Punjab-Haryana High Court
Balwant Singh @ Balli vs State Of Punjab on 27 August, 2012
Author: S.S. Saron
Bench: S.S. Saron
CRA No. D-753-DB of 2005 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No. D-753-DB of 2005
Decided on : 27th August 2012
Balwant Singh @ Balli
..... Appellant
Versus
State of Punjab
..... Respondent.
CORAM:HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE S.P. BANGARH
*****
Present: Mr. Divya Sharma, Advocate as Amicus Curiae and Mr. S.S. Majithia, Advocate for the appellant.
Mr. Anter Singh Brar, Sr. DAG, Punjab for the respondent.
***** S.P. BANGARH, J Challenge, herein, the appeal is to the legality and propriety of judgment and order of sentence dated 31.08.2005 passed by Learned Additional Sessions Judge, Amritsar in Sessions case No. 18 dated 05.04.2004 and Session Trial No.17 of 16.04.2004, emanating from FIR No. 302 dated 15.10.2003, under Sections 302, 201 read with 34 of the Indian Penal Code (for short-IPC) registered at Police Station Jandiala Guru, District Amritsar, whereby, the appellant was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of `1000/- or in default of payment of fine to further undergo rigorous imprisonment for CRA No. D-753-DB of 2005 - 2- four months for commission of offence punishable under Section 302 IPC and to undergo rigorous imprisonment for a period of seven years and to pay a fine of `1000/- or in default of payment of fine to further undergo rigorous imprisonment for four months for commission of offence punishable under Section 201 IPC. Dalbir Singh an accomplice of appellant was acquitted vide impugned judgment. Both the sentences were ordered to run concurrently.
FIR No. 302 dated 15.10.2003, under Sections 302, 201 and 34 IPC was registered at Police Station Jandiala Guru, District Amritsar, on the basis of secret information received by Sukhwant Singh, SI, CIA Staff, Majitha on 15.10.2003 to the effect that 5 or 6 years ago, appellant and his accomplice Dalbir Singh (who was acquitted vide impugned judgment) killed their niece Akko daughter of their sister, resident of Village Bajaj, District Amritsar, by giving her electric shock and buried her corpse by digging a pit in the courtyard of their residential house located in village Wancharhi and in case, they were interrogated, the murder of the girl could be detected. On the basis of the secret information, ruqa Ex.PH was written and sent to the Police Station, Jandiala Guru, where formal FIR Ex.PH/1 was recorded.
The appellant and his accomplice Dalbir Singh were arrested on 16.10.2003 vide arrest memo Ex.PJ and personal search memo Ex.PK. Appellant suffered disclosure statement Ex.PF, in the presence of Hira Singh ASI and Sukhwinder Pal Constable that he had buried the corpse of his niece Akko daughter of Sawinder Singh in the courtyard of his house by digging a pit near the space meant for washing clothes and utensils and he could get the same recovered. Thereafter, Sukhwant Singh SI handed over CRA No. D-753-DB of 2005 - 3- the application Ex.PL to Hira Singh ASI, to request the SDM, Amritsar-I for supervising the proceedings for recovery of the corpse of Akko and J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate was deputed by SDM, Amritsar-I to associate the police party in supervising the proceedings for recovery of the corpse.
On arrival of J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate on the spot, police party also joined, Sukhraj and Balbir Singh, both members of the village Gram Panchayat and a skeleton of human being was recovered from the courtyard of the house of the appellant alongwith clothes and other articles i.e. one iron bracelet, shirt, salwar of pink colour, a muffler of blue colour, brassier and a sweater, which were in worn out condition and these were seized vide memo Ex.PG, attested by all the witnesses present there.
Thereafter, inquest report Ex.PM on the corpse was prepared and site plan Ex.PN of the place of recovery of the skeleton was prepared. Video recording was also done and the photographs of the proceedings of recovery were also taken and these were handed over to the police by Manmohan Singh Constable on 25.10.2003, which were seized vide memo Ex.PP.
