Punjab-Haryana High Court
Tarsem Singh And Another vs State Of Punjab on 12 May, 2011
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 985-DB of 2007
DATE OF DECISION : 12.05.2011
Tarsem Singh and another
.... APPELLANTS
Versus
State of Punjab
..... RESPONDENT
Crl. A. No. 712-DB of 2010
DATE OF DECISION : 12.05.2011
Kuldeep Kaur
.... APPELLANT
Versus
State of Punjab
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE M. JEYAPAUL
Present: Mr. T.S. Sangha, Senior Advocate, with
Mr. J.S. Lally and Mr. Narinder Singh, Advocates,
for the appellants
(in Crl. A. No. 985-DB of 2007)
Mr. Ashish Kumar Gupta, Advocate, (amicus curiae),
for the appellant
(in Crl. A. No. 712-DB of 2010)
Mr. Surinder S. Dhaliwal, Addl. A.G., Punjab.
***
SATISH KUMAR MITTAL , J.
1. This judgment shall dispose of Criminal Appeal No. 985-DB of 2007, filed by Tarsem Singh (hereinafter referred to as `A-1') and his younger brother Gurjit Singh (hereinafter referred to as `A-2'); and Criminal Appeal No. 712-DB of 2010, filed by Kuldeep Kaur (hereinafter referred to Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -2- as `A-3') wife of A-2, against their conviction and sentence.
2. The appellants along with Sukhdev Singh and one Jugraj Singh, who are father and cousin brother, respectively, of A-1 and A-2, were tried by the court of Additional Sessions Judge, Bathinda under Sections 302 read with Section 34, 304-B and 201 IPC, for committing the murder of Karamjit Kaur (wife of A-1), subjecting her to cruelty and harassment in relation to demand of dowry, resulting in her death due to bodily injuries within seven years of her marriage with A-1, and throwing her dead body in the bore of the latrine in their house with intention to screen themselves from legal punishment.
Case of the prosecution
3. The prosecution version, which is based upon the statement (Ex.PA) of Gurmail Kaur (PW.1), mother of the deceased, recorded by Devinder Kumar Attri (PW.6) SI/SHO of Police Station Raman on 4.7.2004 at 8.00 AM near Bus Stand, Rampura, is that deceased Karamjit Kaur was married to A-1 for about five years. In the marriage, though sufficient dowry was given, yet after the marriage, Karamjit Kaur was being harassed by her husband (A-1), brother-in-law (A-2) and father-in-law Sukhdev Singh. All of them were raising demand for bringing a scooter from her parents. On that account, all the family members started maltreating and beating her. Thereupon, the complainant and her husband through the mediator and the respectable persons of the village visited the in-laws house of the deceased and requested the accused not to harass their daughter on account of Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -3- demand of scooter, as they are very poor persons and cannot give the scooter. After making humble requests, the complainant and her husband returned to their village. It is the further case of the prosecution that marriage of A-2 and A-3 was performed one year prior to the occurrence, and A-3 had also started torturing the victim, after associating with the other family members. One day before the occurrence, i.e. on 3.7.2004, a message was received from the victim that her in-laws family members were making preparation to kill her. On receiving the said message, at about 5.00 PM, the complainant went to the house of her daughter Karamjit Kaur. The gate of the house was closed. The complainant peeped through the chinks of the gate and saw that A-1, A-2, A-3 and Sukhdev Singh (father-in-law of Karamjit Kaur) were giving beatings to Karamjit Kaur (deceased) in the court yard. The complainant further stated that within her view, A-3 gave two axe blows on the head of Karamjit Kaur and after some time, she died. Having been frightened, the complainant returned to her village, where she narrated the whole story to her husband Karnail Singh (PW.4), but since by that time, it was dark, they decided to inform the police in the next morning. In the morning, she along with her husband, Darshan Pal Singh (PW.2) Sarpanch of the village and other respectable persons of the village proceeded to Police Station and in the way, near Bus Stand, Rampura, the police met them, and statement of complainant Gurmail Kaur was recorded at 7.00 AM, on the basis of which formal FIR (Ex.PW4/B) was registered at 7.10 AM.
Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -4-
4. After recording the statement (Ex.PA) of complainant Gurmail Kaur, SI/SHO Devinder Kumar Attri (PW.6) along with the complainant and the police party went to the house of the accused. At that time, A-1 and A-3 were present in the house. On their interrogation, they suffered disclosure statements (Ex.PB and Ex.PD) to the effect that they along with A-2 and accused Sukhdev Singh concealed the dead body of Karamjit Kaur in the bore of the latrine in their house. Gurtej Singh Photographer (PW.5) and Subhash Chander Khatak, Tehsildar, Rampura Phul (PW.3) were called at the spot. Thereafter, A-1 and A-3 got recovered the dead body from the bore of the latrine in their house, which was taken into possession vide memo (Ex.PC), in the presence of Darshan Pal Singh Sarpanch (PW.2), ASI Balwinder Singh and Tehsildar Subhash Chander Khatak (PW.3). The photographs (MO1 to MO7) and the video movie cassettee (MO15) of the proceedings of recovery of dead body were got prepared from Gurtej Singh Photographer (PW.5). The dead body was identified by Karnail Singh (PW.4) as that of his daughter Karamjit Kaur. A-1 and A-3 were arrested and on their personal search, nothing was recovered. The inquest report (Ex.PJ) was prepared and the dead body was sent to Civil Hospital, Rampura, for post mortem examination. But, the doctor at Civil Hospital, Rampura, referred the dead body to GGS Medical College & Hospital, for post mortem examination.
5. On the same day i.e. on 4.7.2004, at 6.00 PM, Dr. S.S. Sandhu (PW.9), Senior Lecturer in the department of Forensic Medicine, GGS Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -5- Medical College & Hospital, Faridkot, conducted autopsy on the dead body of the deceased. The body was swollen and was foul smelling. Rigor mortis was absent in neck muscles and upper limbs, but partially present in lower limbs. Mud was sticked all over the body. There was peeling of skin at places. The dead body was in early stage of putrefaction. Features of face were blotted. During the post mortem examination, the doctor found one incised wound measuring 1 x 1 cm on left side of head above left ear, and one lacerated wound measuring 7 x 3 cms on left side of head above the left ear. On dissection of skull, clotted blood was found present on left parietal bone under the scalp. On removing the clotted blood, there was cut fracture present on the left parietal bone corresponding injury No.1. Comminuted fracture of skull of left parietal bone corresponding to injury No.2 was also found. Four fractured small pieces of left parietal bone lying separately from rest of the bone were also found. There was laceration of brain and its membrane. All the injuries were ante mortem in nature. In the opinion of the doctor, the cause of death was due to laceration of brain and its membrane, as a result of injuries No.1 and 2, which were sufficient to cause death in ordinary course of nature. According to the doctor, the probable time that elapsed between injuries and death was immediate and between death and post mortem was within about one to two days. The post mortem report of the deceased is Ex.PW9/A and the pictorial diagram, showing the seats of injuries is Ex.PW9/B.
6. On 5.7.2004, one Bachittar Singh produced A-2 before SI/SHO Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -6- Devinder Kumar Attri. He was arrested and nothing was recovered from his personal search. On the same day, A-3 suffered disclosure statement (Ex.PM) and got recovered axe (Ex.P3), which was kept concealed by her in a heap of husk in the room of her house, and the same was taken into possession vide memo (Ex.PO) in the presence of Sukhdev Singh Panch and Lady Constable-II Amarjit Kaur.
7. On 13.7.2004, Jeet Singh, Ex Sarpanch, produced accused Sukhdev Singh before SI/SHO Devinder Kumar Attri, who was arrested and nothing was recovered from his personal search.
8. After completion of investigation, on 4.8.2004, the police filed challan against A-1, A-2, A-3 and accused Sukhdev Singh.
