Punjab-Haryana High Court
Harjinder Singh S/O Salwinder Singh vs State Of Punjab on 30 November, 2012
Author: S.S.Saron
Bench: S.S.Saron
CRA No.D-617-DB of 2007 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA No.D-617-DB of 2007
Decided on:- November 30, 2012
Harjinder Singh s/o Salwinder Singh,
s/o Teja Singh, r/o Rattoke, at present
Kot Dasondhi Mal, P.S.Chabbal, Distt.
Amritsar.
........Appellant
Versus
State of Punjab .........Respondent
AND CRA No. D-676-DB of 2007 Decided on:- November 30, 2012 Gurpreet Singh @ Gopi s/o Gurbachan Singh s/o Tehal Singh r/o village Pandori Takhat Mal, P.S.Chabbal, Distt. Amritsar.
........Appellant
Versus
State of Punjab .........Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present Mr. Vinod Ghai, Senior Advocate,
with Mr. Simrandeep Sandhu, Advocate,
for appellant Harjinder Singh @ Jinda in Crl. Appeal No. D- 617-DB of 2007.
Mr.D.S.Pherumen, Advocate for appellant Gurpreet Singh @ Gopi in Crl. Appeal No.D-676- DB of 2007.
CRA No.D-617-DB of 2007 2Mr.S.S.Dhaliwal, Additional Advocate General, Punjab for respondent.
S.P.BANGARH, J Both the appeals i.e CRA No.D-617-DB of 2007, titled Harjinder Singh v. State of Punjab and CRA No.D-676-DB of 2007, titled Gurpreet Singh @ Gopi v. State of Punjab, arise from the common impugned judgment and order. These are, therefore, being decided by this common judgment.
The appellants in their respective appeals have assailed the judgment of conviction and order of sentence dated 26.04.2007, passed by the learned Additional Sessions Judge (Adhoc), Fast Track Court, Amritsar, in Session Case No. 96 of 10.11.2004/18.12.2006, emanating from FIR No.164 dated 27.07.2004, under Sections 302, 201, 379 read with section 34 of the Indian Penal Code ('IPC' for short) of Police Station, Sultanwind, Amritsar. The appellants have been convicted for commission of offences punishable under Sections 302/34, 201 and 411 IPC. They have been sentenced to undergo imprisonment for life and pay a fine of `10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for a period of three years for commission of the offence punishable under Section 302 read with Section 34 IPC. They have also been sentenced to undergo rigorous imprisonment for three years and pay a fine of `2,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one year each for commission of the offence punishable under Section 201 IPC and also to undergo rigorous imprisonment for two years and pay a fine of `1,000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months for commission of the offence punishable under Section 411 IPC. All the substantive sentences imposed upon both the appellants were ordered to run concurrently and the period already undergone by them in CRA No.D-617-DB of 2007 3 custody, during investigation and trial, was ordered to be set off against the substantive sentences.
Case of the prosecution is that on 26.07.2004, Baljit Singh (deceased) son of complainant Hardial Singh did not return home as usual. The latter started searching for the former. On 27.07.2004, in the morning, while the complainant was searching Baljit Singh by the side of the canal in the area of village Chabba, he found the scooter of his son lying in the `chari' (fodder) field of one Sarabjit Singh son of Sewa Singh. He also noticed that the earth around that place was stained with blood. Mobile phone of his son was lying nearby. In the meantime, Baldev Singh son of Sangha Singh and Ranjodh Singh son of Pargat Singh, residents of village Chabba also reached at the spot. Hardial Singh took them alongwith him and started searching for his son along the side of the canal minor. The corpse of his son Baljit Singh was found lying in the water distributory of the canal minor in the field of Jagir Singh of village Kot Dharam Chand. They took out the corpse of Baljit Singh, which was having deep marks of injuries with sharp edged weapon. The complainant left Baldev Singh and Ranjodh Singh near the corpse and went to the police station to lodge the report. On the way, Swaran Singh, SI met him, before whom, the complainant made his statement Ex.PC. It was submitted inter alia by the complainant that his son Baljit Singh had been murdered by some unknown persons. Swaran Singh, SI made his endorsement Ex.PO on the said statement Ex.PC and sent the same to the Police Station, where formal FIR Ex.PO/1 was recorded.
