Punjab-Haryana High Court
Major Singh vs State Of Punjab on 31 January, 2012
Crl. Appeal Nos. SB2461 & SB2463 of 2009 1
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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Criminal Appeal No. SB-2461 of 2009
Date of Decision: January 31st, 2012
Major Singh .... Appellant
Versus
State of Punjab
.... Respondent
2. Criminal Appeal No. SB-2463 of 2009
Date of Decision: January 31, 2012
Bhupinder Singh Khatra .... Appellant
Versus
State of Punjab .... Respondent
CORAM : HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
1.Whether Reporters of local papers may be allowed to see the judgment?
2.Whether to be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Present Mr. T.S.Sangha, Senior Advocate,
with Mr. H.S.Lali, Advocate,
for the appellant - Major Singh.
Mr. R.S.Rai. Senior Advocate,
for Mr. Gautam Dutt, Advocate,
for the appellant - Bhupinder Singh Khatra.
Mr. G.S.Brar, Assistant Advocate General, Punjab,
for the State.
VIJENDER SINGH MALIK, J.
Criminal Appeal No. SB2461 of 2009 brought by Major Singh, S.I. and Criminal Appeal No. SB2463 of 2009 brought by Bhupinder Crl. Appeal Nos. SB2461 & SB2463 of 2009 2 ..
Singh Khatra, DSP are directed against the judgment of their conviction dated 30.9.2009 passed by the court of learned Sessions Judge, Faridkot, vide which they have been held guilty for an offence punishable under sections 193, 201, 466, 471 read with Section 120-B IPC as well as the order on sentence dated 30.9.2009, vide which they have been sentenced for the aforesaid offence as under :-
Bhupinder Singh Khatra, DSP Sr.No. Offence under section Sentence
i). 193 IPC To undergo rigorous imprisonment for two years and pay a fine of Rs. 1000/- and in default of payment of fine to further undergo RI for three months.
ii). 201 IPC To undergo rigorous imprisonment for one year and pay a fine of Rs. 1000/- and in default of payment of fine to further undergo RI for three months.
iii). 466 IPC To undergo rigorous imprisonment for two years and pay a fine of Rs. 1000/- and in default of payment of fine to further undergo RI for three months.
iv). 471 IPC To undergo rigorous imprisonment for two years and pay a fine of Rs. 1000/- and in default of payment of fine to further undergo RI for three months.
Major Singh, Sub Inspector Sr.No. Offence under section Sentence
i). 193 IPC read with section To undergo rigorous imprisonment for two 120-B IPC years and pay a fine of Rs. 1000/- and in default of payment of fine to further undergo RI for three months.
ii). 201 IPC read with section To undergo rigorous imprisonment for one year 120-B IPC and pay a fine of Rs. 1000/- and in default of payment of fine to further undergo RI for three months.
iii). 466 IPC read with section To undergo rigorous imprisonment for two 120-B IPC years and pay a fine of Rs. 1000/- and in default of payment of fine to further undergo RI for three months.
iv). 471 IPC read with section To undergo rigorous imprisonment for two 120-B IPC years and pay a fine of Rs. 1000/- and in default of payment of fine to further undergo RI for three months.
Crl. Appeal Nos. SB2461 & SB2463 of 2009 3..
The case brought against them by Police Station, City Faridkot had been registered by way of FIR No. 84 dated 18.6.2002 for an offence punishable under sections 192, 201, 420, 465, 466, 468, 471 and 120-B of Indian Penal Code and sections 7, 13(1)(d) and 12(2) of the Prevention of Corruption Act (for short, "the Act"). The case of the prosecution can be briefly noticed as under :-
Smt. Pal Kaur daughter of Inder Singh, resident of village Dhudi was married with Amarjit Singh son of Geetan Singh of village Hariewala about 15 years ago. After one year of the marriage, her husband, Amarjit Singh went to America. He had been visiting India once in two or three years. According to her, in the month of June, 2001, Amarjit Singh came to India and demanded a sum of Rs. 5.00 lacs from her brother. It is at this time that she came to know about the second marriage of Amarjit Singh with Gurmeet Kaur alias Rani, who is niece of Kuldip Kaur wife of Atma Singh. Atma Singh is brother of Amarjit Singh. Amarjit Singh kept Gurmeet Kaur in America. When the complainant made a protest regarding his second marriage, Amarjit Singh turned her out of his house after serving her with beatings. Pal Kaur then lodged a report with Senior Superintendent of Police, Farikdot on the basis of which, FIR No. 57 dated 18.6.2011 under sections 148, 420, 498-A and 120-B read with section 149 IPC was registered against Amarjit Singh, Atma Singh, Gurmeet Kaur alias Rani and Kuldip Kaur.
