Punjab-Haryana High Court
Paramjit Kaur Widow Of Bant Singh And ... vs State Of Punjab on 29 August, 2008
Author: S.S. Saron
Bench: S.S. Saron, Mohinder Pal
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.458-DB of 1998
.....
Date of decision:29.8.2008
Paramjit Kaur widow of Bant Singh and others
...Appellants
v.
State of Punjab
...Respondent
(2) Criminal Appeal No.56-DB of 1999
.....
Harbans Singh son of Bhan Singh
...Appellant
v.
State of Punjab
...Respondent
Coram: Hon'ble Mr. Justice S.S. Saron
Hon'ble Mr. Justice Mohinder Pal
Present: Mr. G.S. Punia, Advocate for the appellants in Criminal Appeal
No.458-DB of 1998.
Mr. S.S. Rana, Advocate for the appellant in Criminal Appeal
No.56-DB of 1999.
Mr. S.S. Gill, Additional Advocate General, Punjab for
the respondent-State.
......
S.S. Saron, J.
This order will dispose of Criminal Appeal No.458-DB of 1998 and Criminal Appeal No.56-DB of 1999 as they arise out of the same judgment and order dated 7.8.1998 passed by the learned Additional Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [2] Sessions Judge, Ludhiana which is in respect of the same occurrence and FIR. Criminal Appeal No.458-DB of 1998 has been filed by Paramjit Kaur widow of Bant Singh (deceased), Bhagwanti widow of Bir Singh (mother- in-law of deceased Bant Singh) and Kesar Singh son of Bir Singh (brother of Paramjit Kaur) and Criminal Appeal No.56-DB of 1999 has been filed by Harbans Singh son of Bhag Singh (brother's son of Bhagwanti).
In terms of the impugned judgment and order dated 7.8.1998 the appellants in the two appeals were held guilty and convicted for the offences under Sections 302, 201 and 404 Indian Penal Code (`IPC' - for short) for committing the murder of Bant Singh. All the appellants were sentenced to undergo life imprisonment; besides to pay a fine of Rs.5,000/- each and in default of payment of payment of fine to undergo further rigorous imprisonment for six months each for the offence under Section 302 IPC. They were all sentenced to undergo rigorous imprisonment for three years; besides to pay a fine of Rs.2,000/- each and in default of payment of fine to undergo further rigorous imprisonment for three months each for the offence under Section 201 IPC. Bhagwanti-appellant was sentenced to undergo rigorous imprisonment for two years; besides to pay a fine of Rs.1,000- and in default of payment of fine to under further rigorous imprisonment for one month for the offence under Section 404 IPC. Kesar Singh-appellant was sentenced to undergo rigorous imprisonment for two years; besides to pay a fine of Rs.5,000/- and in default of payment of fine to undergo further rigorous imprisonment for one month for the offence under Section 404 IPC. All the sentences were ordered to run concurrently.
Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [3] In the two afore-noticed appeals the order of conviction and sentence is assailed by the respective appellants/appellant.
Sher Singh-complainant (PW-4) son of Bachan Singh submitted an application (EX.PE) alleging that his brother Bant Singh (deceased) was doing labour in the village. His sister-in-law Paramjit Kaur (appellant) widow of Bant Singh was characterless. Due to this reason his brother Bant Singh (deceased) had domestic quarrel with her. On 4.9.1994, after being relieved from work the complainant-Sher Singh (PW-4) along with his nephew-Sukhdev Singh, Panch (PW-9) were going to the house at about 8.00 O'clock. In the house of Bant Singh, his brother-in-law Kesar Singh alias Bittu (appellant), his mother-in-law Bhagwanti (appellant) and the nephew of Bhagwanti, namely, Harbans Singh (appellant in connected Criminal Appeal No.56-DB of 1999) had come there. The three along with Paramjit Kaur (appellant) widow of Bant Singh (deceased) were exchanging hot words with Bant Singh-brother of the complainant Sher Singh (PW-4). Bhagwanti (appellant) was saying that Bant Singh was wrongly blaming her daughter. Paramjit Kaur was also abusing Bant Singh, brother of the complainant Sher Singh. Sher Singh and Sukhdev Singh having gone there had got the matter settled between them and they then went to their respective houses. Bant Singh-brother of Sher Singh (PW-4) after every four or five days usually used to visit the shop of Sher Singh (PW-4). When he (Bant Singh) did not come to meet him (Sher Singh), the latter inquired about him from his sister-in-law Paramjit Kaur (appellant). She stated that Bant Singh had bargained a cow with Asarfi Bhaiya (PW-7) of Rohno Kalan and he had gone there to bring the cow. After a week Sher Singh-
Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [4] complainant along with Mohinder Singh, Sarpanch, Gian Singh son of Harbhajan Singh went to the house of aforesaid Asarfi (PW-7) at Village Rohno Kalan and inquired about Bant Singh. Then he disclosed that Bant Singh had not entered into any bargain with him about the cow nor had he come there. After a month Sher Singh and Sukhdev Singh, Panch admonished Paramjit Kaur and inquired about Bant Singh. Then she started saying that he (Bant Singh) went away from the house on 4.9.1994 after quarreling with her and his whereabouts are not known to her. The complainant-Sher Singh (PW-4) and the family of Bant Singh (deceased) continued to search for Bant Singh but nothing could be found. Then Harbans Singh son of Kundan Singh (PW-6) of his village disclosed to the complainant-Sher Singh that on the night of 4.9.1994 at about 10.00 p.m. he saw Kesar Singh alias Bittu (appellant)-wife's brother of Bant Singh and his relative Harbans Singh (appellant) taking some weighty thing on their bicycle. They were seen going towards G.T. Road. Bant Singh, brother of the complainant-Sher Singh, it was stated, used to tie a wrist watch on his right hand and wore a gold ring on the finger of his right hand on which his name was inscribed. The complainant was then fully confident that his brother Bant Singh had been kept concealed somewhere by his wife Paramjit Kaur, mother-in-law Bhagwanti and Kesar Singh (wife's brother of Bant Singh) and Harbans Singh with the intention of murdering him or finishing him. It was requested that legal action be taken. In terms of the report No.14/15 at 1.30 p.m. dated 7.11.1994 case FIR No.122 dated 7.11.1994 was registered at Police Station Sadar, Khanna for the offence under Section 364/34 IPC.
Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [5] Shankar Dass (PW-15) then SHO, Police Station Sadar Khanna on receipt of application (Ex.PE) from Sher Singh through SSP, made a secret inquiry. Besides, on the basis of the application of Sher Singh, FIR was registered. He went to Village Mohanpur and recorded the statement (Ex.DA) of Sukhdev Singh, Panch (PW-9), Mohinder Singh, Gian Singh (PW-3) and Harbans Singh (PW-6) son of Kundan Singh. He searched for the accused who were not found at their house. On 7.11.1994, the DSP also came to Mohanpur and he also made inquiries. On 8.11.1994 at 8.00 a.m. Shankar Dass (PW-15) SHO, Police Station Sadar, Khanna received a telephonic message that Harbans Singh (appellant) was available at his house at Khanna and some persons be sent to arrest him. ASI Lekh Raj (PW-14) brought Harbans Singh (appellant) from his house who appeared before Shankar Dass, SHO (PW-15) on 8.11.1994 itself. Harbans Singh (appellant) was arrested in terms of memo (Ex.PW.14/E) and during interrogation he made a disclosure statement (Ex.PK) to the effect that he had kept concealed the dead body of Bant Singh below the earth soil with `Parali' (straw) on it at Village Mohanpur near G.T. Road out side the village in a gunny bag of which he alone knew and could get it recovered. The said disclosure statement was signed by Harbans Singh (appellant) and attested by Lekh Raj (PW-14), Kewal Singh, ASI (PW-10). Lekh Raj, ASI (PW-14) was sent to the Tehsildar and Kewal Singh ASI (PW-10) was sent to bring a doctor. Requests (Ex.PX) and (Ex.P.14/A) in this regard were sent and a wireless message was sent to Darbara Singh SHO, Police Post Kot to gather responsible persons and to remain at Mohanpur Chowk. Shankar Dass, SHO (PW-15) reached Mohanpur Chowk and Lekh Raj, ASI (PW-
Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [6]
14) had also reached there with Shri Rajiv Verma Tehsildar (PW-17). Kewal Singh, ASI (PW-10) also reached there along with a team of doctors. SI Darbara Singh had already summoned Pritam Singh (PW-5), Chattar Singh and Sher Singh-complainant (PW-4) at Mohan pur Chowk. Thereafter, Harbans Singh (appellant) got recovered the dead body of Bant Singh from the place disclosed by him after removing the `Parali' (straw) with the help of a `Kahi' (spade) by digging the earth. It was found in the two gunny bags. The gunny bags were tied with a plastic `Dhaga' (string). The body was buried in the `Khitain' (small pit) along the road side. It was recovered and taken in possession vide memo (Ex.PH) which was attested by Pritam Singh, Panch (PW-5), Chattar Singh, Shri Rajiv Verma, Tehsildar (PW-17), ASI Kewal Singh (PW-10) and ASI Lekh Raj (PW-14). The body was identified by the complainant Sher Singh (PW-4) to be that of his brother Bant Singh (deceased) from the underwear and `Parna' worn on it. The identification memo was attested by the said PWs and Sher Singh (PW-
4). Site plan (Ex.PW-15/A) of the place of recovery of the dead body was prepared. Thereafter, inquest proceedings (Ex.PG) in the presence of Sher Singh (PW-4) and Chattar Singh were carried out. The dead body was entrusted to a team of doctors that had come at the spot for post-mortem examination. After conducting post-mortem examination, Dr. Amarbir Singh (PW-1) produced before Shankar Dass, SHO (PW-15) two envelopes and five other parcels with the seal `BS'. One of the parcels was the dead body of the deceased Bant Singh. Remaining parcels contained clothes etc. Post-mortem report was also sealed. Statements of the PWs in terms of Section 161 of the Code of Criminal Procedure (`Cr.P.C.' - for short) were Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [7] recorded. On reaching the Police Station the case property was deposited with MHC Baljinder Singh on 9.11.1994. Shankar Dass, SHO (PW.15) along with ASI Kewal Singh (PW.10), Lady Constable Surinder Kaur, ASI Lekh Raj (PW-14) and other officials were present at Mohanpur where he was informed by Pritam Singh about the whereabouts of the accused Bhagwanti (appellant) and Paramjit Kaur (appellant). Consequently, on the basis of the information received Shanker Dass, SHO (PW-15) arrested the accused at the Railway Station, Chawa. The search of the accused was conducted by Surinder Kaur, Lady Constable and memo (Ex.PW.14/B) was prepared which was attested by ASI Kewal Singh (PW-10) and Surinder Kaur, Lady Constable. It was thumb marked by the accused-appellants Paramjit Kaur and Bhagwanti. On 12.11.1994, Shanker Dass, SHO (PW.15) recorded the statements of Baljinder Singh, Chattar Singh and also of Asarfi Bhaiya (PW-7). Appellant-Kesar Singh was produced by Bhagwant Singh (PW-11) who was arrested and a search was carried out regarding which memo (Ex.P.14/C) was prepared. According to Dr. Amarbir Singh, Medical Officer (PW-1) he conducted the post-mortem examination along with Dr. P.D. Singla and Dr. N.P.S. Virk. The recovered body was a skeletalized dead body which was exhumed and recovered from the gunny bag. The viscera and other soft tissue were liquified. Steel wire was wrapped around hip bone, thigh and leg bones, inflexal position. The recovered dead body was skeletalized body with liquification. The opinion was to be given after receipt of the report of the Chemical Examination and Anatomy Departments. The time that lapsed between death and post- mortem was given as one to three months. Dr. Amarbir Singh (PW-1) also Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [8] wrote a letter on 14.1.1995 (Ex.PB) to the Head of the Department of Forensic Medicine, Government Medical College, Patiala to intimate about the probable duration of death and cause of death. On the application of the Police (Ex.PC), in any case, he gave his opinion on 19.1.1995, that possibility of death by strangulation could not be ruled out. There was no piece of flesh on the body and it could not be identified only from the bones. Dr. S.S. Oberoi, Senior Lecturer, Forensic Science Department, Medical College, Patiala (PW-16) received a parcel containing the dead body of the deceased Bant Singh on 11.12.1994. In his opinion, about the cause of death, it was opined that the same could not be given. He returned the bones to the Police after examination. There was no fracture or any other injury of the bone. On 11.1.1995, it was opined that the time between death and post-mortem was three to six months. He had given minimum as well as maximum time that lapsed between death and post-mortem. He did not weigh the bones. After completing the investigation in the case, the Police filed the the charge report (challan) in the Court of the learned Sub Divisional Judicial Magistrate, Khanna on 3.1.1995. The learned Magistrate from the Police report and documents submitted with it was of the opinion that the case prima facie disclosed commission of offences under Sections 302, 404, 201/34 IPC. The offence under Section 302 IPC, it was observed, was triable exclusively by the Court of Session. Accordingly, the case was committed to the said Court for trial vide order dated 21.3.1995.
