Punjab-Haryana High Court
Darshan Singh And Others vs State Of Punjab on 3 August, 2012
Author: Jitendra Chauhan
Bench: Jitendra Chauhan
Crl.Appeal No. 795-SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl.Appeal No. 795-SB of 2000
Date of decision :3.8.2012
Darshan Singh and Others Appellants
v.
State of Punjab Respondent
CORAM: HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. P.S. Brar, Advocate for the appellants
Mr. Luvinder Sofat, AAG,Punjab
....
JITENDRA CHAUHAN.J This appeal has been filed by the appellants against the judgment of conviction and order of sentence dated 19.8.2000, passed by the learned Additional Sessions Judge, Moga, convicting and sentencing the appellants as under:-
Darshan Singh | U/S 304 Part-II To undergo R.I. For Baldev Singh | read with section 10 years and to pay Ranjit Singh | 149 IPC a fine of Rs.200/-
Sarabjit Singh | each and in default Iqbal Singh @ Pappu | of payment of fine, to Jagsir Singh @ Seera | further undergo Pritam Singh | R.I for two months Kuldeep Singh@Titu | each Surjit Singh | Kulwant Singh @Titi | Harbans Singh @ Kukku | Tek Singh Harjinder Singh @ Bittu | Darshan Singh | U/S 342 IPC To undergo R.I. For Baldev Singh | read with section 1 year and to pay Ranjit Singh | 149 IPC a fine of Rs.100/- Sarabjit Singh | each and in default Crl.Appeal No. 795-SB of 2000 2 Iqbal Singh @ Pappu | of payment of fine, to Jagsir Singh @ Seera | further undergo Pritam Singh | R.I for one month Kuldeep Singh@Titu | each Surjit Singh | Kulwant Singh @Titi | Harbans Singh @ Kukku | Tek Singh Harjinder Singh @ Bittu | Darshan Singh | U/S 148 IPC To undergo R.I. For Baldev Singh | 2 years each Ranjit Singh | Sarabjit Singh | Iqbal Singh @ Pappu | Jagsir Singh @ Seera | Pritam Singh | Kuldeep Singh @ Titu | Surjit Singh | Kulwant Singh @Titi | Harbans Singh @ Kukku| Tek Singh Harjinder Singh @Bittu
All the substantive sentences of imprisonment were ordered to run concurrently.
The brief facts of the case are that on 3.9.1998, statement of Atma Singh, father of deceased Tarsem Singh was recorded by S.I. Manminder Singh (PW12), which reads as under:-
" I am resident of village Sandhuanwala. Today at about 7 a.m in the morning, I received an information on telephone that my son Tarsem Singh has been detained by some residents in the house of Boota Singh son of Ram Kishan near Bahona Chowk. If his care is not taken, people/public will kill him taking to be a thief. On receiving the information, I alongwith Ex. Sarpanch Lakhbir Singh and my nephew Gurbachan Singh son of Crl.Appeal No. 795-SB of 2000 3 Ajaib Singh, resident of Sandhuanwala and Kuldeep Singh son of Katrar Singh, resident of Sandhunwala reached the spot and saw that 20-25 persons armed with Kirpans, dangs, dattars were present in the house of Boota Singh and they had encircled Tarsem Singh. On asking, I came to know names of the following persons:-
Gurbachan Singh, President son of Karnail Singh, Darshan Singh son of Mangal Singh, Dev Raj, Kallu @ Hero son of Sadhu Singh, Darshan Singh, Tamela Singh, residents of Mahron, Ashwinder Singh son of Gurbaksh Singh resident of Preet Nagar, Moga, Ajmer Singh son of Billu, Bider Aurpinder, Bajadar Singh, Resha, T.T Yodha, Heera, Jalour Singh, residents of Godhewala, Ludher, resident of Uchi Gali and Others, whom I and my companions can recognize. I and my companions told them that my son is a police employee and during the night he was coming to his village Sandhuanwala and you are keeping him in illegal custody. You should hand over him to us and in the meantime a leader type person came from Moga alongwith 7-8 persons and he told them to catch hold of that person and to take him in procession. Over this excitement, the public started beating my son and brought him to Bahona chowk. I and my co-villagers asked for not to do so, but they did not listen to us and in our sight they killed my son and after that they dragged Crl.Appeal No. 795-SB of 2000 4 the dead body of my son in front of the D.C office, where local police Moga reached and public was dispersed and dead body was taken into possession by the police. Aforesaid person and other persons have caused injuries to my son to kill without any reason. Take necessary action against the mob."
