Kulvinder Singh &
ANR. Vs State of Haryana
J U D G M E N T
Dr. B.S. CHAUHAN, J.
1.
This
appeal has been preferred against the judgment and order dated 31.8.2004 passed
by the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 167-DB
of 1999, by which it has affirmed the judgment and order of the Trial Court in
Sessions Case No. 5 of 1998 dated 22.2.1999 convicting the appellants for the offence
punishable under Section 302 of Indian Penal Code, 1860 (hereinafter referred
to as `IPC') and awarding the sentence of life imprisonment and imposing a fine
of Rs.2,000/- each.
2.
FACTS:
(A) That on 9.10.1997, some labourers were working in the fields of Ishwar
Singh (PW.2) and his son Amardeep was also with them. On that date at about
7.00 PM, Ishwar Singh (PW.2) started from his house for his fields in order to keep
watch on the crop, relieving Amardeep from the fields. On his way, Ishwar Singh
(PW.2) saw Kulvinder Singh and Jasvinder Singh/appellants at the tubewell of Singh
Ram. Kulvinder Singh was sitting on a cot outside the tubewell while Jasvinder
Singh was inside the tubewell. On being asked by Ishwar Singh (PW.2), Kulvinder
Singh replied that they were there in a routine manner as it was the tubewell
of Singh Ram, the father of Jasvinder Singh. Kulvinder Singh is the son of the maternal
uncle of Jasvinder Singh. After reaching his fields, Ishwar Singh (PW.2) relieved
his son Amardeep of his duties.
The next morning i.e.,
on 10.10.1997, at about 6.00 AM, the labourers of Mange Ram, Sarpanch, (PW.11)
of the same village came and told him that a dead body was lying near the paddy
field in the water channel. Mange Ram (PW.11) reached the spot with his
labourers. By that time several other villagers had also collected there and
they identified the dead body as being that of Amardeep. They also found a
large number of wounds caused by a sharp-edged weapon on the body. They
immediately called Ishwar Singh (PW.2), father of the deceased to the spot. (B)
Mange Ram (PW.11) then started for Police Station Radaur to make the report, however,
he met Roop Chand SI/SHO, Police Station Radaur (PW.14) on the way and informed
him that Amardeep had been murdered by some unknown person by assaulting him
with sharp edged weapons. Roop Chand, SI, (PW.14) asked Mange Ram (PW.11) to go
to the Police Station to lodge the complaint formally.
Thus, the FIR was lodged.
Roop Chand, SI, (PW.14) reached the place of occurrence and examined the dead body
as well as the place where it was lying. He prepared the inquest report and sent
the dead body of Amardeep for postmortem examination. Roop Chand, SI, (PW.14) also
got the spot photographed, prepared a rough site plan of the place of
occurrence and recorded the statements of the witnesses in which Ishwar Singh (PW.2)
told him that about 8 to 10 days before the date of occurrence, he saw
Jasvinder Singh/appellant grappling with his son Amardeep while they were playing
kabaddi.
He intervened and asked
the reason for the same and Jasvinder Singh had disclosed that Amardeep was teasing
his sister and wife. Ishwar Singh (PW.2) reprimanded his son Amardeep for the
alleged misconduct, however, Amardeep protested and told him that the accusation
was false. During the course of the investigation, Roop Chand, SI, (PW.14) also
came to know that on 9.10.1997 at about 7.30 PM, Ranbir Singh (PW.3) had started
for his fields and when he was by the side of bund of the village, he heard
shrieks from the place where the dead body of Amardeep was found lying the next
morning. He also saw both the appellants running fast and they crossed him and
on being asked as to why they were running, they did not give any reason but rather
told him that they were running fast without any purpose. However, Ranbir Singh
(PW.3) came to know only next morning that Amardeep had been murdered. (C) On 13.10.1997,
Phool Singh (PW.10) produced the accused before Roop Chand, SI (PW.14) and told
him that they had made extra-judicial confession before him about the killing
of Amardeep, because the latter was teasing the wife and sister of Jasvinder
Singh. Both the appellants were arrested and interrogated.
