Punjab-Haryana High Court
State Of Punjab vs Paramjit Singh And Another on 18 September, 2011
Author: S.S. Saron
Bench: S.S.Saron, Jora Singh
Criminal Appeal D 249-DBA of 2004 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Criminal Appeal D 249-DBA of 2004
Date of decision: 8.9.2011
State of Punjab ...Appellant
Versus
Paramjit Singh and another ...Respondents
CORAM: HON'BLE MR JUSTICE S.S.SARON.
HON'BLE MR JUSTICE JORA SINGH.
Present: Mr US Dhaliwal, Additional AG Punjab for the appellant.
Mr DPS Kahlon, Advocate for the respondents.
S.S. SARON, J.
This appeal has been filed by the appellant - State of Punjab against the judgment and order dated 17.5.2003 passed by the learned Sessions Judge, Kapurthala, whereby the respondents have been acquitted for the offence punishable under Sections 302 and 34 Indian Penal Code ('IPC' - for short).
The FIR (Ex PA/2) has been registered on the statement of Bhupinder Lal, complainant (PW1). According to the complainant, he was running a Barber shop at the old Sabzi Mandi (vegetable market), Kapurthala. On 23.2.2002 at about 7 a.m. as usual after getting ready, he was to go to his shop. At that time, Paramjit Singh (respondent-1) son of Raghbir Singh, resident of Kartarpur Road, Kapurthala, who was a 'katha vachak' (religious preacher) at Kapurthala and was like a brother of his brother - Baldev Singh, came and informed that Jaswinder Kaur (deceased Criminal Appeal D 249-DBA of 2004 2 in the case) wife of Baldev Singh was lying unconscious on the ground in the Gurudwara Sahib and she was not waking up. Then BhupinderLal - complainant (PW1) along with his elder brother - Kishan Singh went to Gurudwara Himmat Singh Sahib where Jaswinder Kaur, his sister-in-law (Bharjaee) was lying. There were injury marks on her forehead; besides her neck was tied with a rope. She had died at that time. The sister-in-law of the complainant was Sewadar as Granthi at the said Gurudwara Himmat Singh Sahib. She had kept her residence at the Gurudwara by the side of Gurudwara Sahib and some unknown persons had murdered her by strangulating her the previous night. The house-hold articles were also lying scattered here and there. Bhupinder Lal (PW1) was coming to inform the Police that Inspector/SHO, PS City Kapurthala - Som Nath (PW7) met them on the way. The statement (Ex PA) of Bhupinder Lal, complainant (PW1) was recorded which he heard and accepted the same as correct. Police proceedings were recorded by Som Nath Inspector (PW7) to the effect that on 23.3.2002 he along with ASI Dilbagh Singh, Constable Harbhajan Singh, Constable Tarsem Singh (PW13), Constable Kuldeep Singh and Hans Raj were present in connection with patrol duty at Kottu Chowk in a government Gypsy vehicle which was driven by Tarsem Singh Constable. At that time, Bhupinder Lal, complainant (PW1) came to Inspector Som Nath (PW7) and he got his statement recorded, which was read over and explained to him. He signed the same in Punjabi in token of its correctness, which was attested by Inspector Som Nath (PW7). From the statement of the complainant (PW1), an offence punishable under Section 302 IPC was found to be made out. The statement was sent to the Police Station through Punjab Home Guard (PHG) Hans Raj for registration of a case (FIR). After Criminal Appeal D 249-DBA of 2004 3 registration, the FIR number was asked to be intimated. The information was asked to be given to the Control Room; besides, special reports were asked to be sent to the officers concerned. Inspector Som Nath (PW7) along with other Police officials and along with the complainant (PW1) proceeded to the place of occurrence. On receipt of the statement at the Police Station, FIR (Ex PA/2) was registered for the offence under Section 302 IPC. A copy of the FIR along with original statement of the complainant were sent to the Inspector/SHO PS City Kapurthala at the spot through the Punjab Home Guard official, who had brought the same. The special reports were prepared and were sent to the officers concerned. Information was also given to the Control Room through wireless message. The special reports were sent through Constable Sukhdev Singh. Inspector Som Nath (PW7) then proceeded to the place of the occurrence at Gurudwara Baba Himmat Singh at Mohalla Arfwala, Kapurthala. The dead body of Jaswinder Kaur was lying there. He inspected the spot and prepared inquest report (Ex PB) of the dead body. The dead body was identified by Harjit Singh and Kishan Singh. He also prepared the site plan (Ex PC) of the place of occurrence with correct marginal notes. One