Punjab-Haryana High Court
Criminal Appeal No.D-406-Db Of 2004 vs State Of Punjab on 18 July, 2011
Author: S.S. Saron
Bench: S.S. Saron, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
1. Criminal Appeal No.D-406-DB of 2004
Date of decision:18.07.2011
Karnail Singh
..... Appellant
Versus
State of Punjab
..... Respondent
2. Criminal Appeal No.D-452-DB of 2004
Date of decision:18.07.2011
Avtar Singh
..... Appellant
Versus
State of Punjab
..... Respondent
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. S.S.Rangi, Advocate
for the appellants.
Mr. S.S.Gill, Additional Advocate General, Punjab
for the Respondent-State.
S.S. SARON, J.
This order will dispose of CRA No.D-406-DB of 2004, filed by appellant-Karnail Singh and CRA No.D-452-DB of 2004, filed by appellant-Avtar Singh, against the judgment and order dated 19.02.2004 passed by learned Sessions Judge, Fatehgarh Sahib whereby both the appellants namely Karnail Singh and Avtar Singh have been held guilty and convicted for the offences punishable under Sections Criminal Appeal No. D-406-DB of 2004 -2- 302, 201 and 379 of the Indian Penal Code ("IPC - for short). They have been been sentenced to undergo imprisonment for life, besides, pay a fine of `250/- each for the commission of offence punishable under Section 302 IPC and in default of payment of fine to undergo rigorous imprisonment ('RI' - for short) for two months. Besides, they have been sentenced to undergo RI for 3 years each and pay a fine of `250/- each and in default thereof to undergo RI for 2 months each for the commission of offence punishable under Section 201 IPC. They have also been sentenced to undergo RI for one year each for the commission of an offence punishable under Section 379 IPC. All the sentences have, however, been ordered to run concurrently.
CRA No.D-406-DB of 2004 has been filed by appellant-Karnail Singh through Mr. M.S. Lubana, Advocate. However, he is not present, therefore, Mr. S.S. Rangi, Advocate who is appearing in CRA No.D-452-DB of 2004 on behalf of appellant-Avtar Singh is appointed as Amicus Curiae for appellant-Karnail Singh in CRA No.D-406-DB of 2004.
The FIR (Ex.PA/2) has been registered on the statement (Ex.PA) of Harpal Singh, complainant (PW-1). Harpal Singh (PW-1) in his statement (Ex-PA) has stated that he is a resident of Village Badauchi Kalan, Police Station Sirhind, Distt. Fatehgarh Sahib. He had since 1995 opened a transport company in the name of B.S. Rehal at Amloh Road, Mandi Gobindgarh. On 15.03.2001 he received a telephone call from Vishal Bansal (PW-9) proprietor of Vijay Steel Corporation Overlock Road, Ludhiana that they need a truck to take iron goods from Gobindgarh to Ludhiana. They, therefore, asked for a truck being sent. Complainant Harpal Singh (PW-1) on their asking sent Shingara Singh, driver (PW2) with a truck from his transport company bearing registration No.PUR 3743 to the Bansal Steel Rolling Mill, G.T. Road Sirhind side Gobindgarh. There Vishal Bansal (PW-9) from different mills got loaded iron Girder, Angle, Rods, Pati (strips), Chakor etc. and gave the bills Criminal Appeal No. D-406-DB of 2004 -3- regarding purchase of iron goods from different mills to Shingara Singh, driver (PW-2) and Vishal Bansal (PW9) himself left for Ludhiana. These goods were to be taken to Ludhiana Steel Corporation. On 17.03.2001 at about 6.00 a.m. Vishal Bansal (PW-9) on telephone rang up the complainant-Harpal Singh (PW-1) and informed him that the truck that he had got loaded with goods had not reached there. On this Vishal Bansal (PW-9) reached Gobindgarh and they i.e. Harpal Singh (PW-1) and Vishal Bansal (PW-9) searched for driver Shingara Singh (PW-2) and the truck. Shingara Singh (PW-9) the driver of the truck then met them at 9.00 a.m. and he told them that on 16.3.2001 in the evening he had parked the loaded truck near Allahabad Bank and he (Shingara Singh) himself went to his house and he left his elder brother Mukhtiar Singh (deceased) with the truck. Shingara Singh (PW-2) further informed that on 17.3.2001 when he reached Allahabad Bank in the morning at about 3.00 a.m. for taking the truck to Ludhiana, he found that the truck and his brother were missing. After making a search for the truck, the driver Shingara Singh (PW-2) informed Harpal Singh (PW2) on telephone at about 6.00 a.m. The loaded weight of goods in the truck was 13 tonnes one quintal. They had till that time searched for the truck quite substantially in their own manner but nothing could be ascertained. Harpal Singh (PW1) had full doubt that Shingara Singh, driver (PW-2) had in connivance with his brother embezzled the material loaded in the truck and had committed mis- appropriation. Harpal Singh (PW-1) at that time along with the owner of the goods Vishal Bansal (PW-9) were going to inform about the incident when the police met them near Lal Batian Wala Chowk, G.T. Road, Mandi Gobindgarh and recorded his statement. Legal action was requested to be taken. The statement (Ex.PA) was signed by Harpal Singh (PW1) in English. ASI Joga Singh (PW-18) recorded the statement (Ex.PA) and the police proceedings (Ex.PA/1). The statement was read over and explained to the complainant-Harpal Singh (PW-1). From the said statement, an Criminal Appeal No. D-406-DB of 2004 -4- offence in terms of Sections 406 and 407 IPC was found to be made out.