On the basis of the above statement of Atma Singh, FIR Ex.PF/2 was registered under sections 302/342/148/149 IPC. S.I Manminder Singh examined the dead body. He prepared inquest report Ex.PC, in the presence of Zora Singh and Gurbachan Singh and dead body was identified by them and their statements were recorded under section 175 Cr.P.C. He sent the dead body for post mortem examination through HC Bhupinder Singh and constable Jagsir Singh alongwith his application Ex. PD and inspected the place where the dead body was lying. He lifted the blood stained earth and plain earth from near the dead body and put the same in separate boxes. Separate parcels were prepared and sealed with seal MS an the same were taken into possession vide memo Ex. PE. SI Manminder Singh prepared the rought site plan Ex.PG and he alognwith Atma Singh, went to the place where Tarsem Singh was allegedly tied with Kikkar tree and killed. He prepared the rough site plan Ex.PH of the place where HC Tarsem Singh was beaten. Thereafter he reached Bahona Chowk where Tarsem Singh was allegedly killed and prepared rough site plan Ex. PJ. He summoned the respectables of the locality, recorded the statements of Lakhbir Singh and another. Bhupinder Singh HC produced copy of the post mortem report and police papers. He made a search for the accused alongwith Atma Singh and when they were going towards Preet Nagar, four Crl.Appeal No. 795-SB of 2000 5 persons tried to run away from the backside of a deserted house. Atma Singh identified the four persons as Sarabjit Singh, Darshan Singh, Baldev Singh and Ranjit Singh.
The investigation of the case was entrusted to (PW14) Sh. JS Dhanoa, S.P (I) Ferozepur on 6.9.1998. He visited the house of Boota Singh in Basti Lal Singh. He inspected the place of occurrence, summoned the respectables but none was willing to join. At the time of his visit to the house of Atma Singh 7-8 persons were present there. He joined them and recorded the statements of Atma Singh, Kuldeep Singh,, Gurbachan Singh, Lakhbir Singh and other witnesses and added section 297 and 382 IPC. On 8.9.1998 ,he searched the accused but they were not available. On 11.9.1998, he was present in CIA Staff, Moga, where Amarjit Singh , Ex. MC produced Iqbal Singh, Jagir Singh @ Seera, Pritam Singh and Kuldeep Singh Titu. They were interrogated and arrested by him after disclosing the grounds of arrest vide memo Ex. PF/2. Nothing was recovered from their personal search for which Ex.PG/1 was prepared. On 14.9.1998, he searched for the remaining accused but they could not be traced. On 21.9.1998, he formerly arrested three accused Baldev Singh, Ranjit Singh and Sarabjit Singh, who were already arrested by S.I Manminder Singh. On 5.10.1998, M..C. Amarjit Singh produced Surjit Singh and Kulwant Singh before him and they were arrested after disclosing them the grounds of arrest vide memo Ex.PJ/1. On 9.10.1998, the said Amarjit Singh produced Harbans Singh @ Hero and Harjinder Singh @ Chinda and Tek Singh. They were also arrested after disclosing them the grounds of arrest vide memo Ex.PL/1. On 21.10.1998, he was present in CIA staff, Moga where Karnail Singh son of Dulla Singh produced Dev Raj. Crl.Appeal No. 795-SB of 2000 6 Dev Raj produced Moviee Camera and cassette alongwith master print. The cassette Ex.P1 was taken in possession vide memo Ex. PE. PW14 Sh. JS Dhanoa rcorded statement of S.I Mal Singh. He sent information to the relatives of the accused about their arrest. Sh. Dhanoa recorded the statements of MHC Tara Chan, constable Satwinder Singh and other witnesses. After completion of investigation, challan against the accused was presented in the court of Illaqa Magistrate.
After presentation of the challan, case against the accused was committed to the Court of Sessions for trial.
Charge against the accused under section 302/342/382/297/148/149 IPC was framed, to which they pleaded not guilty and claimed trial.
In order to substantiate the charge, the prosecution has examined the following 14 witnesses;-
PW1 Dr. Sadhu Ram Mittal conducted the post mortem on the dead body of Tarsem Singh and found 19 injuries on the dead body.