diary (Ex P1) and photograph (Ex P2) of Jagtar Singh (respondent-2) were recovered. The photograph was identified by Jasbir Singh (PW6) and these were made into a sealed parcel and sealed with seal bearing letters 'SN' and were taken in possession vide memo (Ex PW6/A) signed by Jasbir Singh (PW6) and Sawinder Singh ASI. The dead body of Jaswinder Kaur was handed over to Constable Tarsem Singh (PW13) and Constable Kuldeep Singh for getting the post-mortem examination conducted from Civil Hospital, Kapurthala. The injuries report (Ex PE) was also handed over to above said Constables along with other Criminal Appeal D 249-DBA of 2004 4 papers. Inspector Som Nath (PW7) recorded the statements of the witnesses. The photographs of the place of occurrence were taken by Surinder Kumar Chopra, photographer (PW11). After post-mortem examination, the dead body of Jaswinder Kaur and her clothes were handed over to Inspector Som Nath (PW7) by Constable Tarsem Singh (PW13) and Constable Kuldeep Singh. The Salwar (Ex P3), Shirt (Ex P4), the under- wear (Ex P5), one 'Gatra' (small kirpan) (Ex P6), an iron 'Kara' (ExP7), one 'Patka' (under turban) (Ex P8) and one Comb (Ex P9) were made into a sealed parcel and sealed with seal 'SN'. These articles were taken in possession vide memo (Ex PF). The case property on return to the Police Station was deposited by Inspector Som Nath (PW7) with the MHC. On 1.4.2002, the photographs and the negatives were produced by Surinder Kumar Chopra, photographer (PW11), which were taken in possession vide memo (Ex PG) which was attested by Surinder Kumar Chopra (PW11). Inspector Baljit Singh (PW15), on 7.4.2002 was posted as SHO PS City Kapurthala. The investigation of the present case was entrusted to him on 7.4.2002. He recorded the statements of Sawinder Singh Sarpanch (PW2) of village Pandori Sidhwan, Distt Amritsar regarding the confessional statement of Jagtar Singh (respondent-2) without any addition or omission. Raids were conducted at the house of Paramjit Singh (respondent-1) and Jagtar Singh (respondent-2) but they could not be arrested. On 10.4.2002, Inspector Baljit Singh (PW15) was present at Markfed Chowk, Kapurthala along with other Police officials in connection with investigation of the present case. At that time, Municipal Councilor - Sham Sunder (PW3) came and his statement was correctly recorded without any addition or omission. On 11.4.2002, Inspector Baljit Singh (PW15) along with other Criminal Appeal D 249-DBA of 2004 5 Police officials including ASI Iqbal Singh was present at Chahal Chowk, Kapurthala where Sawinder Singh Sarpanch (PW2) produced Paramjit Singh and Jagtar Singh - respondents before him. They were arrested in the present case and Baldev Singh (PW14) was called there from his house and was joined in the investigation. Then Paramjit Singh (respondent-1) on interrogation disclosed that he had kept concealed one mike (microphone) stand in the bed box in the bed room of his house. The same was only in his knowledge and he could get the same recovered. The disclosure statement (Ex PW14/A) of Paramjit Singh (respondent-1) was reduced into writing which was signed by him and attested by Baldev Singh (PW14) and ASI Iqbal Singh. Thereafter, Jagtar Singh (respondent-2) on interrogation disclosed that he had kept concealed one cloth rope near the Octroi Post, Fattu Dhingan Road, Kapurthala in the bushes of the date trees near the sewage drain. This fact was only in his knowledge and he could get the same recovered. The disclosure statement (Ex PW14/B) of Jagtar Singh (respondent-2) was reduced into writing which was duly signed by Jagtar Singh and attested by Baldev Singh (PW14) and ASI Iqbal Singh. On the basis of the disclosure statement (Ex PW14/A), Paramjit Singh (respondent-
1) got recovered a mike stand (Ex P21) from the place that was disclosed by him. The same was made into a sealed parcel with seal 'BS' and was taken in possession vide memo (Ex PW14/C), which was signed by ASI Iqbal Singh and Baldev Singh (PW14). Jagtar Singh (respondent-2) in pursuance of his disclosure statement (Ex PW14/B) got recovered a cloth rope (Ex P22) from the place that was disclosed by him. It was made into a sealed parcel and sealed with seal 'BS' and taken in possession vide memo (Ex PW14/D) which was attested by the aforesaid witnesses. Rough site plan Criminal Appeal D 249-DBA of 2004 6 (Ex PW15/A) of the recovery of mike stand and rough site plan (EX PW15/B) of the recovery of cloth rope were prepared. The statements of the witnesses were recorded. On return to the Police