Punjab-Haryana High Court
Gursewak Singh vs State Of Punjab on 1 April, 2013
Author: Rekha Mittal
Bench: Rajive Bhalla, Rekha Mittal
Criminal Appeal No. 892 DB of 2008 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
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Criminal Appeal No. 892 DB of 2008 (O&M)
Date of decision: 01.04.2013
Gursewak Singh ........ Appellant
Versus
State of Punjab .......Respondent
Coram: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mrs. Justice Rekha Mittal
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Present: Mr. Anju Arora, Advocate
for the appellant
Ms Vandana Malhotra, Addl. A G Haryana
for the respondent State
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1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
The present appeal lays challenge to the judgment of conviction and order of sentence dated 09.04.2008, passed by the Additional Sessions Judge, Fatehgarh Sahib (hereinafter referred to 'the trial Court'), whereby, Gursewak Singh, appellant has been convicted and sentenced for commission of offence punishable under Section 302 and 201 of Indian Penal Code (in short 'IPC') in sessions case No. 2/20.01.2006, relating to FIR No. 64 dated 27.07.2005, under Section 302/201 IPC, registered at P S Amloh, District Fatehgarh Sahib, as extracted herein below:- Criminal Appeal No. 892 DB of 2008 (O&M) 2
Name of convict Under Section Sentenced awarded Indefault of payment fine Gursewak Singh 302 IPC To undergo RI No order for life and to pay fine of Rs.20,000/- which shall be paid to the complainant The criminal law was set in motion on the statement of Baljit Kaur, complainant, real sister of the accused and mother of the deceased, namely, Rajwinder Singh alias Binda, Sukhwinder Singh alias Sukha and Manpreet Singh alias Mani, aged about 7 years, 5 years and 2 years, respectively. The brief backdrop of this case is that Baljit Kaur was married to one Balbir Singh son of Gurdev Singh of village Balpur. Due to temperamental differences, Baljit Kaur and Balbir Singh separated from each other. However, out of the wedlock, three sons, namely, Rajwinder Singh, Sukhwinder Singh and Manpreet Singh were born. After her separation from Balbir Singh, appellant Gursewak Singh, brother of the complainant, brought the complainant and her three sons to village Gholu Majra. Gursewak Singh told the complainant that he will perform her marriage at some other place. The complainant told him that her three sons would not be looked after at her new matrimonial home. In the month of Harr, 1998, Gursewak Singh told her that she should not bother about her sons as he visits Dera Sacha Sauda at Sirsa and her sons will get education there. Believing the representation of Gursewak Singh as correct, the complainant, in the presence of Jaswant Singh son of Ranjit Singh and Lakhbir Singh son of Amar Singh and other neighbours sent her sons with Gursewak Singh. On the next day, Gursewak Singh informed the Criminal Appeal No. 892 DB of 2008 (O&M) 3 complainant that he had left her sons at Dera Sacha Sauda at Sirsa. The complainant contracted second marriage with Darshan Singh. The complainant came to know that her brother has killed her three sons and has absconded. Gursewak Singh was not available and did not meet her. She enquired about her sons at Dera Sacha Sauda at Sirsa, but could not find them. On learning that Gursewak Singh is in the custody of police at Police Station Amloh, she along with Jaswant Singh, Ram Singh and Ujjaggar Singh went to Police Station, Amloh. The complainant met Gursewak Singh. In the presence of Jaswant Singh, Ram Singh and Ujjaggar Singh, Gursewak Singh disclosed to the complainant that he had thrown her sons in a canal near Jora pull.
The complainant made a statement to the police, which led to registration of formal FIR at Police Station, Amloh. Gursewak Singh was formally arrested. During investigation, proceedings conducted under Section 174 Cr.P.C. with regard to recovery of dead body of a child (unknown) in the area of police station Joga, a shirt and a taweet recovered from the dead body during post mortem examination were taken into police possession. A photograph of the dead body and articles namely shirt and taweet were identified by the complainant to be of her son, namely Manpreet Singh alias Mani. The statements of the witnesses were recorded. On completion of necessary formalities of investigation, report under Section 173 Cr.P.C. was submitted for commencement of the trial.
