Punjab-Haryana High Court
Sukhdev Singh And Another vs State Of Punjab on 30 January, 2009
Author: Jora Singh
Bench: Jasbir Singh
Crl. Appeal No. 927-DB of 2006. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No. 927-DB of 2006.
DECIDED ON : 30.1.2009.
Sukhdev Singh and another
Appellants.
VERSUS
State of Punjab.
Respondent.
Crl. Appeal No. 4-DB of 2007.
DECIDED ON : 30.1.2009.
Dharminder Singh
Appellant.
VERSUS
State of Punjab.
Respondent.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. J.S.Bains, Advocate, for
the appellant (Dharminder Singh).
Mr.Vinod Ghai, Advocate, for
the appellants (Sudkhdev Singh and
Narinder Singh).
Ms. Manjari Nehru Kaul, Deputy. Advocate
General, Punjab.
JORA SINGH,J.
Through this common judgment, we propose to dispose of Criminal Appeal No. 927-DB of 2006 (Sukhdev Singh and Narinder Singh Vs. State of Punjab) and Criminal Crl. Appeal No. 927-DB of 2006. 2 Appeal No. 4-DB of 2007 (Dharminder Singh Vs. State of Punjab) filed by the appellants to impugn the judgment/order dated 28.10.2006/ 30.10.2006 in Sessions Case No. 187 of 2006, bearing First Information Report No. 85 dated 14.8.2003, under Sections 302/460 read with Section 34 of the Indian Penal Code, whereby the appellants-accused were convicted under Sections 302/460 of the Indian Penal Code and were sentenced as under-
Under Section 302 I.P.C. for murder of Niranjan Singh:
All the three accused were sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, each in default of payment of fine to further undergo rigorous imprisonment for one year each.
Under Section 302 I.P.C. for murder of Dalip Kaur: All the three accused were sentenced to undergo imprisonment for life and to pay a fine of Rs.5,000/-, each in default of payment of fine to further undergo rigorous imprisonment for one year each.
Under Section 460 I.P.C. All the three accused were sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.5,000/-, each in default of payment of fine to further undergo rigorous imprisonment for one year each.
All the sentences were ordered to run concurrently. Prosecution story, in brief, is that Hardev Singh complainant is resident of village Jama Rai. On 14.8.2003 he lodged report with the police to the effect that at 4 P.M. he Crl. Appeal No. 927-DB of 2006. 3 was going to his fields. He was on the back side of the house of Niranjan Singh then felt too much smell from the house of Niranjan Singh. Rooms of the house were found to be locked. Kulwinder Singh and Ajmer Singh were informed. After consultation, they broke open the locks of rooms of Niranjan Singh's house. Dead bodies of Niranjan Singh and his wife Dalip Kaur were lying on the floor. Articles of the house were in scattered condition. Niranjan Singh and Dalip Kaur were murdered by some unknown persons.
Household articles were looted. Ajmer Singh was deputed to guard the dead bodies. Hardev Singh and Kulwinder Singh had gone to lodge report. Police party headed by Hardeep Singh Sub Inspector /Station House Officer, had met the complainant when he was present at T. Point Fatehabad. After recording statement of Hardev Singh, statement was sent to the Police Station, on the basis of which formal First Information Report was recorded at about 6.30 P.M. Hardeep Singh along with the police party had gone to the spot. Inquest reports were prepared on the dead bodies of Niranjan Singh and Dalip Kaur. Dead bodies were handed over to police officials for post mortem examination. On 15.8.2003 Hardeep Singh SHO had inspected the place of occurrence. Blood stained earth was lifted from the spot and the same was made into a sealed parcel, sealed with the seal bearing impression "HS". Sealed parcel was taken into police possession vide recovery memo attested by the witnesses. Crl. Appeal No. 927-DB of 2006. 4 Two locks were also taken into police possession. Finger prints on the aforesaid locks were developed by Sub Inspector Hardial Singh. Locks were taken into police possession after the same were put into sealed parcel, seal with the seal bearing impression "HS". Sealed parcel was taken into police possession vide recovery memo attested by the witnesses. Rough site plan was prepared with correct marginal notes. On 24.8.1983 accused were arrested. Sukhdev Singh was interrogated on 27.8.2003. Sukhdev Singh suffered disclosure statement that dollars were stolen from the house of Niranjan Singh and the same were kept concealed in his house and he could get the same recovered. In pursuance of the disclosure statement, Sukhdev Singh got recovered dollars from the specified place . Sukhdev Singh also suffered disclosure statement and as per disclosure statement got recovered one kara of gold, three rings from the specified place. Articles recovered were taken into police possession vide recovery memo attested by witnesses.
