Punjab-Haryana High Court
Amrik Singh And Another vs State Of Punjab on 12 August, 2011
Bench: S.S. Saron, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA No.838-DB of 2008
Date of decision: 12.8.2011
Amrik Singh and another
.... Appellants
Versus
State of Punjab
.... Respondent
CORAM : HON'BLE MR. JUSTICE S.S. SARON
HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr. Jagjit Singh Gill, Advocate for
appellant No.1- Amrik Singh.
Mr. Manoj Kumar, Advocate for
appellant No.2-Sukhchain Singh.
Mr. S.S. Gill, Addl. Advocate General, Punjab
for the State of Punjab.
***
S.S. SARON, J.
This appeal has been filed by the appellants Amrik Singh and Sukhchain Singh against the judgment and order dated 4.8.2008 passed by the learned Sessions Judge, Patiala whereby the appellants have been held guilty for the offences punishable under Sections 302, 392, 201 and 34 of the Indian Penal Code ("IPC" - for short), Section 14 of the Foreigners Act, 1946 and Section 25 of the Arms Act, 1959. Both the appellants have been sentenced to undergo imprisonment for life; besides, pay a fine of `5000/- and in default of payment of fine, to undergo further rigorous imprisonment ("RI" - for short) for a period of one year each for the offence punishable under Section 302 IPC. Both the appellants have also been sentenced to undergo RI for a period of 10 years; besides, pay a fine of `5,000/- each and in default of payment of fine, to undergo RI for a period of one year each for the offence punishable under Section 392 IPC. Sukhchain Singh (appellant No.2) has also been sentenced to undergo RI for 2 years; besides, pay a fine of `2000/- and in default of payment of fine, to undergo RI for 3 months for the offence punishable under Section 201 IPC. Amrik Singh (appellant No.1) has been sentenced to undergo R.I. for 2 years for the offence punishable under Section 201/34 IPC; besides, pay a fine of `2000/- CRA No.838-DB of 2008 [2] and in default of payment of fine, to undergo RI for 3 months. Amrik Singh (appellant No.1) has also been sentenced to undergo RI for 3 years; besides, pay a fine of `2000/- and in default of payment of fine, to undergo RI for 3 months for the offence under Section 25 of the Arms Act, 1959. Amrik Singh (appellant No.1) has also been sentenced to undergo imprisonment for 2 years; besides, pay a fine of `2000/- and in default of payment of fine, to undergo RI for 3 months for the offence under Section 14 of the Foreigners Act, 1946.
The FIR (Ex.PL/2) in the case has been registered on the statement dated 19.5.2003 (Ex.PL) of Sarpanch Gurmeet Singh (PW5) son of Niranjan Singh, resident of village Faridpur Gujran, Police Station In fact Gurmeet Singh, complainant (PW5) had made his initial statement (Ex.PC) Sarpanch (PW5) (complainant) that he is Sarpanch of his village. On 19.5.2003 in the morning he was going on his scooter for his personal work to Rajpura. At about 8.15 a.m. he reached near the vacant wheat fields of Hakam Singh son of Niranjan Singh of his village near the G.T. Road from Rajpura to Sirhind. At that time Ashok Kumar son of Faqir Chand of their village had also reached there at the spot. They saw a dead body of a clean shaven person wearing white shoes and a white sleeveless vest lying on the edge of the link road. After some distance ahead along the G.T. Road, another dead body of a clean shaven person wearing black shoes and a black sleeveless vest was lying. The dead body of both the persons had white shirts and white pants. Their clothes were smeared with blood. They had been shot. Both of them were aged about 29/30 years. Both the persons had been killed during the night by some unknown persons by shooting them with fire arm. Gurmeet Singh, Sarpanch (PW5) left Ashok Kumar near the dead bodies for keeping a watch and he proceeded to the Police Station for giving information, on the way Harpreet Singh Inspector/SHO (PW17), Police Station Sadar Rajpura along with his force met him at the Sirhind bye-pass. Gurmeet Singh, Sarpanch (PW5) narrated the entire incident and his statement was recorded, which was accepted by him as correct. The statement was attested by Harpreet Singh Inspector/SHO (PW17), Police Station Sadar Rajpura on 19.5.2003.
The police proceedings (Ex.PL/1) were recorded by Harpreet Singh Inspector/SHO (PW17), Police Station Sadar Rajpura to the effect that he along with ASI Darbara Singh, ASI Gurdev Singh, HC Tarlochan Singh, Constable Gurpreet Singh and Constable Harjeet Singh were in a Government CRA No.838-DB of 2008 [3] Gypsy vehicle which was being driven by Constable Major Singh along with ASI Kanwaljit Singh, Incharge Police Post Basantpura (PW14) as also HC Aroor Singh (PW10) and Constable Gurpreet Singh in a Government Allwyn Nissan vehicle, which was being driven by Constable Darshan Singh were patrolling the area from the Police Station to G.T. Road Basantpura. At the Sirhind Bye-pass Rajpura, Sarpanch Gurmeet Singh (PW5) met him whose statement (Ex.PL) was recorded. The statement after being written was read over and heard by Gurmeet Singh, Sarpanch (PW5) who after hearing it and accepting it as correct had signed below it in English which was attested by Harpreet Singh Inspector (PW17) SHO, Police Station Sadar Rajpura. From the statement, a case for the commission of offences punishable under Section 302/34 IPC; besides, Sections 25 and 27 of the Arms Act, 1959 were made out. The statement (Ex.PL) for registration of a case (FIR) was sent to the Police Station through HC Tarlochan Singh. The FIR number of the case after registration was asked to be intimated; besides, special reports were asked to be sent and senior officers and control room were asked to be informed by wireless message. Inspector/SHO Harpreet Singh (PW17) along with his force and informant Sarpanch Gurmeet Singh (PW5) were leaving for the spot for conducting investigations. ASI Tejpal Singh, Police Station Rajpura on receipt of the writing (Ex.PL) and the police proceedings (Ex.PL/1) registered FIR No.129 dated 19.5.2003 (Ex.PL/2) for the offences under Sections 302/34 IPC; besides, Sections 25 and 27 of the Arms Act.
The investigations in the case were conducted by Inspector/SHO Harpreet Singh (PW17). Inspector/SHO (PW17) on reaching the spot found two dead bodies which were later in the hospital identified as that of Manoj Kumar and Raj Kumar. Inquest report (Ex.PH) in respect of the dead body of Manoj Kumar was prepared. The dead body was identified by Raj and Rajbir sons of Prem Singh in the hospital. The inquest report (Ex.PD) of the dead body of Raju (Raj Kumar) in the presence of Gurmeet Singh, Sarpanch (PW5) and Ashok Kumar was also prepared. There were fire arm injuries on the dead bodies. Both the dead bodies were sent to the hospital with police requests (Ex.PE and Ex.PJ) for post-mortem examination. A driving license and one black colour purse was recovered from the dead body of Manoj Kumar. The recovered items i.e. driving license and a purse along with cards were taken in possession by the police vide memo Ex.PN. On personal search of the dead body of Raju (Raj CRA No.838-DB of 2008 [4] Kumar), an amount of `110/- was recovered. Some cards bearing telephone numbers were also recovered. The letters GEM were written on the right arm of Raju (Raj Kumar). The recovered articles were taken in possession vide memo (Ex.PQ). Harpreet Singh Inspector/SHO (PW-17) also took one driving license of Amrik Singh (appellant No.1) which it was stated was also lying near the dead body of Manoj Kumar. The same was taken in possession vide memo (Ex.PM) and it was attested by the witnesses. The blood-stained earth which was lying near the dead bodies was also lifted and put into different parcels. The parcels were sealed with seal bearing impression "HS", which were taken in possession vide memos Ex.PP and Ex.PR. Two empty cartridges on which 7.6 x 25 was written were lying near the dead body of Manoj Kumar. The said cartridges were converted into a parcel and sealed by Harpreet Singh Inspector/SHO (PW17) with the seal bearing impression "HS". Seal after use was handed over to ASI Kanwaljit Singh (PW-14). The statements of the witnesses were recorded at the spot. Rough site plan dated 19.5.2003 (Ex.PJJ) of the place of occurrence with correct marginal notes was prepared. It is inter alia stated in the marginal notes that Mark 'C' in the site plan is the place where near the dead body of Manoj two empty cartridges of 7.62 x 25 were picked up and taken in police possession. Near to this the driving license of Amrik Singh Grewal (appellant No.1) son of Buta Singh was recovered. The persons of the addresses mentioned on the visiting cards recovered from the possession of the deceased were contacted.
The dead bodies were sent to Civil Hospital, Rajpura through Constable Randhir Singh in the Allwyn Nissan Government vehicle. The person who was sent with the 'Ruqa' (memo) had also reached at the spot and his statement was recorded. After completing investigation at the spot, the police party headed by Harpreet Singh, Inspector/SHO (PW17) reached at Civil Hospital, Rajpura. The relations of the deceased also reached the hospital. Statements under Section 175 of the Code of Criminal Procedure (CrPC-for short) of Rajbir Singh, Raj Singh, Tara Nath (PW4) and Farank (PW1) were recorded. The dead bodies in the hospital were then handed over to HC Roor Singh for the purpose of post-mortem examination. The person who had taken the special report also reached at the hospital and his statement was recorded. After post-mortem examination, HC Aroor Singh (PW10) produced before Harpreet Singh Inspector/SHO (PW17), the copies of the post-mortem reports CRA No.838-DB of 2008 [5] and the parcels which were taken in possession vide memos Ex.PV and Ex.PW. One parcel containing bullet, which was recovered from the dead body of the deceased Raju (Raj Singh) was also taken in possession vide memo Ex.PX, which was attested by H.C. Aroor Singh (PW10). After completing the investigation, the police party reached at the Police Station and the entire case property was deposited with the MHC with the seals intact. The case was that of blind murders and raids were conducted in the area by Harpreet Singh Inspector/SHO (PW17) and ASI Kanwaljit Singh, Incharge Police Post Basantpura (PW14).
On 22.5.2003 Harpreet Singh Inspector/SHO (PW17) along with the police party consisting of ASI Gurdev Singh, ASI Darbara Singh and other police officials were holding a 'Naka' (checking) on the canal bridge of Doraha. There the accused Amrik Singh (appellant No.1), Sukhchain Singh (appellant No.2) and Kanwaljit Singh (non-appellant - since declared a juvenile) were coming from the side of Ludhiana in a Qualis vehicle bearing No.HR 55AT-2656. They identified the accused as they had their photographs. The vehicle was being driven by Amrik Singh (appellant No.1), while the other accused Sukhchain Singh (appellant No.2) and Kanwaljit Singh (non-appellant since declared juvenile) were sitting on the rear seat of the vehicle. On search of the vehicle, one 34 (Sic.-.30 bore) Mouser (make of the firearm weapon) was recovered which was taken in possession. The Mouser had a magazine and on opening the magazine, two live cartridges of 7.62 x 25 were recovered. A sketch (Ex.PKK) of the Mouser was prepared. It was signed by ASI Gurdev Singh and ASI Baljinder Singh. The Mouser was converted into a parcel. The live cartridges were also converted into a different parcel. Both the parcels were sealed with seal impression "HS" and were taken in possession vide memo Ex.PLL. Seal after use was handed over to ASI Gurdev Singh. The Qualis vehicle was also taken in possession vide memo Ex.PMM, which was attested by ASI Gurdev Singh and ASI Baljinder Singh. A rough site plan (Ex.PNN) of the place of recovery was prepared. The grounds of arrest and information of the accused was prepared by Inspector Harpreet Singh SHO, Police Station Rajpura (PW17) which are Ex.POO, Ex.PQQ and Ex.PRR. From the personal search of Amrik Singh (appellant No.1), an amount of `350/- was recovered; from the personal search of Sukhchain Singh (appellant No.2), an amount of `400/- was recovered and from the personal search of Kamalpreet Singh (non-appellant - juvenile), an CRA No.838-DB of 2008 [6] amount of `250/- was recovered. These were taken in possession by preparing memos Ex.PSS1 to Ex.PSS3. The statements of witnesses were recorded at the spot and the accused were interrogated. After completion of investigation at the spot, the case property was deposited with the MHC with seals intact on the same day.
On 24.5.2003 a copy of the passport (mark PTT) of Amrik Singh (appellant No.1) was taken in possession vide memo Ex.PAA and the offence under Section 14 of the Foreigners Act, 1946 was also added in the case. On 25.5.2003 when the accused were in police custody, it is stated by Harpreet Singh Inspector/SHO (PW17) that the complainant and the witnesses identified them in the Police Station as the assailants. Thereafter, the investigation in the case was transferred to ASI Kanwaljit Singh (PW-14). The parcel containing live cartridges is Ex.P20. The parcel containing bullet is Ex.P21 and the parcel containing blood-stained earth is Ex.P22; besides, the parcel containing live cartridges is Ex.P23 and the parcel containing the Mouser is Ex.P24. The parcel containing blood-stained earth that was recovered from near the dead body of Raju is Ex.P25. The purse is Ex.P26 and Ex.P27.