On their disclosure, the
clothes they had put on at the time of occurrence, which had already been washed,
were recovered. On disclosure of Jasvinder Singh-appellant, the barchha used for
committing the crime was recovered on 14.10.1997. After conducting the postmortem
examination, Dr. Vijay Mohan Atreja (PW.9) gave a report stating that there
were 22 injuries on the person of Amardeep and the same could have been caused by
a barchha. The barchha recovered on the disclosure of the appellant-Jasvinder Singh
had blood stains on it at the time of recovery. Roop Chand, SI, (PW.14) recovered
the blood stained chappals and the blood stained earth from the spot and sent
all those items along with barchha and clothes to the Forensic Science Laboratory.
After completing the investigation, a chargesheet was submitted against the appellants.
The court after completing the formalities committed the case to the Sessions Court
vide order dated 20.1.1998.
They were charged under
Sections 302 read with 34 IPC vide order dated 20.2.1998 to which the
appellants pleaded not guilty and claimed trial. (D) The prosecution examined
14 witnesses at the trial including Ishwar Singh, (PW.2); Ranbir Singh (PW.3), who
saw the accused running fast and crossing him on the evening of 9.10.1997 and heard
the shrieks from the place of occurrence; Dr. Vijay Mohan Atreja (PW.9), who conducted
the postmortem examination alongwith Dr. Ashwani Bhatnagar on the dead body of
Amardeep; Phool Singh, (PW.10) before whom the extra-judicial confession was made
by the appellants; Mange Ram, Sarpanch, (PW.11) complainant/informant in the
case; Mam Chand (PW.12), witness to 5 the recovery of barchha on the disclosure
statement of the appellant Jasvinder Singh; and Roop Chand (PW.14), the
investigating officer.
The reports of the
Serologist were tendered in evidence. On closure of the prosecution case, the Trial
Court examined the appellants/accused under Section 313 of Code of Criminal Procedure,
1973 (hereinafter called `Cr.P.C.'). Both the accused denied their participation
and pleading that they had been falsely implicated. (E) After considering the entire
evidence on record, the Trial Court vide judgment and order dated 22.2.1999
convicted both the appellants for the offence punishable under Section 302 IPC and
awarded the sentence of life imprisonment and a fine of Rs.2,000/- each. (F) Being
aggrieved, the appellants preferred Criminal Appeal No. 167-DB of 1999 which
has been dismissed by the High Court vide judgment and order dated 31.8.2004. Hence,
this appeal.
3.
Shri
S.P. Laler, learned counsel appearing for the appellants, submitted that it is
a case of circumstantial evidence; that there was no motive for committing the murder
of Amardeep; that there had been material contradictions in the evidence of the
witnesses; the chain of circumstances could not be completed; in the facts of
the case the extra-judicial confession could not be relied upon by any means;
the theory of the deceased being last seen with the appellants cannot be applied.
Involvement of both the appellants in the commission of the offence is doubtful
as the injuries found on the person of the deceased had been caused only by one
weapon. The courts below have erred in convicting the appellants and,
therefore, the judgments and orders of the courts below are liable to be set aside.
4.
Shri
Rajeev Gaur "Naseem", learned counsel appearing for the respondent-State,
has opposed the appeal contending that both the courts below have recorded concurrent
findings of fact after appreciating the entire evidence on record. Earlier
there had been a fight between Jasvinder Singh-appellant and Amardeep- deceased.
Jasvinder Singh-appellant had a grudge against Amardeep, as Amardeep had teased
his wife and sister and this fact had come to the notice of Ishwar Singh (PW.2),
father of the deceased. Thus, motive stood fully established. Evidence of Phool
Singh (PW.10) regarding the extra-judicial confession is to be believed for the
reason that he was the Ex-Sarpanch of the village and the appellants/accused
had gone to him, so that he could produce them before the police. In fact, the
appellants/accused were produced by Phool Singh (PW.10) before the police and
they had disclosed to him that they had murdered Amardeep. Appellants were seen
together with the deceased just before the commission of the crime. Twenty two injuries
were found on the person of Amardeep-deceased, and even if they had been caused
by one weapon, it is not possible for a single person to cause so many
injuries, as the deceased was a young man of 25 years and of 5 ft. 10 inch
height, while the appellants were at that time 19 and 23 years of age
respectively. Even if there is any contradiction in the statements of the witnesses,
it is so trivial that it cannot be taken note of. The appeal lacks merit and is
liable to be dismissed.
