the pond in pursuance of the disclosure statement made by accused Sucha Singh. They were seen by Gurbax Singh, PW5, taking the dead body wrapped in a canvas cloth on bicycle carrier, recovery of which was found from the bicycle.
23. We have heard learned counsel for the parties and perused the records.
24. The circumstances highlighted in fastening the guilt on the accused are as follows:
1) Extra judicial confession of the offence made by the accused before the witness, PW6, after six months.
2) Two months after the incident the accused were seen taking the dead body on the bicycle to dump in a pond by PW5.
3) The conduct of the accused Kirpal Kaur immediately after the incident i.e. not sharing with anybody or not lodging the FIR.
4) Human blood being found on the clothes of the accused.
5) Recovery of skeleton being got made by the accused in presence of PW1.
25. FIR in the instant case was recorded on 15.9.1998. As per FIR, killing of Mohinder Singh took place in the month of March, 1998. The statement of Gurbax Singh, PW5, was recorded on 9.8.1999 by the learned Additional Sessions Judge. As per his statement, he saw accused- appellants carrying something wrapped in a canvas cloth on bicycle carrier about one year back, during summer season. Going by the simple logic, the Crl.Appeal No.250-DB of 2001 -10- statement of Gurbax Singh, PW5, is relatable to August, 1998, whereas, in the FIR, the killing took place in the month of March. As such, there is difference of four months between March, 1998 and August, 1998. The prosecution is totally silent in this context. As per the testimony of Tehsildar Parkash Singh, PW1, appellant Sucha Singh was already there at the pond when he reached the pond from which the skeleton/bones of the deceased were taken out at the instance of appellant Sucha Singh. The statement of PW1 renders the said recovery a farce.
26. It is clear from the statement of Investigating Officer, Inspector Dharam Singh, PW9 that no respectable person was joined from the locality. Another aspect, which is completely established on record, is that the name of Mohinder Singh was not legible on karra (iron bangle) recovered. The payjama taken into possession at the time of investigation was not identified by anybody. The circumstances noticed above are not conclusive in nature on the basis of which it can be concluded that guilt against the accused stands proved.
27. The Hon'ble Supreme Court in C.Chenga Reddy and Ors. v. State of A.P., 1996(10) SCC 193 observed as under:
"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....."Crl.Appeal No.250-DB of 2001 -11-
28. In Padala Veera Reddy v. State of A.P.and Ors., AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
"1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
2) those circumstances should be of a definite tendency unerringly pointing toward guilt of the accused;
3) the circumstances, taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and
4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence."
29. In State of U.P. v. Ashok Kumar Srivastava, 1992 (3) RCR (Crl.) 63 (SC), it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypotheses of guilt.
30. Sir Alfred Wills in his admirable book "Wills' Circumstantial Evidence" (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the Crl.Appeal No.250-DB of 2001 -12- basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt, (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted."
31. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested by the touch-stone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
32. In Hanumant Govind Nargundkar and Anr. v. State of Madhya Pradesh, AIR 1952 SC 343, wherein it was observed thus:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should be in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to Crl.Appeal No.250-DB of 2001 -13- leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
33. In Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622 while dealing with circumstantial evidence, it has been held that onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are:
"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so compete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
34. As regards the extra-judicial confession, there are material Crl.Appeal No.250-DB of 2001 -14- improvements regarding burying of body of the deceased. Surjan Singh, PW4, categorically stated that his statement and that of Harjinder Singh, PW6, were recorded on the same day. Harjinder Singh belonged to different political party. He contested elections against Chanchal Singh, real brother of Sucha Singh. The alleged extra-judicial confession was made after a period of six months. The accused-appellants were produced before the police in the light of extra-judicial confession. Once it is established that accused-appellant Sucha Singh and Harjinder Singh, PW6, had affiliation with rival political parties and Harjinder Singh had contested elections against the brother of accused Sucha Singh, it is irreconcilable that the accused would place his trust in him for the purpose of extra-judicial confession, which was stated to be made after six months. Harjinder Singh, PW6, did not produce the accused before the police. Therefore, recovery of bones and bicycle do not go to prove that the chain of circumstances is complete and irresistible conclusion of the same is that the accused committed the murder in the present case.
35. In the case of Sucha Singh v. State of Punjab, 2009(3) Law Herald (SC) 1899, the Hon'ble Supreme Court has observed in para 9 as under:
"There is some discrepancies with regard to time of occurrence of the incident also. Whereas according to PW4, the assailants of his brothers were identified in a torch light, PW5 stated that they had identified the accused in the day light and not under the torch light. Even PW4, in his evidence, admitted that he did not have any torch in his possession and, therefore, he did not see the accused under the torch light which Crl.Appeal No.250-DB of 2001 -15- was introduced for the first time in his supplementary evidence. We may notice that in the first information, it is stated, he produced a torch containing three cells. The same has neither been seized nor produced.
He furthermore denied that Manga had given any 'lalkara'. He furthermore accepted that Manga's right arm was amputated. It is also of some significance to note that the place of occurrence is at a distance of about one km from their house. No evidence has been brought on record as to how the parties are known to each other.
There is, therefore, significant contradiction in the matter of number of injuries, time of occurrence, place of occurrence, sequence of events, the manner of identification of the accused, lack of motive and false implication of Manga. PW4 made vital contradictions in his FIR vis-a-vis the supplementary statement evidently keeping in view the physical condition of Manga. It is, therefore, difficult to rely upon his testimony.
PW4 in his deposition furthermore denied to have made a statement before the police that Sucha Singh had given a 'datar' blow on Sakandar on his neck."
36. Though in a case of blind murder, it is difficult to precisely pin- point the date or month of the crime, but even then this aspect cannot be ignored altogether.
37. In cases based on circumstantial evidence, it has been consistently laid down by the Hon'ble Supreme Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified Crl.Appeal No.250-DB of 2001 -16- 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 persons. The circumstances, from which an inference as regards proving the guilt of the accused can be drawn, have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. 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 circumstances of the cumulative effect of the circumstances must be such as to negate the innocence of the accused and bring the offence home beyond any reasonable doubt.
38. The bones recovered in the instant case were sent to the Department of Forensic Medicine and Toxicology, Government College, Amritsar. In response to the same, report was prepared by the Forensic Department, which is exhibited as PN. As per report, it is stated that the exact age could be given from the total skeleton. However, the age of the deceased from examination of the mandible was found to be more than 25 years. The medical report, Exhibit PN, goes to the root of the matter. Appellant Kirpal Kaur was aged about 50 years at the time of FIR. It could safely be presumed that age of the deceased could be between 55 to 60 years at the time of occurrence, whereas the medical report indicates the age of skeleton above 25 years.
39. In these circumstances, in view of the medical report and other material contradictions,, the present appeals succeed. Resultantly, the judgment and order, dated 12.4.2001, passed by the learned Additional Sessions Judge, Amritsar is set aside. If the appellants are in custody, they Crl.Appeal No.250-DB of 2001 -17- would be set at liberty forthwith unless wanted in connection with any other case.
40. With these observations, both the appeals stand allowed.
( JITENDRA CHAUHAN ) JUDGE ( MEHTAB S. GILL ) JUDGE July 27, 2009 SRM Note: Whether to be referred to reporter ? Yes/No