Then Swaran Singh, SI went to the place, where corpse of Baljit Singh was lying and he prepared inquest report Ex.PP. Later, he sent the corpse to the mortuary of Civil Hospital, Amritsar along with request Ex.PB. He also prepared rough site plan of the place of recovery of the corpse Ex.PW. He also lifted blood stained earth and plain earth and took the same in his possession vide memo Ex.PK. Scooter No. PN- CRA No.D-617-DB of 2007 4 2AJ-7602 was seized vide memo Ex.PL. One mobile phone lifted from the spot was also seized vide memo Ex.PF. On return to the Police Station, Swaran Singh, SI deposited the case property with the MHC.
On 01.08.2004, Swaran Singh, SI recorded the statement of Manjit Singh. On 06.08.2004. he arrested Gurpreet Singh @ Gopi and Harjinder Singh @ Jinda (appellants). On 08.08.2004, Gurpreet Singh @ Gopi made a disclosure statement Ex.PS to the effect that he had kept concealed one scooter, one gold ring and a purse having `720/- and a dagger at his residential house and he could get the said articles recovered. Pursuant to his disclosure statement, he got recovered the said articles from the place as disclosed in his disclosure statement Ex.PS. The ring and purse were identified by one Sarabjit Singh and were seized vide memo Ex.PT. Rough sketch of the dagger Ex.PE/1 was als prepared and that was seized vide recovery memo Ex.PE. Scooter No. PB-2K-7916 was also seized vide memo Ex.PD. Swaran Singh, SI also prepared rough site plan of the place of recovery of these articles Ex.PU.
After completion of investigation, Station House Officer of Police Station Sultanwind, District Amritsar filed the police report under Section 173 of the Code of Criminal Procedure ('Cr.P.C' for short) before the learned Illaqa Magistrate to the effect that it appears that the appellants had committed offences punishable under Sections 364-A, 302/201/379 read with Section 34 IPC.
On presentation of police report, copies of documents, as required under Section 207 Cr.P.C were furnished to the appellants and the case was committed to the Court of Session for trial, which was entrusted to learned Additional Sessions Judge (Adhoc), Fast Track Court, Amritsar, who, on receipt of the Sessions case, framed charges under Sections 302 read with Section 34, 201 and 411 IPC against both the appellants, whereto, they pleaded not guilty and claimed trial. Consequently, prosecution evidence was summoned. CRA No.D-617-DB of 2007 5
At the trial, prosecution examined Dr. Gurmanjit Rai, Asstt. Professor Department of Forensic Medicines, GMC, Amritsar as PW1, Hardial Singh, complainant as PW2, Sarabjit Singh as PW3, Rishi Ram, Draftsman as PW4, Jatinderpal Singh, Constable as PW5, Manjit Singh as PW6, Anil Kumar as PW7, Kanwaljit Singh as PW8, Dalip Singh PW9, Ranjodh Singh as PW10, Satnam Singh, Constable as PW11, Swaran Singh, SI as PW12 and Panna Lal, HC as PW13. Besides, documents including the Forensic Science Laboratory report Ex.PY were tendered in evidence and, thereafter, the evidence of the prosecution was closed. After closure of the prosecution evidence, the appellants were examined under Section 313 Cr.P.C, wherein, they denied the allegations of the prosecution and pleaded innocence and false implication in this case.
The appellants were called upon to enter defence, but they closed the same without examining any witness.
After hearing both the sides, the learned trial Court vide impugned judgment and order of sentence, convicted and sentenced the appellants in the manner as described above. Aggrieved, therefrom, the appellants, who were accused before the learned trial Court, have filed this appeal with a prayer for acceptance, thereof, and for their acquittal from the charges framed against them.