Amarjit Singh and Gurmeet Kaur were arrested in that case and were later on released on bail. During investigation of that case, the police took into possession the passports of Amarjit Singh and Gurmeet Kaur. A memo was prepared in this regard. Major Singh, SI, (one of the Crl. Appeal Nos. SB2461 & SB2463 of 2009 4 ..
appellants before me) was posted as SHO, Police Station, Kotwali, Faridkot at that time. He tried to bring about a compromise between Pal Kaur and the accused but to no effect. Major Singh told Bhupinder Singh Khatra, DSP (the other appellant) in this regard. Bhupinder Singh, DSP summoned the file of the case from Police Station, Sadar, Faridkot and gave the passports of Amarjit Singh and Gurmeet Kaur to Major Singh SI, who further gave them to Amarjit Singh after taking bribe in a sum of Rs. 5.00 lacs. After receiving passports, Amarjit Singh and Gurmeet Kaur left for America and reaching there, they returned their passports back through Raj Kaur, mother of accused Amarjit Singh and thereafter accused Atma Singh returned the passports to Major Singh, SI and it is Major Singh, SI, who placed them on the police file.
On checking of the file, Rajbir Singh, ASI, the investigating officer of the case and Mukhtiar Singh, SI/SHO Police Station, Sadar, Faridkot came to know that two pages from each passport were missing. When the investigating officer talked to Bhupinder Singh Khatra, DSP in this regard, the latter called Balbir singh, HC, the attesting witness of the recovery memo of the passports and he got fresh recovery memo prepared of the passports from Rajbir Singh, ASI, the investigating officer of the case. He also directed Rajbir Singh, ASI to change the statement of Balbir Singh, which was recorded under section 161 Cr. P.C. It had come to light that the papers, on which there were stamps of immigration authorities, were removed before replacing them on the file. An enquiry into the matter was conducted by Superintendent of Police (Headquarters) and on the orders of SSP, Faridkot, this criminal case was registered at Police Station, City Faridkot against Bhupinder Singh, Crl. Appeal Nos. SB2461 & SB2463 of 2009 5 ..
DSP, Major Singh SI, Atma Singh, Amarjit Singh, Gurmit Kaur and Raj Kaur. Raghbir Singh, DSP and DSP (H) Harvinder Singh conducted investigation of the case. Investigation also came to other police officials. During the course of investigation, Rajbir Singh, ASI and Balbir Singh, HC were arrested and were released on bail as the investigating officer reported to the court that they were found innocent. In the course of investigation, ASI Rajbir Singh and Balbir Singh, HC made applications to the court for granting them pardon and were making them approvers. They were granted pardon and were made approvers by learned Chief Judicial Magistrate, Faridkot vide order dated 8.4.2003. After obtaining the necessary sanction to prosecute Bhupinder Singh, DSP and Major Singh, SI and after other usual investigation, challan was presented against DSP Bhupinder Singh Khatra, SI Major Singh and Atma Singh, while Amarjit Singh, Gurmit Kaur and Raj Kaur had been declared proclaimed offenders and Rajbir Singh, ASI and Balbir Singh, HC were placed in column No.2 of the challan.
Charge for the offence punishable under sections 192, 201, 420, 465, 466, 468, 471 and 120-B IPC and sections 7, 13(1)(d) and 13 (2) of the Act was framed against Bhupinder Singh Khatra, DSP, Major Singh SI and Atma Singh. They pleaded not guilty to the charge and claimed trial.
At the trial, prosecution has examined 11 witnesses, although the serial number of the witnesses only goes upto PW10 because statement of one Gurpreet Singh Gill, SSP, Faridkot is recorded as PW8- A. A number of witnesses have been given up as unnecessary. Orders of the court passed under the provisions of section 306 Cr. P.C. granting Crl. Appeal Nos. SB2461 & SB2463 of 2009 6 ..
pardon to Rajbir Singh, ASI and Balbir Singh, HC were tendered in evidence and the evidence of the prosecution came to a close on 26.2.2009.