5.
We
have considered the rival submissions made by the learned counsel for the
parties and perused the record.
6.
The
courts below have examined the entire evidence on record and reached the conclusion
that chain of circumstances stood completed and all the circumstances pointed
towards the guilt of the accused. Such findings stand fully substantiated by the
depositions of the witnesses in the court. The offence was committed in the evening
of 9.10.1997 and in respect of the same, an FIR was lodged on 10.10.1997 and the
extra-judicial confession has been made on 13.10.1997. Thus, for three days,
the appellants remained wanted in the case. Ishwar Singh (PW.2), the father of Amardeep-deceased
deposed that about 8/10 days prior to the incident while he was returning home with
his son Kuldeep, he saw Jasvinder Singh, appellant/accused playing Kabaddi with
his son Amardeep-deceased and suddenly they started quarrelling with each other
and on being asked Jasvinder Singh-accused had told him that Amardeep- deceased
was teasing his sister and wife though Amardeep-deceased protested and told him
that he was telling a lie. The statement of Ishwar Singh (PW.2) in respect of
motive also gets corroborated by the statement of Saheb Singh (PW.13), an
independent witness to the extent that a month prior to the murder of Amardeep,
Jasvinder Singh-accused made a complaint to two-three persons about Amardeep-deceased
teasing his sister. The statement of Saheb Singh (PW.13) has been scrutinised
by both the courts below and had been found trustworthy on the ground that he did
not depose anything about the incident of quarrel between Jasvinder
Singh-accused and Amardeep-deceased while playing Kabaddi. Thus, the Trial Court
had found that he was fair and did not depose falsely. Thus, it stood established
that Jasvinder Singh-accused had been harbouring in his mind the suspicion that
Amardeep-deceased was teasing his sister and wife.
7.
In
State of Uttar Pradesh v. Kishanpal & Ors., (2008) 16 SCC 73, this Court examined
the issue of motive in a case of circumstantial evidence and observed that
motive is a thing which is primarily known to the accused themselves and it is
not possible for the prosecution to explain what actually prompted or excited
them to commit the particular crime and thus, motive may be considered as a circumstance
which is relevant for assessing the evidence and becomes an issue of importance
in a case of circumstantial evidence. Thus, absence of motive in a case depending
on circumstantial evidence is a factor that weighs in favour of the accused.
(See also: Pannayar v. State of Tamil Nadu by Inspector of Police, (2009) 9 SCC
152; Babu v. State of Kerala, (2010) 9 SCC 189; and Bipin Kumar Mondal v. State
of West Bengal, AIR 2010 SC 3638).
8.
If
the finding recorded by the courts below on the issue of motive is examined in
the light of the law laid down by this Court in the above cases, no fault can
be found with the same.
9.
On
the issue of extra-judicial confession, Phool Singh (PW.10) has deposed that he
was the Ex-Sarpanch and both the appellants/accused approached him on
13.10.1997 and disclosed that they had committed the murder of Amardeep-deceased
and he should take them to the police. He deposed that both the accused came to
him at about 1.00 p.m. and he produced them before the police at about 3.30/4.00
p.m. Undoubtedly, both the appellants/accused had been arrested by the police only
on 13.10.1997, as it is not the defence version that they had been arrested earlier
to 13.10.1997, neither have they challenged the deposition of Phool Singh (PW.10)
that he did not produce them before the police, nor it had been their case that
they had been arrested from somewhere else. Phool Singh (PW.10) faced the gruelling
cross-examination but defence could not elucidate anything to discredit him and
the courts below have found that the deposition of Phool Singh (PW.10) in
respect of the extra-judicial confession made to him by the accused remained a trustworthy
piece of evidence as rightly been relied upon. Phool Singh (PW.10) in his statement
recorded under Section 161 Cr.P.C. has stated that the appellants had told him on
13.10.1997 that due to the fear of police they were running from the pillar to
post. He had a good understanding with the police being the Ex-Sarpanch and
thus, he should help and produce them before the police.