The learned Additional Sessions Judge, Ludhiana, to whom the case was assigned charged the appellants Paramjit Kaur, Bhagwanti and Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [9] Kesar Singh in Criminal Appeal No.458-SB of 1998 and appellant Harbans Singh in Criminal Appeal No.56-DB of 1999 on the allegations that firstly they on or about 4.9.1994 at about 10.00 p.m. in the area of Mohanpur did commit murder by intentionally causing the death of Bant Singh and thereby they all committed an offence under Section 302 IPC. Secondly, on the same date and time in between Village Mohanpur they all knowingly or having reasons to believe that Bant Singh had been murdered and an offence under Section 302 IPC had been committed did cause the evidence of said offence to disappear with the intention of screening them all from legal punishment and thereby committed an offence punishable under Section 201 IPC. Thirdly, Kesar Singh-appellant or or about 11.11.1994 in the area of Sarih was found in possession of a ring of gold belonging to Bant Singh and thereby committed an offence punishable under Section 404 IPC. Fourthly, Bhagwanti or or about 11.11.1994 in the area of Sarih was found in possession of a Citizen watch along with its chain belonging to Bant Singh and thereby committed an offence punishable under Section 404 IPC.
The prosecution in order to prove its case examined as many as 17 witnesses; besides tendered documents in evidence. The statements of the accused in terms of Section 313 Cr.P.C. were recorded. Kesar Singh, Paramjit Kaur and Bhagwanti stated that they were innocent and had been falsely implicated. Harbans Singh-appellant stated that he was innocent and being relation of Paramjit Kaur had been implicated.
The appellants in defence examined HC Gian Singh (DW-1), Shri Preet Narain Singh (DW-2) and Shri Daljit Singh (DW-3). The learned Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [10] trial Court after considering the evidence and material on record has convicted and sentenced the accused in the manner mentioned above, which order is assailed in this appeal.
Shri G.S. Punia, Advocate, learned counsel appearing for the appellants Paramjit Kaur, Bhagwanti and Kesar Singh and Shri S.S. Rana, Advocate, learned counsel appearing for the appellant-Harbans Singh have contended that the entire case of the prosecution is false and the learned trial Court has gravely erred in recording a finding of guilt against the respective appellants/appellant. It is submitted that the entire story as regards the recovery of the dead body has been planted on the appellants. Besides, the cause of death cannot be ascertained. Dr. Amarbir Singh (PW-1) has stated that death could be by strangulation but at the same time he has also stated that no cause of death could be given by him. He referred the matter vide letter dated 14.1.1995 (Ex.PB) to the Head of the Department of Forensic Medicine, Government Medical College, Patiala to intimate about the probable duration of death and cause of death. Dr. S.S. Oberoi (PW-16), it is submitted, could not give any cause of death. Bant Singh as per the prosecution case, it is submitted, had been missing since 4.9.1994. However, the FIR is recorded on 7.11.1994 and that too for the offence under Section 364 IPC. The special report, it is stated, reached the Illaqa Magistrate at 2.15 p.m. on 7.11.1994 and by that time the dead body had already been recovered. It is further stated that the identity of the watch and the ring to be belonging to Bant Singh (deceased) is doubtful and Kehar Singh (PW-12) stated that he himself prepared the Memo of identification (Ex.PQ), which according to the learned counsel is an improper and an Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [11] unknown procedure. It is also submitted that Baljinder Singh (PW-13) has only tendered in evidence his affidavit (Ex.PW.13/A) in which, it is submitted, that there is no mention of any ring being given to Head Constable Baljinder Singh (PW-13). Therefore, it is submitted that in view of the highly discrepant and untrustworthy evidence produced by the prosecution the appellants are liable to be acquitted and the judgment and order of the learned trial court set aside.
In response, Shri S.S. Gill, learned Additional Advocate General, Punjab appearing for the State has submitted that the prosecution has proved its case against the accused beyond shadow of reasonable doubt. It is submitted that the learned trial Court has recorded a clear finding of guilt against the appellants which would not warrant any interference by this Court in appeal. The complainant Sher Singh (PW-4) it is stated had gone to the house of the accused and while there was an exchange of hot words he had pacified them. It is submitted that the complainant had stated that relations between Bant Singh (deceased) and his wife Paramjit Kaur (appellant) were not cordial and, therefore, Paramjit Kaur in collusion with the other co-accused had murdered Bant Singh.