PW2 Gurbachan Singh and PW3 Sher Singh belong to the village of deceased Tarsem Singh They were the eye witnesses to the occurrence. They alongwith Atma Singh, father of deceased went to the house of Boota Singh, where Tarsem Singh had been tied with a kikkar tree. They noticed 20-25 persons armed with dangs, soties beating Tarsem Singh. They also witnessed the dragging of dead body of Tarsem Singh. PW4 Malkiat Singh was also an eye witness to the incident.
PW5 , MHC Tara Chand tendered affidavit Ex. PW6 tendered his affidavit Ex.PC and PW7 Satwinder Singh tendered his affidavit Ex.PD.
Crl.Appeal No. 795-SB of 2000 7
PW8 ASI Fauja Singh accompanied S.I Manminder Singh to the place i.e D.C Office, Moga, where dead body of Tarsem Singh was lying.
PW9, HC Bikkar Singh an eye witness to the place of Bahona Chowk, where Tarsem Singh was brought after beating.
PW10, S.I Satnam Singh, SHO Police Station, Moga City, witnessed the scene of dragging of dead body of Tarsem Singh from Joginder Singh Chowk to D.C. Office Moga.
PW11 SI Mal Singh, SHO City Abohar taken into possession the Movie Camera and cassette Ex.P1 by Dev Raj.
PW12 SI Manminder Singh partly investigated the case from 3.9.1998 to 6.9.1998.
PW13 ASI Raman Kumar, a formal witness about the transfer of Tarsem Singh on 19.8.1998 from Treasury Guard to Police Station Badhni Kalan.
PW14 Sh. J.S.Danoa, S.P completed the investigation. He proved the investigation conducted by him.
The prosecution has tendered into evidence reports Ex. PM and Ex.PN of chemical examiner.
After closure of prosecution evidence, statements of accused under section 313 Cr.P.C were recorded. They denied all the allegations and pleaded false implication. They were not figured in the video cassette produced by the prosecution.
After appraisal of the entire evidence on record, the Ld. Trial Court convicted and sentenced the accused, in the manner indicated above.
Crl.Appeal No. 795-SB of 2000 8
Aggrieved against the judgment of conviction and order of sentence dated 19.8.2000, the accused-appellants preferred this appeal, which was admitted on 5.9.2000.
Learned counsel for the appellants emphasizes on the point that the appellants were not known to the witnesses earlier, but their names and other particulars appeared in the FIR. In fact, it was a mob,which mistook the deceased a thief, who was actually a police official. In order to solve the mystery of blind murder, the police booked the appellants, who after the incident gathered at the spot, but by that time the real culprits escaped. The delay in lodging the report was consumed to concoct a version and to bring the witnesses at the spot for paper work. No test identification parade was got conducted. Lastly he, argued that the prosecution has failed to prove its case beyond doubt, so the appellants are entitled to the benefit of doubt.
Learned State counsel argued that the witnesses have no animosity with the accused-appellants, who appeared in court against the appellants. The prosecution has fully proved its case.
This Court has cautiously read the entire oral and documentary evidence with the able assistance of the counsel for the parties and heard arguments.
The golden principle of criminal jurisprudence is that it is the duty of the judiciary to see that no culprit goes scot free in criminal cases, but at the same time, its duty is to doubly ensure that no innocent person is convicted and sentenced. In this case the deceased is a policeman and an eye witness is also a policeman, so this Court has to carefully scrutinize the overall circumstances available on the record. Crl.Appeal No. 795-SB of 2000 9
The whole incident can be divided into three parts i. e
(i) over powering the deceased Tarsem Singh; tying him with a tree; giving beatings in Basti Lal Singh (ii) Taking injured Tarsem Singh to Bahona Chowk and giving beatings, where he died (iii) dragging the dead body of Tarsem Singh towards Joginder Singh Chowk and to D.C. Office Moga by the mob. To prove this incident, the prosecution has examined PW2 Gurbachan Singh, PW3 Sher Singh and PW9 Bikkar Singh, eye witnesses to the incident, who have stated that 20-25 persons gave beatings to the deceased Tarsem Singh and dragged his dead body to Joginder Chowk, but have not been able to prove that the appellants were the persons, who gave beatings to Tarsem Singh and killed him. In the FIR Ex. PF recorded by SI Atma Singh, the names of 18 persons were mentioned but out of them, only 4 have been challaned, 8 were found innocent and 6 persons have been declared as proclaimed offenders. As per the version of eye witnesses PW2 and PW3, there were 20-25 persons who gave beatings to Tarsem Singh and killed him. The eye witnesses have not seen the appellants before or knew them earlier, so the identity of the appellants is not established and the prosecution has challaned only the appellants, when there were 20-25 persons at the time of occurrence. As per the prosecution version, PW9 Bikkar Singh reached the place of occurrence at 3 a.m, but did not save the deceased Tarsem Singh from the clutches of the mob. PW9 Bikkar Singh was not present at the scene of occurrence and is a made up witness. As per prosecution version, this witness reached the place of occurrence at 3 a.m He being a police official, was aware of the procedure very well, yet he did not inform the police. Rather he preferred to go to the village of the deceased instead of going to the police station and giving information to Crl.Appeal No. 795-SB of 2000 10 the police. His conduct in not approaching the police instantly is unnatural and improbable, especially when he himself is a police man and the deceased was also a policeman. He made a statement on 7.9.1998, before PW 14 Jaspal Singh, thus there was unexplained delay of 5 days in recording his statement under section 161 Cr.P. The presence of this witness at the place of occurrence appears to be a concocted version, as per this witness, the face of the deceased was blackened and kerosene oil had been sprinkled in order to burn the dead body. But, as per report of PW1, Dr. Sadhu Ram, the face was not blackened or there was no smell of kerosene on the dead body of deceased Tarsem Singh.