10.
In
State of Rajasthan v. Raja Ram, (2003) 8 SCC 180, this Court held as under: "An
extra-judicial confession, if voluntary and true and made in a fit state of
mind, can be relied upon by the court. The confession will have to be proved like
any other fact. The value of the evidence as to confession, like any other
evidence, depends upon the veracity of the witness to whom it has been made.
The value of the evidence as to the confession depends on the reliability of the
witness who gives the evidence. It is not open to any court to start with a presumption
that extra- judicial confession is a weak type of evidence. It would depend on
the nature of the circumstances, the time when the confession was made and the
credibility of the witnesses who speak to such a confession. Such a confession
can be relied upon and conviction can be founded thereon if the evidence about
the confession comes from the mouth of witnesses who appear to be unbiased,
not even remotely inimical to the accused, and in respect of whom nothing is
brought out which may tend to indicate that he may have a motive of attributing
an untruthful statement to the accused, the words spoken to by the witness are
clear, unambiguous and unmistakably convey that the accused is the perpetrator
of the crime and nothing is omitted by the witness which may militate against
it. After subjecting the evidence of the witness to a rigorous test on the
touchstone of credibility, the extra-judicial confession can be accepted and
can be the basis of a conviction if it passes the test of credibility."
11.
After
going through the evidence of Phool Singh (PW.10), we reach the inescapable conclusion
that Phool Singh (PW.10) is an independent witness and by no means could be
held to be biased or inimical to the accused. There is nothing on record to
indicate that he had any motive to falsely implicate the accused or that there
was any motive for attributing an untruthful statement to the accused. He had made
a crystal clear statement conveying that the accused had disclosed to him that
they had committed the murder of Amardeep- deceased. Thus, we do not find any reason
not to accept his deposition in respect of the extra-judicial confession made by
the appellants as his deposition stands the test of credibility.
12.
Not
a single witness has deposed that the appellants/accused were last seen with
the deceased. However, the courts below have found that the prosecution case has
been very close to the circumstances of the appellants and deceased being last seen
together. Ishwar Singh (PW.2) has deposed that the tubewell of Singh Ram is on
the passage connecting his fields with the abadi of the village, where he saw both
the appellants at about 7.00 p.m. Immediately thereafter, his son, Amardeep started
for the village between 7.30 and 7.45 p.m. Ranbir Singh (PW.3) who heard the cries
from the place of occurrence and saw the appellants running towards the village
and the deceased was found to have an empty stomach at the time of occurrence
as per the post mortem report had indicated that Amardeep had been murdered
before he could take his evening meal. The Trial Court has examined the statement
of Ranbir Singh (PW.3) minutely and rejected the defence version that 13 in
such a circumstance it was unnatural on the part of this witness not to go to the
source of shrieks, giving explanation that after hearing the shrieks he stopped
on his way to the village and immediately thereafter he saw both the accused running
fast and crossing him. On being stopped and asked by Ranbir Singh (PW.3), the
appellants told him that they were running without any specific purpose. Immediately
thereafter, he could not hear any cry. Therefore, he did not inspect the place
from where the cries seem to be coming. Thus, the Trial Court reached the
conclusion that though it was not a case where the accused had been last seen
together with the deceased, however, in a case when the accused had the opportunity
to commit the crime and they had the motive on their part to do so, such a
circumstance can also be taken note of.
13.
In
State of U.P. v. Satish, (2005) 3 SCC 114, this Court held that the last seen
theory comes into play where the time gap between the point of time when the
accused and deceased were last seen alive and when the deceased is found dead
is so small that possibility of any person other than the accused being the author
of the crime becomes impossible. Similar view has been reiterated in Mohd. Azad
alias Samin v. State of West Bengal, (2008) 15 SCC 449.
14.
The
Trial Court has given cogent reasons for believing Ranbir Singh (PW.3) observing
that Ranbir Singh (PW.3) was an independent witness and only 1-1/2 killa away
from the tubewell of Singh Ram wherefrom he heard the cries. He did not go to
the place wherefrom the shrieks had been coming assuming that the same had been
made by the accused and such a course could not be unnatural. In spite of the
fact that Shri Laler, learned counsel appearing for the appellants has taken us
through the evidence on record, we do not find any cogent reason to interfere
with such a finding of fact.