The accused were examined thereafter in terms of section 313 Cr.P.C.. All the incriminating material coming on record in the evidence of the prosecution against the accused was put to them in the shape of questions. They have denied the truth of that evidence. Bhupinder Singh Khatra, DSP has denied having any concern with the case. According to him, his implication in the case is the result of political vendetta. According to him, his work at that time had already been withdrawn and was ordered to have been given to DSP Malkiat Singh.
Major Singh, SI has stated that he was posted at a different police station at the relevant time and had no concern with the case. He has even denied having any connection with the complainant party. Besides denying the truth of prosecution evidence, Atma Singh has also claimed himself to be innocent and to have been falsely implicated in this case. He has denied having been connected in any manner with the alleged offence. According to him, he has been implicated in this case at the instance of complainant party. In defence, the accused have examined six witnesses in all.
Hearing learned Public Prosecutor for the State and learned counsel for the defence, learned Sessions Judge, Faridkot has convicted Bhupinder Singh Khatra, DSP and Major Singh, SI for an offence punishable under sections 193, 201, 466 read with section 120-B IPC . He acquitted Atma Singh of all the charges and has also acquitted Bhupinder Singh Khatra, DSP and Major Singh, SI of the offences Crl. Appeal Nos. SB2461 & SB2463 of 2009 7 ..
punishable under sections 420, 465, 468 IPC and sections 7, 13(1)(d) and 13(2) of the Act vide judgment dated 30.9.2009. Hearing learned counsel for the parties on quantum of sentence, the sentence detailed above had been awarded to the two convicts.
Aggrieved by the aforesaid judgment of conviction and order of sentence, the present appeals have been filed by the convicts.
I have heard Shri Mr. T.S.Sangha, learned senior counsel, assisted by Mr. H.S.Lali, learned counsel for appellant - Major Singh and Mr. R.S.Rai. learned senior counsel assisted by Mr. Gautam Dutt, learned counsel for appellant - Bhupinder Singh Khatra and Mr. G.S.Brar, learned Assistant Advocate General for the State of Punjab. I have gone through the evidence on record carefully.
Mr. R.S.Rai, learned senior counsel has submitted that the passports, which were at the base of the whole case, have not even been exhibited in this case. Referring me to the statement of Rajbir Singh, ASI, (PW1), he has submitted that these documents have only been marked in his statement. He has further submitted that there is no evidence on the record to prove that the two documents appearing on the record as mark A and mark B as passports of Gurmeet Kaur and Amarjit Singh respectively, are even genuine documents. He has further submitted that Rajbir Singh, ASI was investigating this case and was having the police file with him with effect from 18.6.2011. According to him, on 5.6.2011, this Rajbir Singh was not feeling well and was there at his residential house at Faridkot. According to him, Balbir Singh, Head Constable (PW2) is stated by him to have come to his house on the orders of Mukhtiar Singh, SHO, Police Station, Sadar, Faridkot telling Crl. Appeal Nos. SB2461 & SB2463 of 2009 8 ..
him that the file of the said case has been summoned by Bhupinder Singh, DSP. He has further submitted that Rajbir Singh claims to have handed over the police file of the case to Head Constable Balbir Singh and Balbir Singh claims to have made an entry in the case diary and had handed over the file to reader Amarjit Singh of DSP Bhupinder Singh. He has submitted that there is no zimni on the record of taking or returning the file.
Mr. R.S.Rai, learned senior counsel for the appellant has further submitted that the case of the prosecution is that after the file remained with Bhupinder Singh, DSP for some time, when Rajbir Singh, ASI received the same, the passports of Amarjit Singh and Gurmeet Kaur were having two pages each missing therefrom. According to him, the prosecution case is further to the effect that when Rajbir Singh, ASI informed Mukhtiar Singh, SI/SHO in his regard, the two went to Senior Superintendent of Police, Faridkot, named, Gurpreet Singh Gill and informed him in this regard and that the Senior Superintendent of Police, Faridkot directed them to go to DSP Bhupinder Singh. It is further submitted by learned senior counsel that Gurpreet Singh Gill has been examined as PW8-A and he has denied Rajbir Singh ASI or Mukhtiar Singh to have ever informed him about the missing pages of passports in that case. According to him, Gupreet Singh Gill has stated that had he been informed in this regard, he would have ordered an enquiry or would have even got a case registered against the defaulters.