It is admitted case of the prosecution that the appellants were not earlier known to the witnesses. No identification parade was conducted to establish the identity of the appellants. The prosecution has failed to establish any motive with the appellants to give beatings to the deceased or to kill him. While deciding this case, the Court is to keep in mind that the mob consists of 200 to 1000 persons and out of this mob, only the appellants were stated to be identified. The deceased was murdered during night by some persons taking him to be a thief, a member of the notorious gang widely known as 'Kale Kache Wala Gang', later on when it came to know that the deceased was a policeman, the mob collected and started protest against the police. The police went on to trace the mystery of murder of Tarsem Singh by substituting the real culprits against the innocent persons, who may be part of the mob and strong protesters against police in this episode. This shows the over jealousness attitude of the police. The learned trial court has erred in disbelieving DW1 Buta Ram. He was the witness, who was cited as a prosecution witness, but later on was given up Crl.Appeal No. 795-SB of 2000 11 for the reasons best known to the prosecution. He was a natural witness, in front of whose house, the incident happened and his presence at the spot is natural and cannot be doubted. This Court, considering delay in lodging the FIR, cannot believe the testimony of PW2 Gurbachan Singh and PW3 Sher Singh, who belong to the village of deceased and are relatives of deceased Tarsem Singh.
Why the prosecution has not got conducted the test identification of the appellants amongst the substituted persons, the answer remains unanswered. In Abdul Waheed Khan v. State of Andhra Pradesh 2002 (4) RCR (Crl.) 265, Hon'ble the Apex Court observed as under:-
" 9. As was observed by this Court in U Matru @ Girish Chandra v. The State of U .P. (AIR 1971 SC 1050), identification tests do not constitute substantive evidence. They are primarily meant for purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. [see Santokh Singh v. Izhar Hussain and Anr. (AIR 1973 SC 2190)] The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, Crl.Appeal No. 795-SB of 2000 12 the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eye- witness of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code of Criminal Procedure, 1973 ( in short the 'Code') and the Indian evidence Act, 1872 ( in short the 'Evidence Act'). It is desirable that a test identification parade should be conducted as soon as after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond the control and there is some delay, it cannot be said to be fatal to the prosecution. In the instant case, the factual scenario noted by the trial court reveals that all possible efforts were made to have test identification parade immediately after the arrest of the accused persons. The accused persons were arrested on 25.5.1993, were in police custody from 9.6.1993. On 16.6.1993, requisition was given to the Magistrate to hold the identification and first test was held on 26.6.1993 by the Magistrate. As PW-2 was not available, on request of police second test was held. Merely because the second test Crl.Appeal No. 795-SB of 2000 13 identification parade was held that cannot be suspicious circumstance as prosecution has explained as to why that was necessitated."
The cumulative effect of all the circumstances available on record is that the prosecution has failed to prove its case against the appellants beyond doubt.
Resultantly, the appellants are granted benefit of doubt. This appeal is allowed, judgment of conviction and order of sentence dated 19.8.2000 passed by the Additional Sessions Judge, Moga are set aside, and all the accused-appellants in this appeal are acquitted of the charges framed against them.
(JITENDRA CHAUHAN) JUDGE 3.8.2012 MS Note: Whether to be referred to the Reporter? Yes/ No