Punjab-Haryana High Court
Tarsem @ Baba vs State Of Punjab on 6 August, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
Criminal Appeal No.D-841-DB of 2003 (O&M)
with
Criminal Appeal No.D-856-DB of 2003 (O&M) -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.D-841-DB of 2003 (O&M)
Date of Decision: August 06, 2013.
Tarsem @ Baba
...Appellant(s)
Versus
State of Punjab
...Respondent(s)
Crl. Appeal No.D-856-DB of 2003 (O&M)
Date of Decision: August 06, 2013.
Dr. Yogesh Kumar @ Kala
..Appellant(s)
Versus
State of Punjab
...Respondent(s)
CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL
HON'BLE MS. JUSTICE ANITA CHAUDHRY
1. Whether Reporters of local papers may be allowed to see the judgment? Yes/No
2. To be referred to the Reporters or not? Yes/No
3. Whether the judgment should be reported in the digest? No
Present: Mr. Vishal Sharma, Advocate (Amicus Curiae)
for the appellants.
Mr. B.S. Bhalla, Addl. Advocater General, Punjab.
*****
Sunil
2013.08.26 14:48
I attest to the accuracy and
integrity of this document
Criminal Appeal No.D-841-DB of 2003 (O&M)
with
Criminal Appeal No.D-856-DB of 2003 (O&M) -2-
ANITA CHAUDHRY, J.
1. This judgment shall dispose of Crl. Appeal No.D- 856-DB of 2003 bearing title Dr. Yogesh Kumar @ Kala Vs. State of Punjab and Criminal Appeal No.D-841-DB of 2003 bearing title Tarsem @ Baba Vs. State of Punjab.
2. Both these appeals arise out of the judgment and order of sentence dated 14.07.2003 passed by the Sessions Judge Jalandhar in FIR No.168 dated 12.09.2001, registered at Police Station Nurmahal, under Section 302/34 IPC. Both the appellants were sentenced to undergo life imprisonment and pay a fine of ` 2000/-. In default of payment of fine, both the accused were directed to undergo rigorous imprisonment for a period of 3 months.
3. The prosecution version was unfolded by the complainant in the statement Ex.PC made by Sukhwinder Kaur wife of Taranjit Singh deceased. Taranjit Singh was a truck driver. He along with his wife and Taranjit's mother Nachhattar Kaur were living together. Dr. Yogesh @ Kala was running a clinic in the village for about two months. The complainant knew him as she had been going to him for taking medicines. Yogesh was also practising black magic and used to give Tabeez (black thread). The appellant Tarsem Lal @ Sema Baba also used to visit Dr. Yogesh as he was also practising black magic along with Jasbir. The Sunil 2013.08.26 14:48 I attest to the accuracy and integrity of this document Criminal Appeal No.D-841-DB of 2003 (O&M) with Criminal Appeal No.D-856-DB of 2003 (O&M) -3- complainant had made allegations that the accused used to say that they can send a person abroad by practising black magic and black magic could also be taught. Taranjit had disclosed this fact earlier to his wife 15-20 days prior to his death. On 26.08.2001 at about 3:00 P.M., the complainant, her mother-in-law and her husband were sitting in the courtyard of their house when Yogesh @ Kala alongwith Tarsem came to their house and took Taranjit away saying that they had to go to the shop and they shall also call Jasbir and would go to Nurmahal (hotel) for a drink. Taranjit left with Yogesh and Tarsem. At 7:00 P.M. when the complainant was preparing dinner, the main gate of the house was open. She heard the sound of a scooter horn and she along with her mother-in-law saw Yogesh Kumar on the scooter with her husband on the pillion and Tarsem Singh sitting behind her husband holding him. Jasbir @ Sheru was on another scooter. Seeing the condition of her husband, she enquired from Yogesh as to what had happened, upon which the accused had replied that they had consumed liquor at Sangam Hotel and it was the effect of liquor. He had also disclosed that on the way they had taken him to Bhoot Nath temple and had poured water on his head. The complainant disclosed that her husband was brought down from the scooter and he was made to lay down in the courtyard and Sunil 2013.08.26 14:48 I attest to the accuracy and integrity of this document Criminal Appeal No.D-841-DB of 2003 (O&M) with Criminal Appeal No.D-856-DB of 2003 (O&M) -4- then all the three accused ran away. She asked her mother- in-law to call a doctor and a doctor from the village came and told them that Taranjit had already died. On the next day body was cremated. The complainant had a feeling that everything was not right and she started making inquiries and Pritam Singh, Granthi PW10 disclosed to her that on 26.08.2001 at about 3:30 P.M. he had visited the clinic of Dr. Yogesh Kumar and had seen Taranjit, Tarsem and Jasbir and they were planning to go Nurmahal to have a drink. The complainant came to know from Sarwan Singh PW9 that when he had gone to Sangam Hotel for taking food, he saw the accused sitting on one of the tables having liquor. The complainant disclosed that she was fully convinced that it was the persons named by her, who had killed her husband and some poisonous substance had been mixed in the liquor. This complaint was made on 12.09.2001 at 12:00 Noon. The FIR was registered at 3:55 P.M. and the Special Report reached the Illaqa Magistrate at 8:00 P.M. on the same day. The police investigated into the matter and laid its report under Section 302 read with Section 34 IPC. Accused Jasbir was a juvenile. The case against Tarsem and Yogesh alone was committed.
