Punjab-Haryana High Court
Parkash Singh And Anr. vs The State Of Punjab on 19 March, 1990
Equivalent citations: (1990)98PLR561
JUDGMENT K.S. Bhalla, J.
1. Facts given rise to the presint occurrence as disclosed by the prosecution breifly stated are as under. Gurmit Kaur Sister of Boota Singh (PW- 4) resident of Nihaluwal was married to Bakhir Singh at village Mehalkalan since before the present occurrence. On 2.3.1986 Bakhir Singh and Gurmit Kaur reached village Nihaluwal at 10 A. M. They came on a cycle. After taking tea, Bakhir Singh and Boota Singh went to village Bopa Rama as the former wanted to bring his motorbike from accused appellar to Parkash Singh and Jagdev Singh. None of the accused was available at village Bopa Rama. They had gone to Village Gurma on the motor-cycle as per information conveyed by wife of Parkash Singh. Bakhir Singh and Boota Singh, on their way back, reached Bus Stand, Dadahoor at about 6 P. M. They came across both the accused there who arrived on motor-cycle PUN-9070. Soon after their arrival at the Bus Stand, the two accused and Bakhir Singh consumed a bottle of liquor which was provided by Parkash Singh and thereafter Parkash Singh, Jagdev Singh and Bakhir Singh left for village Bopa Rama so that Bakhir Singh could bring his motor cycle from thereon the following morning. Boota Singh (PW4) came back to his village Nihaluwal. When Bakhir Singh did not return on the following day, PW Boota Singh thought he perhaps proceeded to his village Mehalkalan. When be learnt from the said village in the evening that Bakhir Singh had not reached there, Boota Singh became apprehensive and started search for Bakhir Singh.
2. On 4.3.1986 both Parkash Singh and Jagdev Singh Came to the house of PW Boota Singh and on his asking and that of his sister informed them that Bakhir Singh had come back on the previous day leaving motorcycle with them he sold for Rs. 3,000/- and a gold bangle weighing 1-1/2 tolas. After 3/4 days thereafter Boota Singh again met the accused but they could not provide any satisfactory information with regard to where abouts of Bakhir Singh. Thereafter PW Balaur Singh informed Boota Singh that he had seen both the accused on narrow bridge of village Dadahoor and at that time Bakhir Singh was not with them, After that Boota Singh lodged the report, Exh. PD with the police on 9 3.1986.
3. On 11.3.1986 the dead bady was recovered by S. I. Bhagat Singh (PW17J (now Inspector) from the canal which was stuck with a Sheesham tree within the revenue limits of village Tapali. Inquest, Exh. PB of the dead body was prepared and it was then sent for postmortem examination.
4. Autopsy on the dead body was performed by Dr. Narotam Singh (TW1J at Civil Hospital, Barnala on 11.3. 1986 at 4 15 P M. and as many as seven injuries were found on the dead body which was identified by Bakhish Singh son of Joginder Singh, resident of village Mehlkalan as that of Bakhir Singh. It was putrefied body giving foul smell and death in the opinion of the doctor was due to strangulation which was sufficient to cause death in the ordinary course of nature. Probable time that elapsed between injury and death was immediate and between death and post-mortem examination was 7 to 10 days. Exh. PA is the correct carbon copy of the post-mortem report and Exh PA/1 is the pictorial diagram showing the seats of injuries. Injury No. 7 was the result of strangulation and it was individually sufficient to cause death.
5. The accused were arrested on 12.3. 1986 after they made extra judicial confessions before Sarpanch Malkiat Singh, Patch Ajit Singh and Comrade Pritam Singh. After their arrest, on 14.3,1986 motorbike, Exh. P/7 was recovered at the instance of accused Parkash Singh whereas wrist watch, Exh. P/5 was recovered at the instance of accused Jagdev Singh by Inspector Bhagat Singh (PW17). On completion of usual investigations the accused were challaned.
6. On trial vide impugned judgment dated 11th and 12th of January, 1988, the trial Court convicted accused Parkash Singh and Jagdev Singh under Sections 364, 302/34, 201 and 404 of the Indian Penal Code and sentenced them to various sentences as detailed in the judgment dated 12.1.1988. Feeling aggrieved by their convictions and sentences, accused appellants Parkash Singh and Jagdev Singh have preferred the present appeal--Criminal Appeal No. 76-DB of 1988.
7. As is obvious from the facts detailed above, the case of the prosecution is based on circumstantial evidence Circumstantial evidence has its own limitations. Before acting on that evidence the Court must first see whether the circumstances put forward are satisfactorily proved. Further the circumstances so proved must provide a chain not only compatible with the guilt of the accused but at the same time it must be inconsistent with their innocence. In other words, solid and substantial proof pointing towards guilt and guilt alone of the accused is called for. No such proof is forthcoming in this case.