Learned senior counsel has further submitted that Smt. Pal Kaur (PW4) has stated that on the directions of the court, the investigating officer took the passports of Amarjit Singh and Gurpreet Crl. Appeal Nos. SB2461 & SB2463 of 2009 9 ..
Kaur and that the passports were taken into possession by the investigating officer in her presence. According to him, she further maintains that she had signed the memo of recovery of the passports and further claims that she obtained photo copies of the passports. According to him, if the photocopies of the passports were obtained by Pal Kaur at the time of their recovery, those documents were the primarily evidence to prove the loss of pages from the documents. According to him, no effort has been made to bring on record the photocopy of the passports from Pal Kaur and prove the same on record.
Learned senior counsel for the appellant, Bhupinder Singh has further submitted that the recovery memo, which was prepared by Rajbir Singh, ASI on the orders of Bhupinder Singh, DSP on the record does not bear signatures of Pal Kaur. According to him, if Pal Kaur had signed the recovery memo, it was not possible to change the recovery memo without associating Pal Kaur.
Mr. R.S.Rai, learned senior counsel has referred me to the statement of Rajbir Singh, ASI, who has stated that the investigation of this case remained with him upto 17.9.2001. He has submitted that as is said by Rajbir Singh and as required by the rules, the zimnis of this case should have been sent to VRK SP Office, Faridkot soon after recording of the same. He has referred me to the statement of Dalbir Singh, Head Constable (DW4), who has been working in the VRK, office of Senior Superintendent of Police, Faridkot, who has stated that he had received the case diaries No. 1 to 9 of this case through Reader of the SSP after 18.9.2001. Learned senior counsel has contended that if VRK office received the case diaries No. 1 to 9 on 18.9.2001, Bhupinder Singh, DSP Crl. Appeal Nos. SB2461 & SB2463 of 2009 10 ..
cannot be believed to have summoned the case diaries from VRK for getting them changed before that date. The case of the prosecution , as comes in the statement of Rajbir Singh,ASI (PW1) , is that he was having the investigation with him when he was called by DSP Bhupinder Singh and that Bhupinder Singh had already summoned the file of the case from VRK branch of SSP Faridkot and then directed him to change the documents.
Mr. R.S.Rai, learned senior counsel has further submitted that it was Mukhtiar Singh, SI/SHO who had directed Balbir Singh, HC to bring the file from Rajbir Singh, ASI. According to him, it was Mukhtiar Singh, SI , who was informed by some known advocate of Faridkot that the accused Amarjit Singh and Gurmeet Kaur have gone to America after paying a bribe of Rs. 5.00 lacs to local police. According to him, it was Mukhtiar Singh, SI with whom Rajbir Singh, ASI went to Sh. Gurpreet Singh Gill, SSP Faridkot to tell him about missing of pages of the passports of Amarjit Singh and Gurmeet Kaur during the period the file remained with Bhupinder Singh Khatra, DSP. He has further submitted that all these facts have made Mukhtiar Singh, SI/SHO a material witness and this witness has been given up by the prosecution as unnecessary.
Mr. R.S. Rai, learned senior counsel has further submitted that this case is based on statements of approvers. According to him, the case was registered originally against Rajbir Singh, ASI and Balbir Singh, Head Constable also and that they were given preferential treatment from the very beginning. According to him, before they applied for anticipatory bail, they were just moving freely and were not arrested. He has further submitted that even after making of application for Crl. Appeal Nos. SB2461 & SB2463 of 2009 11 ..
anticipatory bail, no stay of arrest was ordered and they were still moving freely and were not arrested. He has further submitted that in reply to the application for anticipatory bail, the investigation of this case declared that Rabjir Singh, ASI and Balbir Singh, Head Constable have been found innocent and on this report, they were granted bail. He has further submitted that for grant of pardon under the provisions of section 306 Cr. P.C., a person should be an accused in the case. He has submitted that after the two persons were found innocent, there was no question of granting them pardon and there was no reason for making them approvers.