Learned counsel for the appellants and learned Additional Advocate General for the respondent have been heard and record of the learned trial Court has been perused with their assistance.
First of all, it is to be seen as to what the prosecution witnesses have deposed against the appellants:-
PW1 Dr.Gurmanjit Rai, Asstt. Professor Department of Forensic Medicines, GMC, Amritsar conducted autopsy on the corpse of Baljit Singh and found the following injuries on the same:-
1. Incised wound 5 cm x 1.5 cms was present on the front of left side of neck, horizontally placed, just lateral to thyroid cartilage. O/D CRA No.D-617-DB of 2007 6 underlying muscles of neck and vessels were found cut and CBP was present. Trachea was found cut;
2. Incised wound 5 cms x 2.5 cms horizontally placed on right side of front of neck at the level of thyroid cartilage. CBP. O/D underlying carotid vessels, trachea, muscles and jugular vessels were found cut. Clotted blood was present;
3. Incised wound 4 cms x 1 cms obliquely placed was present on right side of front of neck just lateral to thyroid cartilage. Clotted blood was present . On dissection, it was muscle deep;
4. Multiple skin deep, four incised wounds of the size of 7.5 cms x 0.2 cms to 8 cms x 0.2 cms were present obliquely on front of back side of neck. Clotted blood was present;
5. 4 cms x 1 cms incised wound was present on front of right side of neck in between injuries Nos.3 and 4, which was muscle deep and clotted blood was present;
6. Reddish brown abrasion 7 cm x 0.1 cm was present on front of right shoulder;
7. Incised stab wound 0.6 cm x 0.2 cms present on left side of abdomen in epigastric region, 7 cms above umbilicus, skin deep.
Clotted blood was present;
8. Reddish brown abrasion, 2 cm x 1 cm was present on dorsum of right hand'
9. Reddish brown abrasion 2 cm x 1.75 cms was present on front of left leg, 13 cms below tibial tuberosity and
10.Multiple pale abrasions were present on back side of outer aspect of left upper arm, shoulder of left hand, dorsum and right hand of both knees and right elbow. (post mortem abrasions). On dissection of chest and abdomen, stomach was having 100 ml of yellowish coloured food and rest of the organs were found normal.
PW1 Dr. Gurmanjit Rai further testified that all the injuries CRA No.D-617-DB of 2007 7 were ante mortem in nature except injury no.10. Cause of death in this case, in his opinion, was severence of trachea and carotid vessel (vital organs) as a result of injuries no.1 and 2 on the neck, which were sufficient to cause death in the ordinary course of nature. He further testified that probable time that elapsed between injuries and death was within a few minutes and between death and post mortem was between 36 to 48 hours. He proved the post mortem report Ex.PA and pictorial diagram showing the seats of the injuries Ex.PA/1.
PW2 Hardial Singh complainant narrated the facts of his statement Ex.PC given by him, which was recorded by Swaran Singh, SI.
PW3 Sarabjit Singh deposed that his brother used to wear a gold ring with letter `B' inscribed thereon and he also used to keep a purse. He deposed that on 08.08.2004, he joined the police party Gurpreet Singh appellant was with the police party and scooter No. PB-02-7916 was recovered from his house, which was seized vide memo Ex.PD. He further deposed that one purse, a gold ring and a dagger stained with blood were also recovered from Gurpreet Singh appellant, pursuant to his disclosure statement. He also identified the mobile phone belonging to his brother during his deposition. He further deposed that the ring was having the word `B' inscribed thereon and the purse was containing currency notes of `720/-.
PW4 Rishi Ram, Draftsman prepared a scaled map of the place of recovery Ex.PG.
PW5 Jatinderpal Singh, Constable took parcel of blood stained dagger from the MHC and deposited the same with the Forensic Science Laboratory, Chandigarh.