The clothes of the deceased were identified by her father Sawinder Singh on 18.10.2003. The skull and bones of the skeleton were sealed into a parcel with seal bearing impression 'S.S.D.' and parcel was sent to the Department of Forensic Medicine Government Medical College, Amritsar vide application Ex.PA/1 for getting the expert opinion. On the examination of the skull and the bones of the skeleton, these were found to be of human origin of a female between 15-17 years of age, but the cause of CRA No. D-753-DB of 2005 - 4- death could not be ascertained.
After completion of investigation, Station House Officer of Police Station Jandiala Guru instituted police report under Section 173 Cr.P.C. before the learned Illaqa Magistrate to the effect that it appeared that the appellant and his accomplice Dalbir Singh have committed offences punishable under Sections 302, 201 and 34 IPC. On presentation of police report, copies of documents as required under Section 207 Cr.P.C. were furnished to the appellant and his accomplice Dalbir Singh and the case was later committed to the Court of Session for trial vide order dated 18.03.2004. On receipt of Session case by the learned Additional Sessions Judge, Amritsar, charge under Sections 302, 201 read with 34 IPC was framed against the appellant and his accomplice Dalbir Singh, whereto, the latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined Dr. Deepak Walia, Assistant Professor, Department of Forensic Sciences, Government Medical College, Amritsar as PW-1, Sawinder Singh Constable as PW-2, Sukhraj Singh as PW-3, Balbir Singh as PW-4, Hira Singh ASI as PW-5, Sukhwant Singh SI as PW-6, Sawinder Singh as PW-7 and J.P. Salwan, Naib Tehsildar-cum- Executive Magistrate as PW-8, and closed evidence later after giving up the remaining witnesses as unnecessary.
After the close of prosecution evidence, appellant and his accomplice Dalbir Singh were examined under Section 313 Cr.P.C, wherein, they denied all the allegations of the prosecution, pleaded innocence and false implication in the case.
Appellant and his accomplice Dalbir Singh were called upon to CRA No. D-753-DB of 2005 - 5- enter in defence and they closed the same without examining any witness in defence.
After hearing both the sides, learned trial Court convicted and sentenced the appellant as described in the first paragraph of this judgment vide impugned judgment and resultant order of sentence. Aggrieved, therefrom, the appellant, who was accused before the learned trial Court, has come up in this appeal with a prayer for acceptance, thereof, and for his acquittal of the charge framed against him.
Learned counsel for the appellant and learned Additional Advocate General, Punjab for the respondent have been heard and record of the learned trial Court perused with their assistance.
First of all it is to be seen as to what the PWs deposed in the case. PW-1 Dr. Deepak Walia testified that on 17.10.2003, he received a parcel with two intact seals bearing impression 'S.S.D' containing bone of alleged Akko daughter of Sawinder Singh, sample seal on cloth, request letter for examination of bones, police papers numbering 1 to 10 from Hira Singh ASI, CIA Staff, Majitha; seals were intact, on opening the parcel, bones soiled with dried mud were found from the parcel, which were subjected to cleaning and examined.
1. Axial Skeleton
(i) Skull - Lighter in weight. No prominent muscle marking. Orbit were rounded, right half of maxilla alongwith hard palab were not present with the skull. Seven socket containing two molar teeth were present in left half of maxilla. Coronal, sagital, landoid, temporal-parietal, sutures were not fused. Basi occiptal basi spnenise also not fused.
(ii) Mandible - Lighter, no prominal muscle marking, chin pointed, symphsis high, small alveolar foramal was below the mid CRA No. D-753-DB of 2005 - 6- way. Cornial is higher than condyler process. Angle not everted. 14 sockets with two permanent list and second molar on right side and 1st molar on left side present.
Vertebra - 17 vertebra were present, lighter, no muscle prominent, centre of ossification fused. Sternum only body present - all segments not fused.
II. Ap endicule skeleton Clavicles, both right and left present, medial and lateral and not present and hence not fused.
Scopula - both sides present. A cronia process not fused, medial border not fused.
Humerous - left present - upper end not fused with shaft. Lower end- trochlea, capitulm, medial and lateral epicardyle - all fused, Right side hamerous not present only head is present. Radius Ulna - radius, ulna of both sides present, lower end of both not fused.