ASI Joga Singh (PW-18), after recording the statement (Ex-PA) of the complainant Harpal Singh (PW-1) made his endorsement (Ex.PA/1) and sent the same for registration of FIR and on its basis formal FIR (Ex.PA/2) was recorded by SI/SHO Bachhitar Singh (PW-17). Then he (ASI Joga Singh) went to the spot from where the truck was stolen and prepared site plan (Ex.PW18/A) with correct marginal notes. He recorded the statement of Vishal Bansal (PW-9) and other PWs. On 18.03.2001, Shingara Singh (PW-2) was produced by Avtar Singh (PW-8) and Baldev Singh (PW-12). Joga Singh ASI (PW18) recorded the statements of witnesses and produced Shingara Singh (PW-2) before SHO Sukhdev Singh (PW-10). Shingara Singh (PW-2) was let off being innocent. On 19.03.2001, he (ASI Joga Singh) along with SHO Sukhdev Singh (PW10) and other police officials were present at Batian Wala Chowk, Gobindgarh where Avtar Singh (appellant in CRA No.D-452-DB of 2004) was produced before SHO Sukhdev Singh (PW10) by Parminder Singh, Lambardar (PW-16). Avtar Singh (appellant) was interrogated and he made a disclosure statement before SHO Sukhdev Singh (PW10) that he (Avtar Singh-appellant) alongwith Karnail Singh (appellant in CRA No.D-406-DB of 2004) had concealed the dead body of Mukhtiar Singh (deceased) in the area of Village Mohanpur near Chuna Bhathi under the grass and only he had knowledge about it. His detailed statement (Ex.PW.10/A) was recorded, which was thumb marked by the accused Avtar Singh (appellant) and attested by ASI Joga Singh (PW-18) and Parminder Singh, Lambardar (PW-16). On the basis of the said statement, the dead body of Mukhtiar Singh was recovered from the place that was disclosed. It was taken in possession by SHO Sukhdev Singh (PW10) vide memo Ex.PW10/B. Both the memos were signed by ASI Joga Singh PW-18) and Shingara Singh (PW-2). The dead body was identified by Shingara Singh (PW-2). Identity Card of accused Criminal Appeal No. D-406-DB of 2004 -5- Karnail Singh (appellant) was recovered from near the dead body and was taken in possession vide memo Ex.PW10/C. Parminder Singh (PW16) who had produced Avtar Singh (appellant) before SHO Sukhdev Singh (PW10) disclosed that the accused (Avtar Singh) had made an extra-judicial confession before him regarding the murder of Mukhtiar Singh. The detailed statement of Parminder Singh (PW16) without any addition or omission was recorded by SHO Sukhdev Singh (PW10).
On 23.03.2001 ASI Joga Singh (PW-18) was accompanying SI/SHO Bachhittar Singh (PW-17) and was present at the police station. SI/SHO Bachhittar Singh (PW-17) received secret information about Karnail Singh (appellant). Karnail Singh (appellant) was arrested by SI/SHO Bachhittar Singh (PW-17) near the Octroi Post Bhadla. He (Karnail Singh-appellant) was interrogated and he made a disclosure statement (Ex.PW5/A) regarding concealment of truck bearing registration No.PUR 3743. On the basis of his disclosure statement the said truck was recovered from the disclosed place given in memo Ex.PW5/A i.e. from the open place near Dana Mandi. A memo (Ex.PW5/C) of personal search was also prepared. All these memos were signed by ASI Joga Singh (PW-18) and Bhagwan Singh (PW-5). On 25.03.2001 the accused (Karnail Singh-appellant) who was already in custody of SI Bachhittar Singh (PW-17) was interrogated in the presence of ASI Joga Singh (PW-18) and Shingara Singh (PW-2). He made a disclosure statement that he had concealed the iron goods loaded in truck bearing No. PUR 3743 near the minor canal in the bushes. His statement (Ex.PB) was recorded, which was signed by the accused and attested by ASI Joga Singh (PW-18) and Shingara Singh (PW2). On the basis of the said disclosure statement accused Karnail Singh (appellant) got recovered the iron goods from disclosed place and were taken in possession vide memo Ex.PB/1, which was attested by ASI Joga Singh (PW-18) and Shingara Singh (PW2). The statements of other witnesses were also recorded. After completion of investigation Criminal Appeal No. D-406-DB of 2004 -6- the challan was filed in the Court of the Ilaqa Magistrate.
In view of the offence under Section 302 IPC being alleged, the case was committed to the Court of Session for trial. The learned Sessions Judge on 28.08.2001 charged the appellants namely Karnail Singh and Avtar Singh on the allegations that on 15.03.2001 in the area of Gobindgarh they both intentionally committed murder of Mukhtiar Singh and thereby committed an offence punishable under Section 302 IPC. Besides, on the same date, time and place, they both knowing that murder of Mukhtiar Singh had been committed which is punishable with death caused certain evidence connected with this offence to disappear and took the dead body of Mukhtiar Singh from the place of his murder and concealed it under the grass and shrubs in the area near Lime-Kiln in the area of Village Libra with intention to screen themselves from legal punishment and thereby they both committed an offence punishable under Section 201 IPC. Lastly, on the same date, time and place both they both (appellants) intended to dishonestly take truck No.PUR 3743 along with iron loaded in it out of the possession of Mukhtiar Singh without his consent and moved it in order to take it away and thereby committed an offence punishable under Section 379 IPC. All the said offences were within the cognizance of the learned Sessions Judge and the accused (appellants) were directed to be tried by the said Court of the aforesaid charges. The appellants had heard the charges and pleaded not guilty to the same and claimed trial.