Station, the case property was deposited with the MHC. On 15.4.2003, the accused Paramjit Singh (respondent-1) was again interrogated in the presence of Baldev Singh (PW14), who disclosed that he had concealed a small packet of 'desi' medicine wrapped in a glazed paper in the drawer of the bed in the bedroom of his house regarding which only he knew. His disclosure statement (Ex PW14/E) was reduced into writing which was signed by him (Paramjit Singh respondent-1) and attested by ASI Iqbal Singh and Baldev Singh (PW14). Paramjit Singh (respondent-1) got recovered a packet of 'desi' medicine from the place that he had disclosed. The same was put in a sealed parcel and sealed with seal 'BS' and taken in possession vide memo (Ex PW14/F), which was attested by the above witnesses. Rough site plan (Ex PW15/C) of the place of recovery of this packet was prepared by Inspector Baljit Singh (PW15). The Police report (challan) was filed in the Court of learned CJM, Kapurthala on 25.6.2002. The learned CJM vide order dated 22.7.2002 observed that as per the report under Section 173 of the Code of Criminal Procedure ('CrPC' - for short) and accompanying documents, a prima facie case for the offence under Section 302 IPC was made out. The offence under Section 302 IPC was exclusively triable by the Court of Session. Accordingly, the case was committed to the Court of learned Sessions Judge, Kapurthala. The learned Sessions Judge, Kapurthala on 12.8.2002, charge sheeted the respondents on the allegations that during the intervening night of 22/23.3.2002 in the area of Mohalla Arfwala i.e. in the Gurudwara in furtherance of the common intention of both, they committed Criminal Appeal D 249-DBA of 2004 7 the murder by intentionally and knowingly causing the death of Jaswinder Kaur and thereby they both committed the offence punishable under Section 302 read with Section 34 IPC. The respondents were directed to be tried of the said charge by the said Court. The charge was read over and explained to the respondents in simple Punjabi, which they understood. The respondents pleaded not guilty to the charge and claimed trial. The prosecution in order to establish its case, examined as many as 15 witnesses; besides tendered documents in evidence. Paramjit Singh (respondent-1) in his defence stated that he was innocent and all the PWs were interested witnesses and related to each other and that he had not committed the murder of Jaswinder Kaur; he belonged to Brahmin caste while the deceased's family belonged to Barber caste; he along with other relatives were apprehended by the CIA staff, Kapurthala on 7.4.2002 and later he was brought to the Police Station City Kapurthala and the present case was planted on him. Jagtar Singh (respondent-2) in his defence stated that he was innocent; he had been falsely involved in the case; all the PWs were interested witnesses and related to each other; he was a Jat by caste while the deceased's family was Barber by caste. In defence, the respondents examined Baljit Singh, Clerk of BST School, Beharipur, PS Sadar Kapurthala as DW1, who stated that Vipin Kumar (PW5) was working as a Maths Teacher in the school. Vipin Kumar (PW5) attended the school from 23.3.2002 to 1.4.2002 regularly. The said school was at a distance of 8 kms from Kapurthala. The school timings in those days were from 8 a.m. to 2 p.m. He identified the signatures of Vipin Kumar (PW5) on the attendance register against the presence marked by him. The photocopies of the entries of the attendance register were Exs D1 and D2. In Criminal Appeal D 249-DBA of 2004 8 cross examination, it is stated by him that there were holidays on 23.3.2002, 24.3.2002 and 28.3.2002. On 23.3.2002 and 24.3.2002 Saturday and Sunday had fallen. After 2 p.m. employees can go anywhere after obtaining special leave. Their school was a private school. Vipin Kumar (PW5) originally belongs to village Dhilwan, District Kapurthala. Sukhwinder Singh, Ahlmad in the Court of CJM Kapurthala was examined as DW2. He had brought the original application (Ex D3) of Surjit Kaur wife of Raghbir Singh. Its certified copy was Ex D3. It was correct that the application was marked to the Incharge CIA Staff Kapurthala for report by the then CJM Kapurthala on 10.4.2002. The CIA Incharge submitted report (Ex PX1) on the same day. The order (Ex PX/2) of the CJM was on the back side of the application (Ex P3). The learned Sessions Judge, Kapurthala after considering the evidence and material on record has acquitted the respondents against which the present appeal has been filed.