Mr. R.S.Rai, learned senior counsel has further submitted that the statements of approvers require corroboration in material particulars for acceptance. He has further submitted that if it is found that the approver is suppressing some truth, then his evidence has to be viewed with suspicion. According to him, the circumstances highlighted above clearly show that Rajbir Singh, ASI (PW1) and Balbir Singh, Head Constable (PW-2) are suppressing some material facts and are making false statements and for this reason, the statements of the two witnesses could not be relied upon in the absence of corroboration of their statements in material particulars. In this regard, he has cited before me some judgments and notable among those are, State of Rajasthan and etc. Vs. Ram Niwas and Anr. 2006(4) R.C.R. (Criminal) 2, Renuka Bai alias Rinku alias Ratan & Anr. Vs. State of Maharashtra, 2006 (4) R.C.R. (Criminal) 128 and Sitaram Sao @ Mungeri Vs. State of Jharkhand 2008(1) R.C.R. (Criminal) 72 (SC).
Crl. Appeal Nos. SB2461 & SB2463 of 2009 12
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Mr. T.S.Sangha, learned senior counsel representing Major Singh, appellant, has submitted that the accusation against Major Singh is twofold. According to him, in the first place, he is said to have called Rajbir Singh, ASI and told him that the accused persons in the case registered by way of FIR No. 57 of 2001 were known to him and that he wanted the matter to be compromised between the parties and he asked Rajbir Singh, ASI not to arrest the remaining accused of that case. To this request, Rajbir Singh, ASI (PW1) claims to have told him that he would act according to the provisions of law. The second aspect is that Major Singh met Rajbir Singh, ASI and told that he alongwith Bhupinder Singh, DSP had already sent accused Amarjit Singh and Gurmeet Kaur abroad after obtaining Rs. 5.00 lacs from them as bribe and challenged him to do whatever he could do. He has further submitted that the first request, even if is believed, does not constitute any offence because efforts at compromise between the parties to a criminal case could be made by anyone. He has further submitted that with regard to the second aspect of the statement of Rajbir Singh, ASI, regarding Major Singh, he has stated in his cross-examination that he did not record any DDR about Major Singh telling him about sending Amarjit Singh and Gurmeet Kaur abroad after taking bribe of Rs. 5.00 lacs and challenging him to do whatever he could do. I am referred in this regard to the statement of Rajbir Singh, ASI in his cross-examination where he says that he did not tell the investigating officer in his statement (Ex.DA) that Major Singh had told him about acceptance of Rs.5.00 lacs and sending Amarjit Singh and Gurmeet Kaur abroad. He has rather admitted that he mentioned in his statement (Ex.DA) that this fact had come to his Crl. Appeal Nos. SB2461 & SB2463 of 2009 13 ..
knowledge. According to him, being told by Major Singh and having come to know from some other source are two different facts and statement of Rajbir Singh, ASI, in this regard cannot be believed that he was ever told by Major Singh, SI that he and Bhupinder Singh, DSP have sent Amarjit Singh and Gurmeet Kaur abroad after taking bribe of Rs.5.00 lacs.
Learned State counsel has submitted that the reasons given by learned Sessions Judge, Faridkot for holding the accused guilty are perfectly valid and there is no reason to deviate from the findings recorded by learned Sessions Judge.
It is true that the passports of Amarjit Singh and Gurmeet Kaur are at the base of the controversy in this case. These documents were taken into possession by Rajbir Singh, ASI (PW-1) during investigation. The prosecution did not make any effort to find out if the documents given by Amarjit Singh and Gurmeet Kaur were genuine documents. As pointed out by Mr. R.S.Rai, learned senior counsel for the appellant, Bhupinder Singh Khatra, these documents are not even proved on record by the prosecution and they are mark 'A' and 'B' respectively on the file.
For proving that some papers had been missing from those passports, after the file of the case with these documents allegedly went to Bhupinder Singh Khatra, DSP and was returned back, it was necessary to prove as to what was taken by the investigating officer from Amarjit Singh and Gurmeet Kaur. Pal Kaur (PW-4) has stated that the passports of Amarjit Singh and Gurmeet Kaur were taken into possession by the investigating officer in her presence. She has added that she had signed the recovery memos of the passports and has further stated that Crl. Appeal Nos. SB2461 & SB2463 of 2009 14 ..
photo copies of the passports were obtained by her. There is no reason to say that this statement of Pal Kaur is not true. If this statement of Pal Kaur is true then those photo copies of the passports were the most material documents to prove that the documents now on record have lost some pages after their recovery from Amarjit Singh and Gurmeet Kaur.