The prosecution in order to establish its case examined as many as 18 witnesses; besides tendered documents in evidence. The statements of the appellants in terms of Section 313 of the Code of Criminal Procedure (Cr.P.C.-for short) were recorded. Karnail Singh (appellant) in his defence stated that he was innocent. It was stated that Mukhtiar Singh (deceased) was habitually addicted to various types of drugs. He had died under some mysterious circumstances. The police had fabricated Criminal Appeal No. D-406-DB of 2004 -7- and concocted the papers relating to the loading of iron goods in the truck. They were kept in illegal custody for several days by the police and beaten mercilessly to please the complainant party and later on the whole evidence had been fabricated and recoveries had been planted on them for their false implication for the reasons known to the police. Avtar Singh (appellant) in his defence took the same stand as that of Karnail Singh (appellant). No evidence was lead by the appellants in defence. The learned Sessions Judge, Fatehgarh Sahib after considering the evidence and material on record convicted the appellants Karnail Singh and Avtar Singh for the offences under Sections 302/201/379 IPC. Both the appellants have been sentenced to imprisonment for life, besides, pay a fine of `250/- each and in default thereof, to undergo R.I for two months each, for the commission of the offence punishable under Section 302 IPC. They have also been sentenced to undergo RI for 3 years each, besides, pay a fine of `200/- each and in default thereof, to undergo RI for 2 months each, for the commission of the offence punishable under Section 201 IPC. They have also been sentenced to undergo RI for one year each for the commission of the offence punishable under Section 379 IPC. All the sentences were, however, ordered to run concurrently. Aggrieved against the judgment and order dated 19.02.2004 passed by the learned Sessions Judge, Fatehgarh Sahib, the present appeals have been filed in this Court seeking setting aside of the judgment of conviction and order of sentence dated 19.02.2004 passed by learned Sessions Judge, Fatehgarh Sahib.
Mr. S.S. Rangi, Advocate learned counsel for the appellants has submitted that the case is one of a blind murder of Mukhtiar Singh, brother of Shingara Singh (PW-2), during the intervening night of 16/17.03.2001. It is submitted that the case is based only on circumstantial evidence which in the facts and circumstances does not establish the guilt of the appellants beyond shadow of doubt. It is submitted that Parminder Singh (PW-16), who was the lambardar and is Criminal Appeal No. D-406-DB of 2004 -8- said to have produced Avtar Singh (appellant) before SHO Sukhdev Singh (PW10) on 19.03.2001, was declared hostile and he did not support the prosecution case. Besides, it is submitted that the appellants had no motive to commit the murder of Mukhtiar Singh. It is also submitted that Avtar Singh (PW-8), who is said to have last seen Mukhtiar Singh (deceased) with the appellants is a chance witness and it would be entirely unsafe to rely on the testimony of a chance witness. It is submitted that the recovery of iron goods with the truck was from the disclosed place and in any case nothing was recovered from Avtar Singh (appellant) so as to establish his involvement with the crime.
Mr. S.S. Gill, Addl. Advocate General, learned counsel appearing for the State of Punjab has submitted that the prosecution has proved its case against the appellants beyond shadow of reasonable doubt. Besides, the facts and circumstances of the case point only to the guilt of the appellants and there is nothing to show that they have been falsely implicated. It is submitted that the prosecution evidence completes the chain of circumstances which points only to the guilt of the appellants and rules out any possibility of their innocence. From the evidence and material on record the learned trial Court, it is submitted, recorded a firm finding of conviction against the appellants and sentenced them which would not warrant any interference by this Court. It is submitted that Avtar Singh (PW-8) though may be a chance witness but he was driving his truck and had parked it at a 'dhabha' near village Bhatian, beyond Khanna, District Ludhiana when he saw the appellants in truck No.PUR 3743 loaded with iron material. Therefore, for truck drivers to meet at a 'dhaba' in the area is quite normal. In the present case the truck was that of his close relative i.e. his mother's sister's husband (massar). Therefore, there was no difficulty for Avtar Singh (PW-8) to identify the truck and ascertain as to who was driving it.
We have given our thoughtful consideration to the contentions of the Criminal Appeal No. D-406-DB of 2004 -9- learned counsel appearing for the parties and with their assistance have gone through the records of the case. The case was initially registered on the basis of statement of Harpal Singh (PW-1) who received a telephone message from Vishal Bansal (PW-9), who is proprietor of Vijay Steel Corporation, Overlock Road, Ludhiana that they need a truck to take some iron goods from Mandi Gobindgarh to Ludhiana on the next morning. Vishal Bansal (PW-9) appeared in the witness box and stated that he was trading with iron and steel at Ludhiana and the name of their firm was Vijay Steel Corporation. On 15.03.2001 he telephoned to Harpal Singh (PW-1), proprietor of B.S. Rehal Transport Company for supplying one truck, which was required for transporting iron and steel from Gobindgarh. Truck no.PUR 3743 was sent to Gobindgarh which was being driven by Shingara Singh (PW-2). Vishal Bansal (PW-9) gave instructions to load iron from Bansal Iron and Steel Rolling Mills, Raj Steel Rolling Mills and Malwa Iron and Steel Co. Ltd. at Gobindgarh. On 15.03.2001 iron was loaded from two mills while from the third mill it was loaded on 16.03.2001. The truck loaded with iron was to be received by their firm at Ludhiana on 17.03.2001. However, the goods did not reach him (Vishal Bansal, PW-
