Didar Singh vs State of Punjab

S.D. BajaJj J.

Sewa Singh son, of Veer Bhan Singh aged 30 years resident. of village Jakhlan was found lying dead near the Roda Railway Crossing Village Harchandpur in Police Station, Dhuri, district Sangrur, on 10th April, 1986 by his soninlaw Didar Singh accusedappellant; who got a case registered with Dhuri Police under Section 304A of the Indian Penal Code suspecting it to be a case of truck accident. In the course of investigation, the police reached the conclusion that Didar Singh along with his coaccused Ranjit, Singh and Dhanna Singh in pursuance of their common intention and criminal conspiracy had got the deceased killed through the instrumentality of Gurmail Singh their coaccused and a truck driver, who had intentionally, run over the deceased underneath his truck No. PNL 2371 around 7.00 P. M. on 9th April, 1986 after being promised a payment of Rs. 7,000/ for doing so even though only Rs. 3,000/ out of it were actually paid as advance and the balance still remains to be paid as yet. Coaccused Ranjit Singh is another soninlaw of the deceased. Third coaccused Dhanna Singh is an electrician through whose instrumentality the two sonsinlaw of the deceased are alleged to have contacted the 4th coaccused Gurmail Singh. All the four coaccused aforesaid are alleged to have hatched a conspiracy of getting Sewa Singh killed from Gurmail Singh as aforesaid in pursuance of their common intention. Hence their prosecution under section 302 read with section 34 and section 120B of the Indian Penal Code. The offence was changed from, section 304A to section 302 read with section 34 and section 120B of the Indian Penal Code by D.S,P. Harbhajan Singh P.W. II on the basis of the statements made to him by Piara Singh P.W. 3 and Karam Singh P.W. 8 under section 161 of the Criminal Procedure Code.

On being charged with the commission of offences under sections 302 read with section 34 and section 109 of the Indian Penal Code, all the four accused pleaded not guilty there to and claimed to be tried. Vide its impugned judgment dated 13th November, 1987 learned trial court acquitted accused Dhanna Singh and Ranjit Singh, convicted accused Didar Singh under section 109 read with section 302 of the Indian Penal Code and coaccused Gurmail Singh under section 201 of the Indian Penal Code. Didar Singh was sentenced to undergo imprisonment for life and to pay Rs. 2000/ as fine. In default of payment of fine he was ordered to undergo rigorous imprisonment for a further period of two years. Gurmail Singh was sentenced to undergo rigorous imprisonment for a period of three years and to pay Rs. 1000/ as fine. In default of payment of fine he was ordered to undergo rigorous imprisonment for a further period of one year. Feeling dissatisfied with the aforesaid impugned Judgment of the learned trial court both the convictedaccused have individually come up in appeal to this court. Criminal Appeal No. 571 DB of 1987 has been filed by Didar Singh and Criminal, Appeal No. 63DB of 1988 has been filed by Gurmail Singh. Both these appeals arise out of the same judgment on the charge of conspiracy and common intention and are, therefore being decided together.

It may be observed at the out set that neither the charge of abetment to murder Sewa Singh held proved against Didar Singh nor the charge under section 201 of the Indian Penal Code held proved against Gurmail Singh, was either levelled or proved against either of the two convicted accusedappellants. Ingenuity of the mind of the learned trial court in convicting both the accusedappellants for these charges only reflects on its poor knowledge of criminal law applied by it to the facts and circumstances of the present case.

Dr. Kamindra Nath Sharma P.W. 2 asserted that out of nine injuries detected by him on the person of the deceased in the course of postmortem examination conducted by him on the dead body of the deceased at 2.00 P.M. on 10th April, 1986 injuries No. 1, 7 and 8 were antemortem while injuries No. 2 to 6 and 9 set out the postmortem report all the six were postmortem injuries. This fact alone conclusively establishes that deceased Sewa Singh was not killed in truck accident but was lying killed on the road before being allegedly run over by the truck. Nothing has been brought on record as to who killed the deceased, when where and how. In result the charge of abetting Gurmail Singh to kill the deceased underneath his truck levelled against accusedappellant Didar Singh falls to the ground. Unless the principal accused responsible for killing Sewa Singh is found and named the charge under section 109 read with section 302 of the Indian Penal Code levelled against Didar Singh is rendered nugatory. Similarly by running over the deadbody underneath his truck Gurmail Singh cannot be held guilty of the commission of the offence under section 201 of the Indian Penal Code.