Pal Kaur (PW4) further says that Raghbir Singh, DSP during investigation of the case took the photo copies of the passports from her. Raghbir Singh, DSP has been examined as PW7 and when he was questioned on this aspect, he gave noncommittal replies. He has gone to the extent of refusing to consult the file to answer the question as to whether he had asked the complainant to produce the copies of the passports before him. A person who declines to consult the file to even answer a question in this regard would be clearly shown to be trying to conceal something.
Mukhtiar Singh, SI is claimed by Rajbir Singh, ASI (PW1) and Balbir Singh, HC (PW2) to have asked Balbir Singh, HC to bring the file of FIR No. 57 of 2001 and to hand over the same to Bhupinder Singh Khatra, DSP. This Mukhtiar Singh, SI had been SHO of Police Station, Sadar, Faridkot where FIR No. 57 of 2001 was registered and Rajbir Singh, ASI was working under him in his police station. When Rajbir Singh received the file back from Bhupinder Singh Khatra, DSP, he claims to have come to know that some pages of the passports were missing. According to Rajbir Singh, ASI, in the meanwhile, SHO received a telephone call from some known advocate of Faridkot that Amarjit Singh and Gurmeet Kaur have gone to America after paying bribe of Rs. 5.00 lacs to the local police. On receipt of this information, Mukhtiar Crl. Appeal Nos. SB2461 & SB2463 of 2009 15 ..
Singh, SHO is said to have summoned Rajbir Singh, ASI with the file of the said case and then the two scrutinized the passports thoroughly and found that two pages of each passport were missing. Rajbir Singh, ASI states that on the same evening, he alongwith Mukhtiar Singh, SHO met Shri Gurpreet Singh Gill, the SSP, Faridkot with the file and the SSP, Faridkot after going through the file, directed them to meet Bhupinder Singh Khatra, DSP. The aforesaid three circumstances had made Mukhtiar Singh to be the most material witness of this case. His statement was necessary to provide the much wanted corroboration to the statements of Rajbir Singh, ASI (PW1) and Balbir Singh, Head Constable (PW2), who are the accomplice witnesses. It is strange to see that this Mukhtiar Singh was given up as unnecessary by the prosecution. For non-examination of Mukhtiar Singh, an adverse inference can be drawn against the prosecution case.
As already mentioned, though in difference context, Rajbir Singh, ASI (PW1) has stated that he alongwith Mukhtiar Singh, SHO went to Shri Gurpreet Singh Gill, the then SSP, Faridkot alongwith the file and informed him in this regard. According to him, the SSP went through the file and directed them to see Bhupinder Singh Khatra, DSP. Now it is to be seen as to what Shri Gurpreet Singh Gill, SSP (PW8A) has to say in this regard. He says that neither ASI Rajbir Singh nor SHO Mukhtiar Singh of Police Station, Sadar, Faridkot informed him about the missing of the passports relating to the case bearing FIR No. 57 of 2001, Police Station, Sadar, Faridkot. In his cross examination he further confirms this fact by saying that had the fact regarding the missing of documents from the file or records been brought to his notice, he would have ordered an Crl. Appeal Nos. SB2461 & SB2463 of 2009 16 ..
inquiry or would have even got a case registered against the defaulters. Since Shri Gurpreet Singh Gill, SSP (PW8A) is not challenged on this part of his statement by the prosecution, the said statement would be held reliable and would show that Rajbir Singh ASI has been making a false statement in this regard.
On being told by Mukhtiar Singh, SI, Balbir Singh, Head Constable went to Rajbir Singh, ASI, who was ill and was at his home, for collecting the file of the case for being given to Bhupinder Singh Khatra, DSP. Rajbir Singh, ASI was the investigating officer of the case. If the file was summoned from him in this manner, it was he, who should have recorded a case diary to that effect. He did not do so and says that Balbir Singh, Head Constable recorded the case diary. That case diary has not come on the record and on the other hand, it is difficult to believe that Balbir Singh, Head Constable, who was just a messenger, would have recorded the case diary.