PW6 Manjit Singh testified that on 30.07.2004, during the night, both the appellants came to him and stated that they had committed a mistake of murdering Baljit Singh on 26.07.2004 and they further confessed that they first took liquor and, thereafter, a dispute arose and CRA No.D-617-DB of 2007 8 then they committed murder of Baljit Singh with a knife. He further testified that both the appellants stated before him that the police was after them and they sought his help for their production before the police. He further deposed that he advised them to come on the next day, but they did not turn up on 01.08.2004.
PW7 Anil Kumar deposed that he was owner of scooter No. PB-02AJ-7602 and he sold the same to Baljit Singh through Simran Motors, Hide Market, Hussainpura, Amritsar. He also produced registration certificate Ex.PH before the police.
PW8 Kanwaljit Singh, proved the bill Ex.PJ relating to a gold ring which was got prepared by Baljit Singh.
PW9 Dalip Singh deposed that on 26.07.2004, he was returning to his village from Pandori Ram Singh on his bicycle and at about 08/08:30 pm, when he reached near the field of Sarabjit Singh, he saw the appellants throwing the corpse of Baljit Singh in the canal. Baljit Singh was having injuries marks and blood was oozing from the injuries. He testified that he asked the appellants that they had not done a proper thing; both the appellants threatened him not to disclose this incident to anyone. Then he came back to his house and thought a lot about the incident. On the next day at about 09:00 a.m, he went to Swaran Singh SI who was posted as SHO PS Sultanwind and narrated the incident to him and got recorded his statement. He further deposed that the police arrived at the spot and lifted blood stained earth and plain earth in his presence and seized the same vide memo Ex.PK. He also testified that one mobile phone was also recovered from the spot, which was also seized by the police vide recovery memo Ex.PF. He also testified that scooter was seized by the police vide memo Ex.PL, which belonged to Baljit Singh (deceased).
PW10 Ranjodh Singh identified the corpse of Baljit Singh at the time of autopsy and put his signatures on statement Ex.PM.
PW11 Satnam Singh, Constable tendered his affidavit Ex.PN CRA No.D-617-DB of 2007 9 in evidence.
PW12 Swaran Singh, SI deposed on the lines of the investigation conducted by him.
PW13 Panna Lal, HC also tendered in evidence his affidavit Ex.PX.
Learned counsel for the appellants contended that Manjit Singh PW6 before whom the former made the alleged extra judicial confession on 30.07.2004 is the father-in-law of the real sister of Baljit Singh (deceased) and in this manner, he was related to the deceased and, therefore, there was no occasion for the appellants to make any extra judicial confession before PW6 Manjit Singh, who was interested in the success of the case. Learned counsel for the appellants also contended that PW6 Manjit Singh was not a Panch, Sarpanch or Numberdar of the village and, therefore, he was not in a position to help the appellants. As such, the alleged extra judicial confession has been fabricated in order to fasten the liability of alleged murder of Baljit Singh upon them.
The learned Additional Advocate General for the respondent- State in response contended that the appellants suffered extra judicial confession of the guilt of commission of murder of Baljit Singh before PW6 Manjit Singh and, therefore, the evidence of the latter was rightly relied upon by the learned trial Court for holding the former guilty of commission of offences, wherefor, charge against them was framed by the learned trial Court. So, he contended that the extra judicial confession of the appellants may be upheld and affirmed.
The learned Addl. Advocate General for the respondent also contended that the evidence of PW9 Dalip Singh also inspires confidence and on the basis of his testimony, the learned trial Court rightly held that both the appellants were seen throwing the corpse of Baljit Singh in the canal by PW6 Manjit Singh. The dead body was having marks of injuries on it and blood was percolating from the injuries. He also contended that CRA No.D-617-DB of 2007 10 since PW6 Manjit Singh was threatened by the appellants of dire consequences, if he disclosed this incident to anyone, he on the next day at 09:00 a.m, informed Swaran Singh, SI about this incident and, thereupon, the police visited the place of recovery and lifted the blood stained earth from that place.