We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance gone through the records. It may be noticed that the case set up by the prosecution is that Bant Singh (deceased) was the husband of Paramjit Kaur (appellant), who is the daughter of Bhagwanti, co-accused (appellant). Kesar Singh (appellant) is the brother-in-law (wife's brother) of Bant Singh (deceased). Harbans Singh (appellant) in Criminal Appeal No.56-DB of Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [12] 1999 is the brother's son of Bhagwanti (appellant). Bant Singh (deceased) as per the complainant Sher Singh (PW-4) suspected his wife Paramjit Kaur. It was stated by the complainant Sher Singh (PW-4) that Paramjit Kaur (appellant) was of loose character and for this reason relations between his brother Bant Singh (deceased) and Paramjit Kaur (appellant) were not good and they were not pulling on well. On 4.9.1994 at about 8.00 p.m. Sher Singh-complainant (PW-4) had gone to the house of Bant Singh (deceased) along with his nephew Sukhdev Singh (PW-9). At that time appellants Kesar Singh, Bhagwanti, Harbans Singh and Paramjit Kaur were quarreling with Bant Singh and saying that he was levelling false allegations against Paramjit Kaur. Bhagwanti and Paramjit Kaur were both hurling abuses on Bant Singh. Complainant-Sher Singh (PW-4) and his nephew Sukhdev Singh (PW-9) intervened and pacified them. Then they went away to their respective houses. Thereafter, Bant Singh did not visit the complainant even though earlier he used to usually visit the complainant Sher Singh after four-five days. Therefore, Sher Singh (PW-4) asked Paramjit Kaur (appellant) about this and she told him that her husband Bant Singh had settled a deal and struck a bargain for purchase of a cow with Asarfi Bhaiya (PW-7) at Rohno Kalan and he had gone there. A week thereafter Sher Singh-complainant, Mohinder Singh Sarpanch and Gian Singh went to Village Rohno Kalan where they met Asarfi Bhaiya (PW-7) who told them that he had not settled any deal or bargain with Bant Singh and neither had he come to him. A month later Paramjit Kaur (appellant) is stated to have told her brother-in-law (husband' brother) Sher Singh-complainant (PW-4) that in fact her husband Bant Singh had left the house on 4.9.1994 after Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [13] quarreling with her and her relations. It is since then that his whereabouts were not known. Thereafter, Harbans Singh son of Kundan Singh of Village Mohanpur informed Sher Singh-complainant (PW-4) that on the night of 4.9.1994 at about 10.00 p.m. he had seen Kesar Singh alias Bittu (appellant) and Harbans Singh (appellant) carrying some heavy thing on the carrier of their bicycle and proceeding from Village Mohanpur towards G.T. road. Thereafter, Sher Singh-complainant (PW-4) made an application (Ex.PE) to the SSP, Khanna on the basis of which formal FIR was registered for the offence under Section 364 IPC. During investigation of the case Harbans Singh (appellant) made a disclosure statement (Ex.PK) regarding the burying of the dead-body which he could get recovered from the disclosed place. Bhagwanti (appellant) suffered disclosure statement (Ex.PO) regarding concealing of one `Citizen' wrist watch with a chain which she had concealed in a glazed paper and could get the same recovered from the trunk. The watch was given to her by her son Kesar Singh alias Bittu (appellant) after killing Bant Singh. In terms of the recovery memo (Ex.PP), the Police party got recovered the said watch from the trunk lying inside the room of Bhagwanti (appellant) in pursuance of her disclosure statement. In the circumstances, it is to be seen in the facts and circumstances of the case as to whether the case as against the appellants stands proved beyond shadow of reasonable doubt.
The learned trial Court has held all the accused to be guilty. The learned trial Court has though held that there was no direct evidence with regard to the murder of Bant Singh in this case, however, it was observed that the circumstantial evidence was complete in all respects Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [14] which proved the guilt of the accused that they had committed the murder of Bant Singh (deceased). It was noticed that the offence was committed in the month of September 1994 but the complainant went to the Police on 2.11.1994. This also though was observed to be a long delay in lodging the report. However, it was observed that the facts and circumstances in the case which caused the delay were liable to be gone into to find out whether there was any deliberate delay in lodging the report and whether there was scope for implicating the accused falsely in the case. It was observed that the complainant Sher Singh had been asking his sister-in-law Paramjit Kaur (appellant) about Bant Singh as regards his whereabouts and unless he (complainant-Sher Singh) got a definite reply he could not go and lodge a report with the Police. He had to wait for the return of Bant Singh from the place where Paramjit Kaur (appellant) had alleged that he had gone. Therefore, it was observed that delay in the lodging of the report was not deliberate nor did it cause any advantage to Sher Singh (PW-4) to delay the lodging of the report because he had found all the accused at the house of Paramjit Kaur (appellant) on 4.9.1994 itself and he knew them and could identify them personally. As such, it was observed that there was no scope for any false implication of the accused. It was also observed that a co- villager, namely, Harbans Singh (PW-6) had later disclosed to Sher Singh- complainant (PW-4) regarding Kesar Singh (appellant) and Harbans Singh (appellant) carrying something on their cycle carrier i.e. a gunny bag on the night of 4.9.1994. It was observed that it was then that the suspicion of Sher Singh-complainant (PW-4) became firm and he lodged the report. Therefore, it was held that delay in reporting the case to the Police cannot Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [15] be held to be fatal to the case of the prosecution or to hold that the prosecution case had become doubtful on this ground. It was further observed that the circumstantial evidence in the case comprised of the fact that Paramjit Kaur (appellant) was being blamed by her husband Bant Singh (deceased) to be a lady of loose character. There was no evidence produced by the prosecution whether Paramjit Kaur was a woman of loose character. In any case, it was observed that if the wife of a person is a woman of loose character he would not go about advertising this fact and rather his efforts would be to conceal the same so that his reputation does not suffer. It was observed that Bant Singh (deceased) and Paramjit Kaur were married for a sufficient long time but there was no evidence since how long they had been married but it was observed to be clear that Bant Singh (deceased) had strained relations with his wife Paramjit Kaur (appellant) and the accused had some kind of ill-will against him. Besides, Sher Singh-complainant (PW-4) was living in the