9. On 23.9.2004, Sardul Singh (PW.8), Ex-Sarpanch of village Jeond, made statement (Ex.PU) before SI/SHO Devinder Kumar that in the morning of that day, accused Jugraj Singh came to his house in village Jeond and made extra judicial confession before him to the effect that on 3.7.2004, accused Sukhdev Singh, his two sons (A-1 and A-2) and daughter-in-law (A-3) had committed the murder of Karamjit Kaur and he had also participated in commission of the said crime, as he along with other accused also gave beatings to Karamjit Kaur. He further sated that when the accused were committing the murder of Karamjit Kaur, the house was bolted from inside and in the meanwhile, the complainant came in the street. When she was peeping from the holes of the door, he had hidden himself in one of the rooms of the house, therefore, she could not see him and that is Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -7- why, his name was not mentioned by her in her statement made before the police. He further stated that he had participated in the murder, because he had illicit relations with A-3 and the deceased was creating hurdle in their love affair. Thereafter, on the same day, accused Jugraj Singh was arrested and nothing was recovered from his personal search.
10. On the basis of the said piece of evidence, on 4.10.2004, supplementary challan was filed against accused Jugraj Singh.
11. On 2.11.2004, A-3 was charge sheeted for the offences under Sections 302, 304-B and 201 IPC, whereas the remaining four accused were charge sheeted for the offences under Sections 302 read with Section 34, 304-B and 201 IPC. All the five accused did not plead guilty to the charges framed against them and claimed trial.
Prosecution evidence
12. In support of its case, the prosecution examined nine witnesses.
13. PW.1 Gurmail Kaur (complainant), who is mother of deceased Karamjit Kaur, fully supported the prosecution case.
14. PW.2 Darshan Pal Singh, Sarpanch of the village of the complainant, who accompanied the complainant to the village of the accused, and was witness to the disclosure statements, suffered by A-1 and A-3, as well as the recovery of the dead body by them, also fully supported the prosecution case.
15. PW.3 Subhash Chander Khatak, Tehsildar, Rampura Phul, in whose presence the dead body was recovered from the bore of the latrine in Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -8- the house of the accused, supported the case of the prosecution regarding the recovery of the dead body, at the instance of A-1 and A-3.
16. PW.4 Karnail Singh is father of the deceased, who identified the dead body.
17. PW.5 Gurtej Singh, Photographer, proved the photographs (MO1 to MO7), negatives (MO8 to MO14) and the video movie cassettee (MO15) of the proceedings of recovery of dead body of Karamjit Kaur at the instance of A-1 and A-3.
18. PW.6 SI Devinder Kumar Attri, the Investigating Officer of the case, proved all the documents prepared by him during investigation.
19. PW.7 Jaswinder Kaur, the married sister of A-1 and A-2, stated that she had heard A-3 and accused Jugraj Singh conspiring by proclaiming that they were in love with each other and Karamjit Kaur was a hurdle in their love affair. She further stated that A-3 and accused Jugraj Singh were proclaiming that Karamjit Kaur had to be removed and later on, they killed her.
20. PW8. Sardul Singh, Ex-Sarpanch of village Jeond, before whom accused Jugraj Singh made extra judicial confession, did not support the prosecution case regarding the extra judicial confession and he was declared hostile.
21. PW.9 Dr. S.S. Sandhu, who conducted post mortem examination on the dead body of deceased Karamjit Kaur, proved her Post Mortem Report (Ex.PW9/A) and the pictorial diagram showing the seats of Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -9- injuries (Ex.PW9/B).
Statements of the appellants under Section 313 Cr.P.C.
22. In their statements under Section 313 Cr.P.C., A-1, A-2, accused Sukhdev Singh and Jugraj Singh denied the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. According to them, accused Sukhdev Singh was employed as Points Man at Tapa Railway Station and was residing there with one lady, namely Chhinder Kaur, due to which he was not on speaking terms with his sons A-1 and A-2 or their families. A-1 and A-2 stated that they used to go for labour daily in the morning and return back home in the evening. A-3 (wife of A-2) had illicit relations with accused Jugraj Singh and since Karamjit Kaur had seen them in a compromising position, they hatched a conspiracy and killed her. Accused Jugraj Singh stated that he has been falsely implicated after a long time, just to save the accused.