Learned Additional Advocate General also contended that Baljit Singh (deceased) was carrying a purse containing `720/- and a gold ring, whereon, letter `B' was inscribed and these were removed by the appellants from the person of Baljit Singh and later Gurpreet Singh appellant got these articles recovered pursuant to his disclosure statement Ex.PS, as also, Gurpreet Singh appellant got recovered scooter No. PB- 02K-7916, which was seized vide recovery memo Ex.PD. Learned counsel further contended that the dagger, stained with blood, was also recovered from Gurpreet Singh appellant, which was used in the commission of murder of Baljit Singh and the same was sent to the Forensic Science Laboratory and the latter vide report Ex.PY opined that the dagger was stained with human blood. So, he contended that the learned trial Court rightly convicted and sentenced the appellants vide its impugned judgment and order of sentence, which may be upheld and affirmed.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties. It may be noticed that the dagger Ex.P4 was allegedly recovered from Gurpreet Singh appellant. However, that was not shown to PW1 Dr. Gurmanjit Rai at the time of his deposition to prove that injuries on the person of Baljit Singh (deceased) could be caused, therewith. In the absence of such medical evidence on the record, it would in the facts and circumstances be unsafe to connect the dagger Ex.P4 with the alleged occurrence said to have been used for causing injuries to the deceased. There was no previous enmity between the appellants and the deceased. Therefore, there was no motive on the part of the appellants to commit the murder of Baljit Singh. It is the case of CRA No.D-617-DB of 2007 11 the respondent that some brawl took place between appellants and the deceased when they were taking liquor together and that resulted in causing injuries by the appellants to the deceased with the dagger Ex.P4. It would be quiet unsafe to rely on this, as there was no previous enmity between the appellants and Baljit Singh deceased. Therefore, there was no occasion for the appellants to carry a dagger with them. Besides, it is not believable that the appellants and Baljit Singh - the deceased took liquor together, as this aspect is not brought out from the medical evidence of PW1 Dr. Gurmanjit Rai. He, nowhere, states that there was alcohol in the contents of the stomach of the deceased. So, if the appellants and deceased had consumed alcohol together, in that event, the same would have been found present in the stomach of deceased and PW1 would have made a mention of the same in his autopsy report Ex.PA.
Since, there is no evidence of consumption of alcohol by the deceased in the company of the appellants, that missing link in the case, even falsifies the alleged extra judicial confession of the appellants before PW6 Manjit Singh. Besides, if the appellants had suffered the alleged joint extra judicial confession before PW6 Manjit Singh, in that event, they would have narrated the place of consumption of alcohol by them. If the extra judicial confession had been made by the appellants before PW6 Manjit Singh, they would have definitely disclosed the place, where the appellants and Baljit Singh deceased had consumed alcohol together and from which liquor vend, they purchased the liquor.
Even, the place where the alleged murder of Baljit Singh (deceased) had taken place at the hands of the appellants is not clear. Even the police did not demarcate the place where the alleged murder of Baljit Singh (deceased) took place. Had the appellants been the real culprits and had, indeed, suffered the extra judicial confession before PW6 Manjit Singh, they would have definitely narrated the place where alcohol was consumed by them and where the brawl took place and as to where CRA No.D-617-DB of 2007 12 they committed the murder of the deceased Baljit Singh and from which liquor vend, they purchased the liquor. These missing links make the case of the respondent doubtful against the appellants and possibility cannot be ruled out that some one other than the appellants had committed the murder of the deceased Baljit Singh and they have been implicated in this case on the basis of suspicion. Even the learned trial Court observed that the extra judicial confession is a weak type of evidence and it is still weak, when it is claimed by the respondent that it was made jointly by both the appellants and the specific words used by them while making the extra judicial confession were not stated by PW6 Manjit Singh and further when PW6 before whom the extra judicial confession was made is related to the deceased and is, thus, interested in the success of the case.