Bhupinder Singh Khatra, DSP is said to have the file from the investigating officer. The statement of Rajbir Singh, ASI in this regard may be noticed. He says that Balbir Singh, Head Constable gave the file to Amarjit Singh, Reader of Bhupinder Singh Khatra, DSP. He further states that after 2 or 3 days thereof, he visited the office of Bhupinder Singh Khatra, DSP, met him and asked him about the file, who told him that the file would be sent to the police station by him on his own. If the file was taken from Rajbir Singh, ASI, on 5.9.2001, as he claims, he must have visited the office of DSP on or about 8.9.2001. He got the file back on 13.9.2001 from MHC of the police station and when he was called by Mukhtiar Singh, SHO and the two scrutinized the passports on Crl. Appeal Nos. SB2461 & SB2463 of 2009 17 ..
the file, they came to know that two pages from each passport were missing. As he says, on being directed by Shri Gurpreet Singh Gill, SSP Faridkot, he enquired about Bhupinder Singh Khatra, DSP and found him out of station on that day. He further says that after one or two days thereof, he alongwith Mukhtiar Singh, SHO went to the residence of DSP and met him there and told him about the accused persons having left the country. He further says that he told the DSP that the accused had left the country when the file was with the DSP and at this, the DSP directed him to come to his office on the next day and on the said next day, when Rajbir Singh, ASI visited the office of Bhupinder Singh Khatra, DSP with the file, he kept the file with him and directed him to bring the witness of recovery of the passports. Rajbir Singh, ASI says that he called HC Balbir Singh, the recovery witness in the office of DSP and the DSP summoned the file of that case being maintained in the office of SSP, Faridkot by VRK branch in his office and then directed him to change the recovery memo and statement of Balbir Singh, Head Constable recorded under section 161 Cr. PC. He further says that the recovery memo and the statements prepared on that date were put on the file summoned by VRK branch after taking off the original documents.
This statement could have been believed but for the statement of Dalbir Singh (DW4), Incharge of the VRK branch of office of SSP, Faridkot who says that the case diaries No. 1 to 9 pertaining to the case bearing FIR No. 57 of 2001, Police Station, Sadar, Faridkot were received by him through the Reader of SSP, Faridkot after 18.9.2001. He further confirms this fact by saying that prior to 18.9.2001, he did not receive any case diary pertaining to the above said case. Rajbir Singh, Crl. Appeal Nos. SB2461 & SB2463 of 2009 18 ..
ASI was investigating officer of this case only upto 17.9.2001 and as noticed above, the DSP called him and Balbir Singh, Head Constable for changing the recovery memo and statement on or about the said date. Therefore, by this date, the zimnis of the case had not reached VRK branch of SSP Faridkot office and there was no occasion for Bhupinder Singh Khatra, DSP to have summoned the zimnis of the case from VRK branch of SSP office, Faridkot. The statement of Rajbir Singh, ASI in this regard is, therefore, not true and he is shown to be suppressing the truth in this regard.
Balbir Singh, Head Constable (PW2) has made a very strange statement. He has stated in his cross-examination, after seeing the recovery memo in original attached in the file of FIR No. 57 of 2001 that the recovery memo on record of that file was prepared on 20.6.2001. He has also said that his statement was recorded on 20.6.2001 and exhibits PA and PB are the copies of the recovery memos and his statement recorded on 20.6.2001. If these documents, exhibit PA and PB on record were prepared on 20.6.2001, then one has to go beyond the record of this file to find out the documents, which were prepared in the middle of September, 2001 for replacing the originals. From this statement of Balbir Singh, it emerges that no recovery memo or statement under section 161 Cr. P.C. were got recorded again by Bhupinder Singh Khatra, DSP from Rajbir Singh, ASI (PW1).
If the prosecution case is to be believed, then Rajbir Singh, ASI can be taken to have been forced by Bhupinder Singh Khatra, DSP to change the recovery memo and replace the original recovery memo with another recovery memo as also the statement of Balbir Singh, Head Crl. Appeal Nos. SB2461 & SB2463 of 2009 19 ..