After due compliance with the mandatory requirements of Section 207 Cr.P.C., case was committed to the Court of Sessions as the offence under Section 302 IPC, is exclusively triable by the said Court. Criminal Appeal No. 892 DB of 2008 (O&M) 4
The accused was charge sheeted for commission of offence punishable under Section 302 IPC, to which, he pleaded not guilty and claimed trial.
To bring home the guilt of the accused, the prosecution examined as many as 18 witnesses, namely, Dr. Rajinder Kumar Garg, District Family Welfare Officer, Mansa (PW1), Avtar Singh (PW2), ASI Harminder Singh (PW3), HC Suresh Kumar (PW4), SI Sukhdev Singh, Investigating Officer (PW5), HC Gurtej Singh (PW6), Baljit Kaur, complainant (PW7), SI Bant Singh (PW8), Baljinder Singh Patwari (PW9), Gurcharan Singh (PW10), Balbir Chand (PW11), Kulwant Singh (PW12), Jaspreet Singh (PW13), Baljit Singh (PW14), Ujjaggar Singh (PW15), Jaswant Singh (PW16), ASI Gurnaib Singh (PW17) and SI Gurdial Singh, Investigating Officer (PW18).
On evidence of the prosecution being closed, statement of the accused under Section 313 Cr.P.C. was recorded, wherein, he denied all the incriminating circumstances put to him and pleaded his innocence and false implication. However, he did not lead any evidence in his defence.
Counsel for the appellant submits that the prosecution case hinges upon circumstantial evidence. The learned trial Court has committed a grave error in recording a verdict of guilt against the appellant despite the fact that the prosecution has failed to prove the circumstances relied by leading tangible, cogent and convincing evidence and even otherwise these circumstances do not form a complete chain, which can lead to a hypothesis incompatible with the innocence of the accused much less that the offence was committed by the accused and non-else. It is further argued that the Criminal Appeal No. 892 DB of 2008 (O&M) 5 dead body allegedly recovered in the area of Police Station Joga has not been connected with any of the sons of the complainant as the complainant was not confronted with the photograph of the said dead body during her examination in the Court. It has been argued with vehemence that no explanation is forthcoming as to why the complainant remained silent for a period of seven years if she had actually handed over custody of her children to the accused in the year 1998. The last submission made by counsel is that the investigating agency has collected unbroken pieces of evidence in an effort to solve a case with regard to missing of three sons of the complainant.
Counsel for the State of Punjab supports the judgment of the learned trial Court with the submission that no fault can be found with the verdict recorded by the trial Court which is based upon a correct appreciation of the evidence in the light of settled principles of law.
We have heard counsel for the parties and perused the records of the trial Court.
Before we proceed to deal with the merits of the case, it is appropriate to make a brief reference to the evidence led by the prosecution.
Dr. Rajinder Kumar Garg (PW1) conducted post mortem examination on the dead body of an unknown male child aged about 3-4 years and proved the post mortem report Ex. PA. As per the medical opinion, the death is due to asphyxia by drowning, was ante mortem in nature and sufficient to cause death in the ordinary course of nature.
Avtar Singh (PW2), Sarpanch of village Ralla, Tehsil and District Mansa in the year 2005, was examined to prove the recovery of Criminal Appeal No. 892 DB of 2008 (O&M) 6 dead body of a male child from the culvert of a minor in the area of his village.
The testimony of ASI Harminder Singh (PW3) is formal in nature, in whose presence the accused was arrested by SI Gurdial Singh and memo of his arrest is Ex. PW3/A. HC Suresh Kumar (PW4), who was incharge of Malkhana in police Station Amloh has deposed that on 24.09.2005, ASI Sukhdev Singh deposited with him one shirt and one taweet. On 11.10.2005, SI Gurdial Singh took the aforesaid articles from Malkhana for identification by complainant Baljit Kaur. The case property was again deposited with him on the same day.