Hip bones - Tri radiat cart is fused.
Iliac creast not fused, subpublic angle is obtuse, obturator for mamal, oral in shape on both bones present. Femur - both left and right present, upper end partially fused, lower end not fused, left lower end of right femer not present. Tibia- both tibia present. Upper end and lower ends of both tibia not fused. Upper end not present.
Lower end of right tibia not present.
Fibula- right fibula has partially fused lower end, upper end not present.
Metacarpal- one metacarpal only. Head not fused with shaft. He further testified that all the bones are lighter in weight and have no prominent muscle marking; from anatomical feature, bones were of human origin, age about 15 years above, below 17 years. Feature of skeleton were of female, cause of death unascertained. He further testified that after examination of bones, he handed over to police one bag with one CRA No. D-753-DB of 2005 - 7- seal addressed to the SHO, Incharge, containing bones, a sealed envelope addressed to SHO, Incharge, carbon copy of expert opinion and police papers numbering 1 to 10 duly initialed. He brought the original report and proved carbon copy, thereof, Ex.PA and police request on which he gave his report Ex.PA/1.
PW-2 Sawinder Pal Singh tendered his affidavit Ex.PE. PW-3 Sukhraj Singh testified that on the day the appellant and his accomplice Dalbir Singh were arrested, he had gone to the police station, but he did not see any Tehsildar there. This witness was declared hostile to the prosecution, cross-examined by the learned Public Prosecutor for the respondent before the learned trial Court, who confronted him with the portion of his previous statement recorded by the police during investigation, but this witness refused to yield any ground and maintained his stand taken in his chief-examination.
PW-4 Balbir Singh also testified that he knows the appellant and his accomplice Dalbir Singh, but he did not go to their house in the presence of J.P. Salwan, Executive Magistrate and that in his presence, no corpse was recovered. This witness was also declared hostile to the prosecution, cross- examined by the learned Public Prosecutor for the respondent before the learned trial Court, but he refused to yield any ground and maintained his stand taken in his chief-examination.
PW-5 Hira Singh ASI, testified that on 16.10.2003, he joined the police party headed by Sukhwant Singh SI, CIA Staff, Majitha and in his presence on 16.10.2003, the appellant and his accomplice Dalbir Singh were arrested and interrogated and during interrogation, appellant suffered disclosure statement that he and his brother Dalbir Singh (since acquitted) CRA No. D-753-DB of 2005 - 8- killed Akko their maternal niece by electrocution, as she was not bearing a good moral character and he further admitted that corpse was concealed in a pit in the courtyard of their house, and could get the same recovered and then J.P. Salwan, Executive Magistrate reached at the spot and in his presence, the appellant got recovered skeleton of the deceased, which was sealed into parcel with the seal bearing impression 'SS' and parcel was seized vide memo Ex.PG, which was attested by him and by the public witnesses.
PW-6 Sukhwant Singh SI conducted the investigation and deposed on the line of investigation, as has been re-produced in the earlier part of the judgment.
PW-7 Sawinder Singh deposed that Akko (deceased) was his daughter and the appellant and his accomplice Dalbir Singh are the brothers of his wife and he does not know when his daughter had gone to her natal place and he also cannot tell whether she was killed by the appellant or his accomplice Dalbir Singh or not. He also testified that his statement was not recorded and he did not go to identify the corpse of his daughter. This witness was declared hostile to the prosecution and cross-examined by the learned Public Prosecutor for the respondent before the learned trial Court.
PW-8 J.P. Salwan Naib-Tehsildar, testified that on 16.10.2003, he was posted as Naib Tehsildar-cum-Executive Magistrate, on that day, an application Ex. PL was given by Sukhwant Singh SI, CIA Staff, Majitha to go to village Vanchari and accordingly, he went there and in the presence of the appellant and his accomplice Dalbir Singh, corpse of female was recovered from the courtyard of the house near the hand pump after digging the earth and the corpse was a skeleton, which was sealed into parcel with CRA No. D-753-DB of 2005 - 9- the seal bearing impression 'SSD' and parcel was seized vide memo Ex.PD, which bears his signatures as a witness along with others. He further testified that another parcel of clothes of the deceased was prepared which alongwith one iron bracelet was taken into possession vide memo Ex. PG, signed by him and others; some photographs were also taken by photographer and video filming was also done. He also testified that his statement was recorded. He also testified that the photographs are marks B1 to B12.
