Punjab-Haryana High Court
Lalit Kumar S/O Bajaoo Ram R/O Village ... vs State Of Punjab on 25 September, 2012
Author: S.S. Saron
Bench: S.S. Saron
CRA No. D-154-DB of 2006 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No. D-154-DB of 2006
Decided on : 25th September, 2012
Lalit Kumar s/o Bajaoo Ram R/o Village Borhian Toli, Police Station
Sadar, Ranchi (Bihar) at present Village Jhaji, Tehsil Dasuya, District
Hoshiarpur
..... Appellant
Versus
State of Punjab
..... Respondent.
CORAM: HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE S.P. BANGARH
*****
Present: Mrs. Vandana Malhotra, Advocate for the appellant.
Mr. U.S. Dhaliwal, Addl. AG, Punjab for the respondent.
***** S.P. BANGARH, J Challenge in this appeal is to the legality and propriety of judgment of conviction and order of sentence dated 09.04.2005 passed by Learned Sessions Judge, Hoshiarpur in Sessions case No. 49 of 18.10.2004 and Session Trial No.48 of 05.11.2004, emanating from FIR No. 172 dated 06.07.2004, under Section 302 of the Indian Penal Code (for short-IPC) registered at Police Station Hoshiarpur, whereby, the appellant was convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of `3000/- or in default of payment of fine to further undergo rigorous imprisonment CRA No. D-154-DB of 2006 - 2- for one month for commission of offence punishable under Section 302 IPC.
Brief facts of the case are that Hussan Lal (deceased) brother of complainant (Makhan Singh) went to do labour work in village Jhaji as usual on 05.07.2004, but, he did not return from the place of his work. On the next day, complainant (Makhan Singh) alongwith his daughter (Baljinder Kaur) went to take fodder on the eastern side of the village. When they reached in the field of Mohinder Singh where poplar trees have been planted, a corpse was seen lying there, which was found to be of Hussan Lal brother of the complainant (Makhan Singh) and the bicycle of the deceased (Hussan Lal) was also lying on his corpse, which had injuries marks on the head, face, chest as also, there were number of cuts on the corpse of Hussan Lal (deceased). According to complainant (Makhan Singh), his brother was liquor addict and he might have had an altercation with someone under the influence of liquor, who might have murdered his brother with sharp edged weapon.
The complainant (Makhan Singh) left his daughter (Baljinder Kaur) to guard the corpse of Hussan Lal (deceased) and himself came to the police to report the matter on 06.07.2004. When he reached on the turning point of Village Lodhi Chak, Dildar Singh ASI met him and he made statement Ex.PA before him, which was read over and explained to him and he, after admitting the correctness, thereof, signed the same.
Dildar Singh ASI put his endorsement Ex.PA/1 on the statement Ex.PA and sent the same to the Police Station Tanda, CRA No. D-154-DB of 2006 - 3- where formal FIR Ex.PA/2 was recorded by Sukhwinder Singh ASI on the basis of statement Ex.PA of the complainant (Makhan Singh). Dildar Singh ASI inspected the place of occurrence, prepared inquest report of the corpse of the deceased (Hussan Lal) Ex.PK and sent the same to the mortuary for autopsy. He also prepared the site plan Ex.PK/1 of the place of occurrence. He also lifted the blood stained earth from the spot and converted that into a parcel, which sealed and seized by him vide memo Ex.PO, attested by Harpartap Singh and Amarjit Singh. A pair of shoes Ex.P3 belonging to the deceased (Hussan Lal) was seized vide memo Ex.PQ. One bicycle Ex.P4 was also seized by him vide memo Ex.PR. One empty polythene bag Ex.P5 was also seized vide memo Ex.PS. After the autopsy on the corpse of the deceased (Hussan Lal), pajama Ex.P6, underwear Ex.P7, blood stained vest Ex.P8 were sealed into a parcel with the seal bearing impression 'DS' and that parcel was seized vide memo Ex.PT. On 08.07.2004, statement of Jasbir Singh (PW-3) Ex.PN was recorded by the police. The appellant had allegedly suffered extra judicial confession about the commission of murder of Hussan Lal (deceased) before PW-3 Jasbir Singh. The appellant was arrested on 08.07.2004 and during interrogation, he suffered disclosure statement EX.PB and pursuant, thereto, he got recovered one kirch Ex.P1, which alongwith its case Ex.P2 was seized vide memo Ex.PD. Rough site plan of place of recovery of kirch Ex.PU was also prepared.