Kanwaljit Singh ASI (PW14) on 19.05.2003 was posted as Incharge, Police Post Basantpura, Police Station Sadar Rajpura. On the date of the incident i.e. 19.5.2003 he was member of the police party headed by Harpreet Singh Inspector/SHO (PW-17), Police Station Sadar Rajpura. Disclosure statement (Ex.PCC) of Sukhchain Singh (appellant No.2) was recorded which was signed by him (appellant No.2) and attested by ASI Darbara Singh, Police Station Sadar Rajpura and HC Tarlochan Singh. The said disclosure statement (Ex.PCC) of Sukhchain Singh (appellant No.2) is to the effect that he along with the other accused after committing the incident while going to Ludhiana in the same Qualis vehicle after opening the window pane of the vehicle threw his without number and unlicensed 30 country made pistol in the Bhakra Canal, Sirhind. ASI Kanwaljit Singh (PW14) along with the police party and accused Amrik Singh (appellant No.1) and Sukhchain Singh (appellant No.2) in a private Sumo vehicle went to Ludhiana. On the way at Doraha, Constable Mohinder Singh was left to arrange for the divers for the purpose of recovering the without number and unlicensed 30 country made pistol which as per the disclosure statement (Ex.PCC) was thrown in the Bhakra Canal, Sirhind. They reached the 'kothi' (house) of Amrik Singh (appellant No.1) at Model Town, CRA No.838-DB of 2008 [7] Ludhiana. A servant of the accused was present at the 'kothi'. Amrik Singh (appellant No.1) after taking the key of the office opened the office and he (Amrik Singh-appellant No.1) handed over to ASI Kanwaljit Singh (PW14) the documents of the Qualis from the drawer of his table which were in a polythene bag. The said documents were taken in possession by ASI Kanwaljit Singh (PW14) vide memo Ex.PDD. The documents consisted of registration copy (Ex.P14), passenger and goods tax passbook (Ex.P15), permit (Ex.P16) and copy of the insurance policy (Ex.P17). The receipt regarding payment of `1000/- as tax of the Qualis vehicle is Ex.P18, pollution certificate of the vehicle is Ex.P19. ASI Kanwaljit Singh (PW14) prepared the site plan (Ex.PEE) of the place of recovery. Thereafter, they reached Bhakra canal near Sirhind. Before they reached there, Constable Mohinder Singh along with four divers was already present there. At the instance of Sukhchain Singh (appellant No.2), the divers searched for the pistol. The divers made a search for the pistol for about four hours, but the pistol could not be recovered. A site plan (Ex.PFF) was prepared and the statements of the witnesses regarding recovery of documents were recorded. Kanwaljit Singh, ASI (PW-14) on 04.06.2003 recorded the statements of Constable Mann Singh and Constable Baldev Singh under Section 161 CrPC. Thereafter, he was transferred from the police station. The further investigation was entrusted to ASI Narinder Singh (PW9) who on 15.06.2003 was posted as In charge, Police Post Basantpura. The investigation of the present case was entrusted to him by Inspector Harpreet Singh Inspector/SHO (PW-17) on 16.06.2003. ASI Narinder Singh (PW9) recorded the statement of Balbir Singh on 22.6.2003. Thereafter, the statement of Mohan Lal, Clerk DTO office, Ludhiana (PW18) was recorded on 24.6.2003 regarding the verification of driving license of Amrik Singh (appellant No.1). On 26.8.2003 ASI Narinder Singh (PW9) got verified registration certificate of Qualis bearing No.HR-55 AT- 2656 from Gurgaon and recorded the statement of Bhagwan Dass, Clerk Registration Authority, Gurgaon (PW7). ASI Narinder Singh (PW9) on 18.07.2003 obtained test report of the Mouser from Police Lines, Fatehgarh Sahib and recorded the statement of HC Kamal Kumar. Thereafter, site plan (Ex.PU) of the place of occurrence was got prepared on 17.7.2003 from Narinder Singh Patwari Halqa (Circle), Faridpur and his statement was recorded. During further investigation, ASI Narinder Singh (PW9) recorded the statements of other CRA No.838-DB of 2008 [8] witnesses. Kamal Kumar Armour was posted at that time at Police Lines, Patiala when ASI Narinder Singh (PW9) recorded his statement.
After completion of investigation, the police report (challan) was filed by Inspector Harpreet Singh Inspector/SHO (PW17), Police Station Sadar Rajpura in the Court of learned Judicial Magistrate Ist Class, Rajpura on 16.8.2003. The learned Judicial Magistrate Ist Class, Rajpura vide order dated 12.9.2003 observed that a prima facie case was made out for the offences under Sections 302, 201, 392 and 34 IPC. Since the offence punishable under Section 302 IPC was exclusively triable by the Court of Session, the case was committed to the said Court for trial. The learned Sessions Judge, Patiala vide order dated 27.1.2003 ordered the challan in the case to be bifurcated as one of the accused i.e. Kamalpreet Singh (non-appellant) was a minor and his case was ordered to be sent to the Juvenile Justice Board for disposal. The learned Sessions Judge, Patiala on 27.2.2004 framed charges against the appellants on the allegations that the appellants on the intervening night on 18/19.5.2003 in the area of G.T. Road, Rajpura-Sirhind, near village Faridpur Gujran along with Kamalpreet Singh (since declared juvenile) committed the offence of robbery by snatching a Qualis Car No. HR-55 AT-2656 from the possession of Manoj Kumar and Raju (Raj Kumar) after sunset and before sunrise and thereby the appellants committed an offence punishable under Section 392 IPC. Secondly, on the said date, time and place the appellants and Kamalpreet Singh (Juvenile) committed murder of Manoj Kumar and Raju, and thereby committed an offence punishable under Section 302 IPC. Thirdly, on or before 22.5.2003 in the area of Rajpura, Sukhchain Singh (appellant No.2) threw away the pistol used by him in the commission of the crime in Bhakhra Canal in order to destroy the evidence and thereby committed an offence punishable under Section 201 IPC whereas his co-accused Amrik Singh (appellant No.1) and Kamalpreet Singh (Since declared juvenile) committed an offence punishable under Section 201/34 IPC. Fourthly, on 22.5.2003, in the area of village Gurthali Bridge, Doraha Canal Amrik Singh (appellant No.1) was apprehended by the police party while he was in possession of a .30 bore Mouser along with two live cartridges without any permit or license and thereby committed an offence punishable under Section 25 of the Arms Act. Lastly, on 22.5.2003 in the area of village Gurthali Bridge, Doraha Canal, Amrik Singh (appellant No.1) a citizen of Canada was apprehended by the police while he was roaming in India without any extension CRA No.838-DB of 2008 [9] of Visa and thereby committed an offence punishable under Section 14 of the Foreigners Act, 1946. The contents of charge were read over and explained to the appellants and they pleaded not guilty to the same and claimed trial. The prosecution in order to establish its case examined as many as 22 witnesses; besides, tendered documents in evidence including the FSL report (Ex.PXX). The statements of the appellants in terms of Section 313 CrPC were recorded and the substance of evidence appearing against them was put to them. Amrik Singh (appellant No.1) in his statement recorded under Section 313 CrPC stated as under:-
"I am innocent. I have not committed any offence.
I have been falsely implicated in this present case by Inspector Harpreet Singh who was SHO, Police Station Rajpura at the relevant time and is I.O. of the present case. Harpreet Singh falsely implicated me in the case due to personal grudges against me. He is maternal uncle of Ramandeep Kaur daughter of Sh. Kuljit Singh who got married with me in the year 1999 as I was in love affairs (Sic.) with her and Harpreet Singh and the parents of Ramandeep Kaur were not consenting to the said marriage and wanted the breakage (Sic.) of the said marriage. Even before the said marriage, there was exchange of hot talks between Harpreet Singh and me. After the marriage Harpreet Singh got registered a false case under Section 336 IPC in Police Station Focal Point, Ludhiana through SHO Paramjit Singh vide FIR No.283 dated 11.12.1999 under Section 336 IPC in Police Station Focal Point, Ludhiana and after the trial of the said case, on 20.5.2003 in the morning I along with my cousin brother Sukhchain Singh and son of my maternal uncle namely Kamalpreet Singh were taken from my house at Model Town, Ludhiana and we all have been falsely implicated in the present case. Even I was also falsely implicated in another CRA No.838-DB of 2008 [10] case under NDPS Act on 19.7.2004 in P.S. Dharamkot, Distt. Moga in connivance with S.P. Mukhvinder Singh Chinna by Harpreet Singh.
Whereas, I was booked in the said case and was in custody since last 1-1½ years. As such, Harpreet Singh wanted the breakage (sic.) of the said marriage of Ramandeep Kaur with me and he also got manipulated the mind of Ramandeep Kaur and got divorce from me later on. In order to falsely implicate (me) in the present case, the recovery of my Driving Licensewhich is a Photostat copy is also manipulated by Harpreet Singh, Inspector and the recovery of documents like R.C., Insurance Receipt, Pollution certificate and passenger and goods tax pass book at the instance of me is shown false and manipulated whereas nothing has (Sic.-was) recovered from me. The vehicle Qualis has been shown wrongly to be taken from my possession and my arrest along with said Sukhchain Singh and Kamalpreet along with vehicle Qualis has been falsely shown to be at Canal Bridge Doraha on 22.5.2003, whereas we were taken from my home at Ludhiana on 20.5.2003 and falsely booked in the present case. Whereas, nothing was recovered from us whereas, I and co-accused have not committed any offence. On my representation to this Higher Authorities and complaint to Punjab Human Right Commission an inquiry was got conducted and we were declared innocent and the action was also recommended against Inspector Harpreet Singh for falsely implicating us due to personal grudges. I belong to a good respectable family and I have not committed any offence. I have been falsely implicated."CRA No.838-DB of 2008 [11]
Sukhchain Singh (appellant No.2) in his statement recorded under Section 313 CrPC also stated that he was innocent and had been falsely implicated in the present case by Inspector Harpreet Singh (PW-17) who was SHO at the relevant time and was the Investigating Officer of the present case. Harpreet Singh (PW-17) had falsely implicated him due to personal grudge against his cousin namely Amrik Singh (appellant No.1). Amrik Singh had an affair with one Ramandeep Kaur daughter of Sh. Kuljit Singh and both of them got married, but Inspector Harpreet Singh SHO (PW-17) and the parents of Ramandeep Kaur were not consenting to the said marriage and wanted to break it. Harpeet Singh Inspector/SHO (PW-17) is the maternal uncle of Ramandeep Kaur. It is stated that on 20.5.2006 (Sic.-20.5.2003) at about 6.00 a.m. he was present along with Amrik Singh (appellant No.1) and son of maternal uncle of Amrik Singh namely Kamalpreet Singh (since declared juvenile) at the residence of Amrik Singh at Model Town, Ludhiana and Inspector Harpreet Singh (PW-17) along with police force came there and took them forcibly from there and booked them in the present case. The license of Sukhchain Singh (appellant No.2) which has been shown in the present case was a fake license and had been falsely manipulated by the Police. His photograph was taken by the police in police custody and thereafter the Photostat of a fake license was prepared in order to strengthen the case. He along with Amrik Singh and Kamalpreet Singh (Since declared juvenile) had been falsely shown to have been arrested on 22.5.2003 at Canal Bridge Doraha in a Qualis vehicle by the police. The matter was also investigated by the higher authorities on the complaint made by Amrik Singh (appellant No.1) to Punjab Human Rights Commission. They all were declared innocent and action was recommended against Inspector Harpreet Singh for falsely implicating them due to personal grudges. It is stated by Sukhchain Singh (appellant No.2) that he belongs to a good respectable family and had not committed any offence.
The learned Sessions Judge, Patiala after considering the evidence and material on record has convicted and sentenced the appellants in the manner as has been stated above. The appellants aggrieved against the said order of conviction and sentences have filed the present appeal.
We have heard Mr. Jagjit Singh Gill, Advocate for appellant No.1- Amrik Singh, Mr. Manoj Kumar, Advocate for appellant No.2-Sukhchain Singh CRA No.838-DB of 2008 [12] and Mr. S.S. Gill, Addl. Advocate General, Punjab for the State. After hearing learned counsel and perusing the record, we are satisfied that the appellants have been falsely implicated in the case and they are liable to be acquitted. In fact Mr. S.S. Gill, Addl. A.G., Punjab during the course of hearing himself agreed that it is a case of false implication of the appellants.
The admitted position on record is that Harpreet Singh Inspector/SHO; Police Station Rajpura (PW-17) is the maternal uncle of Ramandeep Kaur daughter of Sh. Kuljit Singh who was married to Amrik Singh (appellant No.1). The said marriage was not to the liking of the parents and the maternal uncle of Ramandeep Kaur namely Harpreet Singh Inspector/SHO, Police Station Rajpura (PW-17). Harpreet Singh Inspector/SHO (PW-17) had appeared before the learned trial Court and in the cross-examination it is accepted by him that Amrik Singh (appellant No.1) was his distant relative. It is stated that Amrik Singh (appellant No.1) is the son-in-law of the daughter of his maternal uncle. It is stated that he did not know the name of the wife of Amrik Singh (appellant No.1). He did not know whether her name was Ramandeep Kaur. He also did not know whether the marriage of Amrik Singh (appellant No.1) with Ramandeep Kaur was a love marriage. It is stated that it was wrong to suggest that he was against that marriage. It is further stated that that he (PW17) never met Amrik Singh (appellant No.1) before 19.5.2003. He could not identify accused Amrik Singh by face before 19.5.2003. He did not know that Amrik Singh (appellant No.1) was residing at Ludhiana before 19.5.2003. The name of the father-in-law of Amrik Singh (appellant No.1), it is stated, is Kuljit Singh. He, however, did not know where he resides. Harpreet Singh (PW17) denied the suggestion that after the marriage of Amrik Singh (appellant No.1) with Ramandeep Kaur he constantly tried to dissolve the marriage. He also denied that he got registered FIRs against Amrik Singh (appellant No.1). He did not know whether FIR No.283 of 1999 registered at Police Station Focal Point, Ludhiana was got falsely registered under Section 336 IPC against Amrik Singh (appellant No.1) at his instance by the Police. He did not know whether the accused was acquitted in the said case. He did not know whether any driving license or arms license were on the judicial file. He voluntarily stated that they had taken these documents from the spot. It is stated that they had recovered the original driving license from the spot and it is not a Photostat copy. He (PW17) denied the suggestion that the driving license of Amrik Singh (appellant CRA No.838-DB of 2008 [13] No.1) allegedly recovered from the spot was a colour photostat copy. He also stated that it was wrong to suggest that he (PW17) had picked up the accused along with the cousin of Amrik Singh namely Kamalpreet Singh from their residence at Ludhiana and then their photographs were taken. It was also wrong to suggest that he (PW17) had prepared the photocopy of the driving license of Sukhchain Singh (appellant No.2). It is also stated that he (PW17) was given a copy of the driving license by Mr. Farank, Manager of Shanti Hotel (PW1). He (PW17) had verified the driving license of Sukhchain Singh (appellant No.2) and found it fake. He (PW17) also denied the suggestion that he used to beat the accused, while he was in the jail. He (PW17) also denied the suggestion that he got planted a case under the NDPS Act at Moga when the accused was in jail.