When that was the situation, the extra judicial confession should not have been relied upon by the learned trial Court. The appellants were not produced by PW6 before the police. If the things had happened in the alleged manner and the appellants had departed from the company of PW6 Manjit Singh after making an alleged confession of their guilt before him, he should not have kept silent on the matter while on the contrary, he should have acted, thereon, with alacrity and reported the matter to the police on the date of suffering of alleged extra judicial confession by them before him. We fail to understand as to why PW6 Manjit Singh allowed the appellants to leave and had asked them to come on the next day i.e on 01.08.2004. So, this silence on the part of PW6 Manjit Singh makes the alleged extra judicial confession doubtful.
The alleged extra judicial confession, as already observed, was jointly made by the appellants before PW6 Manjit Singh, with whom they had no intimacy. It was not mentioned, as to which of them disclosed which fact, because both the appellants could not state the same words. So, no reliance whatsoever can be placed upon the alleged extra judicial confession having been suffered by the appellants before PW6 Manjit CRA No.D-617-DB of 2007 13 Singh in view of the judgment passed by this Court in Niranjan Lal v. State of Haryana 1994(2) RCR(Crl.) 620. This was a case under Section 302 IPC. There was no eye witness of the case. Wrist watch belonging to deceased was recovered from the deceased. It was held that it is not sufficient to connect the accused with the offence. It was further held that a wrist watch is not such a valuable commodity, which the accused would keep concealed in his house and create evidence against himself. This judgment is fully applicable in the case of the present appellants to accord them the benefit of doubt and in view thereof, no reliance can be placed upon the alleged extra judicial confession suffered by the appellants before PW6 Manjit Singh.
Reliance can also be placed upon the judgment of this Court in Ajit Masih and another v. State of Punjab 1988(1) RCR(Criminal) 256, where a case under section 302 IPC was based on an extra judicial confession made jointly by two accused to a person with whom, they had no intimacy. It was held that confession of such a person is devoid of credibility. Moreover, joint confession cannot be accepted. In view of this judgment also, the alleged extra judicial confession of the appellants before PW6 Manjit Singh cannot be accepted.
Reliance can also be placed upon Om Parkash v. State of Haryana 1990(1) RCR (Criminal) 575, passed by this Court in a case under Section 302 IPC, wherein, there was an extra judicial confession by the accused before a retired police officer who had no special relationship with the accused. The retired police officer was also close to the family of the deceased therein. It was held that such a confession cannot be relied upon. Even both the accused in this case made the joint confession and such confession was not relied upon. Even in this case, gold ornaments were recovered from the accused and it was held that the ornaments were of ordinary make and in the absence of special mark of identification, CRA No.D-617-DB of 2007 14 recovery cannot be of much value. The case of the appellants is covered by this judgment and benefit of doubt must be accorded to them in view of the same.
The proposition of law laid down in these judgments were over looked by the learned trial Court, who at one stage held that an extra judicial confession is a weak type of evidence. Therefore, no reliance was liable to be placed upon the alleged extra judicial confession by the learned trial Court for holding the appellants guilty for commission of murder of Baljit Singh, especially when it had observed that an extra judicial confession is a weak type of evidence.
The learned trial Court observed that the extra judicial confession is not the only evidence against the appellants and that PW9 Dalip Singh saw the appellants throwing the corpse of Baljit Singh in the canal on 26.07.2004 at 08:30 p.m. If PW9 Dalip Singh had, indeed, seen the occurrence of alleged throwing of the corpse of Baljit Singh in the canal by the appellants, he would have got the case registered on that very night on 26.07.2004. The explanation given by him is that he was frightened from the appellants and on the next day at 09:00 a.m, he went to Swaran Singh, SI PW12 and narrated the incident to him and got recorded his statement. If the things would have happened in this manner, then Swaran Singh, SI PW12 would have registered the FIR at 09:00 a.m on 27.09.2004. So, in this view of the testimony of PW9 Dalip Singh, it follows that the police learnt about the occurrence of throwing of the corpse of Baljit Singh in the canal by the appellants at 09:00 a.m on 27.09.2004.