Blood stained soil was sent to the Forensic Science Laboratory who vide its report Ex.PX opined that the same was CRA No. D-154-DB of 2006 - 4- stained with human blood.
After completion of investigation, Station House Officer of Police Station Tanda, instituted police report under Section 173 Cr.P.C. before the learned Illaqa Magistrate to the effect that it appears that the appellant has committed offence punishable under Section 302 IPC.
On presentation of police report, copies of documents as required under Section 207 Cr.P.C. were furnished to the appellant and the case was later committed to the Court of Session for trial, where, charge under Section 302 IPC was framed against the appellant, whereto, the latter pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned.
At the trial, prosecution examined Makhan Singh- complainant as PW-1, Amar Chand as PW-2, Jasbir Singh as PW-3, Dr. Naresh Kumar as PW-4, Talwinder Kaur as PW-5, Ramesh Singh as PW-6, ASI Dildar Singh ASI as PW-7, Malkiat Singh HC as PW-8 and closed evidence, later.
After the close of prosecution evidence, appellant was examined under Section 313 Cr.P.C, wherein, he denied the allegations of the prosecution, pleaded innocence and false implication in this case. He was asked to enter in defence, but he closed the same without leading any defence evidence.
After hearing both the sides, learned trial Court convicted and sentenced the appellant as described in the first paragraph of this judgment. Aggrieved, thereagainst, the appellant, who was accused before the learned trial Court, has come up in this appeal CRA No. D-154-DB of 2006 - 5- with prayer for acceptance, thereof, and for his acquittal of the charge framed against him.
We have heard the learned counsel for the appellant and learned Additional Advocate General, Punjab for the respondent and perused the record of the learned trial Court with their assistance.
First of all it is to be seen as to what the PWs deposed in this case.
PW-1 Makhan Singh-complainant testified that on 05.07.2004, his brother Hussan Lal (deceased) who was labourer by profession and was married had gone to village Jhaji for working as a labourer in the house of Kapoor Singh, but did not return home and on the next day in the evening, he alongwith his daughter (Baljinder Kaur) went to fetch fodder from the field of Mohinder Singh outside his village and his daughter Baljinder Kaur told him that the corpse has been lying in the field of poplar trees, thereupon, he went there and identified the corpse to be of his brother Hussan Lal and he examined the same and found injuries with dagger, thereon, on various parts of the corpse and he left his daughter near the corpse and went to the police to inform them and the police met him on GT Road Lodhi Chak and his statement Ex.PA to this effect was recorded by the police, which read over by him and after admitting the correctness, thereof, he signed the same.
PW-2 Amar Chand testified that on 10.04.2007, he went to the Police Station Tanda for enquiring about the progress of this case, where appellant now present in Court was being interrogated by an ASI and during interrogation, appellant suffered disclosure CRA No. D-154-DB of 2006 - 6- statement Ex.PB, which was thumb marked by the appellant and signed by him (PW-2 Amar Chand) and other police officials and pursuant, thereto, the appellant got recovered a kirch from the tubewell room whose rough sketch Ex.PC was prepared and was converted into a parcel, which was sealed with the seal bearing impression 'is' and that parcel was seized vide memo Ex.PD. During deposition, parcel was opened and kirch Ex.P1 was identified by this witness who also proved leather case, thereof, Ex.P2.
PW-3 Jasbir Singh testified that on 07.07.2004, he went to take a round of his fields at about 6.00 p.m. and the appellant present in Court met him on the tubewell motor of Darshan Singh who made confession before him to the effect that on 05.07.2004 at about 9.00 p.m., Hussan Lal (deceased) had seen him and Talwinder Kaur (daughter of PW-3 Jasbir Singh) near the motor of Darshan Singh; as Hussan Lal (deceased) had noticed them and he would have made complaint against him to him (PW-3 Jasbir Singh) and being afraid of it, he on 05.07.2004 at about 8.30 p.m. Killed Hussan Lal. He further testified that the appellant told him that police was in search of him and he be produced before the police by him (PW-3 Jasbir Singh).