He (PW17) also stated that he did not know Mukhwinder Singh Chhina, SP. He also denied that he involved the accused in NDPS Act in connivance with Mukhwinder Singh Chhina. He (PW17) did not know whether Mukhwinder Singh Chhina was a relative of the accused Amrik Singh (appellant No.1). It is also stated that it was wrong to suggest that he (PW17) had made a tainted investigation.
It may be noticed that the prosecution in support of its case examined Farank (PW1) who is the Manager of Hotel Shanti Palace, Mahipalpur Road, New Delhi. According to Farank (PW1) he has been working as Manager at Hotel Shanti Palace, New Delhi since January 2003. Manoj and Raju (deceased in the present case) were employed as drivers for the vehicles owned by the Hotel. On 18.5.2003 at about 7.00 p.m. Amrik Singh and Sukhchain Singh (appellants) had come to the Hotel along with another young boy aged about 16/17 years. They requested Farank (PW1) for a Tata Qualis vehicle on hire as they wanted to visit Gurudwara Fatehgarh Sahib in Punjab. Farank (PW1) demanded their id entity card upon which Sukhchain Singh (appellant No.2) produced before him (PW1) his driving licence. Farank (PW1) provided them a Tata Qualis bearing Registration No.HR-55 AT-2656 on hire basis. Sukhchain Singh (appellant No.2) gave his address of village Noorpur, District Ludhiana. Manoj and Raju (deceased) had accompanied the accused in that vehicle. On 19.5.2003, Farank (PW1) received a telephone from SHO, Police Station Rajpura, Punjab (PW17) that two dead bodies had been recovered and from the search of one of those persons, a purse containing the visiting card of Farank (PW1) had been recovered. Farank (PW1) then rang up Rajbir who is CRA No.838-DB of 2008 [14] the brother of Manoj (deceased). The SHO, Police Station Rajpura (PW17) had told Farank (PW-1) that the deceased were wearing white shirts and white pants and from their driving licenses, their names were disclosed as Raju and Manoj. Farank (PW1) along with Rajbir, brother of deceased Manoj and Tara Nath (PW4), brother-in-law of deceased Raju came to Rajpura. The police took them to the dead house where Farank (PW1) identified the dead bodies of Manoj and Raju. His statement under Section 175 CrPC was recorded. It is further stated by Farank (PW-1) that on 18.5.2003 at about 6.00 p.m. the brother of Manoj had come to him at the hotel and his name was Vinod (PW2). He was earlier known to him. On request of Vinod (PW2), Farank (PW1) had called Manoj (deceased) with whom he had a talk in the porch of the hotel. Both the accused had come to Farank (PW1) at that time. The accused when they came to him had given his mobile phone number; as well as landline phone number which was of Jaipur. He had tried to contact at the landline phone, but it was found engaged. Farank (PW1) then tried to contact on the mobile phone also, but when there was a ring on the phone, he had disconnected the same. After that ring, Amrik Singh (appellant No.1) had come to him and enquired if he had given a ring. He told him that it was for identification purpose only. At that time, he (Farank PW1) had noticed that world 'Grewal' tattooed on his (Amrik Singh's) right arm. It is stated that both the accused along with their companions had left the hotel on a Tata Qualis in his presence and in the presence of Vinod (PW2). He had given photostat copy of the registration certificate of Tata Qualis as well as Photostat copy of the driving license of Sukhchain Singh (appellant No.2) to the Police which was taken into possession by the SHO (PW17) vide memo Ex.PA, which was attested by him. Farank (PW1) again went to Rajpura on 25.5.2003. Both the accused present in the Court as well as their companion were in the police lock up and he identified them. His (PW1) statement was recorded on 19.5.2003 as well as on 25.5.2003. Farank (PW1) was cross- examined. It is inter alia stated that their hotel had five vehicles as taxies. They provided taxies to everyone subject to proof of his identification and not to those persons only, who stayed in their hotel. Their vehicles were National Route Permits. It is stated that their hotel also had a restaurant. The accused on that day had consumed beer in the restaurant. They stayed at the restaurant for about 1¼ hours. They had come to the hotel on foot. They were not having any luggage or other articles. On enquiry, the accused had stated that they had CRA No.838-DB of 2008 [15] come from the Airport and there was some difficulty in clearance of their luggage and they were to go to Fatehgarh Sahib to pay obeisance and then they would come back. The accused left the hotel at 7 p.m. Manoj (deceased) was the driver of that taxi. Raju (deceased) was sent as a helper with Manoj. Manoj had earlier gone for a local trip. They maintained a record about the customers in the hotel and also about the rent of the vehicles. He himself used to manage to give out the rooms as well as vehicles. The vehicle hired by the accused was not in the name of the hotel, but it was in the name of the Managing Director. The hire charges were settled with the accused as `8000/- i.e. at the rate of `10/- per kilometer. In his statement to the police, he had given the description of these persons as one of them having 'mula' fashion hair and the other having heavy built body with tall height. The person tall in height had spoken to him. The accused had made the entire payment of `8000/- and he had issued a receipt to them in the name of Amrik Singh (appellant No.1). The mobile phone ring was attended by Amrik Singh (appellant No.1) and at that time, they were sitting in the lobby and which was about 10 feet from counter, from where he was standing. It was Sunday on 18.5.2003. He could not give description of clothes of the deceased on that day. It is stated that the drivers of the vehicles of the institute were provided white shirts and pants as uniform. The police of Rajpura, it is stated, never visited their hotel and he had come to Rajpura on 19.05.2003 as well as 25.05.2003.
Vinod Kumar (PW2) stated that they were four brothers i.e. himself, Raj Singh, Manoj Kumar (deceased) and Rajbir. On 18.5.2003, at about 6.00 p.m. he had gone to Shanti Palace Hotel to see his brother Manoj Kumar who was a driver there. He was talking with his brother outside the hotel, when Farank (PW1) along with three persons came outside the hotel. Farank (PW1) told Manoj that the said persons were to be taken to Punjab in Tata (Sic.-Toyota) Qualis. One of those persons was of heavy built body and word 'Grewal' was tattooed on his right arm. One of them was tall, fair complexion, 15/16 years old. One of those persons had given a Photostat copy of his license to the Manager bearing the name of Sukhchain Singh (appellant No.2). The Manager had sent those three persons in that Tata (Sic.-Toyota) Qualis with Manoj and Raju. Two of the accused present in Court were amongst those persons, but the third was not present and he (PW2) identified them. On 25.5.2003, Vinod Kumar (PW-2) had gone to Rajpura with his father for obtaining copies of the FIR and the post- CRA No.838-DB of 2008 [16] mortem reports. Both the accused and their third companion were in the police lock up and his (PW2) statement was recorded. In cross-examination it is stated that all the brothers resided separately. Manoj (deceased) was working at Shanti Hotel Palace for the last two years. Earlier he was working as driver in the Basant Kunj. It is stated that all the brothers were residing in the same house but were having separate rooms. He had gone to see Manoj Kumar in routine and not for any specific purpose. He also worked as a driver and his duty was upto 4.30 - 5.00 p.m. He had gone to Manoj between 6 to 6.15 p.m. At that time, Manoj was inside the hotel gate, but outside the hotel. While they were talking they were having their faces towards the hotel. He had not seen the accused earlier to the occurrence i.e. 18.5.2003. He had no talk with them on that day. It was incorrect to suggest that he had never seen the accused in Shanti Palace Hotel. It was also wrong to suggest that he had been introduced as a witness only to implicate the accused and he had deposed falsely on account of death of his brother.
Tara Nath (PW4) who is the brother-in-law of Raju (deceased) stated that Raju (deceased) was his wife's brother. He was employed as a driver at Shanti Palace Hotel, A-67, Highways Road, Mahipalpur near Indira Gandhi Airport, New Delhi. Manoj Kumar (deceased) was also employed as driver at Shanti Palace Hotel. On 18.5.2003 at about 7.00 p.m. he was present at the said Shanti Palace Hotel compound. He had seen the accused present in the Court. Both of them along with another person had come to the hotel. They contacted the Manager of the Hotel namely Farank (PW1). They told the Manager (PW1) that they wanted to hire a vehicle for going to Fatehgarh Sahib for pilgrimage. The hotel had vehicles which they used as taxis. One of the accused present in the Court had disclosed his name as Sukhcahin Singh (appellant No.2) son of Gurmail Singh resident of Ludhiana. He had also given a copy of his driving license for identification purpose. The other accused had disclosed his name as Amrik Singh (appellant No.1). The Manager (PW1) provided the Qualis vehicle No.HR-55AT 2656. Raju, his brother-in-law and Manoj were drivers of the said vehicle. On 19.5.2003 at about 7.00 a.m. he (PW4) came to know that Raju, his brother-in-law and Manoj Kumar had been killed at Rajpura. Then he (PW4) and Farank (PW1) came to Rajpura at the Civil Hospital. Dead bodies of Raju and Manoj were lying there. He (PW4) identified the dead body of Raju. His statement (Ex.PK) was recorded in this CRA No.838-DB of 2008 [17] respect. His statement under Section 161 CrPC was also recorded. In cross- examination it is stated that he was working as Chowkidar for the last 4-5 months before the occurrence. He was Chowkidar of the area known as Pahari Mahipalpur. His duty hours were 9.00 p.m. to 5.00 a.m. He had come to Shanti Palace Hotel to see his brother-in-law Raju and also for purchasing cigarette/biri. The accused, it is stated, had come to the hotel on foot. He did not know before coming to the hotel, the accused had met anybody else or not for hiring a vehicle. There was a bag in the possession of the accused, when they met the Manager (PW1). The bag was with Amrik Singh (appellant No.1). He (PW4) could not tell the exact time when the accused came to the hotel, but it was about 7.00 p.m. It took about 10/15 minutes for the accused to talk with the Manager (PW1) and leave the hotel. His (PW-4) brother-in-law told him that the accused wanted to hire a vehicle for going to Fatehgarh Sahib. At the time of talk between the accused and Farank (PW-1), he was not near them. Manoj was driving the vehicle when they left the hotel. It is further stated that he had only gone to the Civil Hospital, Rajpura and not at the place of occurrence.
Gurmeet Singh, Sarpanch (PW5) who is the complainant stated that on 19.5.2003 at about 8.15 am he was going on his scooter from his village to Rajpura. When he reached near the fields of Hakam Singh of his village, he noticed a dead body of an unidentified person lying near the link road adjoining the G.T. Road. When he (PW5) went a little ahead, a dead body of another person was found lying there. Both the deceased appeared to be 28/29 years of age. They had received gun shots. Ashok Kumar of his (PW-5) village had also arrived there in the meantime. After leaving Ashok Kumar there, he (PW5) proceeded for lodging a report with the police. The police party met him at the bye-pass chowk, Rajpura. He (PW5) himself made a statement (Ex.PL) to the police which was read over to him and he signed the same in token of its correctness. He (PW5) then came with the police party at the spot. The police had searched the dead bodies and recovered their driving licenses as well as their purses, which were taken in possession vide memos Ex.PM, Ex.PN and Ex.PO respectively which were attested by him (PW5). Besides, blood-stained earth was also lifted from the spot which was sealed in a parcel and was taken into possession vide memo Ex.PP. Two empty cartridges lying at the spot were also lifted which were also sealed in a parcel by the police and taken in possession vide memo Ex.PQ. Blood-stained earth was also lifted from near the CRA No.838-DB of 2008 [18] dead bodies which were sealed and memo Ex.PR was also prepared. He (PW5) had attested the memos, besides, his statement was recorded. In cross- examination it is inter alia stated that a driving license was lifted by the police from near one of the dead bodies, but he (PW5) could not tell to whom it belonged. Except the driving license, empty cartridges and blood-stained earth, nothing was lifted from the spot. It is stated that the Head Constable had given telephone calls to different places from the nearby STD/PCO on the basis of documents recovered from the spot and the dead bodies.
Dr. Ishwar Chand Taneja, Medical Officer, A.P. Jain (Civil Hospital), Rajpura (PW3) stated that on 19.5.2003 he was posted as Medical Officer in A.P. Jain, Hospital, Rajpura. On that day, he conducted the post- mortem examination of Raju and Manoj Kumar. The dead body of Raju was identified by Farank (PW1) and Tara Nath (PW4). The following injury was found on the dead body of Raju:-
"A lacerated wound 1.8 cm x 1.7 cm on the left side of angle of mandible, 3 cm below and medial the left ear lobule the margins of the wound was inverted and colour of the abrasions present around the wound"
On probing, the wound was going upwards and inside the brain. On further opening the face and scalp, a bullet was recovered in the right side of parietal hemispheres 5 cm above the upper end of right pinna and 6 cm away from mid line. The bullet was removed and handed over to the police. In his (PW3) opinion, all the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. Death in the case of Raju was hemorrhage and shock due to fire arm injuries causing multiple injuries to face and brain i.e. head and face. The dead body of Manoj was identified by Rajbir Singh son of Prem Singh and Raj Singh son of Prem Singh. The following injuries were found on the person of Manoj Kumar:-
"1. A lacerated wound 1.5 cm x 1.7 cm on the left side of front of chest. 0.5 cm away from midline and 12 cm below the left steron-calvicular joint. The margins of the wounds were inserted. The colour of the CRA No.838-DB of 2008 [19] abrasion present around the wound. The wound was going into the chest cavity.
2. A lacerated wound 2.2 cm x 2 cm on the back of left side of chest in its lower part 10 cm away from midline. The margins of the wounds were averted.
On probing, the injuries No.1 and 2 were communicated with each other.
On opening of track, the structures along with the tract were lacerated. There was laceration of left ventricle of the heart and laceration of left lower lobe of lung was present. Whole of chest cavity on left side was full of blood. There was fracture of external end of left sixth ribs was present.
3. A lacerated wound 1.8 cm x 1.5 cm on the front and outer side of left side of chest. 3 cm inside the anterior auxiliary line in the third intercostal space. The margins of the wound were inverted. The colour of abrasions present around the wound. The wound was going into the chest cavity.
4. A lacerated wound 2 cm x 1.8 cm on the back of left side of chest in the infra-
scapular region 8 cm away from mid line with averted margins.