23. So far as A-3 is concerned, in her statement under Section 313 Cr.P.C., she confessed her guilt, while stating that on 2.7.2004, in the after- noon, Karamjit Kaur had seen her and accused Jugraj Singh in a compromising position, due to which they got frightened and worked out a plan to kill Karamjit Kaur. She further stated that accused Jugraj Singh picked up an axe from her house and gave two blows from the blunt side on the head of Karamjit Kaur, due to which she died on the spot. Thereafter, she along with accused Jugraj Singh threw the dead body in a newly built bore hole of latrine by lifting the slab from the hole. She further stated that Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -10- the complainant has lodged false FIR against all the accused. According to her, during investigation also, she had confessed her guilt. Defence evidence
24. In defence, A-3 herself appeared as DW.1, making almost a similar statement, as was stated by her in her statement under Section 313 Cr.P.C.
25. DW.2 Amarjit Singh, Station Superintendent, Railway Station, Rampura Phul, proved that accused Sukhdev Singh was present on duty at Railway Station, Tapa, from 1.7.2004 to 3.7.2004 and he was residing with Chhinder Kaur in the allotted Railway Quarter.
Findings of the trial court
26. After hearing learned counsel for the parties and considering the evidence, available on record, the trial court, vide judgment dated 29.9.2007, arrived at a conclusion that the version given by PW.2 Darshan Pal Singh regarding the cruel treatment of deceased Karamjit Kaur by her in-laws is hear-say; PW.4 Karnail Singh (father of the deceased) did not utter even a single word regarding the cruel treatment given to his deceased daughter by her in-laws. Holding that the marriage between A-1 and Karamjit Kaur might have taken place at least more than 8 years prior to the death of Karamjit Kaur, the trial court acquitted all the accused for the offence under Section 304-B IPC. The trial court disbelieved the presence of PW.1 Gurmail Kaur (complainant) at the time of the occurrence and discarded her testimony. Further holding that accused Sukhdev Singh was Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -11- not residing with A-1 and A-2 and was not present at the place of occurrence, it acquitted Sukhdev Singh of all the charges levelled against him. Regarding accused Jugraj Singh, the trial court, after coming to the conclusion that PW.8 Sardul Singh, before whom he alleged to have made extra judicial confession, did not support the prosecution version at all and the confession of A-3 to the effect that she along with accused Jugraj Singh committed the murder of Karamjit Kaur is not reliable and trust-worthy, has acquitted him of all the charges. On the basis of the recovery of dead body at the instance of A-1 and A-3 and the axe from A-3, A-1 and A-3 have been convicted under Sections 302/34 and 201 IPC. Regarding A-2, the trial court has held that he conspired with A-1 and A-3 in throwing the dead body of Karamjit Kaur in the bore of the latrine in their house with intention to screen himself from legal punishment, and therefore, he has been convicted under Section 201 IPC. Further, the trial court held that though A- 2 was not arrested at the spot, but since he was residing in the same house, he was supposed to know about the incident, particularly when his wife (A-
3) was involved in the crime as principal offender. On these reasonings, A-2 has also been convicted under Section 302/34 IPC.
27. Vide order dated 3.10.2007, all the three appellants have been sentenced to undergo imprisonment for life and to pay a fine of ` 5,000/- each, in default to undergo further rigorous imprisonment for six months under Section 302/34 IPC; and to undergo rigorous imprisonment for five years and to pay a fine of ` 2,000/- each, in default to under further rigorous Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -12- imprisonment for three months under Section 201 IPC.
28. Initially, A-1 and A-2 filed Criminal Appeal No. 985-DB of 2007 against their conviction and sentence. Subsequently, A-3 filed Criminal Appeal No. 712-DB of 2010 through jail. However, no appeal has been filed, either by the State of Punjab or by the complainant, against the acquittal of accused Sukhdev Singh and Jugraj Singh.