He further testified that on the next day around 4.00 p.m., he was going to police station for narrating the facts to the police and when he was present on the bye pass Darapur, he saw the police jeep lying parked there and he narrated the extra judicial confession (supra) of the appellant to the police, who recorded his statement and took him to his village in jeep and searched the motor of CRA No. D-154-DB of 2006 - 7- Darshan Singh and the appellant on seeing the police ran away, but was intercepted by the police.
PW-4 Dr. Naresh Kumar testified that on 07.07.2004 at about 1.30 p.m., he alongwith other members of the Medical Board namely, Dr. Balwant Singh and Dr. Shashi Dhawan conducted the postmortem on the corpse of Hussan Lal son of Sadhu Ram, Balmiki by caste, resident of Malakpur Bodal, Police Station Tanda, age 30/32 years male and found the following injuries, thereon,:
1. Incised would 5 cms x 0.70 cms bone deep on left side of the head, obliquely placed. It was starting 8 cm lateral to the midline at anterior hair line and was extending backwards and medially upto 4 cms from midline.
2. Incised wound 7 cms x 0.70 cms bone deep on left side of the forehead, 1.5 cms anterior and parallel to injury No.1.
3. Incised wound 1 cm x .5 cm vertically placed on left side of face, 2 cms lateral to the outer angle of left eye. Bone deep.
4. Incised wound 2 cms x 0.5 cm, muscle deep on left side of the face, 2 cms, lateral to the outer angle of mouth.
5. Incised wound 5 cms x 2 cms muscle deep on antero lateral aspect of neck left side. Vertically placed 4 cms below left angle of mandible.
6. Penetrating incised stab wound 3 cms x 1.5 cms x 8 cms, oblique in direction on left side of the chest anterior aspect. Upper end of the wound. 10 cms lateral to midline, 18 cms, below the root of neck. On dissection, this wound was extending posteriorly for 8 cms.
traversing the underlying intercostal space, pleura and left lung. Left pleural cavity was full of blood. The wound on the skin was oval in shape.
7. Incised wound 3 cms x 1.5 cms bone deep on left side of CRA No. D-154-DB of 2006 - 8- the chest, anterior aspect vertically placed, 3 cm, lateral to injury No.6.
8. Incised wound 3 cms x 1.5 cms, bone deep on front of the chest right side just below and medial to the right nipple.
9. Incised wound 8 cms x 1 cm skin deep, transversely placed on the chest right side, anterior aspect 14 cms, below root of the neck.
10. Incised wound 4 cms x 1 cm, bone deep on palm of left hand. Obliquely placed in the web space of left index and middle finger. The underlying head of 2nd metacarpal found cut.
11. Incised wound 2 cms x 0.5 cm bone deep on dorsum of left hand at knuckle of left middle finger.
PW-4 Dr. Naresh Kumar also testified that all the injuries described supra, the deeper tissues were found blood stained. He further testified that skull and vertebrae, membranes were healthy, Brain was soft and pulpy and in the thorax ribs and cartilages were healthy; in the larynx and tracheae mucosa was greenish colour; in the lungs bullae were found present in the upper parts. He further, testified that heart and large vessels were healthy and in the abdomen walls, peritoneum, mouth, pharanyx and esophagus were healthy and in the stomach, dark red patches on the posterior wall were present; stomach with contents were sent for chemical examination and a piece of small and large intestine, liver spleen and kidneys were also sent for chemical examination and bladder was empty and organs of generation were oedematous.
He also testified that cause of death in this case was hemorrhage and shock due to injuries, which was sufficient to cause CRA No. D-154-DB of 2006 - 9- death in an ordinary course of nature; viscera with contents and blood sample were sent to Chemical Examiner, Punjab Government, Patiala for presence of any alcohol.