On probing, injuries No.3 and 4 were communicate with each other. On opening of that, there was fracture of left third rib was present. There was also fracture of left lower end of body of scapula was present.
There was also laceration of left upper lope of lung was present. Structures along with CRA No.838-DB of 2008 [20] tracts were lacerated. Left side of chest cavity was full of blood."
In the opinion of Dr.Ishwar Chand Taneja (PW3) all the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. The death in the case of Manoj was hemorrhage and shock due to fire arm injuries causing multiple injuries to heart and left lung. In the cross-examination it is stated that there was only one bullet injury on the person of Raju and that was only with regard to the entry of the bullet which remained stuck inside. The death of Raju occurred due to that injury. He (PW3) could not tell anything about the weapon from which the bullet was fired. It can be told by a fire arm expert. It is further stated that there were four injuries on the person of Manoj which were due to fire arm. The death of Manoj was occurred on account of four injuries.
The case of the prosecution, therefore, is that the appellants had hired a Tata (Sic.-Toyota) Qualis vehicle from Hotel Shanti Palace, Mahipal Road, New Delhi for paying obeisance at a Gurudwara at Fatehgarh Sahib. The deceased Manoj Kumar and Raju accompanied them in the Qualis vehicle and their dead bodies were found on 19.05.2003 near the link road adjoining G.T. Road in the area of village Faridpur Gujran, Police Station Sadar Rajpura, District Patiala From near the dead bodies, a driving license (Ex.PM) of Amrik Singh (appellant No.1) was recovered which was found approximately 2 karams from the dead body of Manoj Kumar on which name of Amrik Singh Grewal (appellant No.1) son of Buta Singh, resident of H.No. 216-L, Model Town, Ludhiana was mentioned. The said memo (Ex.PM) is witnessed by Sarpanch Gurmeet Singh (PW5) and Kanwaljit Singh ASI (PW14), In charge Police Post Basantpura. It may be noticed that the driving license of Amrik Singh (appellant No.1) and Manoj Kumar (deceased) were taken in possession and are on record. The inquest report (Ex.PD) in respect of the dead body of Raju and inquest report (Ex.PH) in respect of the dead body of Manoj Kumar was prepared on 19.5.2003 by Harpreet Singh, Inspector/SHO (PW17). The identification of the dead body of Raju has been done by Farank (PW1) and Tara Nath (PW4). The identification of the dead body of Manoj Kumar has been done by Rajbir and Raju sons of Prem Singh. The place where the dead bodies were recovered is shown at the G.T. Road on the edge of link road to village Faridpur Gujran. In respect of the articles recovered from the dead body or nearby it is mentioned; CRA No.838-DB of 2008 [21]
"as per memo". However, there is no memo attached with the inquest reports regarding recoveries from near the dead bodies. The recovery memo, Ex.PM relates to driving license of Amrik Singh (appellant No.1) and Ex.PN relates to recovery of one black purse in which there were `140/-some telephone cards and a driving license in the name of Manoj Kumar. The recovery memo (Ex.PO) relates to recovery of a black purse in which there were `150/- and some visiting cards; besides, on the right arm of the dead body of Raju, there was a sign of a heart in which GEM was written in English. The articles were taken in possession vide the said memo.
Therefore, in case the driving license of Amrik Singh (appellant No.1) was indeed recovered in pursuance of the recovery memo (Ex.PM) from near the dead body of Manoj Kumar, then there was no need to make a search for the culprits as the police party would in the circumstances straightaway go to the house of Amrik Singh (appellant No.1) whose address was mentioned on the driving license. However, Kanwaljit Singh ASI (PW14), In charge Police Post Basantpura stated that he was sent for the search of the accused in the nearby area. In cross-examination it is stated by Kanwaljit Singh ASI (PW-14) that he along with four police officials i.e Constable Darshan Singh, two Home Guard officials whose named he did not know, one Head Constable, but he did not know his name, went in search of the accused in the nearby area. It is stated that at about 2.00 p.m. he along with the aforesaid officials went in search of the accused in the area of Sirhind, Gobindgarh, Ambala and Zirakpur side. They returned to the Police Station at about 9.00 p.m. (as recorded in the vernacular statement). They had enquired from 'dhabas', taxi stands and bus stop stands etc. No statement in the inquiry in this regard was recorded by him (Kanwaljit Singh ASI PW-14) or by the police officials accompanying him. It is accepted as correct that when they reached at the spot, the case was of a blind murder and it remained blind till 9.00 p.m. on 19.5.2003 when they returned to the police station as they could not get any clue regarding the involvement of the accused present in the Court in the present case. He could not tell at what time Inspector Harpreet Singh SHO (PW17) returned to the Police Station. When he (PW14) reached at the police station at 9.00 p.m. there was no contact between him and Inspector Harpreet Singh SHO (PW17). In the conversation between him (PW14) and Inspector Harpreet Singh SHO (PW17) at about 9.00 p.m. no clue/evidence had been got regarding the involvement of the accused in the CRA No.838-DB of 2008 [22] present case. They did not give any intimation to the concerned police stations of Zirakpur, Sirhind, Mandi Gobindgarh and Ambala regarding the offence and search of the persons. Therefore, it may be noticed that it is quite un-natural that in case the driving license of Amrik Singh (appellant No.1) was recovered from near the dead body of Manoj Kumar vide recovery memo (Ex.PM) a search was still being carried out for establishing the culprits till 9.00 p.m. on the night of the incident i.e. 19.5.2003. Even Inspector Harpreet Singh (PW17) in his cross-
examination has stated that ASI Kanwaljit Singh (PW14) had left the spot at about 11.30/11.45 a.m. for conducting raids. He did not remember at what time thereafter they met together before reaching the police station at 8.00 p.m. It is also stated that the case was a blind murder in the beginning and then it is voluntarily stated that they got a clue against the accused from the spot. They conducted the raids as per the clue against the accused. It is stated that it was wrong to suggest that no clue was found at the spot regarding the involvement of the accused in the present case. It is also stated that it was wrong to suggest that no raid was conducted in search of accused by him (PW-17) as well as ASI Kanwaljit Singh (PW-14). ASI Kanwaljit Singh (PW14), it is stated, went to Ludhiana to raid at the residence of the accused but the accused were not apprehended by ASI Kanwaljit Singh (PW14) on that day when he returned. It is stated that ASI Kanwaljit Singh (PW14) informed him that the accused were not found at their residence, when he conducted the raid at Ludhiana. ASI Kanwaljit Singh (PW14) along with 4-5 police officials went to Ludhiana at about 11.30/11.45 a.m. in the Allwyn Nissan Govt. Vehicle for conducting the raid at the house of the accused. The said deposition is in stark contrast to that of ASI Kanwaljit Singh (PW14) who clearly stated that they had no clue about the accused till the evening and it was a blind murder till 9.00 p.m. Had the driving license of Amrik Singh (appellant No.1) indeed being recovered from the place where the dead bodies were found lying, there was no need for the police officials particularly Harpreet Singh, Inspector/SHO (PW17) and ASI Kanwaljit Singh (PW14) to conduct raids here and there. They would have straightaway gone to the house of Amrik Singh (appellant No.1) whose address is mentioned on the driving license that is said to have been recovered. In fact the defence has examined Jagdev Singh, Criminal Alhmad in the Court of learned Chief Judicial Magistrate, Ludhiana as DW1. He had brought the original file titled State v. Amrik Singh relating to case FIR No.283/99 registered at Police Station CRA No.838-DB of 2008 [23] Focal Point, Ludhiana for the offence under Section 336 IPC which was decided by the learned Judicial Magistrate Ist Class, Ludhiana on 21.1.2005. The said case according to Amrik Singh (appellant No.1) was falsely foisted on him. It is stated by Jagdev Singh, Criminal Alhmad (DW1) that the original driving license bearing No.0163445 dated 18.1.1999 in the name of Amrik Singh Grewal (appellant No.1) son of Buta Singh, date of birth 01.11.1976, resident of 216-L, Model Town, Ludhiana valid upto 17.1.2019 issued by the Licensing Authority, Ludhiana in original was tagged with the judicial file brought by him at No.39, which as per recovery memo Ex.PW3/B was taken into custody by the police on 11.12.1999. The same was proved on record in the said case by HC Ram Bahadur who appeared as PW3. Ex.P12 was the Photostat copy of license No.163445, the original of which was on the file which he had got on the day of his deposition. Therefore, the original driving license of Amrik Singh (appellant No.1) had been taken in possession by the police on 11.12.1999 in case FIR No.283 of 1999 registered at Police Station Focal Point, Ludhiana for the offence under Section 336 IPC in which Amrik Singh (appellant No.1) was acquitted on 21.1.2005. However, the license was still in the Court file when Jagdev Singh, Criminal Alhmad (DW1) appeared in Court on 3.11.2007 during the trial of the present case. The incident in the present case, as has already been noticed, had occurred on 19.5.2003 on which date the driving license of Amrik Singh (appellant No.1) could not have been recovered in pursuance of the recovery memo Ex.PM. It may, therefore, be noticed that indeed no raid was conducted by ASI Kanwaljit Singh (PW14) at the residence of the accused. Besides, Harpreet Singh Inspector/SHO (PW17) has though deposed that ASI Kanwaljit Singh (PW14) had conducted a raid at the house of the accused on 19.5.2003, however, he accepts that there was no other statement recorded by him of ASI Kanwaljit Singh (PW14) except mark 'X' and in the said statement there was no mention of conducting a raid by ASI Kanwaljit Singh (PW14) at the residence of the accused at Ludhiana. He did not remember whether in the DDR register, there was any entry regarding return of ASI Kanwaljit Singh (PW14) after conducting raid at the residence of the accused. At the said stage, learned counsel for the appellants asked the witness i.e. Harpreet Singh Inspector/SHO (PW17) that he can refresh his memory after seeing the Roznamcha, (DDR) which was available in the Court. It was stated by Harpreet Singh, Inspector/SHO (PW17) that as per entry DDR No.32 of 19.5.2003 there was a CRA No.838-DB of 2008 [24] mention of return of ASI Kanwaljit Singh (PW14) with the police party after investigation, but there was no specific mention regarding conducting of raid at the residence of accused at Ludhiana. Therefore, the recovery of the driving license of Amrik Singh (appellant No.1) in pursuance of Ex.PM at the spot near the dead body of Manoj Kumar clearly stands falsified. Besides, the possibility of it being planted by making a colour Photostat copy to implicate Amrik Singh (appellant No.1) cannot be ruled out.
It is also stated by Harpreet Singh Inspector/SHO (PW17) that Rajbir, Tara Nath (PW4) and Farank (PW1), Manager had identified the dead bodies. It is stated that half of the inquest report was prepared at the spot and half at the hospital. He had obtained the statement under Section 175 CrPC and he had got them signed. It is again stated that he had not obtained the signatures of LRs on the brief history of the case attached with the inquest report. He had got recorded the brief history at the spot, but the statement of the relatives of the deceased were recorded in the hospital. It is also stated that relatives of the deceased namely Rajbir, Tara Chand (PW4) and Farank (PW1) etc. reached at the spot. The inquest report it is stated contains statements recorded under Section 175 Cr.P.C. and it is a complete report. He had not obtained the signatures on the forms of inquest report. It is then stated that it was wrong to suggest that the inquest report was prepared in the hospital and no part was prepared at the spot. It is further stated that it was wrong to suggest that no relative and again said that it was correct that relatives of the deceased did not come at the spot, but in the hospital. He further states that a photographer namely Pritam Singh from Rajpura was called at the spot by Harpreet Singh Inspector/SHO (PW17). A police official had brought the photographer at the spot, but he did not remember the name of the said police official. He did not remember whether he recorded the statement of the photographer who was called at the spot. He did not remember how many photographs were taken by the said photographer. He did not remember whether any recovery memo regarding the photographs was prepared by him or not. It is, however, accepted as correct that there were neither photographs on the judicial file nor any recovery memo regarding taking into police possession the photographs. This evidently shows that no photographs were taken at the spot and in case these were taken there was something in the photographs which would discredit the case of the prosecution and for the said reason; the CRA No.838-DB of 2008 [25] said photographs and recovery memos were not filed. In this regard an adverse inference is liable to be drawn against the prosecution.
The arrest of the accused on 22.5.2003 is also quite doubtful. It is not shown as to at what point of time the identity of the accused came to be established. As has already been discussed above, the accused were not identified initially 19.5.2003 when the incident had occurred inasmuch as a search for the accused was made at various places by Harpreet Singh Inspector/SHO (PW17) and by ASI Kanwaljit Singh (PW14). This is despite the fact that the driving license of Amrik Singh (appellant No.1) is said to have been recovered from near the dead body of Manoj Kumar. This in fact would have given sufficient indication to the police officials that Amrik Singh (appellant No.1) was a suspect if not the accused. However, Harpreet Singh Inspector/SHO (PW17) has stated that the appellants and Kamalpreet Singh were apprehended on 22.5.2003 when Harpreet Singh Inspector/ SHO (PW17) along with the police party comprising of ASI Gurdev Singh, ASI Darbara Singh and other police officials were present holding 'Naka' (checking) on the Canal Bridge of Doraha and the appellants were seen coming from Ludhiana side in the Qualis vehicle bearing No. HR-55 AT-2656 and they were arrested. Harpreet Singh Inspector/SHO (PW17) in his cross-examination stated that when they were at Doraha they had not given any written intimation to the police and neither had called any police officials from Police Station Doraha. They had not made any entry in the DDR register at Police Station Doraha. They did not make any entry or a report in the DDR at Police Station Doraha regarding the arrest of the accused and recovery of weapons. It is also stated that there are many Police Stations from Doraha to Rajpura and they had not intimated any Police Station. It is also stated by Harpreet Singh (PW17) that when the Qualis vehicle was taken in possession by the police, the same had Hotel Shanti Palace scribed on it and the words 'All India Route Permit' written on its registration number and it was original in white colour with blue strips and the telephone number of hotel was there on the vehicle.