Learned counsel for the appellant contended that the presence of Sh. J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate (PW-8) at the place of the alleged recovery of the corpse of the deceased (Akko) is highly doubtful and the learned trial Court wrongly placed reliance, thereupon, while on the contrary, his testimony should have been repelled and the appellant should have been accorded benefit of doubt.
It was further contended that Sukhraj Singh (PW-3), Balbir Singh (PW-4) and Sawinder Singh (PW-7), father of the deceased (Akko), did not support the prosecution version and, therefore, merely, on the basis of testimony of Sh. J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate (PW-8), the appellant could not be convicted for the alleged offences. They further contended that the place from where the skeleton of the deceased (Akko) was recovered does not belong to the appellant and it is accessible to general public, therefore, liability of burying the corpse of the deceased (Akko) at the alleged place of recovery could not be fastened upon the appellant. It was also contended that the human skeleton of the deceased (Akko) was beyond recognition and even her cause of death could not be ascertained and it was contended that the impugned judgment and order of CRA No. D-753-DB of 2005 - 10- sentence are required to be reversed and the appellant be acquitted of the alleged charge by according him benefit of doubt.
On the other hand, learned counsel for the respondent-State contended that the evidence of prosecution witnesses who resiled from their statements could not wash the recovery part of the corpse of the deceased (Akko) from the courtyard of the appellant. He also contended that no missing report of the deceased (Akko) was lodged by her father and the accusing finger rightly went towards the appellant and when the latter doubted the character of the deceased (Akko), he gave her electric shock and buried her corpse in the courtyard of his house.
After giving our thoughtful consideration to the contentions raised by the learned counsel for the appellant and learned counsel for the respondent-State, we are of the considered view that the prosecution case against the appellant does not suffer from any infirmity. Disclosure statement Ex.PF has been duly proved on the record through the testimony of ASI Hira Lal (PW-5), SI Sukhwant Singh (PW-6) and Sh. J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate (PW-8). The presence of Sh. J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate (PW-8) does not become doubtful in any manner. His signatures appear on the recovery memo Ex.PG. Even the photographs marks B-1 to B-12 were prepared, wherein, the photo of Sh. J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate (PW-8) appears.
Sh. J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate (PW-
8) was cross-examined by the learned counsel for the appellant before the learned trial Court, but his cross-examination failed to elicit anything worth the name which could possibly cause any dent in his testimony. No witness CRA No. D-753-DB of 2005 - 11- has been brought from his office by the appellant to prove that on the day of recovery of skeleton from the house of the appellant, he was present somewhere else instead of the place of occurrence. No motive can be ascribed to Sh. J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate (PW-
8) to testify falsely in this case. He is also not alleged to have any animus or hostility against the appellant prior to the day of recovery.
PW-5 ASI Hira Lal and PW-6 Sukhwant Singh are the police officials in whose presence the disclosure statement Ex.PF of the appellant was recorded. These witnesses were also cross-examined at length, but the long cross-examination conducted on these witnesses also failed to cause any dent in their testimony. They maintained their stand taken in their examination-in-chief to the effect that the appellant suffered disclosure statement Ex.PF and after the disclosure statement, Sh. J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate (PW-8) was requested to come at the place of recovery of the corpse of Akko and in his presence, recovery of skeleton of Akko was made, which was in the courtyard of the appellant and the skeleton was sealed into a parcel which was seized vide recovery memo Ex.PD.