He, further testified that probable duration between death and postmortem was 36 to 72 hours and between injuries and death, was immediate. He further testified that on receipt of report of Chemical Examiner No. 1907 dated 24.08.2004 Ex.PE, he sent the same to the Police Station. He also proved the forwarding letter Ex.PF, report of the FSL Ex.PG, request for autopsy Ex.PH, endorsement of the Senior Medical Officer for constituting the medical board Ex.PH/1, carbon copy of the autopsy Ex.PJ, pictorial diagram Ex.PJ/1 and inquest report Ex.PK.
PW-5 Talwinder Kaur daughter of PW-3 Jasbir Singh, testified that on 05.07.2004 at about 9.00 a.m., she was going on bicycle to her village and on the way, appellant met her and he stopped her bicycle and Hussan Lal who has since died was working in the nearby field, who came and got her bicycle freed from the clutches of the appellant and Hussan Lal (deceased) hurled invectives upon the appellant, as to why he had stopped her bicycle and Hussan Lal (deceased) disclosed that he will tell about this incident to the father of the appellant and latter remarked that he would give reply and will set him right. She, further testified that after the incident, she went to her college and she narrated the entire incident to her father Jasbir Singh (PW-3) on 07.07.2004, and her statement was recorded by the police.
PW-6 Ramesh Singh tendered in evidence his affidavit CRA No. D-154-DB of 2006 - 10- Ex.PM.
PW-7 Dildar Singh ASI, testified that on 06.07.2004, he recorded the statement Ex.PA of Makhan Singh (complainant/PW1) at Lodhi Chak Tanda, where he was present in connection with patrolling alongwith other members of the police party and he made endorsement, thereon, Ex.PA/1 and sent the same to Police Station Tanda, where formal FIR Ex.PA/2 was recorded by Sukhwinder Singh ASI and later he alongwith police officials and complainant (Makhan Singh-PW1) visited the place of occurrence and prepared inquest report Ex.PK on the corpse of Hussan Lal (deceased) and also site plan of the place of occurrence Ex.PK/1. He also testified that he lifted the blood stained earth from the place of occurrence and converted that into a parcel, which seized vide memo Ex.PO and he also seized one pair of plastic shoes belonging to the deceased (Hussan Lal) vide memo Ex.PQ. He also seized bicycle make Atlas vide memo Ex.PR.
He also testified that on 07.07.2004, he got conducted autopsy on the corpse of Hussan Lal (deceased) and he sealed the cloths of the deceased (Hussan Lal) i.e. Pajama Ex.P6, underwear Ex.P7 and vest Ex.P8 and converted those into a parcel with his seal bearing impression 'DS' and seized that parcel vide memo Ex.PT, which was attested by Harpartap Singh HC. He also testified that on 08.07.2004, he arrested the appellant and interrogated him on 10.07.2004 in the presence of Amar Chand Sarpanch and Tarsem Singh HC and the appellant during interrogation, suffered disclosure statement Ex.PB to the effect that he had kept concealed one kirch CRA No. D-154-DB of 2006 - 11- Ex.P1 in the motor room of Darshan Singh and latter, pursuant, thereto, he got recovered the kirch Ex.P1 and its cover Ex.P2 from the place disclosed in the disclosure statement and rough sketch of the kirch Ex.PC was prepared and later kirch and its cover were seized vide memo Ex.PD and he also prepared rough site plan of place of recovery of kirch Ex.PU. He also testified that on 08.07.2004, he recorded extra judicial confession of Jasbir Singh.
PW-8 Malkiat Singh HC tendered in evidence his affidavit Ex.PV.
Learned counsel for the appellants contended that it is a case of no evidence as no one had seen the appellant committing the murder of Hussan Lal (deceased). She also contended that the alleged extra judicial confession of the appellant made before PW-3 Jasbir Singh is unbelievable and original statement of PW-3 Jasbir Singh was not brought on record and only carbon copy, thereof, Ex.PN has been placed on record. She also contended that carbon copy Ex.PN of the statement of PW-3 Jasbir Singh under Section 161 Cr.P.C. bears the signature of latter, and, therefore, is hit by Section 162 Cr.P.C., which puts embargo on signing of statement under Section 161 Cr.P.C. So, she contended that the alleged statement Ex.PN has to be discarded and when it is so, it is a case, where there is no statement of PW-3 Jasbir Singh during investigation and, whatever, he has stated as PW-3 is coming for the first time and cannot be taken into consideration and the learned trial Court fell in grave error in taking the statement Ex.PN of PW-3 Jasbir Singh into consideration for convicting and sentencing the appellant CRA No. D-154-DB of 2006 - 12- for commission of murder of Hussan Lal (deceased).