The case as is sought to be set up by the prosecution is primarily that the accused had committed murder of Manoj Kumar and Raju so as to take away the Qualis vehicle. If this was indeed so, it is not understandable as to why the accused would be roaming around in the Qualis vehicle on 22.5.2003 after three days of the incident and that too with the number plate and the name of CRA No.838-DB of 2008 [26] Hotel Shanti Palace scribed intact on the vehicle so as to make it easily identifiable. Rather their effort would have been such that the vehicle is not identified or in any case not easily identified. Besides, Harpreet Singh (PW17) has stated that he recognized Amrik Singh (petitioner No.1) from the photograph which they had taken. It is also not understood as to how they had gone and set up a 'Naka' (check post) within the jurisdiction of another Police Station i.e. Police Station Doraha without informing the police of that area. Besides, it is accepted by Harpreet Singh (PW17) that Amrik Singh (appellant) was his distant relative and he is the son-in-law of the daughter of his maternal uncle. Despite this he did not know the name of the wife of accused Amrik Singh (appellant No.1). This also is quite strange because the wife of Amrik Singh (appellant No.1) namely Ramandeep Kaur is the daughter of the first cousin of Harpreet Singh Inspector/SHO (PW17) and it is known to Harpreet Singh Inspector/SHO (PW17) that Amrik Singh (appellant No.1) is the son-in-law of the daughter of his maternal uncle. The name of father-in-law of Amrik Singh (appellant No.1) is also stated to be Kuljit Singh who is the son-in-law of the maternal uncle of Harpreet Singh Inspector/SHO (PW17). It is not shown by Harpreet Singh Inspector/SHO (PW17) as to from where he got the photograph of Amrik Singh (appellant No.1). A photograph it can be said was on the driving licenseof Amrik Singh (appellant No.1) but Harpreet Singh Inspector/SHO (PW-17) says he had got a photograph of Amrik Singh (appellant No.1), which is not tenable. Besides, when Amrik Singh (appellant No.1) was already known to him and he had his address from the driving license which is said to have been recovered in pursuance of recovery memo Ex.PM from near the dead body of Manoj Kumar, then there was no need to hold a 'Naka' (checking) for the accused to come and then be apprehended and that too in the same Toyota Qualis vehicle which is stated to have been stolen; besides they would keep its number and hotel markings intact is quite improbable. The appellants examined Joginder Pal Singh (DW4) son of Attar Singh who is a neighbour of Amrik Singh (appellant No.1). It is stated by Joginder Pal Singh (DW4) that Amrik Singh (appellant No.1) was his neighbor and Sukhchain Singh (appellant No.2) was son of his (Amrik Singh's) cousin. On 20.5.2003 he was present at his house. On that day at about 6.00 a.m. he heard a 'raula' (noise) outside his house and he came out and saw that 3-4 police vehicles were standing outside the house of Amrik Singh (appellant No.1). The police took Amrik Singh (appellant No.1), his cousin CRA No.838-DB of 2008 [27] brother Sukhchain Singh (appellant No.2) and his younger brother forcibly in the vehicle. In cross-examination it was stated by Joginder Pal Singh (DW4) that on the day the police had picked up the appellants and younger brother of Amrik Singh (appellant No.1), he did not tell any higher police officer or any other higher officer, that the police had forcibly taken Amrik Singh (appellant No.1) and his brothers. It is voluntarily stated that he made a statement in the inquiry. He did not collect the Mohalla Panchayat. It was wrong to suggest that the Police did not take Amrik Singh (appellant No.1) and his brothers forcibly. He denied the suggestion that he was deposing falsely being neighbour of the accused.
Amrik Singh (appellant No.1) had also submitted an application (Ex.DW2/1) to the Punjab State Human Rights Commission, Chandigarh complaining that Inspector Harpreet Singh SHO (PW17) maternal uncle of his wife as also his in-laws had falsely implicated him and his cousin brother in a blind murder case FIR No.129 dated 19.5.2003 registered at Police Station Rajpura, District Patiala for the offences under Sections 302/34 IPC and Section 25 of the Arms Act. They both were lodged in the Central Jail, Patiala since 27.5.2003. It is stated by Amrik Singh (appellant No.1) in his said application (Ex.DW2/1) that Harpreet Singh Inspector/SHO (PW17) had implicated him in a false murder case because he had married their daughter. It was a love marriage and his wife Ramandeep Kaur who is the daughter of Kuljit Singh had married him against the wishes of her parents and relatives. Now they had a son from the marriage who was 4 years old. It is stated that in November 2003, when he was in Patiala Jail, Harpreet Singh Inspector/SHO (PW17), his father- in-law Kuljit Singh Dhillon and maternal grandfather (Nana) of his wife all came at the Patiala Jail and they asked him to give divorce to their daughter and also give land and cash and a blank stamp paper duly signed to them, but he (appellant No.1) refused. At that time they threatened him (Amrik Singh appellant No.1) that they would get him killed inside the jail and implicate him in other cases. It is stated that as a result of this on 16.8.2004, CIA Staff Moga took him from Patiala Jail and falsely implicated him in FIR No.140 dated 19.7.2004 registered at Police Station Dharam Kot, Moga for the offence under Section 15 of the NDPS Act. It is stated that when the FIR was lodged, he was in Central Jail, Patiala and till date of lodging the complaint (Ex.DW2/1) i.e. on 2.2.2005 he was still in Central Jail, Patiala. It is stated that on 17.8.2004 Harpreet Singh Inspector/SHO (PW17), his (appellant's No.1) father-in-law namely Kuljit Singh CRA No.838-DB of 2008 [28] Dhillon and SSP Moga Mukhwinder Singh Chinna had come to the CIA Staff and said that they would get him implicated in a case of NDPS. Harpreet Singh Inspector/SHO (PW17) and his (appellant's No.1) father-in-law namely Kuljit Singh Dhillon started beating him with sticks on his back which they continued for 15-20 minutes. They kicked him in the chest, abdomen and back. He was suffering from chest, abdomen and back pain. They also said that they would kill him in a false encounter. The CIA Staff Moga it is stated took him (Amrik Singh- appellant No.1) on 16.8.2004 and then after interrogating him, they sent him to Sub-Jail Moga. From 17.8.2004 evening to 21.8.2004, they kept him in Sub-Jail Moga; because his condition was so bad that he could not even walk till the date of making the complaint (Ex.DW2/1). In fact till the date of making the complaint (Ex.DW2/1), he was suffering from chest, abdominal and back disc pain. On 21.8.2004 they took him to a doctor and brought him back to Patiala Jail. He was admitted in the Jail Hospital due to his ill-health from the torture of Punjab Police. They tortured him badly. First they threatened him, now they were giving practical shape to the threats. They had hired five persons inside the jail and had paid them. The hired persons attacked him (Amrik Singh appellant No.1) with sharp edged weapons in the jail hospital early morning at 7.30 a.m. on 28.11.2004. Luckily he was saved by the other persons admitted in the hospital and the Lambardar. They managed to lock all five persons in the jail hospital barrack and they informed the jail authorities and the jail officials apprehended all the five persons from the hospital and recovered sharp-edged weapons from them. He reported this matter to the Hon'ble Sessions Court, Patiala, but no action was taken. He stated that his widowed mother and widowed grandmother came to visit him in Jail and told him that the Punjab Police officials and some 'cops' had come to his residence in his native village and they threatened his mother and his grandmother with dire consequences. They used bad language for his family and while threatening them went back home. They also pushed his mother. This is what was happening because he told the entire truth to the Hon'ble Sessions Court, Patiala and they hired five persons to kill him. His in- laws and Harpreet Singh, Inspector/SHO (PW17) falsely implicated him in a blind murder case in Patiala and in a NDPS case at Moga. Before leaving they threatened the mother of Amrik Singh (appellant No.1) that she should tell her son (Amrik Singh) who was in Central Jail Patiala to be quiet, otherwise they would be in deep trouble and they would be sent to jail by implicating them in CRA No.838-DB of 2008 [29] false cases. The elder brother of Amrik Singh (appellant no.1) namely Jagjeet Singh who was also living in his native village also received threats on phone. Someone called him and said that he should tell his brother Amrik Singh to remain quite. It was requested to help them so that they could get some relief and fair justice. He had threats to his life and all family members were scared. Now, they were threatening his family members back home because he had supportive evidence against them.
Sukhwinder Singh Uppal, Superintendent of Police 6th IRB, Sangrur (DW3) who was earlier posted as DSP Crime Special Cell, Patiala was examined by the appellants who stated that he brought the original inquiry report and attested copy of the same was Ex.DW3/A. It is stated that Amrik Singh (appellant No.1) had made an application to the Human Rights Commission, Punjab, Chandigarh complaining that he had been falsely implicated in number of cases which included FIR No.129 dated 19.5.2006 (sic.19.5.2003) for the offence under Section 302/34 IPC registered at Police Station Sadar Rajpura and another FIR No.140 dated 19.7.2004 registered at Police Station Dharamkot for the offence under Section 15 of the NDPS Act. In his enquiry (Ex.DW3/A) he recommended that the accused had been falsely implicated in the present case. He enquired into the matter thoroughly and recorded statements of the witnesses and other persons and also examined the police file. From his secret and open inquiry, he found that the accused had been falsely implicated. In cross-examination it is stated by Sukhwinder Singh Uppal (DW-3) that the inquiry was marked to him by SP Crimes, Patiala. The ADGP Crimes had accepted his enquiry report and the same submitted to the Human Rights Commission, Punjab for acceptance. It is stated that it was wrong to suggest that the DGP Punjab had ever written to the Human Rights Commission, Punjab for not accepting the enquiry report submitted by him. He did not know if the Human Rights Commission agreed with his report or not. The DIG also enquired into the matter, but he did not write that his enquiry (Ex.DW3/A) was wrong. His statement was also recorded by the DIG. It is stated that the DIG had never written that he (Sukhwinder Singh Uppal DW3) had not conducted a fair and proper enquiry. He also recommended that these points may also be raised before the concerned trial Court. Since case (challan) was presented for adjudication before the trial Court, hence it was recommended that the report may be submitted before the trial Court. It is stated as correct that Amrik Singh CRA No.838-DB of 2008 [30] (appellant No.1) had written so many complaints to prove his innocence. It was wrong to suggest that he had deposed falsely and did not conduct a fair and proper enquiry.
The enquiry report (Ex.DW2/3) and (Ex.DW3/A) is on record in which Sukhbinder Singh Uppal, DSP, Crime Special Cell, Patiala (DW3) had conducted a detailed enquiry in connection with the complaint of Amrik Singh (appellant No.1) made before Punjab State Human Rights Commission regarding the present case FIR No.129 dated 29.5.2003 registered at Police Station Rajpura for the offence under Section 302/34 IPC. Sukhwinder Singh Uppal (DW3) in his inquiry stated that he recorded the statement of Amrik Singh (appellant No.1) at Central Jail, Patiala in which it is stated by Sukhwinder Singh Uppal (DW3) that Amrik Singh (appellant No.1) had gone to Canada and had come to his village in the year 1994. He had solemnized his marriage with a Punjabi girl in Canada and had one son. After the death of his father in 1996, he came back to the village in the year 1998 and as they had sufficient property, he made up his mind to live and work here and started living here. But his (Amrik Singh's) wife could not adjust herself and she returned to Canada and got divorce from him. Amrik Singh (appellant No.1) started living along with his son in his 'kothi' (house) at Model Town, Ludhiana and started business of a Finance Company. He fell in love with Ramandeep Kaur, daughter of Kuljit Singh, but the parents and relatives of the girl were unhappy with this relationship. Harpreet Singh, Inspector/SHO (PW17), it is stated, was the maternal uncle (mama) i.e. mother's brother of the girl, but due to insistence of the girl Ramandeep Kaur, her parents performed her marriage with him (Amrik Singh-appellant No.1) and they started living in the 'kothi' situated at Model Town, Ludhiana. Out of this wedlock, they had a son who was 4 years of age. The son was with his wife who was living at her parents' house. Inspector Harpreet Singh SHO (PW17) had got lodged case FIR No.283 of 1999 at Police Station Focal Point, Ludhiana for an offence under Section 336 IPC in which case Amrik Singh (appellant No.1) was acquitted. It is mentioned that he was harassed by Inspector Harpreet Singh (PW-17) on various occasions and he was forcibly taken from his house at Ludhiana on 20.5.2003 along with his cousin brother Sukhchain Singh (appellant No.2) and his maternal uncle's son Kamalpreet Singh (since declared juvenile) and implicated in the murder case whereas he had nothing to do with this murder. The other chain of circumstances and harassment meted out to Amrik CRA No.838-DB of 2008 [31] Singh (appellant No.1) as also other false cases that have been registered against him are also mentioned in the inquiry report. It is also stated that the license of Sukhcahin Singh (appellant No.2) which has been shown by the police in a Delhi Hotel in fact is not the license of Sukhchain Singh (appellant No.2). It is stated that a Photostat copy of the license which had been shown might have been forged by the police. In the inquiry it was observed by Sukhwinder Singh Uppal (DW3) that a Ford Icon and a Ballero jeep were parked in the house of Amrik Singh (appellant No.1). The statement of Jagjit Singh, Ex-Sarpanch son of Late Buta Singh resident of Dhandra (elder brother of Amrik Singh-appellant No.1) was recorded in which he stated that his father Buta Singh had remained Sarpanch of village Dhandra for a long period. His father had died in an accident in the year 1996. Thereafter, he also remained as a Sarpanch. It is stated that his (Jagjit Singh's) younger brother was Amrik Singh (appellant No.1) and youngest was Amarpreet Singh. He (Amrik Singh) carried 9 m.m. pistol, 12 bore gun and 303 revolver which were all licensed. He (Amrik Singh) had approximately 150 acres of land at village Dhandra, Noorpur and Kheri villages which was very valuable because it was canal irrigated. Amrik Singh (appellant No.1) had a 'kothi' (house) at Model Town, Ludhiana. In village Dhandra also there was a good residential house. There was no paucity of money. It is mentioned that his (Jagjit Singh's) marriage was performed in the year 1994 with Parminder Kaur daughter of Tejpal Singh who was brother of Bhag Singh resident of Garha. The marriage of Preetkamal Kaur daughter of Surinder Kaur sister of Bhag Singh was performed with Mukhwinder Singh Chhina, SP. In 1999, Jagjit Singh's brother Amrik Singh (appellant No.1) had performed love marriage with Ramandeep Kaur daughter of Kuljit Singh Dhillon with the consent of his family. It is mentioned that when Mukhwinder Singh Chhina was posted as SSP Jagraon, then Jagjit Singh settled some deal in two cases as a mediator. Later on, some doubt was created in the mind of Mukhwinder Singh Chhina that he had retained something. Due to the said reason he became annoyed. Besides, there was another reason that a case under Section 498-A IPC was registered against the wife of Mukhwinder Singh Chhina as also his wife's brother and mother-in-law and father-in-law at Police Station Phillaur. In the said case Jagjit Singh was asked to make a statement in their favour to the effect that a simple marriage was performed and no dowry had been demanded later on. However, Jagjit Singh had refused to make such a statement. CRA No.838-DB of 2008 [32]
From the inquiry report it may be noticed that Amrik Singh (appellant No.1) has substantial landed property, a house at Ludhiana; besides, he had solemnized his marriage with Ramandeep Kaur, daughter of Kuljit Singh against the wishes of her parents and relatives. Besides, Harpreet Singh Inspector/SHO (PW17) is the maternal uncle of Ramandeep Kaur. In the inquiry it was concluded that Inspector Harpreet Singh (PW17) who was posted as SHO Police Station Rajpura had got a false case foisted upon Amrik Singh (appellant No.1) and Sukhchain Singh (appellant No.2). It was accordingly stated that Amrik Singh (appellant No.1), Sukhchain Singh (appellant No.2) and Kamalpreet Singh (since declared juvenile) were innocent and had been arrested by Inspector Harpreet Singh SHO (PW17) in the present case FIR No.129 dated 19.5.2003 registered at Police Station Rajpura for the offences under Section 302 IPC and Sections 25 and 27 of the Arms due to personal enmity and that the SSP, Patiala may be addressed to withdraw this case from the Court in accordance with the procedure on the basis of the said report (Ex.DW3/A and also exhibited as Ex.DW2/3) and these innocent persons may be got discharged. The real accused of the present case FIR, it was stated, be detected by carrying out investigations. It was stated that action in accordance with the procedure be taken against Harpreet Singh Inspector/SHO (PW17) who had committed such heinous crime due to his personal grudge and Amarpreet Singh and Ranbir Singh who had been implicated in cases/FIRs No.139 and 140 dated 19.7.2004 under Section 15 of the NDPS Act registered at Police Station Dharamkot may be got discharged from the Court in accordance with the procedure and cancellation report be submitted in the said cases and legal action be taken in accordance with the procedure against the officials who had lodged these cases due to personal grudge. The SSP, Moga was asked to be addressed in this connection. The report was submitted for consideration. The Additional Director General of Police, Crimes vide memo Ex.DW2/2 addressed the letter to the Principal Secretary, Punjab State Human Rights Commission, Sector-34, Chandigarh with reference to office memo No.1912/15/05/PSHRC (J- 5/013769) dated 25.2.2005 from Sh. Amrik Singh (appellant No.1) in which it was stated that photocopy of enquiry report (Ex.DW3/A and also exhibited as Ex.DW2/3) had been considered by the Crime Wing and had been found to be sound in substance and conclusion. It is further intimated that the challan (police report) in the present case FIR No.129 of 2003 for the offences under Sections CRA No.838-DB of 2008 [33] 302/34 IPC, besides, Sections 25 and 27 of the Arms Act registered at Police Station Rajpura had since been filed in Court on 16.8.2003. Besides, the challans (police reports) of cases/FIRs No.139 and 140 dated 19.7.2004 for the offence under Section 15 of the NDPS Act registered at Police Station Dharm Kot, District Moga had since been filed in Court on 18.8.2004. Therefore, the office of Additional Director General Crimes, Punjab in terms of its letter (Ex.DW2/2) had endorsed the inquiry report (Ex.DW3/A and also exhibited as Ex.DW2/3) of Sukwinder Singh Uppal, DSP Crime Cell, Patiala (DW3). The said report had found the present case against the appellants to be not made out; besides, being false. The said report, however, could not be acted upon as the police report (challan) had been filed in the Court in terms of Section 173 CrPC.