same village and, therefore, he must be knowing about the act and conduct of Paramjit Kaur (appellant). Another circumstance that was noticed by the learned trial Court was that Paramjit Kaur (appellant) was evasive with regard to the whereabouts of Bant Singh (deceased) when she was asked about this by his brother Sher Singh- complainant (PW-4). It was observed that by not giving the whereabouts of Bant Singh (deceased) would naturally raise an inference that she was deliberately concealing some important fact and later it was found that Bant Singh had actually been murdered. It was observed that Asarfi (PW-7) had deposed in favour of the prosecution that Bant Singh had not come to him. Another factor that was taken into account was that Sukhdev Singh (PW-9) Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [16] and Sher Singh (PW-4) had no enmity towards the accused so as to falsely implicate them in the case. Reliance was placed on the deposition of Harbans Singh (PW-6) who stated that he had seen Kesar Singh (appellant) and Harbans Singh (appellant) carrying something heavy in a gunny bag on their bicycle on the night of 4.9.1994 and on seeing Harbans Singh (PW-6) they had turned their faces towards the other side and this fact was narrated to Sher Singh-complainant (PW-4) when he learnt about the death of Bant Singh. The discrepancies in the statement of Harbans Singh (PW-6) it was observed that the whole case of the prosecution could not be thrown out. It was also observed that the dead body was identified by Sher Singh- complainant (PW-4) from the clothes of Bant Singh (deceased). The period of time given by the doctor between death and post-mortem i.e. between three and six months it was observed tallies with the period when the offence was committed i.e. on 4.9.1994 and when Harbans Singh (PW-6) found the accused carrying bags on the cycle. The date of disclosing the fact by Harbans Singh (PW-6) to Sher Singh-complainant (PW-4) on 2.11.1994 or 6.11.1994 it was observed was hardly of any consequence as the dead body had been recovered. Regarding the disclosure statement (Ex.PK) of Harbans Singh (appellant) being recorded only in the presence of Police officials and not in the presence of any independent witness it was observed that the Police witnesses if found acceptable can be relied upon. Unless there were any special circumstances to disbelieve the Police officials their testimony, it was observed, should not be rejected merely on the ground that no independent witness was joined. The defence set-up by the appellants that the recovery of the dead body had been planted has also Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [17] not been accepted by the learned trial Court. The defence counsel had placed reliance on the statement of Charanjit Singh(PW-2) wherein in cross- examination it is stated that he was present at the time of registration of the case (FIR) in the Police Station on 7.11.1994. At that time all the accused were present at the Police Station and the dead body was also there in a gunny bag at that time on 7.11.1994. From this learned defence counsel before the learned trial Court had contended that the recovery had been planted as the dead body was already at the Police Station on 7.11.1994. The learned trial Court held that Charanjit Singh (PW-2) was a witness of the link regarding deposit of `Palanda' (packet) and envelopes with seals at Patiala for chemical examination and was not to be cross-examined on a point regarding which he had not stated anything in the examination-in- chief. Besides, he had tried to help the accused in his cross-examination by going out of the way. There was no entry in the DDR that the dead body was received in the Police Station on 7.11.1994. Regarding the recovery of the dead body it was observed that from the skeleton the body could not be identified as there was no flesh on the body but in this case the dead body was identified from the clothes. Lekh Raj, ASI (PW-14) had also deposed that the body was identified from the clothes and not from the skeleton and this was observed to be no reason to disbelieve the statement. It was also observed that though the burden is on the prosecution to prove the charge but where the circumstances have been established on record then there must be some explanation from the side of the accused as to where in fact Bant Singh (deceased) had gone after 4.9.1994. If he was not traceable then Paramjit Kaur etc. (appellants) being his close relatives in the ordinary Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [18] course of circumstances ought to have known about his whereabouts especially when Sukhdev Singh (PW-9) and Sher Singh-complainant (PW-
4) were together with him on 4.9.1994. The fact that Paramjit Kaur and her other relatives did not lodge a report as regards Bant Singh (deceased) being not traceable, it was observed to be a strong circumstance against them. Reliance was also placed on the deposition of Pritam Singh (PW-5), Member Panchayat with regard to the recovery of the dead body. The fact that he had no enmity with the accused, it was observed, was a factor which proved the recovery of the dead body. As regards the arrest of the accused on 3.11.1994, the same was not accepted by the learned trial Court. The recovery of wrist watch and ring belonging to Bant Singh (deceased) was also held to be a strong circumstance against the appellants. Reliance was also placed on the extra-judicial made by Kesar Singh (appellant) to Bhagwant Singh (PW-11). According to Bhagwant Singh (PW-11) on the night of 7/8.11.1994 Kesar Singh, Bhagwanti and Paramjit Kaur (appellants) came to his house and Kesar Singh (appellant) disclosed that he along with Bhagwanti, Paramjit Kaur and Harbans Singh had committed the murder of Bant Singh as he has been harassing his sister Paramjit Kaur (appellant) and not paying her maintenance. After causing his death they had put his dead body in the field under the ground at Village Mohanpur across the G.T. Road in a gunny bag. The fact that the extra judicial confession was jointly made by the said appellants other than Paramjit Kaur (appellant) was held to be inconsequential. Even otherwise, it was observed that even if extra-judicial confession made by Kesar Singh (appellant) on behalf of Bhagwanti (appellant) and Paramjit Kaur (appellant) was Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [19] inadmissible in evidence there was no reason to discard the same, in any case, qua Kesar Singh (appellant) himself. A reference was also made to the cross-examination of Bhagwant Singh (PW-11) wherein Kesar Singh (appellant) is stated to have informed Bhagwant Singh (PW-11) that the murder was committed at 9.00 or 9.15 p.m. However, this portion was got confronted with his (Bhagwant Singh PW-11) statement (Ex.DC) wherein the time was not mentioned. Besides, it was observed that Bhagwant Singh (PW-11) was not cross-examined regarding his own status even though he was in cross-examination asked as to whether there was Lambardar, Sarpanch and Panch in the village.