8. First of all, the case of the prosecution fails on the score of corpus delicti as it cannot be said with certainty that the dead body recovered was that of Bakhir Singh and none else. If we refer to the earliest version contained in Exh. PD, it has been clearly stated therein that Bakhir Singh who was missing, was wearing a shirt of slightly blue colour and a check-designed pants. If we refer to the medical evidence provided by Dr. Narotam Singh (PW1), he has stated that the dead body was wearing a shirt a pyjama. If Bakhir Singh was wearing a pants when he parted with Boota Singh on 2.3.1986 and was killed the same day as suggested, his check-pants could not have possibly changed into a pyjama of the same colour of which shirt was. To meet this situation, it has been stated by Boota Singh (PW4) that Bakhir Singh was in the habit of wearing a pyjama under this pants during winter. However, the month of March is not a part of swear winter so as to require wearing of a pyjama under this pants In this connection, it is further significant to note that an under wear of green colour was also removed from the dead body from under the pyjama, Exh P/3. Bakshish Singh (PW-13) who identified the dead body has clearly stated during cross-examination that shirt and pyjama were of one and the same colour. Placed in the situation it cannot be said that Bakshish Singh indentified the dead body from its clothes nor does be so slate. In fact but for making a bold statement with regard to identification he does not provide as the mode of identification of the dead body. The witness is completely silent as to how and in what manner the dead body was identified by him as that of Bakhir Singh. According to Dr, Narotam Singh (PW-1) the process of putrefaction had well set in. He has also given the probable time that elapsed between death and post-mortem as 7 to 10 days. The witness has further added during cross-examination that variation of a day or two on either side could not be ruled out. No dead body can possibly be identified after 12 days having remained in water throughout. According to the prosecution, Bakhir Singh parted with PW Boota Singh on the evening of 2.3 1986 and in case the postmortem examination was conducted on 11 3.1986, after 12 days or even ten days of the death, the dead body on which autopsy was conducted by Dr. Narotam Singh could not possibly be that of Bakhir Singh. Thus, the case of prosecution is highly doubtful with regard to corpus delicti.
9. The evidence with regard to extra judicial confession is also not worth placing reliance upon. It is obvious from the statement of Pritam Singh (PW-15) that the accused never wanted to repose confidence in him. In fact they went to Sarpanch Malkiat Singh for making extra judicial confession as per his statement. Neither Malkiat Singh nor Jit Singh has come forward to support the said contention of the prosecution. PW Pritam Singh is the person who was already associated with the investigation from the very beginning. Endorsement, Exh. PD [1 with regard to action taken by the police under first information report, Exh PD, clearly siates that informant Boota Singh was accompanied by Pritam Singh, when the former went to Police Station, Mehalkalan for lodging the report. Besides this in the suggested extra judicial confession, the accused nowhere made any mention with regard to strangulation and the cause of death according to the medical evidence was strangulation and nothing else It is also suggested by Pritam Singh (PW 15) that all of them three first went to Police Station, made their statements before the S I and then on his suggestion, took Parkash Singh and Jagdev Singh from the house of Sarpanch where they were left behind which on the face of it is highly improbable If the accused went to the Sarpanch, made extra judicial confession before him and wanted him to produce them before the police, there was no occasion whatsoever to leave them back and rather in the normal course of events the Sarpanch would have taken them alongwith. Detail with regard to taking of liquor, pushing of motor cycle and the manner of riding thereon also indicates that it was a tutored story and not a confession with regard to commission of offence. Above all, Balaur Singh (PW-10) throws the contention of extra judicial confession over board. According to him accused Jagdev Singh and Parkash Singh were also present when his statement was recorded. While trying to improve upon the said statement, the witness has stated that he went to the Police Station after his statement was recorded and both the accused were in police custody on that day. The fact remains that both the accused were in the custody of police on the date of recording of the statement of PW Balaur Singh. S. I. Bhagat Singh (PW-17) has stated during cross-examination that statement, Exh. DA of Balaur Singh was recorded by him on 9-3-1986 at about 7 P. M. If statement of Balaur Singh was recorded on 9.3.1986 and both the accused were with the police on that date, question of their making of extra judicial confession before PW Pritam Singh on 12.3.1986 did not arise. It is further significant to note that according to S. I Bhagat Singh (PW-17), PW Pritam Singh was present when the statement of PW Balaur Singh was recorded by him. If so, to the knowledge of PW Pritam Singh both the accused were already with the police on 9 3.1986 and when despite that he has a cheek to state that they made extra judicial confession in his presence on 12.3.1986, he is simply a liar. His presence at the time of the recording of the statement of PW Balaur Singh further confirms his association with the investigation throughout Under the circumstances, no reliance whatsover can be placed on the evidence with regard to extra judicial confession and the said circumstance cannot be said to have been satisfactorily proved.