The features which are discernible from the report (Ex.DW3/A and also exhibited as Ex.DW2/3) are that Amrik Singh (appellant No.1) had substantial property of about 150 acres. Therefore, it is unlikely that he would get himself involved for stealing a Tata Qualis vehicle from a Hotel at Mahipalpur, Delhi and then commit the murder of its two occupants namely Manoj Kumar and Raju. It may be noticed that Sukhwinder Singh Uppal (DW3) had procured the police file and perused it thoroughly. The police file of FIR No.139 dated 19.7.2004 for the offence under Section 15 of the NDPS Act and Section 25 of the Arms Act as well as case FIR No.140 dated 19.7.2004 for the offence under Section 15 of the NDPS Act both registered at Police Station Dharam Kot, Moga were also procured. Sukhwinder Singh Uppal, then DSP, Crime Special Cell, Patiala (DW3) went to Central Jail, Patiala in connection with the enquiry of the complaint of Amrik Singh (appellant No.1) and inquires had been made from him and his associate Sukhchain Singh (appellant No.2) and their statements were recorded. Besides, after reaching Sub Jail at Moga investigations were made from Amarpreet Singh and his associate Ranveer Singh who had been arrested in FIRs No.139 and 140 dated 19.07.2004 of Police Station Dharamkot; besides, others were also questioned. Statement of Jagjit Singh, Ex-Sarpanch who is the elder brother of Amrik Singh (appellant No.1) was also recorded. The brief description of the incident that occurred in the present case has been mentioned. It is also mentioned that two empty cartridges of 7.62 bore from near the dead body of Manoj Kumar; besides, the driving license of Amrik Singh Grewal (appellant No.1) was taken in police possession from near the dead body of Manoj Kumar. In the present case FIR CRA No.838-DB of 2008 [34] No.129 dated 19.5.2003 (Ex.PL/2) Sukhbinder Singh Uppal, DSP, Crime Special Cell, Patiala (DW3) also made investigations from the Investigating Officer Inspector Harpreet Singh (PW17) who was SHO at Police Station Rajpura at that time. It was noticed that insofar as the recovery of driving license of Amrik Singh (appellant No.1) from near the dead body made by the Investigating Officer Inspector Harpreet Singh (PW17); Gurmeet Singh, complainant (PW5) did not make any mention of the same in the FIR. Gurmeet Singh, complainant (PW-5) in his statement (Ex.PL), on the basis of which FIR (Ex.PL/2) was registered, does not state that the driving license of Amrik Singh Grewal (appellant No.1) was recovered from near the dead body of Manoj Kumar. Gurmeet Singh, complainant (PW-5), however, is a witness to the recovery memo dated 19.05.2003 (Ex.PM) regarding the driving license of Amrik Singh Grewal (appellant No.1) which was found approximately 2 karams (about 11 feet) from the dead body of Manoj Kumar. Gurmeet Singh, complainant (PW-5) in his deposition in Court states that the police had searched the dead bodies and recovered driving licenses as well as their purses from the possession of the deceased, which were taken in possession vide memos Ex.PM, Ex.PN and Ex.PO respectively which were attested by him. In cross-examination, he says that a driving license was lifted by the police from near one of the dead bodies, but he could not tell to whom it belonged. Therefore, Gurmeet Singh, complainant (PW-5) is not clear regarding the recovery of driving licence of Amrik Singh Grewal (appellant No.1) from near the dead body of Manoj Kumar. The said recovery of driving licence of Amrik Singh Grewal (appellant No.1) is, therefore, doubtful. It was also observed in the enquiry report (Ex.DW2/3 and Ex.DW3/A) that during investigation it was very essential as per procedure to conduct the identification parade, but the same had not been got conducted by the Investigating Officer (PW17). In this regard it may also be noticed that Inspector Harpreet Singh (PW-17) in his cross examination accepts that no identification parade of the accused was got conducted to identify the accused. Thereafter, it is voluntarily stated that he had got the accused identified from the complainant and the witnesses at the police station. In fact Gurmeet Singh, complainant (PW5) had made his initial statement (Ex.PL) on the basis of which FIR (Ex.PL/2) was registered. In the said statement Gurmeet Singh, complainant (PW5) does not mention regarding the accused and he only submits that there were two unidentified bodies. Therefore, the identification of the accused from CRA No.838-DB of 2008 [35] the complainant Gurmeet Singh (PW5) would go to show that the accused had not been got identified. Gurmeet Singh (PW-5) who is the complainant is not shown to be in any manner connected with the accused so as to identify them.
It is further mentioned by Sukhwinder Singh Uppal (DW3) in his inquiry report (Ex.DW3/A and also exhibited as Ex.DW2/3) that insofar as mobile No.98153-37741 was concerned no verification in that regard had been made and as to who was carrying this phone at that time and what was the relation of the persons with whom he had talked. The facts regarding the other case FIR No.139 dated 19.7.2004 registered at Police Station Dharamkot (Moga) under Section 15 NDPS Act were also considered. It was observed that Jagjit Singh Ex-Sarpach son of Late Buta Singh, resident of Dhandra (i.e. elder brother of Amrik Singh-appellant No.1) had inter alia stated that Inspector Harpreet Singh (PW17) was the maternal uncle (Mamma) of Ramandeep Kaur and he was not happy regarding her marriage with Amrik Singh (appellant No.1). He kept a grudge against Amrik Singh (appellant No.1). On one occasion he also got registered a case (FIR) against Amrik Singh (appellant No.1) under Section 336 IPC at Police Station Focal Point, Ludhiana in which Amrik Singh was acquitted. It is mentioned that Inspector Harpreet Singh (PW17) had also abducted Amrik Singh (appellant No.1) to Police Station Ahmedgarh. Jagjeet Singh, elder brother of Amrik Singh (appellant No.1) was living with his family at village Dhandra. The youngest brother namely Amarpreet Singh who was unmarried was also living at village Dhandra. Amrik Singh (appellant No.1) had been residing along with his wife in the 'kothi' (house) situated at Model Town, Ludhiana and the mother of Amrik Singh (appellant No.1) was also living with him. After the death of his mother's sister (Massi) resident of Nurpur, her both daughters started living with them at village Dhandra and their eldest brother started living with them in April 2003 for his studies. It is mentioned by Sukhwinder Singh Uppal (DW3) that Inspector Harpreet Singh (PW17) along with the police party abducted Amrik Singh (appellant No.1), Sukhchain Singh (appellant No.2) and their cousin brother Kamalpreet Singh (since declared juvenile) while coming from Nurpur for his studies and due to his personal grudge Inspector Harpreet Singh (PW17) arrested these three persons in the murder case and got them sent to jail. On 18.7.2004 when Mukhwinder Singh Chhina was posted as SSP, Moga then he had deputed DSP Bhulla Singh to go to village Dhandra for arresting Jagjeet Singh, but he was not present at home. CRA No.838-DB of 2008 [36] Then he abducted his brother Amarpreet Singh and Ranbir Singh Rana and had also taken his licensed pistol and a false case (FIR) of poppy husk was lodged against both of them. It was observed that Inspector Harpreet Singh (PW17) in view of the dead bodies of Manoj Kumar and Raju being recovered on 19.5.2003, he found a golden opportunity to implicate Amrik Singh (appellant No.1) in this blind murder case so as to take advantage of his personal enmity. He raided the house of Amrik Singh (appellant No.1) at Model Town on 20.5.2003 from where he brought him (Amrik Singh appellant No.1), his cousin brother Sukhchain Singh (appellant No.2) and the son of his maternal uncle namely Kamalpreet Singh (since declared juvenile). This fact had been affirmed by the persons taking a walk in the park. After taking them to Police Station, they were threatened and beaten up so that they should admit the offence of this murder, otherwise further severe beating would be given to them. In this way while getting their confessions before the witnesses, the arrests of the said three persons from the same car near Doraha District Ludhiana had been shown on 22.5.2003, which cannot be true as after committing murder, the accused would not travel with each other during the day time in the same vehicle. It was observed that Inspector Harpreet Singh (PW17) while changing the documents and collecting false evidence against these three persons had proved these three persons as accused. Fake driving licenses had been shown in the names of Sukhchain Singh (appellant No.2) and Amrik Singh (appellant No.1) and these had not been verified. The telephone had also not been verified as to in which manner Amrik Singh (appellant No.1) had any concern with it and from whom had he obtained it. It was observed that Inspector Hapreet Singh (PW17) had not made any mention about his relationship and neither had the then Halqa DSP Pritpal Singh Thind written anything in his 'Zimni' (case diary) report in this regard. The report (Ex. DW2/3 and also exhibited as Ex.DW3/A), apparently shows that Harpreet Singh, Investigating Officer (PW17) is related to Ramandeep Kaur wife of Amrik Singh (appellant No.1) and he was not happy with the marriage and therefore, he had falsely implicated the accused (appellants and Kamalpreet Singh) in the present case.
The question regarding Sukhchain Singh (appellant No.2) giving the driving license to Farank (PW1) may be considered. As per deposition of Farank (PW1) it is stated that Sukhchain Singh (appellant No.2) produced his driving license before him for the purpose of identification. Farank (PW1) had CRA No.838-DB of 2008 [37] come to Rajpura on 19.5.2003 and his statement was recorded. Thereafter he again came to Rajpura on 25.5.2003. He had given a copy of the driving license of Sukhchain Singh (appellant No.2) to the Police on 19.5.2003. The driving license (Ex.P13) of Sukhchain Singh is on record in which his address is mentioned as village and police post Nurpur Bet, District Ludhiana. Therefore, the police on 19.5.2003 itself could have conducted a raid at the residence of Sukhchain Singh (appellant No.2) at village Nurpur Bet but no such raid was conducted. Balbir Singh, Clerk DTO Office, Ludhiana (PW6) appeared in witness box and stated that he had seen the record regarding issuance of driving license No.163445 in the name of Amrik Singh (appellant No.1) which was valid from 18.1.1999 to 17.1.2019. He had also seen Ex.P12 the colour Photocopy of the said license and it bore the signatures of the then DTO and it was correct according to their record. He had seen Photostat copy of driving license (Ex.P13) bearing No.1596379 dated 21.4.2002 in the name of Sukhchain Singh (appellant No.2) but the same was not issued by their office. Report in this regard was made by their office on the application (Ex.PS) moved by the police and the report (Ex.PS/1) bore the signatures of Sh. Tarlochan Singh Sahota, ADTO which was identified by him. Therefore, the recovery of license (Ex.P13) of Sukhchain Singh (appellant No.2) shows that it was a false license.