After considering the evidence and material on record as also the findings and conclusions of the learned trial Court it may be noticed that the facts and circumstances of the case are indeed such that the cause of death of Bant Singh has not been established. Dr. Amarbir Singh (PW-1) though had stated that the death could be by strangulation but at the same time he also indeed did state that no cause of death could be given. Dr. S.S. Oberoi (PW-16) to whom the case was referred in the Department of Forensic Medicine, Government Medial College, Patiala is categoric that no cause of death could be given.
It may be noticed that the primary case set-up by the prosecution is that Paramjit Kaur (appellant) wife of Bant Singh (deceased) was of a loose character which was not to the liking of her husband Bant Singh (deceased). However, there is nothing on record to show and neither has any such fact or circumstance of her being of loose character been brought on record so as to show that Paramjit Kaur (appellant) was leading Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [20] a wayward life or she had any kind of relation with anyone in the area. Therefore, for the complainant Sher Singh (PW-4) to allege that Paramjit Kaur (appellant) was a characterless lady or was of loose character which was not to the liking of her husband Bant Singh (deceased) would in the absence of material and evidence by itself, in our view, not be such a circumstance to hold that she was indeed characterless which was not to the liking of Bant Singh. Something more was required to be shown by the prosecution as regards the conduct of Paramjit Kaur (appellant) being a characterless lady or of loose character. Nothing has come on record to show as to whether she was involved with any other person or had, in any manner, been leading an immoral or improper life. Therefore, mere ipse dixit of the complainant Sher Singh (PW-4) that Paramjit Kaur (appellant) was of loose character is unacceptable. The possibility that there were differences between the two i.e. Paramjit Kaur (appellant) and her husband Bant Singh (deceased) and on account of that Bant Singh had left his home cannot be ruled out. However, this fact would not be such a circumstance to hold that Bant Singh (deceased) was murdered by Paramjit Kaur and her relatives who are the other appellants.
The case set-up by the prosecution is also that Bant Singh had been missing since 4.9.1994. FIR is recorded at least two months thereafter on 7.11.1994. Though prompt lodging of a FIR is not an unmistakable guarantee for the truthfulness of the prosecution case and neither is delay always fatal, however, in the facts and circumstances it may be noticed that in case Bant Singh had not been seen anywhere since 4.9.1994 then it would not have taken so much time to lodge a report regarding his not being seen Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [21] or heard of. This is more so for the reason that the identity of the dead body has not been proved to be that of Bant Singh (deceased) beyond shadow of doubt. The dead body in the present case was in a totally decomposed state and unfit for recognition. In the inquest proceedings (Ex.PG) the dead body has been described as a decomposed dead body and even the cause of death has been mentioned as decomposed body. However, it is mentioned that there was `Kachha' (underwear) of `Ghasmela' (light green) colour on the waist; besides `Dabbidar Parna' (check cloth) tied on the neck. In fact, Dr. Amarbir Singh (PW-1) observed the recovered body to be a skeletalized human body exhumed and recovered from the gunny bag. The viscera and other soft tissues were liquified. He wrote a letter (Ex.PB) to the Head of Department of Forensic Medicine, Government Medical College, Patiala to intimate about the probable duration of death and cause of death. It is stated that body was identified by two persons on seeing the clothes which were removed from the dead body. It was stated that there was no piece of flesh on the body and it could not be identified only from the bones. The bones were in a gunny bag which was to be in another gunny bag. Dr. S.S. Oberoi, Senior Lecturer, Department of Forensic Medicine, Medical College, Patiala (PW-16) has stated that minimum period of start of decomposition of body in this particular case was three to six months. It is stated that the body was in a skeletalized form and was not having clothes nor had he seen any. It is stated in cross-examination that he had returned the bones to the Police after examination. There was no fracture or any other injury on the bones. He had given the minimum as well as the maximum time that elapsed between the death and post-mortem. He did not Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [22] weigh the bones. It is stated that decomposition of body is upon number of factors like age of deceased, sex, duration, temperature, humidity and manner of burial. In Modi's Medical Jurisprudence & Toxicology Twenty- Second Edition at page 38 it has been observed as follows:-
"In India, owing to its rapid decomposition in the hot seasons, or through damage caused by wild animals when exposed on the outskirts of a village, the identification of a dead body sometimes becomes very difficult. However, it is essential for a dead body to be thoroughly identified and the proof of corpus delicti to be established before a sentence is passed in murder trials, as unclaimed, decomposed bodies, or portions of a dead body, or even bones are sometimes brought to support false charges. More so, because in a country like India, it is not difficult to obtain such bodies, since villagers are in the habit of cremating bodies partially, or throwing them into shallow streams, rivulets or canals, or burying them in shallow graves from where carrion feeders may dig them out. Sometimes, in order to mislead, someone else's clothes or handkerchief may be deliberately put on the dead person."