When, ASI Hira Lal (PW-5), Sukhwant Singh (PW-6) and Sh. J.P. Salwan, Naib Tehsildar-cum-Executive Magistrate (PW-8) in candid words testified that the recovery of skeleton of Akko was made in pursuance of the disclosure statement Ex.PF of the appellant, the evidence of Sukhraj Singh (PW-3), Balbir Singh (PW-4) and Sawinder Singh (PW-7) becomes inconsequential. They have been won over by the appellant. Simply, on the basis of the testimony of these witnesses, it could not be held that recovery of the human skeleton from the courtyard of the house of the appellant was CRA No. D-753-DB of 2005 - 12- not effected. Even the possibility cannot be ruled out that Sawinder Singh (PW-7) father of the deceased (Akko) and brother-in-law of the appellant, in order to save the latter from the punishment made a somersault by stating that he was not present at the time of recovery of corpse of Akko from the house of the appellant.
Even, PW-7 Sawinder Singh, who is the father of the deceased (Akko), did not testify in candid words that the deceased (Akko), who is the niece of the appellant never remained with the latter. Even, no missing report of the deceased (Akko) was lodged by Sawinder Singh (PW-7) with the police. If the missing report would have been lodged by Sawinder Singh (PW-7) regarding Akko, in that event, it could be held that the human skeleton belonged to someone else than Akko (deceased), who was the daughter of Sawinder Singh (PW-7) and niece of the appellant.
Deceased (Akko) died an unnatural death though the cause of death could not be ascertained, but certainly, she was buried and she was living with the appellant. It was for him (appellant) to explain as to how the Akko (deceased) turned into a human skeleton, which was found buried in his house. It was also for the appellant to explain, as to who buried the corpse in his courtyard near his residential house. These questions arise for consideration and accusing finger goes towards the appellant alone that he buried the corpse of Akko in the courtyard of his house.
It is not his case that someone buried the corpse of some other human being in his courtyard. So, the learned trial Court rightly concluded that the human skeleton between the age of 15-17 years was recovered from the house of the appellant on the basis of his disclosure statement Ex.PF. This corpse became skeleton and was beyond identification. Akko, the CRA No. D-753-DB of 2005 - 13- deceased daughter of Sawinder Singh (PW-7) is not alive and, therefore, it was her skeleton only. If, it would have been stated by Sawinder Singh (PW-7) that her daughter is alive, then the recovered skeleton could be held to be of some other female.
Even the appellant could be convicted on the basis of report of the Forensic Medicina Ex.PA to the effect that the article recovered after digging the earth was skeleton of a female aged about 15/17 years. In view of this report Ex.PA ibid, the evidence of hostile witnesses becomes inconsequential and the appellant could be convicted on the basis of the report Ex.PA, wherein, it was held that the recovered article was skeleton of a female aged about 15-17 years.
Learned counsel for the respondent has placed reliance upon "Gajraj v. State (NCT) of Delhi", 2011 (183) DLT 35, wherein, it was held that the accused can be convicted on the basis of conclusive evidence, even if there were serious discrepancies in oral evidence of witness.
The Hon'ble Supreme Court of India in the case of "State of Himachal Pradesh v. Jeet Singh," 1999 ALL MR(Cri) 806, held that the question is not whether place was accessible to others or not, but whether it was ordinarily visible to others. If not, then it is immaterial that the concealed place is a accessible to others. In this case, there is a disclosure statement Ex.PF and in pursuance, thereof, the recovery of corpse of Akko was made from the courtyard of the house of the appellant, which was not ordinarily visible to others. So, in this view of the ruling ibid, it follows that the appellant got recovered the corpse of his niece Akko from the courtyard of his house, which was not ordinarily visible to others.
Link evidence is also complete in this case. Evidence of CRA No. D-753-DB of 2005 - 14- Constable Sawinder Singh (PW-2), Sukhwant Singh (PW-6), who handled the case property during investigation could not be shattered, which was rightly relied upon by the learned trial Court.
The circumstances indicate that the appellant killed her niece Akko, daughter of Sawinder Singh (PW-7) and buried her corpse in the courtyard of his house in order to save himself from legal punishment. So, the learned trial Court rightly found him guilty and sentenced him vide impugned judgment and order of sentence, which do not suffer from any illegality or impropriety, therefore, these are upheld and affirmed. No other point arises for consideration.
Resultantly, appeal fails and is, hereby, dismissed.
(S.P. BANGARH) (S.S. SARON)
JUDGE JUDGE
August 27, 2012
sham