4. Charge was framed under Section 302 read with Section 34 IPC. The accused did not plead guilty and claimed Sunil 2013.08.26 14:48 I attest to the accuracy and integrity of this document Criminal Appeal No.D-841-DB of 2003 (O&M) with Criminal Appeal No.D-856-DB of 2003 (O&M) -5- trial. The prosecution examined Sukhwinder Kaur PW6, Nachhattar Kaur PW7, Sarwan Singh PW9 and Pritam Singh PW10. All of them had spoken about the last scene circumstance. Sukhdev PW5 an employee of the hotel had stated that he had served liquor at that table. The witness to the extra judicial confession PW15 Mulkh Singh did not support the prosecution story.
5. The complainant had come up with a motive that Tarsem had taken ` 1,50,000/- from her husband for sending her husband abroad and he did not want to return the amount and therefore, her husband was killed. The prosecution had examined two more witnesses who had spoken about the loan which was given to Gian Singh PW11. PW12 was an employee of the bank who had stated that a crop loan was given to Gian Singh PW-11.
6. There is no evidence with respect to the cause of death as no postmortem examination of the deceased was carried out. After conclusion of the trial, the trial Court convicted the appellants and sentenced them to the punishment mentioned here in above.
7. We have considered the arguments made on behalf of the parties and have perused the record with the help of the counsel for the parties.
Sunil 2013.08.26 14:48 I attest to the accuracy and integrity of this document Criminal Appeal No.D-841-DB of 2003 (O&M) with Criminal Appeal No.D-856-DB of 2003 (O&M) -6-
8. The counsel appearing for the appellants urged that the conviction was recorded in the case based on circumstantial evidence but the chain with regard to the circumstances leading to the guilt of the appellants has not been established as the witness to the extra judicial confession did not support the prosecution case and the FIR has been lodged after 16 days. So it was urged that witness to the last scene had made the statement after 16 days and they were the accused who had brought Taranjit to his house and they had also waited till the doctor had arrived and were present at the cremation. It was further urged that the motive put forward by the prosecution was introduced on 30.09.2001 and it is strange that Gian Singh who is related to the complainant did not disclose it to his wife that Taranjit had taken some amount from him which was paid to Tarsem for sending him abroad. It was urged that as per the version given by the complainant, Dr. Yogesh had come to the village only two months prior to the incident and the loan was taken by Gian Singh PW11 and it was allegedly paid to the deceased on 20th December, 2000 when Dr. Yogesh was not working in the village. It was vehemently urged that Nachhattar Kaur PW7 had admitted the presence of the accused when the doctor had arrived in their house whereas PW6 had said that the appellants fled away after leaving her Sunil 2013.08.26 14:48 I attest to the accuracy and integrity of this document Criminal Appeal No.D-841-DB of 2003 (O&M) with Criminal Appeal No.D-856-DB of 2003 (O&M) -7- husband but had admitted that the accused were present at the time of cremation and all this goes to show that the witnesses are telling lies. It was also urged that PW6 had stated that the accused had accompanied them to Kirat Sahib for immersion of the ashes and had the accused mixed poison in the liquor, they would not have brought him home nor would have waited for the doctor nor would have accompanied the family for the cremation of the body and the prosecution has set up a weak motive and none of the circumstances had been proved and the cause of death had not come on record as no postmortem was conducted.
9. On the other hand, it was contended by learned State counsel that four witnesses have spoken about the last scene circumstance and the accused admitted that they had brought Taranjit at his home and his condition was bad and the accused were required to explain as to what had happened. It was urged that the accused was able to win over the witness to the extra judicial confession but the motive has been fully proved as the money was withdrawn by Gian Singh PW11 which was handed over to Taranjit Singh deceased to pay it to one of the accused.