9) on 17.03.2001. Therefore, in the morning he (Vishal Bansal, PW-9) rang the owner of the truck (Harpal Singh, PW-1) and informed him about the matter. At about 6.15 a.m. Shingara Singh (PW-2) driver of the truck also rang him (Vishal Bansal, PW-9) and informed that he had parked the truck outside Allahabad Bank Mandi Gobindgarh and his brother Mukhtiar Singh (deceased) was in the vehicle along with 'billties' (consignment receipts) and bills. After receipt of this message he (Vishal Bansal, PW-9) reached Gobindgarh at 9.15 a.m. and met Harpal Singh (PW-1), owner of the truck. He (Vishal Bansal, PW-9) and Harpal Singh (PW-1) searched for driver Shingara Singh (PW-2), however, they could not find him. Upon this they got suspicious that Shingara Singh (PW-2) had misappropriated the iron and Criminal Appeal No. D-406-DB of 2004 -10- steel loaded in the truck. They then met ASI Joga Singh (PW18) and produced before him duplicate copies of bills. ASI Joga Singh (PW-18) recorded the statement (Ex.PA) of Harpal Singh (PW-1) on the basis of which FIR (Ex.PA/2) was registered. His (Vishal Bansal, PW-9) statement was also recorded. Iron and steel was recovered by the police later on, which he (Vishal Bansal, PW-9) took on 'sapurdari' (entrustment of case property during trial). The iron taken into possession was lying in their factory, which being heavy could not be produced in the Court on the date he was deposing i.e. on 26.02.2003. The case property was produced on a subsequent date i.e. 11.06.2003 and he (Vishal Bansal, PW-9) stated that it was the same, which was taken on 'sapurdari'. Vishal Bansal (PW-9) was cross examined at length by the defence. In cross-examination it is inter alia stated that on 17.03.2001 the goods did not reach them and a telephone message was received early in the morning at 4/5.00 a.m. from Shingara Singh (PW-2) driver of the concerned truck that the truck was parked at some place, however, the same was not traceable. He (Vishal Bansal PW-9) reached Gobindgarh at 9.00 am on 17.03.2001. First of all he contacted Baldev Singh (PW-12) (owner of truck No.PUR 3743) and Harpal Singh, complainant (PW-1) (Transporter). Thereafter, the matter was reported to the Police. The police started collecting information and made enquiries from many persons. Vishal Bansal (PW-9) along with Harpal Singh (PW-1), Baldev Singh (PW-12), Shingara Singh (PW-2) and Avtar Singh (PW-8) remained sitting in the Police Station. Avtar Singh (PW-8), Baldev Singh (PW-12) and Harpal Singh (PW-1) it is stated are all related to each other. The police registered the case at about 5.00 p.m on 17.03.2001. Till that time no clue regarding the truck was available. The police had also interrogated Shingara Singh (PW-2) driver before registration of the case. Therefore, it may be noticed that it is indeed from the deposition of Harpal Singh (PW-1) and Vishal Bansal (PW-9) that the truck of M/s B.S. Rehal Transport Company was engaged by Criminal Appeal No. D-406-DB of 2004 -11- Vishal Bansal (PW-9) for taking iron material from Gobindgarh to Ludhiana. The iron material was to be collected from three mills. Iron was loaded from two mills on 15.03.2011 and was loaded from the third mill on 16.03.2001. The truck was to reach at Ludhiana on 17.03.2001 but it did not reach.
Harpal Singh (PW-1) while appearing in the witness box has stated that he had been running a transport company in the name of B.S. Rehal. On 15.3.2001 he let out the truck bearing registration No.PUR 3743 to Vishal Bansal (PW9) of Ludhiana for taking iron material from Mandi Gobindgarh to Ludhiana. It is stated that the truck bearing registration No.PUR 3743 belongs to his transport company, which was owned by Baldev Singh (PW-12) and was sent through driver Shingara Singh (PW-2) for taking the iron material from Mandi Gobindgarh to Ludhiana in compliance with the orders (sic. requirement) of Vishal Bansal (PW-9). The driver Shingara Singh (PW-2) got the iron bars and other material of iron loaded from different mills as asked by the trader. The total weight of load was 13 tonnes. The truck was to depart from Mandi Gobindgarh in the evening of 15.03.2001 and was to reach on the next night. In fact the truck was loaded on 16.03.2001 in the evening and it was to start at night and was to reach at Ludhiana early in the morning. He (Harpal Singh PW-1) received a telephone message from Vishal Bansal (PW-9) that the truck in which iron goods and other material were loaded had not reached Ludhiana. He (Harpal Singh PW-1) was asked to verify in this regard. The trader also reached Mandi Gobindgarh in the morning of 17.03.2001 and narrated to Harpal Singh, (PW-1) that the truck had not reached Ludhiana. Harpal Singh (PW-1) received a message on telephone at 6.00 a.m. and he verified from the truck driver Shingara Singh (PW-2) who informed him (Harpal Singh PW-1) that at about 9.00 a.m. (sic. 9.00 p.m.) he had parked the truck near Allahabad Bank after loading the same and as he was tired, he asked his brother (Mukhtiar Singh-deceased) to remain Criminal Appeal No. D-406-DB of 2004 -12- near the truck and after his arrival, driver Shingara Singh (PW2) went to his house for taking rest. When Shingara Singh (PW-2), came to the truck for taking the same to Ludhiana, the truck and his brother (Mukhtiar Singh-deceased) were not available. He (Shingara Singh PW-2) searched for the truck and his brother for whole of the night and he also went to the police station in this regard but the truck could not be traced. Thereafter, Harpal Singh (PW-1) in the evening reported the matter to the police. His statement (Ex.PA) was recorded which was read over and explained to him and he signed it in token of its correctness. Harpal Singh (PW-1) was also cross- examined by the defence. It is inter alia stated that on 17.3.2001, Vishal Bansal (PW-9) the owner of the goods came to him (Harpal Singh-PW1) at 9.00 a.m. and Shingar Singh (PW-2) driver had met them at 9.30 a.m. Avtar Singh (PW8), it is stated never met them in the course of investigation for searching the truck and he met them in the evening on 17.3.2001. Avtar Singh (PW8) it is stated had met him before lodging the FIR and again said he met him after his statement was recorded. Avtar Singh (PW-8) it is stated met him at 9.00 p.m. while they were going to their house. Avtar Singh (PW8) did not tell them anything about this occurrence on 17.3.2001 when he met him (Harpal Singh PW-1). On 17.3.2001 they suspected that Shingara Singh (PW2) and his brother Mukhtiar Singh (deceased) had taken the truck to some where else and had misappropriated the goods and a report was lodged against them. On 19.3.2001 they did not know about the whereabouts of Mukhtiar Singh (deceased).