15.
The
barchha used as a weapon in the crime had been recovered from the sugarcane
field. It had blood stains on it and had been thrown at a place where it was
not visible to all. In the instant case, as the motive stood proved distinctly,
recovery of a blood stained barchha from the sugarcane field at the disclosure of
Jasvinder Singh-accused is a circumstance which can safely be relied upon for the
conviction of the appellants-accused. As both the appellants had been seen immediately
before the occurrence at the place of occurrence and the deceased had come there
shortly thereafter, they had an opportunity to kill Amardeep. After the occurrence,
they were seen running together from the place of occurrence by Ranbir Singh (PW.3).
Such a conduct, if examined, with another circumstance i.e. the extra-judicial
confession made by the appellants before Phool Singh (PW.10), completes the
chain of circumstances pointing to the guilt of the appellants-accused.
16.
It
is a settled legal proposition that conviction of a person in an offence is
generally based solely on evidence that is either oral or documentary, but in
exceptional circumstances conviction may also be based solely on circumstantial
evidence. The prosecution has to establish its case beyond reasonable doubt and
cannot derive any strength from the weakness of the defence put up by the accused.
However, a false defence may be called into aid only to lend assurance to the Court
where various links in the chain of circumstantial evidence are in themselves complete.
The circumstances from which the conclusion of guilt is to be drawn should be fully
established. The same should be of a conclusive nature and exclude all possible
hypothesis except the one to be proved. Facts so established must be consistent
with the hypothesis of the guilt of the accused and the chain of evidence must be
so complete as not to leave any reasonable ground for a conclusion consistent
with the innocence of the accused and must show that in all human probability
the act must have been done by the accused. (vide: Sharad Birdhichand Sarda v.
State of Maharashtra, AIR 1984 SC 1622; and Paramjeet Singh @ Pamma v. State of
Uttarakhand, AIR 2011 SC 200).
17.
In
a case like this, where all circumstances stand proved against the appellants, their
defence may be examined to test the circumstances stood proved against them. In
the instant case, Kulvinder Singh, appellant No.1 is a resident of another
district. He had not taken the plea of alibi, nor led any evidence to support
the hypothesis that he was not present at the place of occurrence on the date of
incident. His only plea has been that he had falsely been implicated without
saying anything further.
18.
Shri
Laler, learned counsel appearing for the appellants has challenged the
statement made by Ranbir Singh (PW.3) that he went to the place of occurrence
in the morning on 10.10.1997 at 9.00 AM. The police had reached there. "Police
remained there till the accused were arrested" stating that it cannot be true
as, admittedly, the appellants had been arrested on 13.10.1997 on being produced
by Phool Singh (PW.10). Ranbir Singh (PW.3) did not remain present for three days
at the place of occurrence. The relevant part of the cross-examination has to
be read as a whole in order to examine the correctness of the submissions so advanced
on behalf of the appellants. The relevant part reads as under: "I reached
the tubewell of Singh Ram on the next morning at 9.00 a.m. Police had reached
the place by that time. Police did not record statement of anyone else in my
presence. Police remained at the spot till the accused were arrested. I cannot
tell when the accused were arrested."
19.
By
reading the aforesaid part of the statement it cannot be held that Ranbir Singh
(PW.3) had deposed that the appellants had been arrested in his presence, as he
was not even aware when they had been arrested. So his statement has to be understood
in the following way: That the police remained at the place of occurrence for several
days and may also mean till 13.10.1997 when the accused were arrested. Thus, no
case is made out for interference on this count also.
20.