SI Sukhdev Singh (PW5) is the investigating officer and his statement relates to the evidence collected by him during investigation of the case. He approached the office of SSP, Mansa to collect the documents and other materials in connection with recovery of dead body of a male child on 27.06.1998 and the proceedings conducted with regard thereto. He has further deposed that the shirt and taweet which were taken into police possession, vide recovery memo Ex. PW5/A were identified by complainant Baljit Kaur to be those of her son Manpreet Singh alias Mani vide memo of identification Ex.PW5/B. HC Gurtej Singh(PW6) posted as MHC PS Joga in the year 2005 has deposed that on 20.09.2005, he handed over one photograph of deceased child mark 'A' and carbon copy of report No. 3 dated 27.06.1998 under Section 174 Cr.P.C. to SI Sukhdev Singh. On 23.09.2005, SI Sukdev Singh took one shirt and one taweet from him which were taken into police Criminal Appeal No. 892 DB of 2008 (O&M) 7 possession vide recovery memo PW5/A. He identified the shirt and taweet as Ex. PW6/A and Ex. PW6/B respectively.
Baljit Kaur (PW7) is the author of the FIR and is a victim of crime. She lodged the first information report with police Station Amloh. Her testimony relates to the facts narrated by her in the first information report, Ex PW7/A, which have been referred to herein above while narrating the story of the prosecution.
SI Bant Singh (PW8) was examined to prove the proceedings conducted at the time of recovery of dead body of an unknown child in the year 1998 in police Station Joga, District Mansa on 27.06.1998.
Baljinder Singh, Patwari, Halqua Malerkotla (PW9), Gurcharan Singh, Supply supervisor, Municipal Council, Mansa (PW10) and Balbir Chand, Sweeper, Municipal Council, Mansa (PW11) were examined to prove the disposal of the dead body of the child on 27.06.1998.
Kulwant Singh (PW12), a member of Panchayat of village Ralla in the year 1998 has been examined to corroborate the evidence with regard to recovery of dead body of the child and the dead body had a readymade light brown shirt and triangular taweet around neck with black coloured thread. He has further deposed that photograph mark 'A' is the photograph of the said child regarding which his statement under Section 161 Cr.P.C., Ex.PW12/A was recorded.
Jaspreet Singh (PW13) is a photographer, who took photograph of the dead body of the child on 27.06.1998. He identified the photograph Ex.PW13/A. Baljit Singh (PW14) is a witness of extra judicial confession of Criminal Appeal No. 892 DB of 2008 (O&M) 8 the accused. He has stated that in the year 2005 he was Sarpanch of village Mararu, District Fatehgarh Sahib. On 24.07.2005, at about 6.00 p.m., Gursewak Singh, accused came to him and confessed that he had killed the sons of his sister Baljit Kaur and their dead bodies were thrown in a canal at Ladewal and requested to produce him before the police. He asked him to come on the next day, but the accused did not come. On 28.07.2005, he came to know that accused was arrested by the police.
Ujjaggar Singh (PW15) is an important witness of the prosecution. He has deposed that in the year 1998, he was going to Malerkotla from Amloh in a bus. Gursewak Singh along with three children was also going with him in the said bus. At that time, accused was living in their village Ghullo Majra. He asked Gursewak Singh where he was going, upon which, the accused told him that he was going for the admission of these children in Dera Sacha Sauda at Sirsa. When the bus reached Jora pull, the accused alighted from the bus along with said children and started moving on the path of the canal. After sometime, accused became proclaimed offender in murder cases. He has further deposed that about 2½ years ago, he along with Jaswant Singh, Ram Singh, Baljit Kaur and other persons, went to Police Station Amloh, where the accused was in custody. In their presence, Baljit Kaur enquired about her children from the accused. Firstly, the accused remained silent, but on repeated requests of Baljit Kaur, he (accused) said that she should forget about the children as he has thrown the children in a canal as he was unable to maintain them.
Jaswant Singh (PW16) has deposed that on 27.07.2005, he took Baljit Kaur and Parmajit Kaur wife of accused along with Ujjaggar Criminal Appeal No. 892 DB of 2008 (O&M) 9 Singh, Ram Singh and 5/7 persons of the village to Police Station Amloh. Baljit Kaur enquired about her children from the accused. On repeated requests of Baljit Kaur, accused told them that he has thrown all the children in a canal.