If Swaran Singh, SI PW12 had learnt about this occurrence at 09:00 a.m on 27.09.2004, he would have registered the FIR of this case. Since, no FIR was registered at 09:00 a.m on 27.09.21004, it follows that the testimony of PW9 Dalip Singh is an afterthought. If he had seen the corpse of the deceased being thrown in the canal by the appellants, then PW2 Hardial Singh would not have stated in his statement Ex.PC recorded CRA No.D-617-DB of 2007 15 by PW12 Swaran Singh, SI that he does not suspect anyone and he would have named the appellants as accused in his statement Ex.PC on the basis of alleged information given by PW9 Dalip Singh about the alleged throwing of corpse of Baljit Singh (deceased) in the canal by the appellants.
Evidence of PW9 Dalip Singh would have been believable, had he authored the FIR mentioning, therein, that the appellants were seen by him throwing the body of Baljit Singh (deceased) in the canal. So, this evidence is an after thought and deserves to be repelled. That being so, it becomes a case where no one saw the occurrence and no one saw the corpse of the deceased being thrown in the canal by the appellants.
Two scooters were allegedly recovered during investigation by PW12 SI Swaran Singh, who admitted that no document regarding their ownership, insurance and driving licence was recovered and no other article was recovered from the boot of the scooters. He also stated that scooter No. PB-02K-7916 was recovered during investigation, but no mention regarding this scooter was made in the inquest report or in the FIR. He further stated that he did not examine any witness who had seen this scooter being used for the commission of the crime. He also testified that he does not know if the scooters belonged to any of the appellants. So, one thing is very much certain that the scooters allegedly recovered during investigation did not belong to the appellants. One of the scooters belonging to deceased was not recovered from the appellants. No one saw the appellants travelling on those scooters. That being so, it is arduous to hold that these allegedly recovered scooters during investigation were used in the commission of the murder of the deceased Baljit Singh by the appellants.
No mention was made in the FIR or in the inquest report by PW12 Swaran Singh, SI to the effect that the deceased was wearing a gold ring and carrying a purse, which were allegedly recovered from CRA No.D-617-DB of 2007 16 Gurpreet Singh appellant. That being so, these were foisted upon Gurpreet Singh appellant. No recovery was made during investigation of any article from Harjinder Singh @ Jinda appellant. So, he could not be held to be the possessor of the stolen articles. Even there is no evidence on the record that the scooter allegedly recovered from Gurpreet Singh appellant was a stolen one, as owner, thereof, had not lodged a FIR that theft, thereof, was committed by some unknown person. So, the appellants were wrongly convicted for the commission of an offence punishable under Section 411 IPC, as they could be convicted for this offence, if the owner of the scooter had testified in candid words that the scooter was stolen from his custody either by the appellants or by some other unknown person.
As already held, the evidence of PW9 Dalip Singh is an after thought and that has been rejected and due to rejection, thereof, the offence under Section 201 IPC cannot be said to have been proved against the appellants. The alleged extra judicial confession has also been repelled and due to that reason, the appellants also cannot be connected with the commission of murder of Baljit Singh (deceased).
Learned trial Court, in these circumstances, wrongly convicted and sentenced the appellants vide impugned judgment and order of sentence. So, all the three circumstances i.e extra judicial confession, throwing of corpse of Baljit Singh (deceased ) in the canal and recovery of scooters, purse and gold ring appearing against the appellants are not legally established. Therefore, it cannot be said that the chain of circumstances confirms the guilt of the appellants beyond the reasonable doubt. There are lot of lacunae in the prosecution evidence which fairly show that the appellants (accused) might not be the persons who killed Baljit Singh (deceased). In these circumstances, the appellants are required to be given the benefit of doubt.
Resultantly, both the appeals succeed and are, hereby, allowed; impugned judgment of conviction and order of sentence are set CRA No.D-617-DB of 2007 17 aside and the appellants are acquitted of the charges framed against them by the learned trial Court by according them the benefit of doubt. They be set at liberty, if not required to be detained in some other case.
(S.P. BANGARH) (S.S. SARON)
JUDGE JUDGE
November 30, 2012
mamta