The observations made in Modi's Medical Jurisprudence and Toxicology even though may not be binding but have probative value and are helpful in deciding a matter of this nature where the dead body has been found to be decomposed and there are only skeleton bones. It may be noticed that in case the body was decomposed and beyond recognition the possibility of the underwear and the `Parna' being in such a condition from Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [23] which the body could be identified to be that of Bant Singh (deceased) is quite remote. Therefore, to conclusively hold in the facts and circumstances that the said body was that of Bant Singh on the basis of `Parna' and underwear which the skeleton had would be quite unsafe. The fact regarding recovery of the dead body in pursuance of the disclosure statement (Ex.PK) of Harbans Singh (appellant) may be considered. Harbans Singh (appellant) made a disclosure statement to the effect that he had concealed the dead body below the earth soil at Village Mohanpur near the G.T. road outside the village in a gunny bag and that he could get it recovered. It is in pursuance of the said disclosure statement that the dead body of Bant Singh (deceased)s was recovered. However, certain facts which have come on record are that the FIR in the case was recorded on 7.11.1994 vide report No.14/15 at 1.30 p.m. The said report, it is stated, reached the Magistrate at 2.15 p.m. on 7.11.1994 and by that time the dead body had already been recovered. Therefore, in the facts and circumstances the possibility of recovering the dead body and thereafter recording the disclosure statement of Harbans Singh ( appellant) cannot be held to prove conclusively that the dead body was recovered in pursuance of the disclosure statement (Ex.PK) of Harbans Singh (appellant). Besides, the disclosure statement (Ex.PK) of Harbans Singh (appellant) was recorded in the presence of official witnesses and not in the presence of any independent witness. The learned trial Court observed that unless there were any special circumstance to disbelieve the Police officials their testimony can be relied upon. There is no dispute with the said proposition. However, in the facts and circumstances where the identity of the dead body has not been held to be established to be that of Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [24] Bant Singh (deceased) it would be unsafe to give undue weightage to the disclosure statement (Ex.PK) of Harbans Singh (appellant) when the same is made only before official witnesses i.e. SI Shanker Dass, SHO (PW-15), Lekh Raj, ASI (PW-14) and Kewal Singh, ASI (PW-10). The learned counsel for the appellants placed reliance on the statement of Charanjit Singh (PW-2) wherein in cross-examination he stated that he was present at the time of registration of the case at the Police Station on 7.11.1994. At that time, all the accused were present and the dead body was also there in the gunny bag. The learned trial Court did not accept the said statement of Charanjit Singh (PW-2) to hold that the dead body as also the accused were already at the Police Station on 7.11.1994 i.e. a day earlier to the registration of the FIR on 8.11.1994 though the reasons recorded by the learned trial Court in this regard may be a possible view and Charanjit Singh(PW-2) who is a Constable and witness of the prosecution may have tried to help the accused. Charanjit Singh (PW-2) stated that he had taken two `Palandas' (packets) with eight seals and envelops with five seals to Patiala which was given to the Chemical Examiner, Patiala with 16 seals and eight seals on the envelops along with the letter CHK-2. These were deposited on 11.11.1994. Therefore, he was a witness regarding the deposit of the articles with the Chemical Examiner. Besides, in cross-examination he has stated that he was present in the Police Station when the FIR was registered on 7.11.1994 and at that time all the accused were present in the Police Station and the dead body was also there in the gunny bag at that time on 7.11.1994. The position is that he has accepted the suggestion as put by the defence counsel. This by itself may not mean that the dead body Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [25] was there at the police station on 7.11.1994 and the accused had already been arrested on the same day, that is, a day earlier to the registration of the FIR on 8.11.1994. However, the same does cast some reasonable doubts. In any case, there are other circumstances which do not establish the case of the prosecution.
The other circumstance, which has been urged by the prosecution is regarding the recovery of watch and ring belonging to Bant Singh (deceased). It may be noticed that Kehar Singh (PW-12) in his deposition in Court has submitted that he himself prepared the identification memo (Ex.PQ). A perusal of the said identification memo (Ex.PQ) would show that it is indeed prepared by Kehar Singh, Sarpanch (PW-12) himself. The memo is hand written in vernacular in the hand-writing of Kehar Singh and it is stated that he had come to the Police Station and was sitting in one room. Harjinder Singh, Munshi showed him one gold finger ring on which `BS' was written and one watch `citizen' along with a chain. These were taken out from the `Malkhana' and given to him. These were mixed-up with other articles about five in number lying there. Thereafter, Sher Singh- complainant (PW-4) was called inside and he was asked to identify the watch and finger ring of his brother. At this, Sher Singh (PW-4) identified the same watch and the same ring to be that of his brother Bant Singh and which had been given to him (Kehar Singh PW-12) after taking them out from the `Malkhana'. The identified articles were then returned to the Munshi and identification memo (Ex.PQ) was recorded. It may be noticed that the identification memo (Ex.PQ) has not been signed or attested by the Investigating Officer or for that matter any police official and it has been Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [26] prepared by Kehar Singh (PW-12) himself who even on his own conducted the proceedings of identification. Besides, Sher Singh (PW-4) had signed the same as a witness. It is stated by Kehar Singh (PW-12) in his cross- examination that Munshi was not inside the room when the identification was done. The four watches and four rings were brought by the Munshi at his instance. It is also stated that the ring and the wrist watch were lying with the Munshi when he went there. HC Baljinder Singh (sic. Barjinder Singh) (PW-13) has tendered in evidence his affidavit (Ex.PW.13/A). It is inter alia stated in the said affidavit (Ex.PW.13/A) by Barjinder Singh, Head Constable that he was posted as AMHC Police Station Sadar, Khanna from 7.11.1994 to 11.11.1994 and the charge of the `Malkhana' was with him. On 8.11.1994, Sub Inspector Shanker Dass, SHO Police Station Sadar, Khanna (PW-15) handed over to him two letters concerning the case i.e. CHK-2 and CHK-5 both dated 8.11.1994 which were sealed in an envelope bearing seal `BS' and the five seal impression of each. One bundle was sealed with 16 seals and one was sealed with 8 seals. SI Shanker Dass, SHO (PW-15) also handed over to him three more bundles bearing the impression of `BS' which were deposited by him in the `Malkhana'. A perusal of the said affidavit indeed would show that there is no mention of any ring that is said to have been recovered being given to HC Barjinder Singh (PW-13). Therefore, not much reliance can be placed on such an identification memo which is prepared by Kehar Singh (PW-12) himself and is signed by the complainant Sher Singh (PW-4) as a witness.
In view of the above, we are unable to agree with the observations of the learned trial Court that the circumstantial evidence was Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [27] complete in all respect which prove the guilt of the accused and that they had committed the murder of Bant Singh (deceased). The learned trial Court though held the delay of going to the Police on 2.11.1994 even though Bant Singh (deceased) was not heard of or seen since September 1994 to be of not much significance. This, in our view, was of quite significance in the facts and circumstances as have been enumerated above. The fact that Sher Singh-complainant (PW-4) had been asking his sister-in- law Paramjit Kaur (appellant) regarding the whereabouts of Bant Singh and unless he had got a definite reply he could not go and lodge a report with the Police in the facts and circumstances is not tenable. In case Bant Singh (deceased) was not heard of for a period of almost two months then Sher Singh-complainant (PW-4) would have at least brought the matter to the notice of his other relatives or even the Panchayat of the village. Even if it is taken that the delay in lodging the FIR was not fatal to the case of the prosecution the possibility of Bant Singh (deceased) going away on his own and thereafter not being heard of cannot be ruled out. Besides, this by itself would not warrant a finding to be returned that the appellants had committed the murder of Bant Singh.