Avtar Singh (PW-8) is a material witness in this case and in his deposition he has stated that he is the owner of truck No.PB-11 J 2380 and he drives the said truck himself. On 16.03.2001, he brought sand on the above-said truck. At about 11.00 p.m., he parked his truck near a 'dhaba' near Khanna, near Village Bhatian beyond Khanna, Distt. Ludhiana. In the meantime a truck bearing Criminal Appeal No. D-406-DB of 2004 -13- registration No. PUR 3743 which belongs to his mother's sister's husband (massar) came there and it stopped. He (Avtar Singh PW-8) thought that the truck driver had stopped the truck on seeing him then he went near the truck and saw that accused Karnail Singh (appellant) was driving the truck and accused Avtar Singh (appellant) was sitting on the conductor seat. He knew both the accused as he used to meet them at Transport Company, Gobindgarh. He also saw Shingara Singh (PW-2) who was the actual driver of truck No. PUR 3743. The truck was loaded with iron material. On seeing him (Avtar Singh PW-8), both the accused (Karnail Singh and Avtar Singh) took truck no. PUR 3743 towards Ludhiana. He (Avtar Singh PW-8) thought that Shingara Singh (PW-2) might have become ill and due to that reason Karnail Singh (appellant) might have been sent as the driver on the truck. Next day he (Avtar Singh PW-8) came to know that the above-said truck i.e. PUR 3743 was stolen. He disclosed the said fact to his mother's sister's husband (Baldev Singh PW-12) that he saw accused Karnail Singh and Avtar Singh (appellants) taking the truck towards Ludhiana. His statement was recorded by the police. Avtar Singh (PW-8) in his cross-examination stated that on 17.03.2001 a telephonic message about the theft of the truck was received at about 10/11.00 a.m. and he (Avtar Singh PW-8) on telephone stated that he had seen the truck moving towards Ludhiana with Karnail Singh and Avtar Singh (appellants). He had come to Gobindgarh on 18.03.2001 and he did not come to Gobindgarh on 17.03.2001. Harpal Singh (PW-1) belongs to Village Badauchhi and was his (Avtar Singh PW-8) brother-in-law i.e. husband of his wife's sister. He had two trucks which were attached with the Union of Nabha and Gobindgarh. During the days of occurrence he (Avtar Singh PW-8) had been residing in Gobindgarh and had been coming to the Union. Again said there was no Union of Transport. His brother in law (Harpal Singh PW-1) was also having trucks in the transport at Gobindgarh. Baldev Singh (PW-12) was also having trucks and his truck Criminal Appeal No. D-406-DB of 2004 -14- was stolen. On the day of occurrence he (Avtar Singh PW-8) had loaded sand from Kohara and was going to Nabha. He was not in possession of receipts etc. The sand was filled from the fields and it is stated to be sold in the Truck Union at Nabha. After parking the truck in the Union, they go to their house. He had reached the 'dhaba' at 11.00 p.m. The 'dhaba' was on the left side of the road when one comes from Ludhiana. He was not in possession of the receipt regarding selling of the sand at Nabha. On that day he had carried/uploaded iron rods at Ludhiana and on his way back he loaded sand. Harpal Singh (PW-1) had not met him on 17.03.2001 at Mandi Gobindgarh at any time. After receiving of telephone, no other message had been taken on 17.03.2001. He (Avtar Singh PW-8) had disclosed every thing on 17.03.2001 to Baldev Singh (PW12). He had no information regarding the dead body of Mukhtiar Singh. He did not remember the day when he came to know about the dead body of Mukhtiar Singh, may be it was of 18th and 19th of that month. He had not searched the dead body of Mukhtiar Singh. He had no information regarding search of dead body. Baldev Singh (PW-12) etc. might had done it. His statement was recorded on 18.03.2001 by ASI Joga Singh (PW-18) at about noon.
Baldev Singh (PW-12) also appeared in the witness box and stated that he was owner of truck bearing registration No.PUR 3743. This truck was being plied at Gobindgarh. Shingara Singh (PW-2) was working as driver on the above said truck. Shingara Singh (PW-2) loaded the above said truck with iron and steel from Gobindgarh which was to be taken to Ludhiana. He (Shingara Singh PW-2) parked his truck near Allahabad Bank, Gobindgarh. He (Shingara Singh PW-2) had gone to his house after leaving his brother Mukhtiar Singh (deceased) near the truck. Accused had taken his truck along with the iron material and had killed Mukhtiar Singh brother of Shingara Singh (PW-2). On 19.03.2001, he (Baldev Singh PW-12) identified the dead body of Mukhtiar Singh. His statement was recorded. In his Criminal Appeal No. D-406-DB of 2004 -15- cross-examination he stated that only Shingara Singh (PW-2) was driver of his truck, which was without a cleaner. Mukhtiar Singh (deceased) was not working as cleaner on his truck. He was told by Shingara Singh (PW-2) on 16.03.2001 that his truck had been stolen. It was at night time. On next morning i.e 17.03.2001, he (Baldev Singh PW-12) met Shingara Singh (PW-2) at about 6/7.00 a.m. Shingara Singh (PW-2) informed him at about 3/4.00 a.m. on 17.03.2001 about the theft on telephone. They searched for truck up to Ludhiana and even up to Jalandhar on all the octroi posts. He did not inform his relatives. His (Baldev Singh PW-12) son-in-law Harpal Singh (PW-1) and his son Balkar Singh were also with him. Vishal Bansal (PW-9) came and joined them in the evening on 17.03.2001 at about 6.00 p.m. Harpal Singh (PW-1), his son-in-law of Badocchi also came to him at 6/7.00 a.m. on 17.03.2001. It is stated that Avtar Singh (PW-8) of village Galwati is the son-in-law of the sister of his wife. He (Avtar Singh PW-8) owns two trucks at Gobindgarh with them. He (Avtar Singh PW-8) plies his trucks from Gobindgarh and daily comes to Gobindgarh. Avtar Singh (PW-8) did not meet him on 17.03.2001. After learning about the theft of truck they did not report the matter to the police and they left for search of truck. Again said that they had informed the police of Gobindgarh on 17.03.2001 in the morning but they told them to search for the truck on their own. They did not search for the truck around the area of Mandi Gobindgarh. They had gone only on