Arguments of learned counsel for the appellants
29. Shri T.S.Sangha, learned Senior Advocate, appearing on behalf of A-1 and A-2, argued that in the present case, the trial court has committed grave illegality in convicting A-1 and A-2 for the alleged offences, simply relying upon their disclosure statements and recovery of the dead body effected thereon, and also raising presumption under Section 106 of the Indian Evidence Act, but at the same time totally ignoring the confession made by A-3, wherein she has categorically confessed that she along with Jugraj Singh had committed the alleged offence. Learned counsel argued that after disbelieving the prosecution version, as put forth by PW.1 Gurmail Kaur, the trial court has acquitted all the accused for the offence under Section 304-B IPC. He further argued that the trial court has also disbelieved the presence of PW.1 Gurmail Kaur at the time of the alleged occurrence and held that her statement of having witnessed the occurrence of murder of Karamjit Kaur is highly un-natural and unbelievable. Learned counsel argued that the trial court has committed grave illegality by convicting both the appellants on the basis of the Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -13- circumstantial evidence, which in the present case are not sufficient to convict a person, totally ignoring the confession made by A-3. Learned counsel argued that the confession made by A-3, in which she implicated herself and Jugraj Singh as offenders is admissible in evidence and the trial court has erred in law by holding that the version given by A-3, while appearing as DW.1, is un-natural and unbelievable, ignoring the said confession. Learned counsel argued that the trial court, while coming to the said conclusion, has not properly appreciated the evidence on record, particularly the testimony of PW.7 Jaswinder Kaur. According to the learned counsel, keeping in view the confession made by A-3, which is admissible and reliable piece of evidence and according to which the alleged offence was committed by A-3 and Jugraj Singh and not by A-1 and A-2, conviction of A-1 and A-2 is liable to be set aside. Finally, learned counsel argued that in the case of A-2, there is no evidence that he was a party to any conspiracy. There is also no evidence that he had taken any part in committing the murder of Karamjit Kaur or he was having any knowledge about her murder. According to the learned counsel, there is also no evidence that A-2 was having knowledge of concealing the dead body. When the police party visited the house of the appellants, A-2 was also not present there. He was arrested two days after the occurrence and nothing incriminating was recovered from him. In view of these facts, learned counsel argued that at least A-2 deserves the benefit of doubt.
30. Shri Ashish Kumar Gupta, Advocate, amicus curiae, appearing Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -14- on behalf of A-3, argued on the line of the confession made by A-3, and prayed for a lenient view.
Arguments of learned State counsel
31. On the other hand, learned Additional Advocate General, Haryana, argued that in the facts and circumstances of the case and in view of the evidence led by the prosecution, the trial court was fully justified in convicting the appellants, as there was sufficient circumstantial evidence available against them. Regarding the confession made by A-3, learned counsel for the respondent-State argued that the trial court, while recording detailed reasons, after appreciating the evidence in its right prospective, has not relied upon the confession made by A-3, holding the same to be untruthful, unreliable and an after-thought, in order to save her husband and other family members. He has fully supported the judgment of the trial court and according to him, A-2 has also been rightly convicted. Discussion
32. In the present case, two versions regarding the committing of murder of Karamjit Kaur have been put forth by the prosecution through evidence. One version was given by PW.1 Gurmail Kaur, mother of the deceased. According to this witness, on 3.7.2004 at about 5.00 PM, her daughter Karamjit Kaur was murdered by four accused, namely A-1, A-2, A-3 and Sukhdev Singh. She herself had seen the said occurrence. According to her, the motive for the crime was that she and her husband failed to fulfill the demand of scooter, raised by the aforesaid accused, after Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -15- the marriage of Karamjit Kaur. The second version which was quite contrary to the first one was given by A-3. According to her, she was having illicit relations with Jugraj Singh, the real cousin of her husband. On 2.7.2004, Karamjit Kaur had seen them in a compromising position, due to which they got frightened. Thereupon, Jugraj Singh took an axe from her house and gave two blows on the head of Karamjit Kaur, due to which she died on the spot. Thereafter, she along with Jugraj Singh threw the dead body in the newly built bore hole of latrine.