Narinder Singh accused had also suffered disclosure statement and as per disclosure statement also
got recovered one lady's ring of gold, one pair of ear rings and one bangle of gold. Recovered articles were taken into police possession vide separate recovery memo attested by witnesses.
After completion of investigation, challan was presented.Crl. Appeal No. 927-DB of 2006. 5
Case was committed to the Court of Session, Amritsar, for trial.
After hearing Public Prosecutor for the State and defence counsel for the accused, learned Additional Sessions Judge, Amritsar, found that a prima facie case under Sections 302/460 of the Indian Penal Code was made out to which the accused pleaded not guilty and claimed trial.
In order to substantiate the charges, the prosecution examined as many as 12 witnesses.
PW-1 Hardev Singh is the complainant. He had supported the prosecution story by saying that on 14.8.2003 he was near the house of Niranjan Singh then he noticed some foul smell from the house of Niranjan Singh. Matter was brought to the notice of Kulwinder Singh and Ajmer Singh. After consultation they broke open the locks of the room. Dead bodies of Niranjan Singh and Dalip Kaur were noticed in the room. Household articles were lying scattered. Matter was brought to the notice of the police.
PW-2 Sadha Singh had identified the dead bodies. PW-3 Baldev Singh stated that on 14.8.2003 he came to know about the murder of Niranjan Singh and Dalip Kaur. He had gone to village Jamma Rai. Bodies were sent to hospital for post mortem examination. Blood stained earth was collected from the spot. Blood stained clothes were also taken into police possession vide separate memos attested by witnesses. Two locks were found on the spot. Finger prints from the locks were lifted. Locks were sealed and sealed Crl. Appeal No. 927-DB of 2006. 6 parcel was taken into police possession. On 27.8.2003, accused were in the custody of police. Accused were interrogated separately. As per disclosure statement suffered by the accused different articles were got recovered from specified places.
PW-4 Lakhbir Singh stated that Dharminder Singh, Sukhdev Singh and Narinder Singh came to him.
They had made extra judicial confession as to how Niranjan Singh and Dalip Kaur were murdered.
PW-5 Head Constable Raj Pal Singh got conducted post mortem examination on the dead bodies of Niranjan Singh and Dalip Kaur.
PW-6 Constable Kashmir Singh had deposited some papers with the Finger Print Bureau, Phillaur.
PW-7 Sub Inspector Hardial Singh stated that on 15.8.2003, he had gone to the spot. Two locks were found on the spot. He had developed finger prints from the said locks.
Locks were sealed. Finger prints and the locks were handed over to Sub Inspector Hardeep Singh.