Learned counsel for the appellant State has submitted that the learned trial Court has gravely erred in discarding the evidence of Vipin Kumar (PW5) and Bhajan Lal (PW4). Vipin Kumar (PW5) had seen both the accused respondents entering the Gurudwara on 22.3.2002 at 11 p.m. Bhajan Lal (PW4) saw the accused coming out of the Gurudwara on 23.3.2002 at 4.15 a.m. They were perplexed. Paramjit Singh (respondent-1) was having a mike (microphone) stand and a lead in his hand whereas Jagtar Singh (respondent-2) was having a rope like cloth. The said articles it is stated were recovered on the basis of their disclosure statements. Therefore, the murder of Jaswinder Kaur had been committed during the night of 22/23.3.2002. The accused were seen before and after the occurrence which is a strong circumstance to show their involvement in the crime. It is Criminal Appeal D 249-DBA of 2004 9 submitted that the relationship inter se the witnesses with the deceased and her husband - Baldev Singh (PW14) would not dis-credit their testimonies. Besides, it is submitted that the learned trial Court gravely erred in discarding the extra-judicial confession made before Sham Sunder Aggarwal (PW3), who is a Municipal Councilor of the same Mohalla where the occurrence had taken place. Paramjit Singh (respondent-1) had made a clean breast of the commission of the crime before a very respectable person without any pressure and the same was voluntary. Therefore, an order of conviction was liable to be passed on the basis of extra judicial confession in the case. It is submitted that the learned trial Court wrongly held that the articles lying near the dead body of Jaswinder Kaur were not mentioned in the inquest report which it is stated is only an irregularity on the part of the investigating authorities. The photographs of Jagtar Singh (respondent-2) and one diary were taken in possession from there. The respondents had failed to explain as to how these articles were lying near the dead body. The post mortem report it is submitted mentions the cause of death of Jaswinder Kaur due to injury on the neck leading to asphyxia, which was sufficient to cause death. The ligature mark alone was present in the middle neck. No blood had oozed out from the injuries. Therefore, the question of blood falling on any article did not arise. Moreover, the death had been caused by strangulation by pressing the neck with a rope like cloth as per the extra judicial confession made before Sham Sunder (PW3) by Paramjit Singh (respondent-1). Jagtar Singh (respondent-2) it is stated made an extra judicial confession before Sawinder Singh (PW2), who though turned hostile, but nevertheless the involvement of Jagtar Singh (respondent-2) in the commission of the crime is made out. Therefore, it is submitted that the Criminal Appeal D 249-DBA of 2004 10 judgment and order of the learned trial Court is liable to be set aside and reversed.
In response, learned counsel for the respondents has submitted that the respondents have rightly been acquitted by the learned trial Court and the learned trial Court has recorded cogent and convincing reasons for acquitting them which are not liable to be interfered with in appeal merely because another view may be possible.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance have gone through the record of the case.
The prosecution case is that Paramjit Singh (respondent-1) was a religious preacher (Katha Vachak). Baldev Singh (PW14) - husband of Jaswinder Kaur (deceased) along with their children were residing in the Gurudwara Himmat Singh Wala, Mohalla Arfwala, Kapurthala. Paramjit Singh (respondent-1) was on visiting terms with Baldev Singh (PW14) for the last five years earlier to the incident that occurred on 23.3.2002. Jagtar Singh (respondent-2) also visited the house of Baldev Singh along with Paramjit Singh (respondent-1). Bhupinder Lal (PW1) - complainant is the brother of Baldev Singh (PW14). Jasbir Singh (PW6) is the brother of Jaswinder Kaur (deceased) while Baldev Singh (PW14) is the maternal uncle of Vipin Kumar (PW5). On 22.3.2002 at about 7.30 a.m. Bhupinder Lal (PW1) was getting ready to go to his Barber shop situated at old Vegetable Market, Kapurthala. At that time, Paramjit Singh (respondent-1) came to him and informed that Jaswinder Kaur (deceased) was lying in her house in the Gurudwara and she was not waking up. Then Bhupinder Lal (PW1) along with his brother - Kishan Singh went to the Gurudwara Himmat Singh. Criminal Appeal D 249-DBA of 2004 11 There they found Jaswinder Kaur was lyhing on the ground with injury marks on her forehead. There was a ligature mark on her neck and she was dead. After that Bhupinder Lal and Kishan Singh were going to the Police Station for reporting the matter. However, the Police party headed by Inspector Som Nath (PW7) met him at Kottu Chowk Kapurthala where his statement (ExPA) was recorded by Inspector Som Nath (PW7) which Bhupinder Lal (PW1) signed in token of its correctness. On 22.3.2002 itself, Baldev Singh (PW14) - husband of Jaswinder Kaur (deceased) was