G.T. Road towards Ludhiana. They searched the truck in Ludhiana City, Focal Point, and all the octroi posts of Ludhiana. They kept on searching the truck up to 9/10.00 p.m. on 17.03.2001 but they did not get any clue. The police recorded their report on 17.03.2001 at 6/7 a.m then said they orally informed the police but their report was not recorded. They met the police after 9/10 p.m. when they could not find any clue about their truck and goods. He (Baldev Singh PW-12) did not lodge FIR and the FIR was not lodged in his presence. FIR was got recorded Criminal Appeal No. D-406-DB of 2004 -16- by his son-in-law Harpal Singh (PW-1) and at that time he (Baldev Singh PW-12) was not present there. He could not say whether the FIR was got recorded on 18.03.2001 or not. His truck was detected on 18.03.2001 from the grain market of Mandi Gobindgarh. The iron goods were loaded in the truck at that time on 18.03.2001 but some goods were missing. He did not remember the weight of the goods then again said it was 13/14 tonnes. The accused were arrested on 18.03.2001 along with the truck. They learnt from the accused about the death of Mukhtiar Singh on 18.03.2001. They did not search for the dead body. The accused were arrested from the place in the grain market from where the truck and goods were recovered. Avtar Singh (PW8) remained with them and he met them on 18.03.2001. The accused were not yet arrested when Avtar Singh (PW8) had met them. It was wrong to state that the accused had been falsely implicated in this case and his relation Avtar Singh (PW8) had been made a false witness in this case to fill up the lacuna. It was also wrong to state that the accused were active members of the Labour Union of Mandi Gobindgarh and there had been quarrel between the truck transporters of Mandi Gobindgarh and Labour Union of Gobindgarh and due to this the accused had been falsely implicated in this case by them in connivance with the police. He (Baldev Singh PW-12) did not disclose to the police regarding the recovery of truck and material. It was wrong to suggest that he was deposing falsely.
The learned trial Court has observed that Avtar Singh (PW-8) is a material witness of last seen. It may, however, be noticed that Avtar Singh (PW-8) in his statement stated that on 16.03.2001 he brought sand on his truck bearing No.PB 11 J 2380 and at about 11.00 p.m. when he parked his truck near a 'dhaba' near Khanna, near Village Bhatian beyond Khanna, he saw truck bearing registration No.PUR 3743, belonging to his mother's sister's husband i.e. Baldev Singh (PW-12). Besides, when he went near the truck, he saw the two accused (appellants). He also Criminal Appeal No. D-406-DB of 2004 -17- saw Shingara Singh (PW-2) who he says was the actual driver of the truck No. PUR 3743. Accused-Karnail Singh was driving the truck and accused-Avtar Singh was sitting on the conductor seat. He knew them from earlier as he used to meet them at Transport Company Gobindgarh. It is pertinent to note that Avtar Singh (PW-8) does not state that he saw Mukhtiar Singh (deceased) with them. It is nowhere mentioned in his statement that he saw Mukhtiar Singh (deceased) with the appellants. Therefore, evidence of last seen of Mukhtiar Singh (deceased) with the appellants is not established and it does not stand proved that Mukhtiar Singh (deceased) was last seen with the appellants. Besides, Avtar Singh (PW-8) also states that on the next day i.e. 17.03.2001, he came to know that the above said truck (PUR 3743) had been stolen and he disclosed this fact to his mother's sister's husband (Baldev Singh PW-12), who was the owner of the said truck. In cross-examination, it is stated by Avtar Singh (PW-8) that on 17.03.2001 a telephonic message about the theft of the truck No.PUR 3743 was received at about 10/11.00 a.m. and he on telephone stated that he had seen the truck moving towards Ludhiana with Karnail Singh and Avtar Singh (appellants). In further cross-examination he states that after receiving telephonic message, no other message had been taken on 17.03.2001. He disclosed everything on 17.03.2001 to Baldev Singh (PW-12). It is also stated by Avtar Singh (PW-8) that he had no information regarding the dead body of Mukhtiar Singh. Baldev Singh (PW-12), who is the owner of the truck No.PUR 3743 does not state in his deposition that Avtar Singh (PW-8) had informed him on 17.03.2001 about the theft of the truck and Karnail Singh and Avtar Singh (appellants) were taking the truck towards Ludhiana. Rather in cross-examination, it is stated by Baldev Singh (PW-12) that they had searched for the truck up to 9/10.00 p.m. on 17.03.2001 but they did not get any clue. In fact according to Avtar Singh (PW-8) an information was given on 17.03.2001 at about 10/11.00 a.m. that the truck was seen going Criminal Appeal No. D-406-DB of 2004 -18- towards Ludhiana near a 'dhaba' near Khanna, near Village Bhatian beyond Khanna on 16.03.2001. Therefore, if this was so there was no reason for Baldev Singh (PW-12) to say that he did not get any clue about the truck till 9/10.00 p.m. on 17.03.2001. As such, the possibility of Avtar Singh (PW-8) not seeing the truck at all can not be ruled out. Besides, Avtar Singh (PW-8) is a chance witness and it is proverbially unsafe and rash to rely on the testimony of a chance witness.
The case is based on circumstantial evidence. The Court is to guard itself against the danger of allowing conjecture or suspicion to take place of proof. However, if all the facts established by the prosecution are consistent only with the hypothesis of guilt of the accused and totally inconsistent with their innocence such evidence can be accepted. The circumstances from which the guilt of the accused is to be proved, however, are to be proved and established beyond shadow of reasonable doubt. Besides, the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else. For the conviction to be based on circumstantial evidence, the circumstances are to be complete and incapable of explanation of any other hypothesis than that of guilt of the accused. Besides, such evidence is to be consistent not only with the guilt of the accused but also inconsistent with his innocence.