PW-8 Dr. Tejwant Singh On 15.6.2003 at 8.30 A.M., had conducted post mortem examination on the dead body of Niranjan Singh and found the following injuries on his person:-
The secondary relaxation was present in the whole dead body. The cadaveric staining was present on the none vital part of the body i.e. on the back and was fixed and was dark green to green is black in colour. The dead body was in Crl. Appeal No. 927-DB of 2006. 7 advance stage of de-composition swollen and maggots were seen present in the mouth, eyes, nose, ears anus and around the neck. On removal of the parna a ligature mark was seen around the neck with complete circle and interrupted interiorly in the middle of the front of neck measuring 30x5 cm in size. The grove was shallow and underlying skin present in it at places. The scalp skull and verticare were seen healthy. The brain was soft puppy and liquified. The thorcic wall were dark green to blackish green discoloration present on the thorax and around the neck. Ribs and cartrilage were seen healthy. On dissection of the lyrics and larynx and tracheae it was seen softened. The tracheal rings were easily separated. The carotid blood vessel were repurtered and lacerated in the area of ligature mark. The hyoid bone was fracture. The underlying skin was seen congested and healthy. The heart was also seen healthy. The abdominal organs were seen healthy and decomposed. The maggots were seen present in the mouth. The urinary bladder was empty and maggots were also seen present in the organs and generation.
Cause of death as per opinion of the doctor was due to asphyxia caused by strangulation which was sufficient leading to death and which was sufficient enough to cause death in the ordinary course of events. The probable time that elapsed between injury and death was declared to be immediate and between death and postmortem was 36 to 48 hours.Crl. Appeal No. 927-DB of 2006. 8
On the same day, Doctor had also conducted the post mortem examination on the dead body of Dalip Kaur and found the following injuries on her person:-
The secondary relaxation was present in all the four limbs. The cadaveric staining was present on the non bony part on the back and was fixed. The dead body was in advance stage of decomposition swollen and found smelling with maggots seen present in both eyes ears, nose around the neck anus and vagina. The eyes ball were eaten up by maggot us. The staining was dark green to black green at the back. A black coloured wire with multiple knots interiorly in the middle was seen around the neck completing one circle only. On removal of the wire deep ligature mark was seen around the neck completing one circle only. On removal of the wire deep ligature mark was seen around the neck measuring 28x2 cm in size interrupted enterialrily in the front of the middle of the neck.
Cause of death as per opinion of the doctor was due to asphyxia caused by strangulation which was sufficient leading to death and which was sufficient enough to cause death in the ordinary course of events. The probable time that elapsed between injury and death was declared to be immediate and between death and postmortem was 36 to 48 hours.
PW-9 Rishi Ram Draftsman had prepared rough site plan. PW-10 Constable Gurmit Singh has tendered his affidavit Ex.PW10/A. PW11-Head Constable Jaspal Singh had Crl. Appeal No. 927-DB of 2006. 9 tendered his affidavit Ex.PW11/A. PW-12 Hardip Singh Sub Inspector is the Investigating Officer.
After the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the allegations, levelled against them. Accused denied all the allegations and claimed to be innocent. Defence version of the accused was that they are innocent and were falsely implicated in the present case.
Opportunity was given to lead defence but no defence was led.
After hearing learned Public Prosecutor for the State and defence counsel and also from the perusal of the records, learned trial Court opined that the accused has committed offence punishable under Sections 302/460 IPC and were sentenced as stated aforesaid.
We have heard the learned counsel for the appellants Ms. Manjari Nehru Kaul, Deputy Advocate
General, Punjab for the State and have gone through the evidence on the record.
Learned defence counsel for the appellants argued that case is based on circumstantial evidence. Firstly, there was no motive to commit the crime. Story qua extra judicial confession is doubtful. Articles alleged to be recovered as per disclosure statements suffered by the appellants-accused were not of the deceased. Finger print expert is also not helpful to the prosecution because after the finger prints lifted from the spot, sealed locks were not sent to the Crl. Appeal No. 927-DB of 2006. 10 laboratory. After the arrest of the appellants-accused in case specimen thumb impression of the appellants-accused are taken in Court and are sent to laboratory along with sealed parcel then report of the finger print expert is without any evidentiary value.
Ms.Manjari Nehru Kaul, Deputy Advocate General, Punjab argued that deceased were NRI. Motive was to loot the valuable i.e. dollars/gold ornaments recovered as per disclosure statements of the appellants-accused. Appellants- accused had made extra judicial confession before Lakhbir Singh, who was not related to the deceased. Secondly, there was no enmity of PWs with the appellants-accused.