Constable from the records maintained by him as well as at VRK branch of SSP office, Faridkot. Rajbir Singh was an Assistant Sub Inspector and was junior to Bhupinder Singh Khatra, DSP. Normally, he cannot be expected to have dared to inform his seniors in this regard because that would have amounted to a complaint against Bhupinder Singh Khatra, DSP and this way, he would have invited the annoyance of the DSP. However, this is not the case with Rajbir Singh, ASI. He says that he verbally told all the concerned officials in this regard. He becomes specific by saying that he disclosed orally the episode regarding tampering with the passports to SSP Faridkot earlier to 23.3.2002. No such evidence comes on record to corroborate him in this regard.
Major Singh, SI is said to have called Rajbir Singh, ASI and told him that the accused persons in the case registered by way of FIR No. 57 of 2001 at Police Station, Sadar, Faridkot were known to him and that he wanted the matter to be compromised between the parties. He is further said to have asked Rajbir Singh, ASI not to arrest the remaining accused of that case. Secondly, Major Singh, SI is stated by Rajbir Singh, ASI to have told him that he along with Bhupinder Singh Khatra, DSP had already sent accused Amarjit Singh and Gurmeet Kaur abroad after obtaining Rs.5.00 lacs from them as bribe and that he challenged Rajbir Singh, ASI to do whatever he could do. I could not find any further involvement of Major Singh, SI who had been posted as SHO in a police station other than Police Station, Sadar, Faridkot in this entire occurrence. Even if it is believed that Major Singh, SI told Rajbir Singh, ASI that the accused of FIR No. 57 of 2001, Police Station, Sadar, Faridkot were known to him and he wanted the matter to be Crl. Appeal Nos. SB2461 & SB2463 of 2009 20 ..
compromised between them, he did not do any act attracting any provision of Indian Penal Code or any other statute. The other fact is that Major Singh declared before Rajbir Singh that he and Balbir Singh, Head Constable had already sent Amarjit Singh and Gurmeet Kaur abroad after receiving a sum of Rs.5.00 lacs as bribe from them. In the first place, it is difficult to believe a person helping the two accused escape from the country after receiving bribe would boast of it before the investigating officer of the case. Secondly, Rajbir Singh, ASI himself denies this fact in his cross-examination. He has stated in his cross- examination that he did not tell in his statement Ex. DA that accused Major Singh told him about sending Amarjit Singh and Gurmeet Kaur abroad after receiving bribe in a sum of Rs.5.00 lacs. He says that what he told the investigating officer of this case in Ex. DA is that this fact came to his knowledge. Had it been a fact that Major Singh told him in this regard, in these words, he would not have stated in Ex. DA that he came to know in this regard. If it is taken that he came to know in this regard, no further investigation was done to know as to from whom he came to know in this regard and as to what was the source of knowledge of that person, who told Rajbir Singh, ASI in this regard. So, this part of his statement cannot be relied upon.
It is a case where the two star witnesses of the prosecution are the approvers. Besides the fact that they have been granted pardon after they have been declared innocent, which is quite anomalous, their statements are interspersed with incorrect statements which clearly show that they have not given the true and correct version of the occurrence. Statements of approvers, Rajbir Singh, ASI, (PW1) and Crl. Appeal Nos. SB2461 & SB2463 of 2009 21 ..
Balbir Singh, Head Constable (PW2) if are to be relied upon, require corroboration in material particulars. As already said, there is no corroboration available to their statements in the evidence coming on the record. Rather, they have suppressed the truth and as laid down in Renuka Bai's case (supra) the evidence of Rajbir Singh, ASI and Balbir Singh, HC, the approvers is to be viewed with suspicion because it is prima facie shown that they are suppressing some material facts. So, no implicit reliance can be placed on their statements.
Summing up my aforesaid discussion, I do not find the statements of the witnesses examined in this case to be reliable and I fail to agree with learned Sessions Judge, Faridkot in his finding of guilt recorded against the two appellants, namely, Major Singh, SI and Bhupinder Singh Khatra, DSP, for the offence punishable under sections 193, 201, 466 and 471 read with section 120-B IPC. Therefore, I hold that the prosecution has not been able to bring home the guilt of the appellants for any offence in this case. Consequently, the appeals are allowed and the appellants namely, Major Singh, SI and Bhupinder Singh Khatra, DSP, are acquitted of the charge.
(VIJENDER SINGH MALIK) JUDGE January 31st, 2012 som