33. The first version is supported by PW.1 Gurmail Kaur and partly by PW.2 Darshan Pal Singh with regard to harassment of the deceased by the accused on account of demand of dowry. The testimony of PW.1 Gurmail Kaur has been totally disbelieved by the trial court for various reasons, recorded in the judgment. The eye witness account given by this witness with regard to committing the murder of her daughter Karamjit Kaur has been held to be highly un-natural and unbelievable. Even her presence at the time of the alleged murder has been held to be highly doubtful. On analysing the evidence, led by the prosecution, and going through the reasons recorded by the trial court, we are of the view that the trial court has rightly held the testimony of PW.1 Gurmail Kaur as unreliable, untrustworthy and doubtful. Except the testimony of PW.1 Gurmail Kaur, there is no other eye witness account available on record. In that situation, the trial court has rightly analysed the other circumstantial evidence, available on record, to reach to the truth as to who has committed Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -16- the crime. In cases of circumstantial evidence, it has to be seen whether the circumstances in totality and not in isolation, lead to the inference of the guilt of the accused. If the circumstances in totality lead to such an inference, then the individual circumstance which may not by itself establish the case of the prosecution is of no consequence.
34. In the present case, initially the challan was filed against four accused, i.e. A-1, A-2, A-3 and Sukhdev Singh, who are the family members. Subsequently, supplementary challan was filed against Jugraj Singh on the basis of the statements of PW.7 Jaswinder Kaur (the married sister of A-1 and A-2) and PW.8 Sardul Singh, before whom he alleged to have made extra judicial confession. The trial court has acquitted Sukhdev Singh as well as Jugraj Singh. No appeal has been filed against their acquittal, either by the State or by the complainant.
35. Now it has to be analysed whether in the present case, there is sufficient circumstantial evidence available against A-1, A-2 and A-3, who have been convicted by the trial court. It has come in evidence that when the police party went to the matrimonial home of deceased Karamjit Kaur, out of the four family members, only A-1 and A-3 were present there. On their interrogation, they suffered disclosure statements that they along with A-2 and accused Sukhdev Singh concealed the dead body in the bore of the latrine in their house. They got recovered the dead body of Karamjit Kaur from the bore of the latrine, in the presence of PW.2 Darshan Pal Singh Sarpanch and PW.3 Tehsildar Subhash Chander and PW.6 SI Devinder Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -17- Kumar Attri. It has further come in evidence that prior to the disclosure statements suffered by A-1 and A-3, no body was aware about the dead body of Karamjit Kaur being concealed in the bore of the latrine in their house. The aforesaid witnesses have fully supported the prosecution version with regard to the disclosure statements made by A-1 and A-3 and the recovery got effected at their instance. In the presence of all these prosecution witnesses, the dead body was taken out from the bore of the latrine and the same was identified by PW.4 Karnail Singh to be that of Karamjit Kaur. The recovery of dead body from the bore of latrine was effected at the instance of A-1 and A-3 after removal of earth and the slab with their own hands. From the above evidence available on record, it is clearly established beyond doubt that A-1 and A-3 alone had the knowledge of the disposal of the dead body of Karamjit Kaur and that is why, they got the same recovered from the bore of latrine, situated in the corner of their house. This is one of the strongest circumstantial evidence available against A-1 and A-3.
36. The second piece of circumstantial evidence, which goes against the accused is the Post Mortem Report (Ex.PW9/A). It indicates that the death of Karamjit Kaur was homicidal in nature. Secondly, this report further indicates that the death of Karamjit Kaur might have been caused in between 2.7.2004 and 3.7.2004. Third piece of circumstantial evidence against A-3 is the recovery of axe (Ex.P3) at her instance from a heap of husk in the room of her house.
Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -18-
37. In view of the aforesaid circumstantial evidence, let us find whether A-1 and A-3, who were found present in the house when the police went to the spot and on whose disclosure statements, dead body of the deceased was recovered from a hidden place, regarding which no body was having the knowledge, have given any proper explanation, which could have thrown light upon their innocence. It is well settled proposition in criminal jurisprudence that the burden is always upon the prosecution to prove the guilt of the accused beyond reasonable doubt. Section 106 of the Indian Evidence Act, 1872 cannot apply to shift the burden of proof in a criminal case, where the onus lies upon the prosecution throughout to establish the guilt of the accused beyond reasonable doubt. Even where there are certain facts specially within the knowledge of the accused, which could throw light upon his guilt or innocence, as the case may be, the accused is not bound to prove them. But where the accused throws no light upon facts which ought to be especially within the knowledge, and which could support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation as an additional link which completes the chain of circumstantial evidence.