intimated at Guru Nanak Mission Hospital, Jalandhar where he was admitted due to illness. Vipin Kumar (PW5) went there to inquire about his health. He returned from Jalandhar and reached Kapurthala at 11 p.m. When he arrived at about 11 p.m. near the Gurudwara at about 11.15 p.m. and was going to his house, the respondents were going ahead of him at a distance of 15-20 'karams'. Paramjit Singh (respondent-1) entered the Gurudwara. At that time, street lights were on in front of the Gurudwara. Vipin Kumar (PW5) then went to his house. At about 4.15 a.m. in the morning on the next day, Bhajan Lal (PW4) was going for a morning walk towards the said Gurudwara Baba Himmat Singh, Mohalla Arfwala, Kapurthala and he saw both of the respondents coming out of the Gurudwara. At that time both the respondents were nervous and confused. Paramjit Singh (respondent-1) was having a mike stand and a lead in his hand while Jagtar Singh (respondent-2) was carrying a black cloth rope which he had wrapped around his neck. Later, Paramjit Singh (respondent-
1) went to Sham Sunder Aggarwal, Municipal Councilor (PW3) and on 9.4.2002 at about 9 p.m., Paramjit Singh (respondent-1) confessed regarding the murder of Jaswinder Kaur. He further told Sham Sunder Aggarwal, Criminal Appeal D 249-DBA of 2004 12 Municipal Councilor (PW3) that he was having illicit relations with Jaswinder Kaur (deceased) and that he had administered some medicine to her husband - Baldev Singh (PW14), which fact came to the notice of Jaswinder Kaur. Jaswinder Kaur (deceased) used to tell Paramjit Singh (respondent-1) not to meet his own wife. She also threatened him that she would tell her husband in case he did not stop meeting his own wife. Thereafter, the respondents made a plan to murder Jaswinder Kaur. On the intervening night of 22/23.2.2002, the murder of Jaswinder Kaur was committed in the Gurudwara by strangulating her. Sham Sunder (PW3) had asked Paramjit Singh (respondent-1) to come on the next morning but he did not come. After Bhupinder Lal (PW1) made a statement before Inspector Som Nath (PW7) and on the basis of the same, the FIR was recorded, Som Nath Inspector then went to the place of occurrence where the dead body of Jaswinder Kaur was lying. He carried out investigations in the case and prepared inquest report (Ex PB) of the dead body. The dead body was identified by Harjit Singh and Kishan Singh. Inspector Som Nath prepared the site plan (Ex PC). Jasbir Singh (PW6) - brother of Jaswinder Kaur (deceased) joined the investigation. In his presence, the Police recovered a pocket diary (Ex P1) in which some telephone numbers were written. There was one passport size photograph (Ex P2) of Jagtar Singh in the diary (Ex P1). The diary (Ex P1) and the photograph (Ex P2) of Jagtar Singh (respondent-2) were taken in possession vide memo (Ex PW6/A). Dr Kanwaljit Singh (PW9) along with other doctors of the Board of Doctors i.e. Dr Subhash Chander and Dr Gurbachan Singh conducted the post mortem examination on the dead body of Jaswinder Kaur. There were 3 injuries found on the dead body which were a ligature mark measuring 22cm x Criminal Appeal D 249-DBA of 2004 13 1.5cm, a contusion measuring 13cm x 11cm and a lacerated wound measuring 3cm x 1cm. In the opinion of the Board of Doctors, the cause of death was injury on the neck leading to asphyxia, which was sufficient to cause death in the ordinary course of nature. The injuries were ante mortem in nature. Dr Gurjit Singh Saluja (PW12) of Lifeline Hospital, Jalandhar stated that Baldev Singh (PW14) was admitted in Guru Nanak Mission Hospital, Jalandhar and was consulted by Dr Vijay Nanda of their hospital on OPD basis. The OPD record was Ex PW12/A. As per Certificate (Ex PW12/B), Baldev Singh (PW14) had remained admitted in Guru Nanak Mission Hospital, Jalandhar from 11.2.2002 to 23.3.2002. The medical advice was Ex PW12/C while the OPD Slip of Lifeline Hospital was Ex PW12/D. On 11.4.2002 Inspector Baljit Singh (PW15) was present at Chahal Chowk Kapurthala where Sawinder Singh Sarpanch (PW2) produced both the respondents before him and they were arrested. Baldev Singh (PW14) was called and joined in the investigation. On 11.4.2002, Paramjit Singh (respondent-1) got recovered a mike stand (Ex P21) on the basis of his disclosure statement (Ex PW14/A). Jagtar Singh (respondent-2) got recovered a cloth rope (Ex P22) on the basis of his disclosure statement (Ex PW14/B). On 15.4.2002, Paramjit Singh (respondent-1) also got recovered a packet of 'desi' medicine on the basis of his disclosure statement (Ex PW14/E) which was taken in possession vide memo (Ex PW14/F). On 22.3.2002, Baldev Singh (PW14) was discharged from Guru Nanak Mission Hospital, Jalandhar. At that time, Paramjit Singh (respondent-1) went there and offered him a glass of juice and after taking the same, Baldev Singh was again admitted there. Jagat Singh (PW10) was examined, who on 18.6.2002 prepared the scale site plan (Ex PK) at the Criminal Appeal D 249-DBA of 2004 14 instance of the Police with correct marginal notes.