Learned Additional Advocate General, Punjab for the respondent-State of Punjab contended that extra judicial confession made by the appellant before PW-3 Jasbir Singh was rightly relied upon by the learned trial Court for convicting and sentencing the appellant for committing the murder of Hussan Lal (deceased). He further contended that the impugned judgment and order of sentence may be upheld and affirmed, as these do not suffer from any illegality, impropriety and perversity.
After giving our thoughtful consideration to the contentions raised by the learned counsel for the appellant and learned Additional Advocate General, Punjab for the respondent-State, we are of the view that the contentions raised by the learned Additional Advocate General, Punjab for the respondent-State are without any substance, while contentions raised by the learned counsel for the appellant have substance, therein.
This is a case where indubitably no one saw the appellant committing the murder of the deceased (Hussan Lal). It is the case of the respondent that the appellant had allegedly intercepted the bicycle of PW-5 Talwinder Kaur, who is the daughter of PW-3 Jasbir Singh and this incident was spotted by Hussan Lal (deceased) who allegedly rescued PW-5 Talwinder Kaur from the appellant. It is the case of the respondent that the appellant apprehended that Hussan Lal (deceased) would disclose this incident to PW-3 Jasbir Singh father of PW-5 Talwinder Kaur and out of this fear of reporting of incident by the deceased (Hussan Lal) to PW-3 Jasbir Singh, CRA No. D-154-DB of 2006 - 13- appellant committed murder of Hussan Lal. If, this motive is taken into consideration, the appellant would have been last person to suffer alleged extra judicial confession about commission of murder of Hussan Lal (deceased) by him to PW-3 Jasbir Singh. This alleged extra judicial confession is utterly ridiculous and even appellant was not produced by PW-3 Jasbir Singh before the police. If, at all, appellant would have gone to PW-3 Jasbir Singh for help for his production before the police after the alleged murder of Hussan Lal, he would have accompanied PW-3 Jasbir Singh to the police station for his arrest in this regard.
PW-3 Jasbir Singh no where testified that he produced the appellant before the police. The alleged extra judicial confession of the appellant could be believed only, if the appellant after disclosure of the alleged incident had not left PW-3 Jasbir Singh. When the appellant allegedly killed Hussan Lal only to avoid reporting of incident of teasing of PW-5 Talwinder Kaur by him to PW-3 Jasbir Singh, then how he himself could report this incident of teasing of PW-5 Talwinder Kaur to PW-3 Jasbir Singh who is the father of PW-5 Talwinder Kaur and by such reporting the appellant would have invited wrath of PW-3 Jasbir Singh.
If, this extra judicial confession would have been reported to someone else than PW-3 Jasbir Singh, then, of course, it could be believed and when it is the case of the respondent, that the appellant had misbehaved with PW-5 Talwinder Kaur daughter of PW-3 Jasbir Singh by intercepting her bicycle and that incident was spotted by Hussan Lal (deceased), PW-3 Jasbir Singh and PW-5 Talwinder CRA No. D-154-DB of 2006 - 14- Kaur became interested witnesses to frame the appellant. Now when the things have come to the surface that the deceased (Hussan Lal) had seen the appellant misbehaving PW-5 Talwinder Kaur daughter of PW-3 Jasbir Singh, both became interested witnesses and the police chose them to make deposition against the appellant.
Even the police in this regard assumed the role of Magistrate by getting statement of PW-3 Jasbir Singh under Section 161 Cr.P.C signed from him. The pristine, thereof, has not been placed on record and by signing statement under Section 161 Cr.P.C, PW-3 Jasbir Singh came under obligation to depose in accordance with statement, copy Ex.PN, which being hit by Section 162 Cr.P.C., must be repelled and when that is so, there, survives no document on the record to support the testimony of PW-3 Jasbir Singh whose statement in the Court to the effect that the appellant came to him for suffering extra judicial confession about the murder of Hussan Lal cannot be relied upon at all.