ASI Gurnaib Singh (PW17) was examined to prove the proceedings conducted under Section 174 Cr.P.C. regarding dead body of a child, Ex. PW17/A. SI Gurdial Singh (PW18), conducted a part of the investigation of this case. He formally arrested the accused on 28.07.2005. He prepared site plan, Ex.PW18/B at the behest of accused in respect of the place from where the accused threw the children of Baljit Kaur in the canal. He verified the facts of proceedings conducted in Police Station Joga qua recovery of dead body of the child. He has further deposed that on 11.10.2005, he produced photograph EX. PW13/A, a brown colour readymade shirt and one taweet in black thread and the articles being identified by the complainant to be of her son vide identification memo Ex.PW5/B. He has proved the scaled site plan EX PW9/A of the canal in which the children were thrown by the accused.
A perusal of the evidence adduced by the prosecution makes it apparent that the prosecution case mainly rests upon circumstantial evidence. The prosecution has primarily relied upon three circumstances (i) handing over of the children by the complainant to accused Gursewak Singh for their admission in a school of Dera Sacha Sauda at Sirsa (ii) evidence of last seen deposed by Ujjaggar Singh (PW15) and (iii) confession of the accused before the complainant, Ujjaggar Singh (PW15) along with Jaswant Criminal Appeal No. 892 DB of 2008 (O&M) 10 Singh and others.
Before we proceed further, it is necessary to mention at the outset that there is no challenge to the prosecution case that the complainant is the real sister of accused Gursewak Singh. Complainant, Baljit Kaur was married to Balbir Singh and her wedlock resulted in the birth of three children, namely, Rajwinder Singh, Sukhwinder Singh and Manpreet Singh, aged about 7, 5 and 2 years respectively. At the time when Baljit Kaur along with her children returned to her parental house or was brought back by her brother accused Gursewak Singh, he (accused) was father of four children. The accused has not challenged that he was eager for re-settlement of his sister in another house. As per the statement of Baljit Kaur, her three sons were considered to be an obstacle in her re-settlement. Gursewak Singh proposed a solution that three sons of Baljit Kaur can be left in a school of Dera Sacha Sauda at Sirsa, may be for the reason that education for children is free in the said institution. Baljit Kaur handed over her three sons to Gursewak Singh for their admission in a school at Dera of Sacha Sauda, Sirsa. There is no denial that Baljit Kaur contracted a second marriage and started living with her second husband, namely, Darshan Singh. Baljt Kaur was apparently pacified and may have been assured of the welfare of her children and had no reason to disbelieve her brother, never visited the school at Dera Sauda, Sirsa much less to know that her children were not admitted in that school. Gursewak Singh was involved in criminal cases and was declared as proclaimed offender. As Baljit Kaur has no suspicion with regard to the bona fides of her brother nor did she come to know that her children were not admitted in the school of Dera Sacha Criminal Appeal No. 892 DB of 2008 (O&M) 11 Sauda, Sirsa. However, when Gursewak Singh was arrested in criminal cases, Baljit Kaur was naturally concerned about her children and made enquiry from the school of Dera Sacha Sauda, Sirsa, but could not find her children there. It has been proved on record that Baljit Kaur along with Jaswant Singh, Ram Singh, Ujaggar Singh and few others visited police Station Amloh, wherein Gursewak Singh was lodged and enquired about her children, where he informed Baljit Kaur that he had killed the children. The testimony of Baljit Kaur that she had handed over the children to Gursewak Singh for their admission in a school of Dera Sacha Sauda at Sirsa finds corroboration from the testimony of Ujjaggar Singh (PW15). During cross examination of Baljit Kaur, counsel for the accused failed to elicit any tangible and material facts to challenge her testimony that she handed over her three minor sons to Gursewak Singh who had taken away the children with a promise to get them admitted in a school of Dera Sacha Sauda at Sirsa. Once the prosecution has proved that the children were in the custody of the accused in the year 1998 and they were not seen thereafter by any body, it was obligatory for the accused to prove as to where he left those children.