It may also be noticed that Farank (PW1) in his statement under Section 161 CrPC has stated that on 18.5.2003 at about 6.00 p.m., Amrik Singh and Sukhchain Singh (appellants) had come to him and had given him their mobile phone number as 98153-37741 as well as landline phone number 0141- 6637502 and the landline phone number was of Jaipur. Farank (PW1) had tried to contact at the landline phone but it was found engaged. On the mobile phone also he tried to contact and when the ring on the phone went, he disconnected the same. Thereafter, Amrik Singh (appellant No.1) came to him and inquired from him if he had given a ring and he told him that it was for identification purpose only. This fact, however, stands completely shattered by the deposition of Sandeep Kumar Pandey, House Keeping Manager Airtel, Mohali (PW21) who had brought the record relating to mobile phone No.98153-37741. It is stated by Sandeep Kumar Pandey, House Keeping Manager Airtel, Mohali (PW21) that mobile No.98153-37741 was activated in the name of Manoj Kumar son of Sh. Shiv Raj Bansal, resident of Shaheed Karnail Singh Nagar, Ludhiana. The date of activation was 13.4.2003 and the last call on this phone was made on CRA No.838-DB of 2008 [38] 17.5.2003. He had seen the copy of the report (Ex.PUU) (which was objected to and the objection was kept open). The report it is stated was a system generated report and did not need signatures. It contained seven pages. It is stated in cross-examination that Ex.PUU was not handed over by him to the police at any time. He had seen this record first time on the day of his deposition. He had not brought the record of the year 2003 of Mobile No.98153- 37741. Again this mobile phone was allotted to Kewal Krishan son of Jagan Nath of Drangla and was activated on 12.1.2004 and thereafter to 3-4 persons residing at Bathinda, Amritsar and Faridkot. When they allotted mobile phone number, they made the due verification as per law and received all the documents etc. Therefore, the contention of Farank (PW1) that he made a ring on the phone of Amrik Singh (appellant No.1) and as the ring went he disconnected the same does not stand established in view of the deposition of Sandeep Kumar Pandey, House Keeping Manager Airtel, Mohali (PW21) who stated that the last call was made on 17.5.2003 from this phone. A perusal of the list of calls (Ex.PUU) of the said mobile phone shows that last SMS was made on 17.5.2003 and the last outgoing call was made on 15.5.2003. The police has not conducted any investigation as to whether the mobile phone in question was at in the area of Mahipal Pur, Delhi where Amrik Singh and Sukhchain Singh (appellants) are said to be at Shanti Palace Hotel. Sukhwinder Singh Uppal (DW3) also in his report (Ex.DW3/A) has observed that no effort was made to contact the subscribers of telephones to whom the calls were made from mobile phone No.98153-37741.
As regards identity of the appellants, the prosecution has examined Farank (PW-1). The prosecution alleges that the appellants met Farank (PW-1) on 18.05.2003 at about 7.00 pm at Hotel Shanti Palace, Mahipalpur Road, New Delhi where he (Farank) works as a Manager. He arranged the Tata (Sic.- Toyota) Qualis vehicle on hire. On 19.05.2003, Farank (PW-1) received a telephone from SHO, Police Station, Rajpura regarding the two dead bodies having been recovered and on search of one of them, a purse containing the visiting card of Farank (PW-1) was recovered. Farank (PW-1) then informed Rajbir brother of Manoj (deceased). It is also stated that on 18.05.2003 at about 6.00 pm Vinod (PW-2) who is the brother of Manoj (deceased) had come to him at the hotel. It is stated that both the accused had come to him at that time. It is CRA No.838-DB of 2008 [39] also stated by Farank (PW-1) that on 25.05.2003, he again went to Rajpura. Both the appellants and their companions were present in the police lock up and he identified them. The other witness of identity of the appellants is Vinod (PW-
2) who is the brother of Manoj Kumar (deceased). It is stated by him that on 18.05.2003 at about 6.00 pm, he (Vinod Kumar) had gone to Shanti Palace Hotel to see his brother Manoj Kumar (deceased) who was a driver there. He was talking with his brother outside the hotel when Farank (PW-1) along with three persons came outside the hotel. Farank (PW-1) told Manoj that those persons were to be taken to Punjab in Tata (Sic.-Toyota) Qualis. It is stated that one of the person was of a heavy built body and the word 'Grewal' was tattooed on his right arm. One of them was tall, fair complexion, 15/16 years. One of those persons had given a Photostat copy of his license to the Manager Farank (PW-
1) bearing the name of Sukhchain Singh (appellant No.2). It is, however, stated that on 25.05.2003, he had gone to Rajpura with his father for obtaining the copies of the FIR and post-mortem. Both the accused and the third companion were in the police lock up. Tara Nath (PW-4) is the wife brother of Raju (deceased). Raju was employed as a driver in Hotel Shanti Palace, Mahipalpur Road, New Delhi near Indira Gandhi Airport. It is stated by Tara Nath (PW-4) that on 18.05.2003 at about 7.00 pm, he was present at Shanti Palace Hotel compound. He had seen the accused (appellants) who were present in Court at the time of his deposition. Both of them along with another person had come to the hotel. They contacted the Manager Farank (PW-1) to hire a vehicle to go to Fatehgarh Sahib for pilgrimage. Therefore, Tara Nath (PW-4) identified the accused for the first time in Court only. He had come to Rajpura on 19.05.2003 and had identified the dead body of Raju (deceased). The fact of Vinod Kumar (PW-2) and Tara Nath (PW-4) being present at Shanti Palace Hotel on 18.05.2003 when the accused are alleged to have come there to hire a taxi is in the nature of chance meetings and both of them are chance witnesses who are said to have seen the accused at Hotel Shanti Palace on 18.05.2003. It is well- known that it is proverbially rash to rely on the testimony of a chance witness. Farank (PW-1) identified the accused in the police lock up. However, no identification parade was conducted. The identification of the appellants by complainant-Gurmeet Singh (PW-5) as already noticed above is improbable as he did not know them. Therefore, it has wrongly been stated by Harjit Singh, Inspector/SHO (PW-17) that the complainant had identified the accused. The CRA No.838-DB of 2008 [40] Hotel Manager Farank (PW-1) and also Vinod Kumar (PW-2) and Tara Nath (PW-4) appear to be under some compulsion to identify the accused in the police lock up. In fact the presence of the appellants at Hotel Shanti Palace, Mahipalpur Road, New Delhi on 18.5.2003 is not established. This is for the reason that the particulars of the mobile telephone which they were carrying are not verified and as to whether these were in the area of the hotel; besides, the number on which Farank (PW-1) gave a ring is not shown to be that of Amrik Singh Grewal (appellant No.1). The position is that the Toyota Qualis vehicle of Hotel Shanti Palace had been stolen and their drivers Manoj Kumar and Raju murdered. Their dead bodies were thrown in the area of Police Station, Sadar, Rajpura. Harpreet Singh Inspector/SHO, Police Station Sadar Rajpura (PW17) finding it a blind murder initiated the process of implicating Amrik Singh (appellant No.1) as he (Amrik Singh) was married to his niece and he was not happy with the marriage and ultimately did implicate them. The proper course to establish the identity from Farank (PW-1), Vinod Kumar (PW-2) and Tara Nath (PW-4) was to have their test identification parade conducted in the presence of a Magistrate so as to rule out any possibility of false implication. The manner in which the Toyota Qualis vehicle of Shanti Palace Hotel, Mahipalpur, Delhi is shown to be recovered with all the three accused (appellants and Kamalpreet - juvenile) is highly improbable.
The FSL report dated 09.06.2003 (Ex.PXX) is on record. Three sealed parcels marked A to C sealed with seal of HS and one unsealed parcel marked D were received in the laboratory. The seals were found intact and tallied with the specimen. The contents of the parcel and the result of examination are as under:-
"Parcel 'A' contained: Two 7.62 x 25 mm, S&B cartridge cases marked C/1 and C/2 in lab.
Parcel 'B' contained: One .30 inch jacketed
bullet marked CB/1 in
lab.
Parcel 'C' contained: One .30 inch Mauser
Pistol made as China,
Norinco (without
CRA No.838-DB of 2008 [41]
number
marked W/1 in lab.
Parcel 'D' contained : Five 7.62 x 25 mm test
cartridges.
Result of Examination
1. Two 7.62 x 25 mm, S&B cartridge cases marked C/1 and C/2 contained in parcel 'A' had not been fired from .30 inch Mauser Pistol marked W/1 contained in parcel 'C'.
2. No definite opinion can be given regarding firing of one .30 inch Jacketed bullet marked CB/1 from .30 inch Mauser Pistol marked W/1 due to lack of sufficient individual characteristic marks."
The following features would show that the case against the appellants is false:-
(1) The presence of the appellants at Hotel Shanti Palace, Mahipalpur Road, New Delhi on 18.5.2003 is not established. According to Farank (PW1), Amrik Singh (appellant No.1) had given him his landline number and mobile number. The landline number was of Jaipur. He tried to contact the landline phone, but it was engaged. He gave a ring on the mobile phone number of Amrik Singh and when there was a response of a ring, he disconnected the phone. After that Amrik Singh (appellant No.1) came to Farank (PW1) and inquired whether he gave a ring. Farank (PW1) stated that it was for identification purposes. The mobile number which Amrik Singh (appellant No.1) had given is mentioned as 98153-37741. Sandeep Kumar Pandey, House Keeping Manager Airtel, Mohali (PW21) had got the record of the said telephone and it was stated that the said mobile connection was in the name of one Manoj Kumar son of Sh. Shiv Raj Bansal, resident of Shaheed Karnail Singh Nagar, Ludhiana. The last call on CRA No.838-DB of 2008 [42] this phone was made on 17.5.2003. He had seen the copy of the report (Ex.PUU) which runs in 7 pages. There is no call after 17.5.2003.
Therefore, the call that is said to have been made by Farank (PW1) to Amrik Singh (appellant No.1) on 18.5.2003 is not borne out from the deposition of PW21. The identity of the accused from the deposition of Farank (PW-1), Vinod Kumar (PW-2) and Tara Nath (PW-4) is not shown to be established in the absence of identification parade.
Besides, Vinod Kumar (PW-2) and Tara Nath (PW-
4) are chance witnesses at Hotel Shanti Palace on 18.05.2003 when they say that they had seen the accused. The deposition of chance witnesses is to be accepted with caution and it is proverbially rash to rely on the evidence of chance witness.
(2) The driving license of Sukhchain Singh (appellant No.2) which is stated to have been given to Farank (PW1) was produced on record as Ex.P13. In terms of the deposition, Balbir Singh, Clerk DTO Office, Ludhiana (PW6), the driving license (Ex.P13) was not issued by the office of DTO, Ludhiana. The report (Ex.PS/1) in this regard is on the application (Ex.PS) submitted by the police. Therefore, the fact that license (Ex.P3), which Farank (PW-1) says was given to him by Sukhchain Singh (appellant No.2) is not proved.
(3) Balbir Singh, Clerk DTO Office, Ludhiana (PW6) also stated that he had seen the coloured photocopy of the license (Ex.P12) in the name of Amrik Singh (appellant No.1) which was valid from 18.1.1999 to 17.1.2019. It may be noticed that the license (Ex.P12) is accepted by Balbir Singh, Clerk DTO Office, Ludhiana (PW6) to be a coloured photocopy of the license of Amrik Singh (appellant CRA No.838-DB of 2008 [43] No.1) and not the original. Harpreet Singh Inspector/ SHO, Police Station Sadar Rajpura (PW17), in his cross-examination, however, stated that they recovered the original driving license of Amrik Singh (appellant No.1) from the spot and it was not a Photostat copy. The complainant Gurmeet Singh (PW5) in his statement (Ex.PL) on the basis of which FIR is registered does not mention regarding any driving license of Amrik Singh (appellant No.1) lying near the dead body of Manoj Kumar. The driving license (Ex.P12) of Amrik Singh (appellant No.1) is a coloured photocopy as per the deposition of Balbir Singh, Clerk DTO Office, Ludhiana (PW6). Moreover, the original driving licene was in the case file titled State vs. Amrik Singh, FIR No.283 of 1999 registered at Police Station Focal Point, Ludhiana for the offence under Section 336 IPC as has been deposed by Sh. Jagdev Singh, Crl. Alhmad of the Court of learned Chief Judicial Magistrate, Ludhiana (DW1). Therefore, the driving license (Ex.P12) near the dead body of Manoj Kumar was planted as Harpreet Singh Inspector/SHO, (PW17) in his cross-examination states that the original driving license was recovered from the spot and it was not a Photostat copy, whereas it was a photostat copy. As such, the said recovery of the driving license is not established.
(4) Even otherwise, in case the driving license of Amrik Singh (appellant No.1) with his address was found, there was no need for the police to conduct a raid all over the place and they should have gone straightway to the house of Amrik Singh (appellant No.1) and arrested him whose address is there on the driving license (Ex.P12). Rather CRA No.838-DB of 2008 [44] Kanwaljit Singh ASI (PW14) In charge, Police Post Basantpura, Police Station Sadar Rajpura has stated that it was a blind murder and it remained blind till 9.00 p.m. and they conducted raids at various places in the nearby area. Besides, dog squad was also called at the place of the incident and in case the culprit i.e. Amrik Singh (appellant No.1) had been identified from the driving license (Ex.P12) that was recovered from near the dead body, there was no need to conduct raids in the nearby areas or call the dog squad. Harpreet Singh, Inspector/SHO (PW17) had also conducted raids at various places on 19.5.2003 after the dead bodies of Manoj Kumar and Raju were found. In case he had recovered the driving license(Ex.P12) of Amrik Singh (appellant No.1) from near the dead body, there was no need for him also to conduct raids in the nearby areas.