One of the submission of the learned defence counsel was that story qua extra judicial confession is doubtful because Lakhbir Singh had no say in the police department. He was from a different village. He had not produced the accused before the police. Submission of the learned defence counsel seems to be correct one. As per story, occurrence was between 10.8.2003 to 12.8.2003. Report was lodged with the police on 14.8.2003 at about 6.30 P.M. by Hardev Singh complainant. Apellants-accused as per story had made extra judicial confession before Lakhbir Singh PW4 but Lakhbir Singh is the resident of village Lohar. He did not state a word on which date appellants-accused came to him to confess their guilt. Lakhbir Singh in Court stated that Dharminder Singh, Sukhdev Singh and Narinder Singh had made extra judicial confession before him but the Crl. Appeal No. 927-DB of 2006. 11 witness in his cross examination stated that his village is at a distance of 5-6 kilometer from the place of occurrence. Before the visit of appellants-accused he had no knowledge about the murder of Niranjan Singh and Dalip Kaur who are relatives of Baldev Singh PW3. Village of Narinder Singh accused is at a distance of 24-25 kilometer and of Sukhdev Singh accused is at a distance of 18 kilometer from his village. Sukhdev Singh and Narinder Singh were not earlier known to him. Only Dharminder Singh was known to him earlier but he never visited the house of Dharminder Singh nor Dharminder Singh had visited his village earlier. There is a Panchayat in village Jama Rai. He had no talk in the village qua extra judicial confession. Police Station Goindwal is at a distance of 15 kilometer from his village. Intimation was not given to the police as he was waiting for the accused. He had no talk with any respectable person of village Jama Rai or any nearby village. Witness was confronted with the statement Ex.DA where no reference of gold ornaments, dollars etc. In Ex.DA there is not a word that all the accused had made extra judicial confession. Ex. DA is also silent about gold ornaments dollars etc. In Court, Lakhbir Singh stated that accused had made extra judicial confession that they had hatched conspiracy to loot Niranjan Singh and Dalip Kaur. They were in possession of sufficient ornaments and valuable articles. Dharminder Singh is the resident of village Jama Rai. Sukhdev Singh is the resident of village Chamba Kalan whereas Narinder Singh is the resident of Kot Crl. Appeal No. 927-DB of 2006. 12 Datta. Before 17.8.2003 appellants-accused were not known to Lakhbir Singh because they are from different villages. Lakhbir Singh had never visited the house of Dharminder Singh nor Dharminder Singh had visited the house of Lakhbir Singh. Lakhbir Singh had no say in the police department. Appellants-accused did not promise to return for their production before the police to save them from torture. Lakhbir Singh did not promise the appellants-accused to save them at the hands of police. Appellants-accused did not repose faith in the witness. Before 17.8.2003 appellants- accused were not wanted by the police, they were not named by any witness when police was not after the appellants- accused and appellants-accused from different villages had no occasion to approach Lakhbir Singh to make extra judicial confession. Extra judicial confession is made before the person who have say in the police department and can save the accused from torture. Accused are to make extra judicial confession before the witness in whom they repose faith. In case appellants-accused had made extra judicial confession before Lakhbir Singh then Lakhbir Singh should have produced the appellants-accused before the police. There was no occasion to leave them. Lakhbir Singh was required to inform the police or any respectable person of village Jama Rai or Lohar. As per statement under Section 161 Cr.P.C. of Lakhbir Singh, only Dharminder Singh had made extra judicial confession whereas in Court Lakhbir Singh stated that all the accused had made extra judicial confession. Joint Crl. Appeal No. 927-DB of 2006. 13 extra judicial confession is also without any evidentiary value. Story qua extra judicial confession was introduced simply to strengthen the prosecution story.
Next submission of the defence counsel was that appellants-accused were arrested on 24.8.2003. They were interrogated on 24, 25, 26-8-2003. No disclosure statement. Disclosure statement suffered by the appellants-accused are dated 27.8.2003. When Baldev Singh relation of the deceased came to the Police Station. As per disclosure statement, different articles were recovered but evidence is missing as to whether the articles were of the deceased. With the recovery of different articles appellant-accused cannot be connected with the crime. Submission of learned defence counsel is also genuine one. Baldev Singh PW-3 is the resident of Dera Sahib. He is relation of the deceased. In his examination in chief, he has stated that on 15.8.2003 on receipt of information regarding murder, he had gone to village Jama Rai. Police party was present in the house. Blood stained earth was lifted. Blood stained clothes were also taken into police possession. Two locks after lifting finger prints were taken into police possession. On 27.8.2003 he had gone to Police Station then appellants-accused suffered disclosure statements and got recovered different articles from the specified places. In cross examination, admitted that locks were seen by the police on the spot on 14.8.2003 locks were taken into police possession on 15.8.2003 in the morning. At the time of effecting recoveries number of independent Crl. Appeal No. 927-DB of 2006. 14 persons were present but no one was joined. His statement was recorded by the police after recovery. He had not stated a word that articles which were recovered were of the deceased. Hardip Singh-SI PW-1 Investigating Officer in examination in chief stated that on 15.8.2003 blood stained clothes were taken into police possession, blood stained earth was also lifted from the spot. Two locks were lying on the spot. Finger prints from the locks were got developed from Sub Inspector Hardial Singh. Locks were sealed and were taken into police possession. On 27.8.2003 statement of Lakhbir Singh Ex.DA was recorded. Accused were arrested on 24.8.2003. In examination in chief stated that I do not remember whether the articles recovered were got identified from any one or not. In cross examination admitted that statement Ex.DA was correctly recorded. Village Jama Rai is a big village. On 24, 25 and 26.8.2003 appellants-accused were interrogated but only on 27.8.2003 appellants-accused had suffered disclosure statement in the presence of Baldev Singh. First of all in Ex.DA dated 14.8.2003 there is not a word by Hardev Singh that such and such articles were found missing from the house. Allegation of Hardev Singh is that household articles were lying scattered , Niranjan Singh and Dalip Kaur were murdered.
Household articles were looted. In Court Hardev Singh stated that on further enquiry it was found that three gold rings, one gold kara and one pair of ear ring and some dollars were stolen from the house but the question is how Hardev Singh Crl. Appeal No. 927-DB of 2006. 15 came to know that above said articles were missing from the house. No relation of the deceased came forward to state that such and such articles were missing from the house at the time of murder. No cogent and convincing evidence on the file that articles alleged to be recovered as per disclosure statement are of the deceased. Recovered articles were not got identified legally from the relation of the deceased. Firstly there should have been evidence on the file that such and such articles were found missing from the person of the deceased or residential house. After recovery of different articles, then recovered articles were required to be mixed with the articles of similar nature then any relation of the deceased should have been requested to identify the articles. After recovery, if articles are produced in Court, then it is very easy for the witness to state that articles produced in Court were of the deceased particularly, when there is no identification mark. Articles recovered as per disclosure statement are easily available in the market. Independent witnesses were present at the time of recovery but no one was joined. Joined witness namely Baldev Singh is relation of the deceased. Baldev Singh was very much interested in the success of this case. If independent witness present on the spot was showing his inability to join the party then a note should have been given in the case diary. If without any reason, independent witness refuses to join the investigation then Investigating Officer should have taken action. But in the present case, no note in the case diary that such and such Crl. Appeal No. 927-DB of 2006. 16 person were present at the time of recovery. Person present requested to join the investigation but he had shown his inability to join investigation. If we presume that recovery was in the presence of independent witness then second question is whether the articles which were recovered were of the deceased. When no evidence on the file that recovered articles were missing from the house. Appellants-accused were arrested on 24.8.2003. For three days i.e. on 24, 25 and 26.8.2003 appellants-accused did not suffer disclosure statement. Possibility of disclosure statement dated 27.8.2003 by using third degree method cannot be ruled out. So with the recovery of certain articles, appellants-accused cannot be connected with the crime.