Relevant section 201 of the Indian Penal Code reads :

"Whoever, knowing or having reason to believe that an offence has been committed, causes any evidence of the commission of that offence to disappear, with the intention of screening the offender from legal punishment, or with that intention gives any information respecting the offence which he knows, or believes to be false, (if a capital offence) shall, if the offence which he knows or believe to have been committed is punishable with death, be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine;

(if punishable with imprisonment for life) and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine;

(if punishable with less than ten years'' imprisonment) and if the offence is punishable with imprisonment for any term not extending to ten years, shall be punished with imprisonment of the description provided for the offence. for a term which may extend to onefourth part of the longest term of the imprisonment provided for the offence, or with fine, or with both."

In this particular case Gurmail Singh is himself alleged to have killed deceased Sewa Singh by running him over underneath his truck and not for causing evidence of the offence alleged against his coaccused Didar Singh to disappear and, therefore, could not be convicted of the commission of the offence under section 201 of the Indian Penal Code. This section applies to the person who screens the principal or actual offender and not to a person causing disappearance of his own crime. A murder not be charged or convicted under section 201 of the Indian Penal Code for causing evidence to disappear by concealing the corpse because a principal cannot be convicted as an accessory.

Similarly section 109 of the Indian Penal Code reads; Whoever abets any offence shall if the act abetted is committed in consequence of the abetment, and no express provision is made by the Code for the punishment of such abetment, be punished with the punishment provided for the offence. ExplanationAn act or offence is said to be committed in consequence of abetment, when it is committed in a consequence of the instigation, or in pursuance of the conspiracy or with the aid which constitutes the abetment. Section 109 refers only to active abetment at the time of occurrence while section 114 refers only to abetment before any steps for the commission of offence are taken. To establish abetment the accused must be proved either to have instructed or aided some other person or to have conspired with another for the commission of the offence. Section 109 has noapplication where the offence is not committed. Didar Singh could not, therefore, be convicted of the commission of the offence under section 109 of the Indian Penal Code for the death of Sewa Singh; more so when Gurmail Singh coaccused allegedly abetted by him did not cause the death of Sewa Singh in pursuance of the alleged abetment. Conviction of both the accusedappellants thus falls through and there is no basis for sustaining the sentence awarded to both of them individually by the learned trial Court.

Adverse inference flowing from the accusedappellant Didar Singh having lodged a dodging First Information Report in Police Station, Dhuri, on 10th April, 1986, obviously does not lead us to the only hypothesis of his guilt in the crime of murder and cannot, therefore, be pressed into service to convict him under section 302 of the Indian Penal Code more so when the admissions made by Karam Singh P.W. 8 in crossexamination that on account of Didar Singh''s status as `Ghar Jawai'' (resident soninlaw), the whole village was inimical towards him and wanted him to be falsely inculpated for the murder of Sewa Singh so that the villagers could usurp 65 killas of landed estate of the deceased a drunkard and a womaniser if not otherwise, atleast through fictitious sales at throw away price. In Ram Das v. State of Maharashtra, AIR 1977 S.C. 1164 their lordships of the Supreme Court observed, "where circumstances are susceptible of two equally possible inferences, the Court should accept that inference which favours the accused rather than an inference which goes in favour of the prosecution."

In result both the Criminal Appeals bearing Nos. 571DB of 1987 and 63DB of 1988filed by Didar Singh and Gurmail Singh convicted accusedappellants respectively are allowed, the conviction and sentence passed upon them both individually therein is set aside and both the accusedappellants aforesaid are acquitted. Didar Singh is undergoing life imprisonment in jail and would, therefore, be liberated forthwith. Gurmail Singh is already on bail. Bail bonds furnished by his surety as also the personal bond submitted by him shall both stand discharged. Fine, if paid by either of the two accusedappellants aforesaid, shall also be refunded to them.

JUDGMENT accordingly.