Harpal Singh (PW-1) in his deposition has denied that Mukhtiar Singh (deceased) was working as a cleaner on his truck. According to Shingara Singh (PW-2) he was told that one Avtar Singh (appellant) was arrested by the police and given a beating by the police. Avtar Singh (appellant) confessed before the police that he alongwith Karnail Singh (appellant) had concealed the dead body of Mukhtiar Singh (deceased). Karnail Singh (appellant) on interrogation in the presence of Shingara Singh (PW2) and ASI Joga Singh (PW18) made a disclosure statement Criminal Appeal No. D-406-DB of 2004 -19- (Ex.PW-5/A) on 23.3.2001 that he had concealed truck No. PUR 3743, which was in an empty condition and was parked at an open space of an unconstructed shop in the grain market at Mandi Gobindgarh. On the basis of the said disclosure statement (Ex.PW-5/A), the truck was recovered vide memo (Ex.PW-5/B) on 23.3.2001 itself. He further disclosed on 25.3.2001 vide disclosure statement (Ex.PB) that the iron material contained in the truck had been concealed on the side of Sirhind near the to G.T. Road close to the bridge on the canal minor in the bushes in a four walled enclosure and he could get the same recovered. In pursuance of memo (Ex.PB/1) the iron material was recovered on 25.3.2001. However, according to Harpal Singh (PW-1), the remaining iron goods were recovered from the place from where the truck was recovered by the police. This is in contradiction to the statement of Shingara Singh (PW-2) who stated that the iron goods contained in the truck were recovered from near the canal minor close to G.T. Road in a four walled enclosure. Therefore, there is an inconsistency as regards the recovery of the goods inasmuch as according to Shingara Singh (PW2), the iron goods contained in the truck were recovered from near the canal minor close to G.T. Road in a four walled enclosure whereas according to Harpal Singh (PW1) the remaining iron goods were recovered from the place from where the truck was recovered by the police. In fact the truck was recovered in an empty condition, which would mean it was not loaded. Besides, there are two disclosure statements of Karnail Singh appellant. One was made on 23.3.2001 (Ex.PW-5/A) regarding the truck being concealed in an empty condition at an open place of an unconstructed shop in the grain market at Mandi Gobindgarh. In pursuance of the said disclosure statement the truck No.PUR 3743 was recovered vide memo Ex.PW 5/B. The other disclosure statement (Ex.PB) was made by Karnail Singh (appellant) on 25.3.2001 in pursuance of which the iron material was recovered vide memo (Ex.PB/1). This shows that the investigation was being Criminal Appeal No. D-406-DB of 2004 -20- conducted in a piece meal manner. There was no occasion in the facts and circumstances of the present case for Karnail Singh (appellant) to have made two disclosure statements on 23.3.2001 (Ex.PW-5/A) and again on 25.03.2001(Ex.PB). Karnail Singh could have made both the statements on 23.3.2001 itself. It appears that it was to cover up the recovery of the iron material that the second disclosure statement (Ex.PB) was recorded on 25.3.2001.
Parminder Singh (PW-16) had produced the appellant Avtar` Singh before the police. The appellant Avtar Singh is said to have made an extra judicial confession before him. It is stated by Parminder Singh (PW16) that Avtar Singh (appellant) about 2-2½ years back had come to him and said that the police was raiding his house and as he had good relations with the SHO, he should produce him before the police. However, it is stated that Avtar Singh (appellant) did not confess before him regarding the murder of Mukhtiar Singh and also about taking truck No. PUR 3743 forcibly by him. He was declared hostile and in cross-examination it is stated that his statement was recorded by the Police but it was not read over to him. It was neither a fact nor had he stated to the police that Avtar Singh (appellant) made an extra judicial confession before him that he alongwith Karnail Singh (appellant) in between the night of 16/17.03.2001 took Mukhtiar Singh (deceased) in truck No. PUR 3743 after he consumed liquor which was offered by them and they killed Mukhtiar Singh by throttling and took the dead body of Mukhtiar Singh in truck No. PUR 3743 along with the material lying in truck and the truck was driven by Karnail Singh. Attention of the witness was drawn to his statement Ex. PW16/A portion A to A-1 where it was so recorded. Parminder Singh (PW16) denied that he had made any such statement. It was stated that it was neither a fact nor had he stated before the police that Karnail Singh (appellant) was driving the truck and .Avtar Singh (appellant) was sitting with him and had thrown the dead body of Mukhtiar Singh Criminal Appeal No. D-406-DB of 2004 -21- after crossing village Libra near the Lime Kiln and took the truck along with its material and left the truck at a 'dhabha'. Attention of the witness was drawn to his statement Ex.PW16/A portion B to B-1 where these facts were recorded. It is accepted as correct that he produced Avtar Singh (appellant) before the Police. Parminder Singh (PW16) states as incorrect that he had been won over by the accused and he was deposing falsely. Parminder Singh (PW-16), therefore, did not support the prosecution case in Court. He was declared hostile but nothing could be got out which may help the prosecution. As such his testimony is not of much help to the prosecution.