10. Circumstance with regard to presence of accused Parkash and Jagdev Singh at narrow canal bridge of Dadahoor without Bakhir Singh provided by PW Balaur Singh too is of no signficance whatsover. According to Boota Singh (PW-4) said communication by Balaur Singh made him apprehensive and now Balaur Singh (PW-l0) in his statement has even gone to the extent of stating that clothes of the accused were stained with blood but in the opening sentence of his statement, PW Balaur Singh has clearly stated that he saw them in the month of February, 1986. According to PW Boota Singh, Bakhir Singh went in the company of the accused on 2 3 1986 and not earlier. Therefore, seeing of the two accused by PW Balaur Singh together on the narrow bridge in the month of February, 1986 cannot be of any consequence so far as the instant case is concerned. In this connection, it is significant to note that it is the case of prosecution itself that motor cycle PUN 9070 was with the accused since before 2-3-1986. Also Boota Singh (PW-4) nowhere states if PW Balaur Singh informed him that clothes of the accused were stained with blood when he saw them on the narrow canal bridge of Dadahoor.
11. The two recoveries also do not provide any effective circumstance Motor bike, Exh. P/7 was recovered from the cattle shed of the residential house of accused Parkash Singh and as such it cannot be said to have been concealed in any manner. The Investigating Officer was bound to have visited the residential houses of the accused if he wanted to arrest them and had he gone to the house of accused Parkash Singh, he could have recovered the motor bike without any assistance of the accused A disclosure statement only has a meaning at all if the place where the incriminating article was recovered is really a place of concealment which it would be difficult or impossible for the police to discover without some assistance from the accused. Even otherwise the motor bike admittedly was not with the deceased at the time of his death and rather it was already with accused Parkash Singh It is the case of the prosecution itself that Bakhir Singh went to the village of accused Parkash Singh in the company of PW Boota Singh simply to get that motor bike. The recovery of the said article, therefore, cannot be said to have linked accused Parkash Singh with the crime So far as wrist watch, Exh P/5 is concerned, no proper description of the same has been made in the first information report, Exh. PD. It is simply stated therein that Bakhir Singh was wearing a Roamer-l7 Jewels wrist watch when he left This is not sufficient description for proper identification of the wrist watch. Watch was not got identified from PW Gurmit Kaur wife of Bakhir Singh who was the best person for its identification The test identification parade was held by Gurbax Singh Bedi (PW 2), Naib Tensildar. Banala. According to him only Boota Singh identified the wrist watch in his presence The witness does not state in his statement if necessary precautions were taken. In cross-examination he has stated that all the wrist watches were with straps but the same may be of different manufacturers. If so, hints for identification could have been provided by the police. If we see Exh. PC, the request for test identification parade, it is mentioned therein that the watch had black dial and black strap. Besides the fact that no such description was given in the first information report, unless other watches had black: dial and strap, the watch in question, Exh. P/5 could1 conveniently be picked up out of the various other watches. Exh. P/2 also shows that a mark was put 01 the watch in question. That could also facilitate identification Boota Singh as per mention in the said report was identified by ASI Joginder Singh and it is no where mentioned therein if the said ASI was sent out after that identification The so called test identification parade, therefore, was only a face and cannot be of any consequence Further it is said that the wrist watch was recovered from bushes under a Sheesham tree by the side of the canal. If the idea was to rob of the deceased, watch could not have been possibly left in bushes by the side of the canal This is on: the face of it inconsistent with the suggested motive for the commission of the crime. Again, both motor bike and wrist watch were disclosed in the so called extra judicial confession on 12-3-1986. If so, question of their disclosure on 14-3-1986 through intrrogation did not arise and all this on the face of it was a made up affair.
12. The solitary circumstance of last seen together again leads us nowhere. Even if it may be accepted on the basis of the statement of PW Boota Singh that Bakhir Singh was left in the company of accused Parkash Singh and Jagdev Singh on 2-3-1986 and since thereafter he was missing, it cannot be concluded in concusive manner that they are responsible for his death or that Bakhir Singh is no more alive. Both the accused admittedly visited the house of PW Boota Singh on 4-3-1986 and told him and his sister Gurmit Kaur (PW-11) that Bakhir Singh had left them on 3-3-1986 after selling the motor bike to them for Rs 3000/- and a gold bangle weighing 1-1/2 tolas and that explanation of their was accepted by them both. In any case the solitary circumstances of last seen together cannot provide requisite chain to enter into conviction on the basis of circumstantial evidence.
13. For the foregoing reasons, we are of the considered opinion that prosecution has not been able to bring home the guilt to any of the two accused beyond all realms of doubt particularly when suspicion however grave cannot possibly take the position of legal proof and it cannot be said with cretainty that Bakhir Singh is dead. The result is that we accept this appeal, set aside the convictions and sentences of accused appellants Parkash Singh and Jagdev Singh and instead acquit them both of the charges against them.