38. In the present case, A-1 did not give any explanation and A-3 made a confession that she along with Jugraj Singh had committed the crime. During the course of arguments, learned counsel for A-1 and A-2 vehemently argued that the trial court has committed grave illegality while ignoring the confession made by A-3, which clearly indicates that the Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -19- alleged crime was committed by accused Jugraj Singh in connivance with A-3. We have carefully considered this submission and gone through the alleged confession, made by A-3, in the light of the facts and circumstances of the case. Upto the filing of initial challan on 4.8.2004, against A-1, A-2, A-3 and Sukhdev Singh, A-3 did not make any confession. By that time, there was not even a whisper against Jugraj Singh. Even when charge was framed on 2.11.2004, A-3 pleaded not guilty and claimed to be tried. She did not make any confession by that time. Thereafter, on 2.8.2005, A-3 wrote a letter (Ex.DA) from the jail to the trial court, in which she confessed that she along with Jugraj Singh had committed the crime, as they were having love affair and Karamjit Kaur was a hurdle in their love affair. Prior to that, the police recorded the statement of PW.8 Sardul Singh, wherein he had stated that accused Jugraj Singh had made extra judicial confession before him to the effect that on 3.7.2004, he had also participated in the commission of the crime, because he was having illicit relations with A-3 and deceased Karamjit Kaur was creating hurdle in their love affair. On the same day, the police had also recorded the statement of PW.7 Jaswinder Kaur, the married sister of A-1 and A-2, who stated that accused Jugraj Singh was having love affair with A-3 and deceased Karamjit Kaur came to know about their love affair. She further stated that some days prior to the occurrence, when she was harvesting crops in the fields having come down to her parental house, she heard A-3 and Jugraj Singh conspiring in the field by proclaiming that Karamjit Kaur was a hurdle in their love affair and she Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -20- had to be eliminated. On the basis of that evidence, a supplementary challan was filed against accused Jugraj Singh and he was also tried along with the other four accused, who were members of a single family. PW.8 Sardul Singh did not support the prosecution version and the testimony of PW.7 Jaswinder Kaur was found by the trial court to be unreliable and untrustworthy. Thus, the version of illicit relations between A-3 and Jugraj Singh; and that Jugraj Singh in connivance with A-3 had committed the crime, was not accepted. He was acquitted of the charges framed against him and against his acquittal, no appeal has been filed either by the complainant or by the State.
39. Now, the question that arises for consideration is whether the alleged confession made by A-3 is reliable and trust-worthy and the same can be accepted as true, which may result in acquittal of A-1 and A-2. It is a settled law that a confession made by an accused, if made voluntarily without any compulsion and uninfluenced by any body, can be used against him or his co-accused, if he is also being tried for the same offence in the same trial. In order to analyse and appreciate a confession made by an accused in the criminal proceedings, the court is required to apply a double test: (a) Whether the confession was perfectly voluntary (b) If so, whether it was true and trust worthy. Unless the court is satisfied that the confession is voluntary, truthful and un-influenced by outside source, it cannot use the same either against the accused or against his co-accused.
40. In the present case, no confession was made by A-3 before any Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -21- authority. She simply wrote a letter (Ex.DA) to the trial court from the jail. Secondly, she herself appeared as a witness on her request under Section 315 Cr.P.C. The statement of an accused under this provision is to be recorded like evidence of a witness and the same can be relied upon by the court, if it inspires confidence. In the present case, the alleged confessional statement made by A-3 does not inspire any confidence, because it was made at a very belated stage, i.e. well after filing of challan against the accused. A-3 had opportunity earlier to give her version to the police or to the Magistrate, but she made the statement at a very belated stage. Even the version given at the belated stage does not inspire any confidence, because there are contradictions in the first confession made vide Ex.DA and her statement made under Section 313 Cr.P.C. In her earlier version (Ex.DA), A-3 has stated that after the registration of FIR on the basis of the statement of complainant Gurmail Kaur, the police arrested her as well as her husband (A-2), elder brother-in-law (A-1) and father-in-law Sukhdev Singh. However, in her statement under Section 313 Cr.P.C., A-3 stated that she along with her husband (A-2) and brother-in-law (A-1) were detained as suspects on 3.7.2004, i.e. prior to the registration of the FIR. In view of these facts, the trial court has rightly come to the conclusion that the alleged statement made by A-3 vide letter (Ex.DA) looses its probative evidentiary value, because it was made much after the commencement of the trial. Even she did not confess her guilt at the time of framing of charge on 2.11.2004. At that time, she pleaded not guilty and claimed to be tried. It appears that Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -22- A-3 made confessional statement at a belated stage, in order to save her husband and other family members, at the cost of her conviction and sentence. Even the theory of illicit relations of A-3 and accused Jugraj Singh has not been established by the prosecution. The trial court has rejected this story, holding it as un-natural and unreliable. Thus, in our view, the trial court has committed no illegality, while ignoring the confession made by A-3.