Section 106 of the Indian Evidence Act, 1872 deals with "burden of proving facts especially within knowledge". A relevant extract of Section 106 reads as under:-
"106. When any fact is especially within the knowledge of any person, the burden of proving that fact is upon him."
There is no dispute about the settled position of law that the burden of proving a fact specially within knowledge of a person is upon that Criminal Appeal No. 892 DB of 2008 (O&M) 12 person irrespective of the fact that the said person happens to be an accused facing criminal trial. Gursewak Singh, appellant has not led any evidence that the children were either admitted in a school of Dera Sacha Sauda at Sirsa or at some other place. The failure of the accused to prove the fact about the fate or whereabouts of the children is a strong circumstance in the chain of circumstances relied upon by the prosecution.
Ujjaggar Singh (PW15) had seen the children with the accused while travelling in a bus from Amloh to Malerkotla. Counsel for the accused failed to impeach his credibility or shake his veracity qua his having seen the children with the accused and he was taking them for their admission in a school of Dera Sacha Sauda at Sirsa.
As has been mentioned earlier, the accused has failed to prove a special fact within his knowledge as to the fate or whereabouts of the children. Baljit Kaur and Ujjaggar Singh (PW15) are quite categoric and firm in their deposition that they met the accused in Police Station Amloh to know about the children. Both these witnesses have corroborated each other qua the confession of the accused that he had thrown the children in a canal. The question arises, whether the confessional statement made by the accused in police custody is admissible in evidence or not. Admittedly, Gursewak Singh was in the custody of the police in connection with some other criminal case when Baljit Kaur, Ujjaggar Singh and others met him in police Station, Amloh. No such fact has been brought on record during cross examination of Baljit Kaur, Ujjaggar Singh and others, that any police official was present when Baljit Kaur and others met Gursewak Singh and he confessed his guilt. There is not even an iota of evidence that any Criminal Appeal No. 892 DB of 2008 (O&M) 13 influence was exercised upon Gursewak Singh to get this disclosure from his mouth. The confession made before a police official is inadmissible in evidence for the reason that the police might have used third degree method or any similar means to extract a confession from the accused. But as in the present case, there is nothing on record to suggest that any police official was present at the time when Baljit Kaur and others met the accused much less any influence or coercion was exercised by the police to extract information from the accused, the confessional statement made by the appellant in the presence of Baljit Kaur and others, is to be treated as an extra judicial confession. The testimony of Baljit Kaur and Ujjaggar Singh further finds corroboration from the statement of Jaswant Singh (PW16). As the accused has failed to challenge the correctness of version given by Baljit Kaur, Ujjaggar Singh and Jaswant Singh, the prosecution has successfully proved that Gursewak Singh confessed his guilt of killing three children of Baljit Kaur by throwing them in a canal. Neither Baljit Kaur nor Ujjaggar Singh and Jaswant Singh had any ill-will or animosity against the accused to introduce this confession purported to be made by the accused. It has come on record that there was no difference much less animosity between Baljit Kaur and Gursewak Singh which further rules out the possibility of Baljit Kaur manufacturing evidence against the accused. Baljit Kaur innocently and blindly reposed confidence in her brother and handed over her precious possession (three sons) to Gursewak, who breached her trust with impunity. He cannot escape from the crime even if he had killed the children so as to remove hindrance in arranging the second marriage of Baljit Kaur.
Criminal Appeal No. 892 DB of 2008 (O&M) 14
The prosecution has examined Baljit Singh (PW14) to prove the extra judicial confession of the accused on 24.07.2005. The testimony of this witness has been discarded by the learned trial Court. Baljit Singh remained silent with regard to the disclosure of the accused for a period of more than three days. He did not produce the accused before the police. FIR in this case was registered on 27.07.2005. The children were handed over to the accused in the year 1998. It is difficult to believe that in the absence of any criminal case or imminent danger of arrest, the accused would have approached Baljit Singh to confess his guilt of committing a heinous crime of murder of his three nephews.