The case is one of circumstantial evidence in which case the prosecution is liable to prove and establish not only the guilt of the accused respondents beyond shadow of reasonable doubt but the chain of circumstances is to be so complete that it points only to the guilt of the accused and rules out any hypothesis of their innocence. None of the prosecution witnesses has directly seen the incident that had occurred. The evidence of Vipin Kumar (PW5) is to the effect that he had returned from Jalandhar at 11 p.m. at Bus Stand Kapurthala. He reached the Gurudwara at about 11.15 p.m. Some persons were seen coming out of the said Gurudwara and it appeared as if recitation of Guru Granth Sahib had closed. He was going towards his house in Mohalla Arfwala. The accused respondents were going ahead of him at a distance of 15-20 karams. Both of them entered Gurudwara Himmat Singh wala and the street lights were on in front of the said Gurudwara and he himself went to his house. He knew the accused persons prior to the occurrence. Jaswinder Kaur (deceased) was wife of Baldev Singh (PW14) who was his maternal uncle. In cross examination, it is stated that he was working as a teacher in BST Secondary School, Beharipur which was at a distance of 12 kms from Kapurthala. The annual examinations of the students were going on in those days. On 22.3.2002 he had gone to Jalandhar at about 6.30 p.m. and reached Guru Nanak Mission Hospital, Jalandhar at 7.30 p.m. He did not obtain any leave from the School and his presence, it is stated, must have been marked in the school. He did not disclose the fact of entry of the accused (respondents) in Gurudwara Himmat Singh to anybody at Kapurthala including his neighbours. According to him, he had seen both Criminal Appeal D 249-DBA of 2004 15 the accused entering the Gurudwara on 22.3.2002 at about 11p.m. Bhajan Lal (PW4) had seen both the accused in the morning at about 4.15 a.m. on 23.3.2002 when he was going for a morning walk towards the Gurudwara Baba Himmat Singh. He saw both the accused respondents coming out of the Gurudwara. They were wearing clothes and were nervous and confused. Paramjit Singh (respondent-1) was carrying a mike stand and a lead in his hand whereas Jagtar Singh (respondent-2) was having a black cloth which was like a rope and was wrapped around his neck. Jaswinder Kaur (deceased) was known to him and she used to reside in the above mentioned Gurudwara. The said witnesses namely Vipin Kumar (PW5) and Bhajan Lal (PW4) are mere chance witnesses; one had seen both the accused (respondents) going in the Gurudwara at night while the other had seen them coming out of the Gurudwara. Vipin Kumar (PW5) is the nephew of Baldev Singh (PW14) - husband of deceased Jaswinder Kaur. They indeed had not seen the actual occurrence regarding commission of the murder. Bhajan Lal (PW4) is the first cousin of Baldev Singh (PW14) - husband of deceased Jaswinder Kaur. Though the testimonies of related witness are not to be summarily discarded and a conviction can be based on the same; however, both being chance witnesses it is proverbially rash to rely on the testimony of chance witnesses and it would in the facts and circumstances be unsafe to record a finding of conviction based on such a deposition. This would be specially so when the learned trial Court has itself discarded the prosecution case. The said witnesses Vipin Kumar (PW5) and Bhajan Lal (PW4) are related to the complainant side, besides, are mere chance witnesses.
As regards the extra-judicial confession made by Paramjit Singh Criminal Appeal D 249-DBA of 2004 16 (respondent-1) before Sham Sunder (PW3), it may be noticed that Sham Sunder is a Municipal Councilor. He states that he knew the accused (Paramjit Singh respondent-1) who was working as a Katha Vachak (religious preacher) in Gurudwara. According to Sham Sunder (PW3), Paramjit Singh (respondent-1) came to him on 9.4.2002 at 9 p.m. at his residence and informed him that he had murdered Jaswinder Kaur. Paramjit Singh (respondent-1) also informed Sham Sunder that he had illicit relations with Jaswinder Kaur. He also told Sham Sunder (PW3) that he had administered some medicine to her husband (Baldev Singh (PW14) and Jaswinder Kaur had come to know about this. He also said that Jaswinder Kaur used to tell him not to meet his own wife and also threatened him that she will tell her husband in case he did not stop meeting his own wife. Paramjit Singh (respondent-1) then made a plan along with one more person whose name he did not remember to murder her. Sham Sunder (PW3) states that Paramjit Singh (respondent-1) told him that during the intervening night of 22/23.2.2002 they committed the murder of Jaswinder Kaur by strangulating her in the Gurudwara. Sham Sunder (PW3) asked Paramjit Singh (respondent-1) to come on the next morning for going to the Police Station as he had some urgent work on that night but on the next morning Paramjit Singh (respondent-1) did not turn up. Sham Sunder (PW3) narrated the whole story on the next day to the Police and his statement was recorded. In cross examination, it is stated that he did not have any knowledge about the family background of Paramjit Singh (respondent-1). He knew Paramjit Singh (respondent-1) as he was a famous person but he did not know how many children he had. He did not know about his brothers and relations. He did not know about the age of his children nor the Criminal Appeal D 249-DBA of 2004 17 school where they were studying. He had not visited the house of Paramjit Singh prior to 9.4.2002. He did not know the residence of Paramjit Singh and that he never recited Katha in his house prior to 9.4.2002.