It may also be noticed that the fact that a co-villager Harbans Singh (PW-6) had disclosed to Sher Singh-complainant (PW-4) that Kesar Singh (appellant) and Harbans Singh (appellant) were carrying something on their cycle carrier i.e. a gunny bag on the night of 4.9.1994 and, therefore, Sher Singh-complainant (PW-4) became firm and he lodged the report is not a circumstance which can be said to have occurred in the normal course of events. The statement (Ex.DB) was made by Harbans Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [28] Singh (PW-6) in terms of Section 161 Cr.P.C. before SI Shanker Dass, SHO (PW-15) on 7.11.1994 with regard to his seeing Kesar Singh (appellant) holding the bicycle and there being a weighty thing loaded in a gunny bag on the carrier. The gunny bag was held by Harbans Singh (appellant). Both Harbans Singh and Kesar Singh (appellants) were known to Harbans Singh (PW-6). However, there is considerable delay in bringing this fact to the notice of Sher Singh (PW-4) by Harbans Singh (PW-6). During cross- examination Harbans Singh (PW-6) could not given the father's name of Harbans Singh (appellant) or about the other name of Kesar Singh (appellant) i.e. as to what was the other name he was known by. He was confronted with his statement (Ex.DB) where father's name is not mentioned, however, Kesar Singh alias Bittu is mentioned. He also states in his cross-examination that he did not go to any respectable person to inform about the accused Harbans Singh (appellant) and Kesar Singh (appellant) carrying the gunny bag with something on it. He told this fact to Sher Singh-complainant (PW-4) on 6.11.1994 and before that he did not see Sher Singh nor refer this matter. The fact that Harbans Singh (PW-6) had seen Harbans Singh (appellant) and Kesar Singh (appellant) carrying some heavy substance on the carrier of the bicycle about two and half months before the matter was reported to the Police is in the facts and circumstances quite doubtful.
The fact that Asarfi (PW-7) had deposed that Bant Singh (deceased) had not come to him even if it is accepted that Bant Singh (deceased) had not gone to Asarfi (PW-7) regarding bargaining of a cow with him that would not be a so strong circumstance to hold that the Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [29] appellants had committed the murder of Bant Singh. Asarfi (PW-7) in his cross-examination does accept the position that he had a cow which was to be sold. Therefore, Bant Singh (deceased) may be aware of a cow being sold by Asarfi (PW-7) and had discussed the same with his wife Paramjit Kaur (appellant). As such when she was unaware of the whereabouts of Bant Singh she stated that he had gone to Rohno Kalan to strike a bargain of a cow with Asarfi (PW-7).
Reliance placed on the extra-judicial confession made by Kesar Singh to Bhagwant Singh (PW-11) was held by the learned trial Court to be a strong circumstance. In fact, as is well known extra-judicial confession is a weak type of evidence and not much reliance can be placed on the same specially when Bhagwant Singh (PW-11) states that on the intervening night of 7/8.11.1994 Kesar Singh, Bhagwanti and Paramjit Kaur (appellants) came to his house and Kesar Singh (appellant) disclosed to him that he along with Bhagwanti, Paramjit Kaur and Harbans Singh (appellants) committed the murder of Bant Singh as he had been harassing his sister Paramjit Kaur (appellant) and was not paying maintenance and was beating her. Further after causing his death they had put his dead body in the field under the ground of Village Mohanpur across the G.T. Road in a gunny bag. It is not shown as to how Bhagwant Singh (PW-11) was a person of confidence of Kesar Singh, Bhagwanti and Paramjit Kaur (appellants) so as to disclose regarding the commission of the murder. It is also stated by him in his cross-examination that there is Lambardar, Sarpanch and Panches in Village Rohno Kalan, however, there is nothing to show as to why the said appellants would go to Bhagwant Singh (PW-11).
Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [30] In the afore-noticed circumstances, it cannot be said to be proved beyond shadow of doubt that the appellants indeed had committed the murder of Bant Singh (deceased). This is specially for the reason that the motive of committing the murder is not such which would warrant that the appellants would commit his murder. Paramjit Kaur (appellant) is stated to be a characterless lady, however, nothing has been shown as regards her alleged loose character. In case where prosecution is not able to establish a motive behind the crime it assumes importance especially when the prosecution case rests primarily on circumstantial evidence or on witnesses who have inimical background. Therefore, the absence of clear motive and somewhat bias of Sher Singh (PW-4) as to the disappearance of his brother Bant Singh (deceased) does cast a reasonable doubt as to whether Bant Singh had indeed been murdered by the appellants. The dead body has not been identified to be established to be that of Bant Singh as it was mere skeleton and the clothes cannot be accepted in such a condition from which his body could be identified. There is considerable delay in the lodging of the FIR. The extra-judicial confession made by appellants Kesar Singh, Bhagwanti and Paramjit Kaur before Bhagwant Singh (PW-11) is a weak type of evidence. There is no explanation for the delay by Harbans Singh (PW-6) to state that he had seen Kesar Singh (appellant) and Harbans Singh (appellant) carrying some heavy thing on the carrier of the bicycle on the night of 4.9.1994.
For the foregoing reasons both the appeals are allowed and the judgment and order of the learned trial Court convicting and sentencing the appellants Paramjit Kaur and others in Criminal Appeal No.458-DB of 1998 Cr. Appeal No.458-DB/1998 & Cr. Appeal No.56-DB of 1999 [31] and Harbans Singh (appellant) in Criminal Appeal No.56-DB of 1999 are set aside and the appellants are acquitted of the offences attributed to them.
(S.S. Saron) Judge August 29, 2008. (Mohinder Pal) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes