Punjab-Haryana High Court
Gurdev Singh And Others vs State Of Punjab on 28 July, 1998
Equivalent citations: 1999CRILJ232
Author: B. Rai
Bench: B. Rai
JUDGMENT V.K. Bali, J.
1. Appellants Gurdev Singh, Sewak Singh and Randhir Singh alias Dhira through present appeal filed by them have called in question order of conviction and sentence, recorded against them by learned Additional Sessions Judge, Ferozepur, dated August 14, 1996, vide which they have been held guilty for committing an offence punishable under section 302 read with Section 34 of the IPC and accordingly sentenced to undergo rigorous imprisonment for life as also to pay fine of Rs. 4000/- each or in default of payment of fine, to further undergo R.I. for two years each.
2. The occurrence leading to death of Tek Singh came to be reported by Gulzar Singh, P.W. 5, on the statement made by him on February 9, 1991 at 12.55 p.m. to Balkar Singh, SI, P.W. 10, formal FIR under section 364, IPC came to be recorded at 12-55 p.m. on the date aforesaid. When dead body of Tek Singh was recovered on February 10, 1991, offence was converted from Section 364 to Section 302, IPC. As per statement made by Gulzar Singh, father of deceased Tek Singh, occurrence had taken place at 6 p.m. on February 3, 1991 in village Gill, which is at a distance of about 17 and half kilometres from Police Station Ghall Khurd. Special report with regard to incident reached the concerned Magistrate on February 11, 1991 at 10-45 a.m.
3. Gulzar Singh, while making statement before S.I. Balkar Singh P.W. 10, stated that he was resident of village Gill and was earning his livelihood by doing labour. He had five sons. His son Tek Singh was working as a labourer in village. On February 3, 1991 at 6 p.m. Dhira son of Gurdev Singh, came to his house and called his son from outside and asked him to come out as he had some work and took him along. He did not return to the house. On the next day, he enquired from Dhira as to where his son was. He told him that he would come back to his house on February 15, 1991. He did not inform any body out of fear as his son and Lakhbir Singh alias Khira, who was brother of Dhira, were best friends. They used to go from the house for 10/15 days. He further stated that he had got suspicious that Dhira Singh might have left his son somewhere with an intention to kill him. The day when his son left the house, he was wearing a shirt and pyjama of yellow colour and his son had a leather purse containing Rs. 20/- as also a chit in the name of Tek Singh son of Gulzar Singh. He was also wearing a ring in the ring finger of his left hand.
4. Prosecution, in its endeavour to bring home the offence against the appellants, examined Dr. Jasbir Singh, Medical Officer, Civil Hospital, Ferozepur as PW. 1. He stated that on February 10, 1991 at 11-15 a.m. he conducted post mortem on the dead body of Tek Singh and found following injuries :
"1. 38 x 4 cms incised would with inverted margins extending from left middle cheek to right sterno mastoid muscle. On dissection base of skull was found cut. Lacerated tissues and clotted blood was present. Brain matter was cut.
2. 27 cms x 3 cms incised would with inverted margins was present in occipital region just on occipital protuberance.
3. 18 cm x 3 cms incised would with inverted margins was present, 4 cms above injury No. 2.
On dissection, skull was found cut, Lacerated brain matter and clotted blood was present on would Nos. 2 and 3.
4. Left thigh was amputated at level of lower 1/3rd of femur. Muscles were not present on bone. Left buttock was missing. Factum was missing. Intestines was ruptured and was coming out of the hole.
5. 10 cms x 2 cms incised wound with inverted margins was present on left shoulder. Scapula was cut".
5. In the opinion of the doctor, death was due to shock and haemorrhage resulting from sharp edged weapon injuries which were ante mortem in nature and sufficient to cause death in ordinary course of nature. Probable duration between injuries and death was immediate and between death and post mortem within 24 to 48 hours.
6. Darshan Singh, Patwari Halqa was examined as PW 2. He stated that on April 19, 1991 he prepared the scaled map Ex. P8 in the area of village Gill. Jasbir Singh, Assistant Librarian, who appeared as PW. 3, stated that he had brought the summoned record pertaining to file FIR No. 158 dated August 5, 1991, Police Station Ghall Khurd. He also stated that on February 5, 1991 accused Tek singh alias Lakha son of Gulzar resident of Gill was not present in the Court. An application was filed by Gurdev Singh for exempting his presence. PW 4 Gurdip Singh, Head Constable tendered his affidavit, Ex. PD in evidence. Gulzar Singh, first informant, who was examined as PW. 5, deposed in tune with the FIR lodged by him. In his cross-examination he denied the suggestion that the appellants had been named at the instance of Gurnam Singh Sarpanch who was inimical towards Gurdev Singh. He also stated that some persons had collected at the land of Partap Singh where dead body of Tek Singh was lying. Police came to their village on the next day after recovery of dead body of Tek Singh but the police did not collect the Panchayat. Police used to summon him, his son Sarwan Singh and his brother-in-law and bodys also used to collect whenever police came to their village, but no respectable person appeared before the police when the police came to their village. PW. 6 Sarwan Singh, real brother of deceased, stated that two years and four months ago, at about 6 p.m. he along with his father Gulzar Singh and mother and other family members was present in the house when Tek Singh was also there. Appellant Dhira singh called the name of Tek Singh from outside the house and asked his brother to accompany him as he had some work with his brother. When Tek Singh did not return during the night, he enquired from Dhira Singh, who told him that Tek Singh would return on 15th of February. His brother Tek Singh had friendly relations with Khira Singh, brother of accused Dhira Singh and when his bother did not return on the next day, he and his father started to lodge the report with the police and the police met them in the area of their village. When cross-examined, he stated that accused Dhira Singh had called his brother Tek Singh and told him that he had some work with him. He was confronted with his statement made by him under section 161, Cr.P.C. wherein it was not so recorded. He also stated that he had not recorded in his statement that accused Dhira had told his brother Tek Singh that they would go for distillation of illicit liquor. Attention of the witness was drawn to his statement, Ex. DA wherein it was recorded that Dhira Singh called the accused and asked for going for distillation of illicit liquor. He further stated that he had told the police that he had gone to the house of Dhira Singh on the next day to enquire about his brother. Once again attention of the witness was drawn to his statement, Ex. DA where it was not so recorded. He further stated that Gurnam Singh was the Sarpanch of their village and he knew Avtar Singh alias Tari son of Gurnam Singh. He had heard that Gurnam Singh and his son where sentenced in a murder case. Jagir Singh was present when appellants and Sewak Singh suffered disclosure statements but Karnail Singh was not present. Appellants might have been detained for about 4-5 days in the police station. PW. 7 Jagir Singh stated that about three and half years back, he was present at his house when appellants Dhira Singh and Sewak Singh came to him. Appellant Dhira Singh told that he and Sewak Singh had killed Tek Singh at the instance of Gurdev Singh. He further told that Gurdev Singh asked them to kill Tek Singh and he would manage all the affairs and the police was searching for them. He further told that they be produced before the police. He produced Dhira Singh and Sewak Singh appellants before ASI Balkar Singh. In his cross-examination, he stated that they were proceeded against under section 107/151, Cr.P.C. and Gurdev Singh was from the other side in the said cross security proceedings. PW. 8 Karnail Singh stated that three years and five moths back he had returned from Ferozepur and at about sunset, when he reached near the village school, appellants were taking liquor and talking with each other. Appellants Gurdev Singh was asking Dhira Singh and Sewak Singh to kill Tek Singh and Gurdev Singh had further told that he would arrange all the affairs connected with the murder of Tek Singh and that he would get the presence of Tek Singh exempted from the Court. He further stated that Gurdev Singh also called him and he also shared liquor with them. Thereafter, they returned to their respective houses. On the same night, his sister's son came to him and took him to his village as there was some dispute. After nine days, when the appellants had conspired to kill Tek Singh, he met ASI Balkar Singh and made a statement before him. In his cross-examination, he admitted that land dispute was pending between him and Gurdip Singh as also that criminal proceedings under section 145, Cr.P.C. were initiated on the land. He denied that appellant Gurdev Singh appeared as witness in favour of Gurdip Singh and against him in the said proceedings. He further stated that he had not tried to tell the whole story either to police or to any member Panchayat or respectable of the village. P.W. 9 Hardev Singh stated that three and half years back he had gone to the house of Gurnam Singh Sarpanch when Teka, since deceased, came there and complained to the Sarpanch in his presence that Dhira Singh and Sewak Singh appellants visited his house and they had relations with his sister. He requested the Sarpanch that he should ask those persons to desist from visiting his house and having illicit relations with his sister. Sarpanch told him that he would not go to those persons but he would talk to them when they would meet him in the village. Thereafter, Teka left the house and he also left the house of Sarpanch. ASI Balkar Singh, PW 10 detailed the steps that he had taken while investigating the case.
7. When examined under section 313, Cr.P.C., appellant stated that they were innocent and had been falsely implicated due to enmity. In defense, they tendered in evidence copy of statement of Gurdev Singh recorded in the Court of Shri Dhian Singh, Sub Judge 1st Class, Ferozepur, Ex. DC, copy of statement of Jagir Singh, Ex. DD, copy of order, Ex. DE, copy of order, Ex. DF passed by the Additional Chief Judicial Magistrate, Ferozepur, Copy of judgment Ex. DG passed by Shri B. S. Nehra, Sessions Judge, Ferozepur and copy of statement of Gurdev singh, Ex. DH.
8. From the facts, as have been fully detailed above, it would straightway transpire that the prosecution, in the present case, relies upon circumstantial evidence and, as in every case based upon circumstantial evidence, in this case as well, the question that would need adjudication is as to whether all links in the chain of circumstances are so complete so as to rule out the possibility of innocence of the accused or that there are chinks in the array of circumstantial evidence that has been brought by the prosecution.
9. We have heard Mr. R. S. Ghai, learned counsel for the appellants as also Mr. S. S. Dhaliwal, learned Deputy Advocate General, Punjab and have gone through the records of the case.
10. Coming first to the motive that actuated the appellants to commit the crime, it may be recalled that only PW. 9 Hardev Singh has been examined to prove the same. To recapitulate, he stated that he had gone to the house of Gurnam Singh Sarpanch when Teka deceased came there and complained to the Sarpanch in his presence that appellants Dhira Singh and Sewak Singh were visiting his house and they had illicit relations with his sister. He requested the Sarpanch to ask Dhira Singh and Sewak Singh to desist from visiting his house and having illicit relations with his sister. Insofar as Gurnam Singh Sarpanch is concerned, where Hardev Singh PW. 9 had gone and, who could have been a direct witness for the motive suggested by the prosecution, has not been examined. Surely, if Tek Singh was in the know of illicit relations between appellants Dhira Singh and Sewak Singh and his sister, his father and brother would have also known the same. Surprisingly, not a word with regard to the motive, that actuated the appellants to commit the crime, has been mentioned by father of the deceased, who lodged the FIR. So much so, father and brother, when appeared as PW. 5 and PW. 6 did not state a word with regard to the two appellants having illicit relations with their daughter or sister. In the circumstances, referred to above, it is not possible to believe that the appellants had any motive to liquidate Tek Singh. There is nothing on records from where it may be spelt out that the appellants had come to know that Tek Singh was creating any hurdle in their way in continuing with their illicit relations with his sister.
11. The next link to the chain of circumstantial evidence is extra-judicial confession, said to have been made by appellants Dhira Singh and Sewak Singh before PW. 7 Jagir Singh. Available on records is statement of Jagir Singh, Ex. DD, which he made in the Court of Additional Chief Judicial Magistrate, Ferozepur in a criminal case registered against appellant Dhira Singh under section 336, IPC. It is proved from the statement aforesaid that Jagir Singh appeared as prosecution witness against the appellant in a case pertaining to FIR No. 131 dated August 13, 1988. While appearing as prosecution witness, Jagir Singh admitted that 4-5 cases between him and Gurdev Singh appellant were pending. From the statement of Jagir Singh made in the proceedings, referred to above, it is clear that far from having cordial relations, Jagir Singh was in fact inimically disposed towards the appellants. It is not possible to believe that the appellants, if they were to confess their guilt, would have gone to their enemy who, far from helping them, would have turned against them. It is too well known that confessions are normally made to a person in authority, or near relation or a friend, who would be inclined to help the one who makes confession before him. In the facts and circumstances of this case, it cannot be believed that the appellant Dhira Singh and sewak Singh confessed their guilt before Jagir Singh, PW. 7.
12. Statement of Karnail Singh, PW. 8, who is stated to have shared liquor with the appellants when they were talking of doing away with Tek Singh also cannot be believed as he too was no friend of appellants. It is well made out from order, Ex. DE that he and Jagir Singh on the one side and Gurdev Singh, appellant, on the other, were tried in cross security proceedings and in the order, Ex. DE it has been mentioned that there was long standing dispute between the parties. Despite this being a fact, when Karnail Singh appeared as PW. 8, he denied that any security proceedings had been pending against him and Jagir Singh on the one side and appellant Gurdev Singh on the other.
13. The prosecution is left only with one circumstance, i.e., deceased Tek Singh was called from his house in the presence of PWs. 5 and 6 on February 3, 1991 at 6 p.m. Report with regard to Tek Singh being missing was lodged by his father on February 9, 1991. The dead body of Tek Singh was recovered on February 10, 1991, on which day itself. Dr. Jasbir Singh, PW. 1 had conducted autopsy on his dead body. He stated that in his opinion, probable time that elapsed between injuries and death was immediate and between death and post mortem within 24 to 48 hours. The deceased was seen with the appellant Dhira on February 3, 1991 and he was done to death on February 8 or 9, 1991. This circumstance, i.e. PWs. 5 and 6 having seen Tek Singh in the company of appellant Dhira on February 3, 1991 cannot be taken as if the deceased was last seen with the appellants. Surely, he had lived for 5-6 days after he was taken away by the appellant Dhira. Be that as it may, only on one circumstance i.e. last seen, appellants cannot be convicted.
14. From the narration of facts, as have been given above, it cannot be said that the prosecution has been able to bring home the offence against the appellants beyond shadow of reasonable doubt. Circumstances are not such as may lead to one and only one hypothesis, i.e., that the appellants had committed the murder of Tek Singh. Giving, thus, benefit of doubt, we acquit the appellants. Consequently, this appeal is allowed and order of conviction and sentence recorded by the learned Addl. Sessions Judge is set aside.
15. Appeal allowed.