The prosecution has led voluminous evidence to prove that the dead body recovered in the area of police station Joga, District Mansa, in June 1998, was the dead body of the youngest son of complainant Baljit Kaur. HC Gurtej Singh (PW6), the MHC in police Station Joga in September 2005, has deposed that a shirt and a taweet were taken into police possession by the Investigating Officer on 23.09.2005, vide recovery memo Ex. PW5/A. Baljit Kaur, complainant has deposed that a shirt and a taweet were produced before her by the Investigating Officer and she identified the articles belonging to her son. Her testimony to this effect finds corroboration from the statement of SI Sukhdev Singh as he has deposed that on 11.10.2005, he along with SI Gurdial Singh went to village Ralla for identification of a shirt and a taweet from Baljit Kaur, complainant, who identified the same belonging to her son Manpreet Singh alias Mani. The prosecution has led cogent and convincing evidence on record that the articles recovered from the dead body of the child, belonged Criminal Appeal No. 892 DB of 2008 (O&M) 15 to Manpreet Singh alias Mani, the youngest son of complainant Baljit Kaur.
Kulwant Singh (PW12), a member Panchayat of village Ralla, was examined to prove the recovery of dead body of a child on 27.06.1998 from canal minor. The witness has deposed that the child had worn a readymade light brown shirt and a triangular taweet in a thread (black colour) around his neck. He has also proved photograph marked 'A' of the child regarding whom his statement Ex.PW12/A was recorded by the police. During cross examination of Kulwant Singh, there is no challenge that photograph mark 'A' is not the photograph of the child whose dead body was recovered from canal minor in the area of village Ralla. The accused is the real maternal uncle of the child in regard to whose murder, the criminal case was registered at the behest of Baljit Kaur, real sister of the accused. The accused knew his nephews and, therefore, he was in a position to challenge the correctness of the photograph or the said photograph being not connected with any of the three sons of complainant Baljit Kaur. Jaspreet Singh (PW13), photographer, another witness examined by the prosecution has exhibited this photograph PW13/A. There is no challenge to the testimony of this witness that photograph Ex.PW13/A does not relate to the dead body of a child recovered from canal minor. As the accused has not challenged photograph Ex PW13/A not relating to any of the sons of the complainant, the prosecution has successfully proved on record that the dead body recovered from canal minor in the area of village Ralla was the dead body of one of the children of complainant Baljit Kaur. Baljit Kaur also identified this photograph to be of her youngest son, vide memo. Ex. PW5/B and her testimony finds corroboration from SI Gurdial Singh Criminal Appeal No. 892 DB of 2008 (O&M) 16 (PW18).
This apart, we are alive and conscious that recovery of corpus is not sine quo non for proving offence of murder. The accused, therefore, cannot get any benefit of non-recovery of dead bodies of other children.
The prosecution has successfully proved all the circumstances relied upon. The accused failed to discharge the onus to prove facts specially within his knowledge. The mere denial of incriminating circumstances put to the accused under Section 313 Cr.P.C. without any further explanation is another circumstance in the chain of circumstances brought forth by the prosecution. The circumstances relied upon by the prosecution couple with the afore-discussed circumstances lead to an irresistible conclusion that the accused is the author of crime, as has been held by the trial Court.
The present case demonstrates a shocking story. The accused has done away three innocent lives for whom a maternal uncle (Mama) may be a messiah. He stabbed his sister who has been looted by her brother to whom she took as her saviour in difficult days due to disturbed matrimony. The state has not filed any appeal for enhancement of sentence. We, therefore, do not think it appropriate to examine the matter if the present case falls in the category of 'rarest of rare cases' warranting capital punishment.
In view of what has been discussed herein-above, there is no merit in this appeal. Resultantly, the appeal is dismissed and the conviction and sentence of the appellant recorded by the trial Court, is affirmed. The appellant, if on bail, be taken in custody forthwith, to suffer the remaining Criminal Appeal No. 892 DB of 2008 (O&M) 17 part of the sentence. Trial Court record be sent back immediately.
(Rekha Mittal) Judge (Rajive Bhalla) Judge 01.04.2013 mohan Criminal Appeal No. 892 DB of 2008 (O&M) 18