Last submission of the defence counsel was that report of the finger print expert is without any evidentiary value because locks recovered from the spot on 14.8.2003 or 15.8.2003 were not sent to laboratory after sealing. Specimen thumb impression were obtained after arrest of the appellants-accused for sending of specimen thumb impression for comparison with the finger prints lifted on 14.8.2003 or 15.8.2003. So, report of the laboratory is without any evidentiary value. Submission of the learned defence counsel seems to be reasonable one. In the RUQA Ex.PA dated 14.8.2003 clear cut case of Hardev Singh complainant is that they broke open the locks of rooms of the deceased. As per evidence on the file, locks were noticed lying on the spot on 14.8.2003. Hardial Singh Sub Inspector Crl. Appeal No. 927-DB of 2006. 17 finger print expert in examination in chief stated that on 15.8.2003 he had gone to the spot. Two locks were noticed. He had developed finger prints from the locks. Locks were sealed. Developed finger prints and the locks were handed over to Sub Inspector Hardeep Singh for sending the same to finger print Bureau, Phillaur but in cross examination admitted that on 15.8.2003 he was posted at Amritsar. No entry was made in the Roznamcha in the police line, Amritsar to visit village Jama Rai. At 9 A.M, he was in village Jama Rai, he did not sign the recovery memo of locks. Parcel was prepared by the Investigating Officer after he had left the spot. Parcel regarding the development of finger prints was also not prepared in his presence. Fingers prints from the locks were not taken. PW-12 Sub Inspector Hardeep Singh stated that on 15.8.2003, two locks were taken into possession after finger prints from the said locks were developed by Sub Inspector Hardial Singh. Investigating Officer did not state a word that appellants-accused were produced in Court for getting their specimen thumb impressions. He had produced the appellants-accused and had identified them. No application on the judicial file to obtain specimen thumb impression of the appellants-accused. Affidavit of Head Constable Jaspal who was MHC is to the effect that on 15.8.2003 one parcel of locks was deposited sealed with the seal bearing impression "HS". Case property was handed over to Constable Gurmit Singh on 11.9.2003 for depositing in the office of Forensic Science Laboratory, Crl. Appeal No. 927-DB of 2006. 18 Chandigarh. Affidavit of Jaspal Singh MHC shows that on 25.9.2003 finger prints were sent to the office of finger print Bureau, Phillaur through Constable Kashmir Singh. That means before the arrest of appellants-accused sealed parcel of the locks with developed finger prints was not deposited in the Finger Print Bureau, Phillaur. After arrest of the accused on 24.8.2003, their thumb impression were obtained in Court. So, possibility of tampering with the case property cannot be ruled out. After the arrest of the accused very easy to have finger prints on any articles like glass, bottle, locks. After obtaining the specimen thumb impression in Court, specimen thumb impressions and the disputed thumb impressions were sent to the laboratory then report is definite that disputed thumb impressions are tallying with the specimen or standard thumb impressions. To avoid tampering of the case property immediately after lifting of finger prints from the glass, developed finger prints and the sealed parcel of the lock should have been sent to laboratory. After arrest of the accused thumb impression were required to be sent to the laboratory. In that case after the report is to the effect that disputed thumb impression are tallying with the standard or specimen thumb impression then report was helpful to the prosecution. Story qua finger prints is also not helpful to the prosecution.
No other contention was put forward.
The above discussion shows that the impugned judgment of the trial Court suffers from illegality and the Crl. Appeal No. 927-DB of 2006. 19 same is set aside.
Criminal Appeals No.927-DB of 2006 and 4-DB of 2007 are accepted. Appellants are acquitted of the charges levelled against them. In case, the appellants are in custody, then release warrant be issued immediately.
( JORA SINGH ) JUDGE 30.01.2009. ( JASBIR SINGH ) JUDGE Anoop