The prosecution case also is that Mukhtiar Singh was administered poison. Dr. Harish Tulli (PW4) conducted the post mortem examination on the dead body of Mukhtiar Singh on 20.3.2001. On examination of the dead body Dr. Harish Tulli (PW4) observed that the body was badly decomposed and foul smelling. There were multiple abrasions on front and middle on the neck. Small petechia haemorrhages were present underneath the abrasions. Mild synosis was present in eyes, lips, tongue and nails. The body organs were congested and routine visceras were sent to the Chemical Examiner for Chemical Analysis. The cause of death was to be given after receiving the Chemical Examiner's report. The time between death and post mortem was mentioned as 3½ days. According to the Chemical Examiner's report (Ex.PW4/B), no poison was found in the contents of the exhibits i.e. a sealed jar said to contain stomach and part of small intestine with contents; a sealed jar said to contain part of liver, spleen and half of each kidney; a sealed jar said to contain sample of blood and a sealed jar said to contain sample of preservative. After the receipt of Chemical Examiner's report (Ex.PW4/B), Dr. Harish Tulli (PW-4) gave his opinion Ex.PW4/B1 that death in this case was due to asphyxia due to throttling. In cross-examination, it is stated by Dr. Harish Tulli (PW-4) that alcohol was not found Criminal Appeal No. D-406-DB of 2004 -22- in viscera sent for Chemical Examination. The duration between injury and death could be 8 minutes. It may be noticed that no alcohol was found present as per the Chemical Examiner's report (Ex.PW4/B) from the dead body of Mukhtiar Singh whereas the prosecution case was that liquor had been administered to Mukhtiar Singh (deceased) before taking his truck and before nipping his neck.
In the circumstances, it may be noticed that :-
(1) Avtar Singh (PW-8) states that he saw Karnail Singh and Avtar Singh (appellants) at a 'dhaba' on 16.03.2001 at about 11.00 pm. However, he does not state that he saw Mukhtiar Singh (deceased). Therefore, there is no evidence of last seen of Mukhtiar Singh (deceased) with the appellants Karnail Singh and Avtar Singh. Besides, he also saw Shingara Singh (PW-2) whereas Shingara Singh (PW-2) as per prosecution case was not with Karnail Singh and Avtar Singh (appellants).
(2) Avtar Singh (PW-8) is a chance witness at the time when he saw the appellants on 16.03.2001 at a 'dhaba' and it is proverbially unsafe to rely on the testimony of a chance witness.
(3) Avtar Singh (PW-8) is a relative of the owner of the truck namely Baldev Singh (PW-12) and also the transporter Harpal Singh (PW-1) who is the complainant in the case. They all being relative may have put up of Avtar Singh (PW-8) to depose in the manner to implicate the appellants.
(4) Avtar Singh (PW-8) states that he thought Shingara Singh (PW-2) who was the actual driver of the truck might be ill and due to that reason Karnail Singh (appellant) may have been sent as driver of the truck. However, he states that he also saw Shingara Singh (PW-2) who was the actual driver of truck No.PUR-3743.
Shingara Singh (PW-2) as per prosecution case was not with the appellants rather it is he who first found that the truck was missing.
(5) Avtar Singh (PW-8) states that on next day, he came to know that truck Criminal Appeal No. D-406-DB of 2004 -23- No.PUR-3743 was stolen and he disclosed the fact that he saw Karnail Singh and Avtar Singh (appellants) taking the truck towards Ludhiana to his mother's sister's husband (massar) Baldev Singh (PW-12). In cross he states that on 17.03.2001, he received a telephone message at about 10.00/11.00 am about theft of the truck and he on telephone informed that he had seen the truck moving towards Ludhiana with Karnail Singh and Avtar Singh (appellants). However, Baldev Singh (PW-12) states that they had searched for the truck upto 9.00/10.00 pm on 17.03.2001 but they did not get any clue. In fact Avtar Singh (PW-8) had given a clue at 10.00/11.00 am on 17.03.2001.
(6) Shingara Singh (PW-2) states that iron goods contained in the truck were recovered near the canal minor close to the G.T. Road in a four walled enclosure whereas according to Harpal Singh (PW-1), the remaining iron goods were recovered from the place where the truck was recovered by the police. In fact the truck was recovered in an empty condition.
(7) There was no occasion for Karnail Singh (appellant) to make two disclosure statements i.e. one on 23.03.2001 (Ex.PW-5/A) regarding the truck being concealed in an open space of an unconstructed shop in the grain market at Mandi Gobindgarh and the other on 25.03.2001 (Ex.PB) in pursuance of which the iron material was recovered vide memo (Ex.PB/1).
(8) Parminder Singh, Lambardar (PW-16) produced Avtar Singh (appellant) before the police and before whom Avtar Singh (appellant) is said to have an extra judicial confession, did not support the prosecution case and he denied that Avtar Singh (appellant) confessed before him regarding the murder of Mukhtiar Singh and also about taking truck No.PUR-3743 forcibly by him.
(9) Harpal Singh (PW-1) states that he received a call regarding the truck not reaching Ludhiana from Vishal Bansal (PW-9) at 9.30 am. However, he also Criminal Appeal No. D-406-DB of 2004 -24- states that Shingara Singh driver (PW-3) informed him at 6.00 am that the truck was missing. Harpal Singh (PW-1) does not inform Vishal Bansal (PW-9) when he received a call at 9.30 am that Shingara Singh (PW-2) had already informed him at 6.00 am that the truck was not traceable.
Accordingly, Criminal Appeal No.D-406-DB of 2004 filed by the appellant - Karnail Singh and Criminal Appeal No.D-452-DB of 2004 filed by the appellant - Avtar Singh are allowed. The judgment and order dated 19.2.2004 convicting and sentencing the respective appellants are set aside and the respective appellants are acquitted of the offences for which they were charged. Appellant - Karnail Singh is on bail in terms of order dated 20.8.2007 passed in Criminal Misc No.74144 of 2007 in Criminal Appeal No.D-406-DB of 2004 and Avtar Singh - appellant is on bail in terms of order dated 23.11.2010 in Criminal Misc No.53871 of 2010 in Criminal Appeal No.D-452-DB of 2004 passed by this Court. Bail bonds furnished by them shall stand discharged.
(S.S. SARON) JUDGE July 18, 2011.
sham (JORA SINGH) JUDGE