An extra judicial confession as is known is a weak nature of evidence and a conviction by itself is normally not to be based on such a confession. The learned trial Court observed that a suspected person may make an extra judicial confession before a person whom he personally knows and had faith in him. The said person would help him to some extent in the incident that had occurred. Sham Sunder (PW3) states that he did not know if the Police recorded the statement of any person. In his presence, the statements of Vipin Kumar (PW5) and Bhajan lal (PW4) were not recorded by the Police. He did not know when the dead body was taken from the place of the occurrence by the Police. He could not go to attend the cremation of Jaswinder Kaur. He had not attended the last rites ceremony. He did not attend the Bhog ceremony of Jaswinder Kaur as he was out of station. His statement was recorded by SI Baljit Singh (PW15) when he had gone to the Police Station on 10.4.2002 at about 9-10 a.m. The learned trial Court having not placed any reliance on the testimony of Sham Sunder (PW3), there is no reason to differ with the conclusions reached at by the learned trial Court. It cannot be said that the learned trial Court discarded the testimony of Sham Sunder on flimsy grounds or without any reasons. The extra judicial confession made by Paramjit Singh (respondent-
1) before Sham Sunder (PW3) indeed does not inspire confidence and in the facts and circumstances it would be quite unsafe to base a conviction on such extra judicial confession when no closeness has been established between the two and when Paramjit Singh (respondent-1) did not go to Criminal Appeal D 249-DBA of 2004 18 Sham Sunder (PW3) on the next morning after making his confession to appear before the Police. Therefore, indeed Sham Sunder (PW3) had not produced Paramjit Singh (respondent-1) before the Police.
The other contention of the learned counsel for the appellant State that the learned trial Court erroneously held that the articles lying near the dead body were not mentioned in the inquest report may be considered. The learned trial Court held that in Columns 23 and 24 of the inquest report, the articles which were lying scattered near the dead body were liable to be disclosed and this fact ought to have been mentioned in the inquest report. Indeed non-mentioning the articles that were lying near the dead body do create a doubt and a suspicion is raised as regards the truthfulness of the prosecution case especially when the case is based on circumstantial evidence. Bhupinder Lal (PW1) complainant in his deposition states that the clothes were lying scattered near the dead body of Jaswinder Kaur; it is stated that the attache case and the trunks of the deceased were lying open, the godrej almirah was also lying open; besides the articles were lying scattered. Jasbir Singh (PW6) who is the brother of Jaswinder Kaur (deceased) also states that the clothes were lying scattered at the spot but the almirah was not open. However, the said facts are indeed not mentioned in the inquest report. The diary (Ex.P1) and the photograph (Ex.P2) of Jagtar Singh (respondent-2) is said to have been recovered from the dead body of Jaswinder Kaur, which were taken into possession in pursuance of Ex PW6/A. It is stated that in the presence of Jasbir Singh and Sawinder Singh ASI, one small diary had been found from the clothes lying there on which the name of Jagtar Singh (respondent-2) was written. Jarnail Singh, resident of village Vairowal Bawaian, District Amritsar had been written Criminal Appeal D 249-DBA of 2004 19 and many other telephone numbers were also written in it. One Passport size photograph had also been recovered from the diary. The photograph was identified by Jasbir Singh (PW6) as that of Jagtar Singh (respondent-
2). Jasbir Singh, as already noticed, is the brother of Jaswinder Kaur (deceased). It is stated that after the death of Jaswinder Kaur from the scattered clothes, the articles recovered were a pocket diary on which some telephone numbers were written and a passport size photograph of Jagtar Singh. However, the deposition of Jasbir Singh (PW6) is quite doubtful inasmuch as he states that on 22.3.2002 his sister's husband - Baldev Singh (PW14) was admitted in Guru Nanak Mission Hospital, Jalandhar. He had gone to enquire about his health at Jalandhar about 9.30 p.m. He stayed there for the night in the Hospital and came in the next morning. During the night, nobody came in the Hospital to attend Baldev Singh. This aspect is quite contrary to the deposition of Vipin Kumar (PW5) who states that on 22.3.2002, he went to meet Baldev Singh at Guru Nanak Mission Hospital, Jalandhar due to his illness and he returned back to Kapurthala at 11 p.m. He states that at the said Hospital at 7.30 p.m. when he reached, Paramjit Singh (respondent-1) was present there by his side. Except himself no other family member of Baldev Singh was present there. However, Jasbir Singh (PW6) states in his cross examination that there was none else present with Baldev Singh when he reached there at 9.30 p.m. He and Manga remained with Baldev Singh throughout the night of 22/23.2.2002. Then he and Manga started from the Hospital at 7 a.m. and reached Kapurthala on a scooter at 7.30 a.m. At that time, he came to know regarding the death of his sister - Jaswinder Kaur in the Gurudwara. He immediately reached there where the dead body of Jaswinder Kaur was lying. Six-seven persons Criminal Appeal D 249-DBA of 2004 20 of the 'mohalla' were present there but he did not know their names. He did not know Bhajan Lal (PW4). He resided with his sister in the Gurudewara. He did not know the distance from the Gurudwara and the house of Bhajan Lal (PW4). He did not know if Bhajan Lal (PW4) was a cousin brother of Baldev Singh (PW14). He did not know if Bhajan Lal (PW4) was his real 'Phuphar' (father's sister's husband). He did not know if Vipin Kumar (PW5) was the son of the sister of Baldev Singh (PW14). There is no explanation given by him as to how he knew Jagtar Singh (respondent-2) and that ExP2 was his photograph. Therefore, the deposition of Jasbir Singh (PW6) does not inspire any confidence so as to base a conviction on the same.