(5) Harpreet Singh Inspector/SHO (PW17) states that he did not know Amrik Singh (appellant No.1) before 19.5.2003. However, in his cross-
examination he does not deny that Amrik Singh (appellant No.1) is his distant relative and he is the son-in-law of the daughter of his maternal uncle, but he denies knowing the name of the wife of Amrik Singh (appellant No.1) even though she is related to Harpreet Singh Inspector/SHO (PW17).
He, however, states that he did not know that the marriage of Amrik Singh (appellant No.1) with Ramandeep Kaur was a love marriage. Besides, he does not know whether the name of the wife of Amrik Singh (appellant No.1) was Ramandeep Kaur. In fact, it is unlikely that in this part of the country a person would not know the name of his maternal uncle's daughter's daughter namely CRA No.838-DB of 2008 [45] Ramandeep Kaur and Amrik Singh (appellant No.1) who is her husband.
(6) Amrik Singh (appellant No.1) has sufficient property. He has a 'kothi' (house) at Model Town, Ludhiana, a residential house at village Dhandra;
besides, 150 acres of agricultural land and also a car. Therefore, it is unlikely that he would steal a Toyata Qualis vehicle and commit the murder of two persons while travelling in a Taxi. Therefore, the motive that is sought to be set up by the prosecution of stealing of a Toyata Qualis vehicle is quite improbable.
(7) According to the prosecution case, Amrik Singh (appellant No.1) and Sukhchain Singh (appellant No.2) had come to hotel Shanti Palace, New Delhi at Gurgaon on 18.05.2003 at about 7.00 pm. They made a request for a Toyota Qualis vehicle as they wanted to visit Gurudwara, Fatehagarh Sahib in Punjab; besides, it is stated by Farank (PW-1) in his cross-examination that they had come to the hotel on foot and they were not having any luggage or any other articles. On enquiry, the accused (appellants No.1 and 2) had informed that they had come from the Airport and there was some difficulty in clearance of their luggage and they were to go to Fatehgarh Sahib to pay obeisance and then they would come back. However, the prosecution has not made any inquiry from the appellants or from the Airport as to whether Amrik Singh (appellant No.1) and Sukhchain Singh (appellant No.2) had come on any flight. It is also not shown by the prosecution from the passport of Amrik Singh (appellant No.1) that was recovered that he had landed at Delhi Airport on 18.05.2003.
The case set up by the prosecution that the CRA No.838-DB of 2008 [46] appellants were to go to Fatehgarh Sahib to pay obeisance is also not believable. They are residents of Ludhiana and have been staying here.
Therefore, there was no need for them to ask for a taxi at New Delhi for going to Fatehgarh Sahib. In fact the appellant No.1 Amrik Singh has been proceeded against for the offence under Section 14 of the Foreigners Act for overstaying. Therefore, it cannot be said that he had come from abroad at the Airport.
(8) Farank (PW1) in his deposition stated that the appellants had come to the hotel on foot and they were not having any luggage or other articles. It is stated by Farank (PW1) that on enquiry, the accused (appellants) had stated that they had come from the Airport and there was some difficulty in clearance of their luggage and they were to go to Fatehgarh Sahib to pay obeisance and then they would come back. However, Tara Nath (PW4) who is the brother-in-law of Raju (deceased) stated that on 18.5.2003 at about 7.00 p.m. he was present at Shanti Palace Hotel compound. He had seen the accused (appellants) present in the Court. Both of them along with another person had come to the hotel. They contacted the Manager of the Hotel namely Farank (PW1). It is stated that the accused (appellants) had come to the hotel on foot and there was a big bag in the possession of accused when they met the Manager (PW1). The bag was with Amrik Singh (appellant No.1). Therefore, there are discrepancies in the deposition of Farank (PW1) and Tara Nath (PW4) inasmuch as one of them says that when the accused (appellants) came to their hotel along with another person, they had no CRA No.838-DB of 2008 [47] luggage while the other says that Amrik Singh (appellant No.1) had a big bag.
(9) No identification parade of the accused i.e. Amrik Singh (appellant No.1), Sukhchain Singh (appellant No.2) and Kamalpreet Singh (since declared juvenile) was got conducted by Harpreet Singh Inspector/SHO (PW17). Rather he voluntarily states that he got the accused identified at the police station. Test identification parade as has also been observed by Sukhwinder Singh Uppal (DW3) was indeed an important aspect in the investigation of the crime, particularly when it is a case of blind murder. The failure to carry out test identification parade in the facts and circumstances of the present case casts serious doubts as regards the truthfulness and veracity of the prosecution case.
(10) The FSL Report (Ex.PXX) is dated 09.06.2003.
Thereafter Kamal Kumar, Armourer, Police Lines, Patiala (PW-12) checked the Pistol/Mauser .30 bore and he submitted his test report dated 18.07.2003 (Ex.PZ). It is stated that on 18.07.2003, ASI, Narinder Singh, Incharge, Police Post, Basantpura produced a parcel with seal bearing words 'FSL' before him for checking. A Pistol/Mauser .30 bore was checked after breaking the seal of the first parcel. The above noted pistol .
30 bore was checked by loading and unloading the same by pressing its trigger. Word .30 bore Mauser made in China Norinco, was engraved on the slide of the country made pistol, but there was no registered number of any Company. Two cartridges 7.62 x 25 mm, S & B were checked after taking out of one plastic round box after breaking the seal of word 'HS' of other parcel. They were CRA No.838-DB of 2008 [48] again sealed with the seal bearing 'KK'. It is stated that the pistol/Mauser country made was in working condition and could fire. After preparing the parcel of the same cloth of pistol/Mauser was duly sealed with seal bearing the word; 'KK'. Kamal Kumar (PW-12) in his deposition in Court states that he had checked the firing pin of the pistol. He had also checked the cartridges and found them alive on checking. He sealed the pistol and cartridges with his seal 'KK'. He had checked the pistol by loading and unloading the same by pressing its trigger. He had also checked the firing pin of the pistol on the side of the pistol. In cross-
examination it is submitted that they checked the weapon by loading and unloading and by the condition of the striking pin. He could not give a report as to when the arm was fired. He could not give his opinion as to whether the pistol was ever used or not. It is stated that it is a country made pistol. However, it was wrong that the country made pistol gets destroyed after one fire. HC Kamal Kumar (PW-12) does not state as to what are his credentials. He says that he had passed the Armour course and had experience about the weapons for the last 20 years. The kind of Armour Course that has been passed has not been disclosed. The possibility that after the FSL Report (Ex.PXX) was given on 09.06.2003, the report of HC Kamal Kumar (PW-12) was obtained so as to show that the Mauser that was recovered was in working condition. The FSL Report (Ex.PXX) mentions that the two 7.62 x 25 mm S & B cartridges had not been fired from .30 inch Mauser Pistol. Therefore, to cover to this aspect, the report CRA No.838-DB of 2008 [49] of HC Kamal Kumar, Armour (PW-12) it appears was taken.
A perusal of the FSL report (Ex.PXX) shows that the Mauser bullet which is said to have been recovered from the place of occurrence was not fired from the Mauser recovered from Amrik Singh (appellant No.1) when he is said to have been apprehended in the Toyota Qualis vehicle on 22.5.2003. Besides, Sukchain Singh (appellant No.2) who was also said to be carrying a pistol and had it thrown in the canal was not recovered.
Therefore, the report of the Forensic Science Laboratory (Ex.PXX) casts doubt in the prosecution case inasmuch as the cartridges had not been fired from the .30 Mauser pistol that was recovered.
Besides, no definite opinion could be given regarding firing of .30 inch Jacketed bullet from .30 inch Mauser pistol due to lack of sufficient individual characteristic. Besides, the report dated 18.07.2003 (Ex.PZ) was obtained from HC Kamal Kumar (PW-12) to show that the weapon that was recovered was in a condition that it could fire. In fact the FSL report (Ex.PXX) does not state that it could not fire, but it says that the recovered cartridges were not fired from the said .30 Mauser.
(11) The case is of blind murder in which all the facts and circumstances were liable to be proved by the prosecution which it indeed has not proved. Rather it has been brought out that the appellants were implicated on account of the personal grudge of Harpreet Singh Inspector/SHO (PW17) who had foisted a false case to settle his score with Amrik Singh (appellant No.1) who had married his niece Ramandeep Kaur.
CRA No.838-DB of 2008 [50]
In the facts and circumstances, the prosecution has miserably failed to prove and establish its case beyond reasonable doubt in respect of offences under Sections 302, 392, 201 and 34 IPC as also the offence under Section 25 of the Arms Act. In Hukam Singh versus State of Rajasthan, AIR 1977 SC 1063, it was held that it is now settled law that in case of circumstantial evidence, all the incriminating facts and circumstances should be fully established by cogent and reliable evidence and the facts so established must be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt. In short, the circumstantial evidence should unmistakably point to one and one conclusion only that the accused person and none other perpetrated the alleged crime. If the circumstances proved in a particular case are not inconsistent with the innocence of the accused and if they are susceptible of any rational explanation, no conviction can lie. The facts and circumstances of the present case do not in any manner point to the guilt of the accused in respect of the offences other than Section 14 of the Foreigners Act. Rather they point to the innocence of the appellants. In the circumstances, there has been a misreading of the evidence on record by the learned trial Court.
It may, however, be noticed that Amrik Singh (appellant No.1) had overstayed in India. On 24.05.2003 a copy of the passport of Amrik Singh (appellant No.1) was taken in possession vide memo Ex.PAA and the offence under Section 14 of the Foreigners Act was added. Nirmal Singh ASI No.91/PR office of SSP Ludhiana (PW22) appeared. He stated that in the year 2003, he was posted in Security Branch DPO, Ludhiana. He had brought the original Foreigners Registration Register. He prepared a report (Ex.PVV) dated 17.7.2003 and handed it over to the I.O. In terms of the said report (Ex.PVV) it is inter alia mentioned that Amrik Singh (appellant No.1) was a Canadian national. He was issued Visa on 2.12.1997 at Vancouver, Canada. The Visa was to finish on 19.11.2002. It was certified that the Visa of Amrik Singh (appellant No.1) had expired on 19.11.2002. He had not got the Visa extended for staying in India. Therefore, in terms of the report (Ex.PVV), Amrik Singh (appellant No.1) had overstayed himself in India. In State of Assam v. Jilkadar Ali, AIR 1972 SC 2166 it was observed that the respondent therein by overstaying in India without the required extension he clearly violated the provisions of Clause 7(1) and (3) of the Foreigners Order 1948, in view of the CRA No.838-DB of 2008 [51] conclusion that he was person who was deemed not to be a citizen of this country, and therefore, a foreigner even under the definition of a foreigner in Section 2 of the Foreigners Act before it was amended in 1947. Thus the respondent therein, it was held, was liable to be punished under Section 14 of the Foreigners Act. Section 14 provides for penalty and it is provided herein that if any person contravenes the provisions of the said Act or of any order made thereunder, or any direction given in pursuance of the said Act or such order, he shall be punished with imprisonment for a term, which may extend to five years and shall also be liable to fine. The allegation against Amrik Singh (appellant No.1) that he overstayed in India is duly established on record. Therefore, the offence under Section 14 of the Foreigners Act is made out.
It may be noticed that the case as has been set up by the prosecution entails serious consequences in which the appellants have been falsely implicated. The report dated 06.05.2006 (Ex.DW2/3 and also exhibited as Ex.DW3/A) clearly shows the false implication of the appellants. Therefore, as recommended in the said report, necessary action is liable to be taken within six months from the receipt of certified copy of this order and the report regarding the action taken shall be submitted in this Court.
In view of the false allegations, it would be just and expedient that the State pays compensation of Rs.3,00,000/- to Amrik Singh (appellant No.1) and Rs.5,00,000/- to Sukhchain Singh (appellant No.2) which the State shall be at liberty to recover from the erring officials.
Accordingly, the appellants namely Amrik Singh (appellant No.1) and Sukhchain Singh (appellant No.2) are acquitted of the offences punishable under Sections 302, 392, 34 IPC. Besides, appellant No.1 (Amrik Singh) is acquitted for the offence punishable under Section 25 of the Arms Act as also acquitted for the offence punishable under Section 201/34 IPC. The appellant No.2 (Sukhchain Singh) is also acquitted of the offence under Section 201 IPC. However, the conviction of appellant No.1 (Amrik Singh) for the offence punishable under Section 14 of the Foreigners Act, 1946 is upheld and is kept intact. He was sentenced to undergo imprisonment for 2 years; besides to pay a fine of Rs.2000/- and in default of payment of fine to undergo imprisonment for three months for the offence under Section 14 of the Foreigners Act, 1946. Both the appellants have undergone more than five years of imprisonment. The offence under Section 14 of the Foreigners Act, 1946 is punishable with CRA No.838-DB of 2008 [52] imprisonment up to 5 years. Appellant No.1 (Amrik Singh) has already undergone 5 years of imprisonment against the sentence of 2 years that was imposed. The appellants, therefore, be set at liberty by issuing the release warrants and they be set at liberty forthwith in case they are not wanted in any other case.
The State shall take necessary action in due compliance of the Inquiry Report dated 06.04.2005 (Ex.DW.2/2 and DW.3/A) of Sukhwinder Singh Uppal, Deputy Superintendent of Police (Crime), Special Cell, Patiala (DW-3) in complaint No.1912/15/05 PSHRC (Punjab State Human Rights Commission), which was registered as No.176/Special Staff Patiala in the office of Senior Superintendent of Police, Patiala in pursuance of the directions of the Punjab State Human Rights Commission and has been endorsed by the Additional Director General of Police, Crime, Punjab, Chandigarh vide order dated 08.04.2005 (Ex.DW2/2). The necessary action shall be taken within six months from the receipt of certified copy of this order and the report regarding the action taken shall be submitted in this Court. The State shall also pay a compensation of Rs.3,00,000/- to Amrik Singh (appellant No.1) and Rs.5,00,000/- to Sukhchain Singh (appellant No.2) which the State shall be at liberty to recover from the erring officials, if found liable.
The appeal stands disposed of accordingly.
(S.S. SARON)
JUDGE
(JORA SINGH)
August 12, 2011 JUDGE
amit