Even the blood stained kirch Ex.P1 was not produced by the appellant before PW-3 Jasbir Singh at the time of making alleged extra judicial confession about the murder of Hussan Lal. If, the extra judicial confession of the appellant incorporated in the statement Ex.PN of PW-3, would have been genuine one, in that event, he would have produced the kirch, wherewith, he allegedly committed the murder of Hussan Lal, before PW-3 Jasbir Singh or at least, he would have disclosed him the place, where he had concealed it.
CRA No. D-154-DB of 2006 - 15-
Even, PW-3 Jasbir Singh was not present at the time of alleged recovery of kirch Ex.P1, which was made at the instance of appellant. Even PW-3 Jasbir Singh no where testified that the appellant had killed the deceased (Hussan Lal) with kirch, which was allegedly recovered from him pursuant, to his alleged disclosure statement Ex.PB.
The extra judicial confession is very weak type of evidence and the testimony of PW-3 Jasbir Singh in this regard does not inspire confidence at all. As already held, PW-3 Jasbir Singh is an interested witness whose daughter PW-5 Talwinder Kaur was allegedly teased by the appellant and he had a motive to teach the appellant a lesson through his implication in the instance case. PW-1 Makhan Singh (complainant) no where testified that he saw the appellant committing the murder of his brother Hussan Lal. According to him (PW-1), the deceased (Hussan Lal) was addicted to liquor and other intoxicant. In his statement Ex.PA, he stated that under the influence of liquor, his brother Hussan Lal (deceased) would have taken up quarrel with someone who would have killed him by causing injuries with sharp edged weapon.
PW-2 Amar Chand is only witness recovery of kirch Ex.P1 from the appellant. The evidence of this witness could only be used for the purpose of corroboration only, if, someone had seen the appellant committing the murder of Hussan Lal (deceased). Simple recovery of kirch Ex.P1 cannot lead to inference that the appellant committed murder of Hussan Lal (deceased) with kirch, unless some other evidence on the record would have been available for holding CRA No. D-154-DB of 2006 - 16- the appellant guilty of commission of murder of Hussan Lal (deceased). Only evidence in this regard is alleged extra judicial confession of the appellant before PW-3 Jasbir Singh, which has not been relied upon. When that is repelled, the alleged recovery of kirch Ex.P1 from the appellant looses its significance for holding him guilty of commission of murder of Hussan Lal (deceased).
PW-4 Dr. Naresh Kumar, conducted the autopsy on the corpse of Hussan Lal (deceased). There is gainsaying about the evidence of this witness, but it is inconsequential especially when extra judicial confession of the appellant regarding murder of Hussan Lal (deceased) before PW-3 Jasbir Singh has been repelled.
PW-5 Talwinder Kaur did not see the appellant committing the murder of Hussan Lal (deceased) and she was also not present when the appellant allegedly suffered extra judicial confession before her father (PW-3 Jasbir Singh) Evidence of PW-6 Ramesh Singh, PW-7 Dildar Singh ASI and PW-8 Malkiat Singh HC is also inconsequential to the respondent and fact remains that simply on the basis of evidence of PW-3 Jasbir Singh, learned trial Court wrongly concluded that the appellant committed the murder of Hussan Lal (deceased) without realizing that PW-3 Jasbir Singh was neither a Panch nor a Sarpanch of the village and that the appellant would have been a last person to suffer extra judicial confession with him with whose daughter (PW-5 Talwinder Kaur), he (appellant) misbehaved by intercepting her bicycle, which was allegedly spotted by Hussan Lal (deceased).
So, the learned trial Court fell in grave error in convicting CRA No. D-154-DB of 2006 - 17- and sentencing the appellant vide impugned judgment of conviction and order of sentence, which must be set aside.
Resultantly, the appeal succeeds and is, hereby, allowed; impugned judgment and order of sentence are set aside and the appellant is acquitted of the charge framed against him by according him benefit of doubt. He is ordered to be set at liberty, if not, required in any other case.
(S.P. BANGARH) (S.S. SARON) JUDGE JUDGE September 25, 2012 sham