41. Further, the rule of prudence does require that each and every circumstance mentioned in the confession, with regard to the participation of the accused person in the crime, must be separately and independently corroborated by the other evidence led by the prosecution. The corroboration must come from an independent source and connect with the crime.
42. In the present case, the prosecution has led evidence to the effect that there was the alleged illicit relations between A-1 and Jugraj Singh and the crime was committed by Jugraj Singh in connivance with A-
3. According to the extra judicial confession made by Jugraj Singh before PW.8 Sardul Singh, deceased Karamjit Kaur had seen them in a compromising position, therefore, they hatched a conspiracy and killed her. The prosecution has miserably failed to establish the said version. The trial court has rejected the evidence led by the prosecution in this regard holding the same as unreliable and untrustworthy. Therefore, there is no evidence at all to corroborate the version given by A-3 in her confession. Thus, it is not Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -23- safe to rely upon the said confession, which does not inspire any confidence.
43. Let us now find whether the prosecution has established the guilt against A-2 beyond reasonable doubt on the basis of the circumstantial evidence available on record, and in the facts and circumstances of the case, The learned trial court has convicted A-2 for the offence under Section 201 IPC on the ground that he being a member of the family was residing in the house, and thus he had conspired with the other accused in not disclosing the whereabouts of Karamjit Kaur so as to screen the offenders from punishment. He has also been convicted under Section 302/34 IPC on the basis of the inference of conspiracy drawn against him, because he was residing in the same house, therefore, he was supposed to know about the crime committed by A-1 and A-3. In our opinion, in the facts and circumstances of the case, the conviction of A-2 under Sections 201 and 302/34 IPC is not sustainable. Undisputedly, when the police party reached the matrimonial home of Karamjit Kaur, only A-1 and A-3 were present. They suffered disclosure statements, and the dead body of Karamjit Kaur was recovered. Not a single witness has stated that on the day of occurrence, A-2 was seen in the house. There is also no evidence available on record, which may establish that A-2 had any knowledge of the dead body lying buried in the bore of the latrine. It has come in evidence that A-2 is a labourer and he used to go out of house for doing labour work. He was arrested two days after the occurrence and as per the prosecution, nothing Crl. Appeals No. 985-DB of 2007 & 712-DB of 2010 -24- was recovered from him. Merely because he was brother of A-1 and husband of A-3, it cannot be presumed that he had also participated in the crime. In view of all these facts, in our opinion, no inference could have been drawn against A-2 with the aid of Section 106 of the Indian Evidence Act that he might be knowing about the alleged crime. Therefore, in our opinion, the prosecution has miserably failed to prove its case against A-2 beyond reasonable doubt, therefore, he deserves acquittal in this case. Conclusion
44. For the reasons recorded above, Criminal Appeal No. 985-DB of 2007 is partly allowed to the extent that the judgment of conviction and the order of sentence qua A-2 (Gurjit Singh) is set aside, and he is acquitted of the charges, whereas the judgment of conviction and the order of sentence qua A-1 (Tarsem Singh) is affirmed. Accordingly, A-2, who is in custody, be set at liberty forthwith, if not required in any other case. However, Crl. A. No. 712-DB of 2010 is dismissed, and the judgment of conviction and the order of sentence qua A-3 (Kuldeep Kaur) is affirmed.
( SATISH KUMAR MITTAL )
JUDGE
May 12, 2011 ( M. JEYAPAUL )
ndj JUDGE