The death of Jaswinder Kaur in terms of the deposition of Dr Kanwaljit Singh, EMO Civil Hospital, Kapurthala (PW9) was due to injury on the neck leading to asphyxia, which was sufficient to cause death in the ordinary course of nature and the injuries were ante mortem in nature. However, merely because there is ligature mark on the neck which led to asphyxia by itself would not connect the respondents with the commission of murder. Therefore, the contention of the learned counsel for the State that in the post mortem examination, the cause of death was due to asphyxia would by itself be not such a circumstance to hold that the respondents had committed the murder of Jaswinder Kaur.
Sawinder Singh (PW2) before whom Jagtar Singh (respondent-2) is said to have made an extra judicial confession has resiled from his statement made before the police and he did not support the prosecution case. He states that Jagtar Singh (respondent-2) never came to him on 4.4.2002 nor did he make any confessional statement before him. He was Criminal Appeal D 249-DBA of 2004 21 cross examined by the learned Public Prosecutor after getting him declared hostile. However, nothing could be brought out from his deposition which would help the prosecution case.
Baldev Singh (PW14) is the husband of Jaswinder Kaur deceased. He states that Paramjit Singh (respondent-1) was on visiting terms with him for the last five years and he used to treat him like his brother. Jagtar Singh (respondent-2) had also visited their house along with Paramjit Singh (respondent-1) many times. On 11.4.2002 he had joined the Police party headed by Inspector Balit Singh (PW15) at Chahal Chowk, Kapurthala. Paramjit Singh and Jagtar Singh - respondents were present there in Police custody and on the basis of their disclosure statements a mike stand and a cloth rope were recovered from them. On 15.4.2002 a packet containing 'desi' medicine wrapped in a glazed paper was recovered from the drawer of the bed box in the bed room of the house of Paramjit Singh (respondent-1). It is deposed by Baldev Singh (PW14) that prior to the occurrence, he was admitted in Aujla Hospital Kapurthala from where he was shifted to Guru Nanak Mission Hospital, Jalandhar where he remained admitted from 11.2.2002 to 23.3.2002. On 22.3.2002 he was discharged by the doctor and Paramjit Singh (respondent-1) accused came to him there in the hospital and he told him that the doctors had discharged him. He then offered him a glass of juice which he consumed. After taking the juice, Baldev Singh (PW14) again became ill and again Paramjit Singh (respondent-1) got him admitted in the hospital on the same day. On 23.3.2002 his relatives came to the hospital and they told him that his wife had died and he left the hospital. A perusal of the medical certificate (Ex PW12/B) issued by Guru Nanak Mission Hospital, Jalandhar City shows Criminal Appeal D 249-DBA of 2004 22 that Baldev Singh (PW14) was admitted and was under indoor treatment from 11.2.2002 to 23.3.2002. He was advised bed rest from 24.3.2002. It is mentioned that he was suffering from Chronic Colitis; besides complain of anxiety neurosis and Gastritis. There is nothing to show that he consumed some 'desi' medicine which was recovered from the bed box of the bed room of Paramjit Singh (respondent-1).
Therefore, in the facts and circumstances of the case, it may be noticed that there is no cogent or convincing evidence to hold that the respondents had committed the murder of Jaswinder Kaur. The deposition of Sham Sunder (PW3) does not inspire any confidence. He was unknown to Paramjit Singh (respondent-1). The prosecution case that Paramjit Singh (respondent-1) had undesirable relations with Jaswinder Kaur (decease) is not established. Except for the bald assertion of Sham Sunder (PW3) there is nothing on record to establish the said relationship. Therefore, the chain of circumstances to record a finding of guilt is quite incomplete so as to hold that the respondents had committed the murder of Jaswinder Kaur (deceased). Besides, the learned trial Court having taken a possible view, this Court in exercise of its appellate jurisdiction is not to interfere merely because another view may be possible.
In the facts and circumstances of the case, there is no merit in the State appeal and the same is accordingly dismissed.
(S.S. SARON) JUDGE (JORA SINGH) JUDGE 8.9.2011 ASR