The
last submission advanced by Shri Laler had been that if injuries had been caused
by one weapon as deposed by Dr. Vijay Mohan Atreja (PW.9), the involvement of Kulvinder
Singh- appellant No.1 becomes doubtful and he should be acquitted giving him
the benefit of doubt. According to the post mortem report, the following
injuries were found on the body of Amardeep-deceased, aged 25 years.
a. Incised wound on the
left palm on the thenar eminence placed obliquely 4 cm x 1 cm tapering downwards
and laterally towards the left thumb 2 cm deep at the medial side.
b. Incised wound 2 cm x
1 cm each on the palmer aspect of lower phalanx of left index and middle finger
and upper phalanx of the left little finger.
c. Incised wound 9 cm in
length x 1 cm on the medial aspect of the mid left forearm place obliquely, 7 cm
below the left elbow.
d. Incised wound 3.5 cm x
1 cm placed obliquely on the right forehead starting from the medial side of
the right eyebrow and extending upward and laterally 4 cm above the lateral
border of right eyebrow.
e. Incised wound 5 cm x
1 cm on right eye lid just below the right eyebrow and extending laterally and over
the skin 2 cm lateral to the lateral angle of the right eye.
f. Incised wound 14 cm x
2.5 cm on the front of the face starting from the right cheek bone's prominence
traversing obliquely towards the left on the left cheek.
g. Incised wound 5.5. cm
x 1 cm on the face just below the tip of the nose placed horizontally parallel to
the upper lip.
h. Incised wound 4 cm x
1 cm on the right side of the chin starting from the right angle of the lower lip
and extending downward and medially towards the chin.
i. Stab wound tapering at
both ends 2 cm x 1 cm on the right side of the neck placed obliquely 3 cm below
from the right angle of the mandible going medially and downwards.
j. Stab wound 2 cm x 2
cm placed on the anterior aspect of the middle of the neck transversely.
k. Stab wound 4 cm x 2
cm on the left side of the neck 2 cm below the right angle of mandible.
l. Stab wound 2.5 cm x 2
cm placed vertically placed lateral to injury no.1 (3 cm) and 6 cm from the left
mastoid.
m. Stab wound 4 cm x 3
cm on left axillary fold (anterior) place vertically spindle shape tapering
upwards.
n. Stab wound 4 cm x 2
cm elliptical at lower border of left axilla placed vertically.
o. Stab wound 7 cm x 3 cm
elliptical, placed obliquely starting from 5 cm lateral to left nipple and extending
upto 3 cm medial to injury no.14.
p. Stab wound 4 cm x 3
cm elliptical placed obliquely on the left chest, 15 cm from the midline and 7
cm below the injury no.15.
q. Incised wound 6 cm x
2 cm placed obliquely on left side of chest 3 cm below and lateral to injury
no.16.
r. Stab wound 4 cm medial
to left iliac crest placed transversely 5 cm x 2 cm. The loops of small intestine
were coming out of the wound.
s. Incised wound 4.5 cm x
2 cm placed obliquely on the right inguinal ligament.
t. Incised wound 8 cm x
5 cm placed transversely parallel to the upper border of left scapula in the
supra scapular region.
u. Incised wound 1.5 cm
x 1 cm placed transversely on the interior side of left leg in the middle.
v. Incised wound 3 cm x
2 cm on the left posterior axillary line 12 cm below left axilla placed
vertically going upto the left chest wall. According to Dr. Vijay Mohan Atreja
(PW.9), the cause of death in this case was shock and hemorrhage due to extensive
injuries to the vital organs. All these injuries were found to be anti- mortem
in nature and sufficient to cause death in the ordinary course of nature. The
injuries look as if received by a person whilst trying to save himself.
21.
The
age of the appellants at the time of occurrence had been shown on the record as
19 and 23 years respectively and the deceased was 5 ft.10 inch tall and 25
years of age. It is difficult to imagine that one person could cause 22
injuries on such a well-built person unless the other persons had caught hold of
him. All the injuries found on the person of the deceased are on front side of
the body and not a single injury has been found on the back. Such injury could
not have been caused unless somebody had caught hold of the deceased from the
back. It is a case of circumstantial evidence and in the facts and circumstance
of the case the submission made by Shri Laler is merely worth taking note of and
not worth consideration.
22.
In
view of the above, we do not find any force in the appeal and is, accordingly,
dismissed.
..........................J.
(P. SATHASIVAM)
..........................J.
(Dr. B.S. CHAUHAN)
New
Delhi,
April
11, 2011
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