10. When the case is based upon circumstantial evidence, the prosecution is required to prove each of the circumstances put forward by the prosecution. Sunil 2013.08.26 14:48 I attest to the accuracy and integrity of this document Criminal Appeal No.D-841-DB of 2003 (O&M) with Criminal Appeal No.D-856-DB of 2003 (O&M) -8-
11. In Sharad Birdhichand Sarda v. State of Maharashtra [AIR 1984 SC 1622], it has been held by the Apex Court that the onus was on the prosecution to prove that the chain is complete.
12. The Apex Court has further held that the prosecution must stand on its own legs and the various links in the chain of evidence should be completed and each circumstance should point to the guilt of the accused and it must fulfil the conditions laid down by the Apex Court in Hanumant's v. State of M.P. [1953] SCR 1091, in which the following principles were laid.
1. The circumstances from which the conclusion of guilt is to be drawn should be fully established;
2. The facts so established should be consistent with the hypothesis of guilt and the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
13. The cardinal principle of criminal jurisprudence is that a case is to be said to be proved only when there is certain and explicit evidence. In the present case, it is now to see whether the circumstances put forwarded by the Sunil 2013.08.26 14:48 I attest to the accuracy and integrity of this document Criminal Appeal No.D-841-DB of 2003 (O&M) with Criminal Appeal No.D-856-DB of 2003 (O&M) -9- prosecution had been proved.
14. Taranjit had died on 26.08.2001. His wife Sukhwinder and her monther-in-law had stated that the accused had taken Taranjit away around 3:00 P.M. in the afternoon and four hours later Taranjit was brought back on a scooter and he was held by the pillion rider and his body was brought in the house and laid in the courtyard. Sukhwinder Kaur did not suspect anything that day. Sukhwinder Kaur sent her mother-in-law to get a doctor. The accused were present when the doctor arrived in their house. Taranjit was declared dead. The next day Taranjit was cremated and the complainant and even her mother-in-law admitted the presence of the accused at the time of the cremation. In the complaint Sukhwinder had said that Taranjit was left at the house and the accused fled away from there. If the accused had fled away after leaving Taranjit home, in that condition, the complainant or the other family members would have been suspicious regarding their conduct. The complainant had admitted that the doctor who had come to their house had told her that Taranjit had died much earlier. Still they did not choose to get the postmortem done to find out the cause for the death. When the complainant appeared in the Court, she had alleged that her husband was murdered and it was a sacrifice which had been Sunil 2013.08.26 14:48 I attest to the accuracy and integrity of this document Criminal Appeal No.D-841-DB of 2003 (O&M) with Criminal Appeal No.D-856-DB of 2003 (O&M) -10- given for the success of their witchcraft. The complainant did not find any injury on her husband's body. The complainant had not disclosed about the motive till the recording of her statement Ex.PC. It was on 30th September, 2001 when for the first time the complainant had spoken about the motive after a gap of a period of more than one month.
15. The motive projected by the complainant was that Taranjit had given ` 1,50,000/- to Tarsem in the year 2000 and this amount was taken by Taranjit from his relative Gian Singh PW11. Gian Singh had taken a loan from his bank in the year 2000 and they had examined an employee of the bank namely PW12 who had disclosed that Gian Singh had withdrawn ` 1,75,000/- on 20.12.2000. It was a crop loan which was taken by Gian Singh and Gian Singh in his statement had admitted that he had been taking other loans from the bank and had repaid that loan. He had not disclosed it to the bank that he was giving the amount to someone else. He had not executed any writing to show that a huge amount had been given to Taranjit. The motive has not been established. The amount was paid in the year 2000 whereas Yogesh accused had come to the village only two months prior to the incident. It can be presumed that the amount was never paid to him.
Sunil 2013.08.26 14:48 I attest to the accuracy and integrity of this document Criminal Appeal No.D-841-DB of 2003 (O&M) with Criminal Appeal No.D-856-DB of 2003 (O&M) -11-
16. The witness to the extra judicial confession namely Mulkh Singh PW15 did not support the prosecution story. Therefore, this circumstance has not been proved. The cause of death is not known. There is unexplained delay in lodging the FIR. There is no evidence to give a finding that it was a case of murder by administering poison.
17. In the instant case, taking an over all picture of the evidence, it is found that the prosecution has failed to prove any of the circumstance and the prosecution has also failed to establish the guilt of the accused. The chain of evidence is incomplete and it does not point to the complicity of the accused. Therefore, both the appeals are accepted. The accused-appellants are acquitted of the charges. The judgment of the lower Court is reversed. Lower Court record be sent back forthwith.
August 06, 2013 (M.JEYAPAUL) (ANITA CHAUDHRY)
sunil JUDGE JUDGE
Sunil
2013.08.26 14:48
I attest to the accuracy and
integrity of this document