Gurbax Singh vs State of Punjab

Harphul Singh Brar, J.

Gurbax Singh son of Kartar Singh son of Hari Singh resident of village Khanpur Gande and his relation Rachna son of Rulia (acquitted by the learned Sessions Judge) resident of village Dhangerian faced trial under Section 302 read with Section 34 I.P.C., on the allegations that on 25.8.1990, in village Jakhran, both the accused in furtherance of their common intention, committed the murder of Jagtar Singh and thereby allegedly committed an offence punishable under Section 302 read with Section 34 I.P.C. The learned Sessions Judge, Patiala vide his judgement/order dated 2.11.1993, sentenced accused Gurbax Singh to undergo imprisonment for life and to pay a fine of Rs. 200/. In default of payment of fine, he was ordered to undergo further R.I. for a period of one year. Hence this appeal by Gurbax Singh.

The prosecution story which emerged at the trial is that on 25.8.1990, Harmesh Singh, whose father''s land adjoins to the land of Gurdev Singh P.W.1, maternal uncle of Jagtar Singh deceased, went to his fields in the area of village Jakhran, where Jagtar Singh met this witness. At about 11.00 a.m., Gurbax Singh and Rachna accused also came there. Kulbir Singh is the son of Gurdev Singh (PW1) and he was also present in the fields of his father, but at some distance where Jagtar Singh, Harmesh Singh, Gurbax Singh (accused) and Rachna (accused) met each other. All of them, i.e. four decided to take liquor by sitting near the fields and by the side of Bhakra canal. Gurbax Singh accused asked Jagtar Singh deceased to arrange country made liquor while Harmesh Singh was suggested to bring ice and sodawater. Both the accused along with Harmesh Singh (PW2) and Jagtar Singh deceased started consuming liquor. After 1 hours, Jagtar Singh deceased again arranged more liquor and this liquor was also being consumed though Kulbir Singh son of Gurdev Singh (PW1) remained present at some distance in his fields, but he did not share the drinkingparty being enjoyed by Gurbax Singh, Rachna, Jagtar Singh and Harmesh Singh. In the meanwhile, Harmesh Singh (PW2) was again suggested to bring more soda and ice and when he had hardly gone upto a distance of 10 karams, Gurbax Singh and Rachna gave an injury on the left side of the head of Jagtar Singh. On hearing the noise of Jagtar Singh, Kulbir Singh son of Gurdev Singh (PW1) challenged the accused. In the meanwhile, Harmesh Singh (PW2) also retraced his steps and asked the accused as to why they were causing harm to Jagtar Singh. In the presence of Harmesh Singh and Kulbir Singh, both the accused threw Jagtar Singh deceased into the Bhakra canal. The version of Harmesh Singh further is that when Jagtar Singh had gone to the village in order to arrange the liquor, Gurbax Singh accused enquired from the former as to whether the police would implicate a person if a person dies by drowning. Harmesh Singh (PW2) told Gurbax Singh accused that he could not answer to the question as he was not Law Graduate. The story of the prosecution further proceeds that Kulbir Singh tried to save the deceased from the canal by throwing his turban, but Jagtar Singh submerged in the water and died. Thereafter, Gurbax Singh accused picked up a ''kasi'' of Kulbir Singh and chased Kulbir Singh, Harmesh Singh in order to frighten them. They managed their safety from the place of occurrence and came to the village of Gurdev Singh and occurrence and was told to him by Harmesh Singh in the presence of Kulbir Singh.

Motive for the crime as deposed by Harmesh Singh (PW2) is that Jagtar Singh deceased had love affair with the daughter of Gurbax Singh accused.

On being informed about the murder of Jagtar Singh, Gurdev Singh (PW1), who is the maternal uncle of the deceased and in whose house the deceased was brought up, went to police station with respectables of village Jakhran and a report was lodged with the police which recorded Ex.PD, D.D.R. of Gurdev Singh. According to this witness P.W.1 Gurdev Singh, his statement was recorded on a rough paper by the Munshi inspite of the request made by Gurdev Singh and his companions to the Thanedar that formal F.I.R. should be recorded, but the Thanedar did not record the F.I.R. Rather he started reprimanding Gurdev Singh. Gurdev Singh also alleges that the Thanedar did not record the whole statement. Though the report Ex.PA was read out to him, but he could not follow it on account of the death of Jagtar Singh, his Bhanja. Since he was not satisfied with the move of the police, he filed an application Ex.PB before the Senior Superintendent of Police. The initial investigation of this case was taken up by S.I. Kaka Singh P.W.8, who was posted as Additional S.H.O., Police Station Sadar, Rajpura on 25.8.1990. He recorded the D.D.R. No. 29 Ex.PA (also exhibited as Ex.PA/1). On 30.8.1990, the deadbody of Jagtar was found from Bhakra canal in the revenue estate of Ganda Kheri. It was found floating near the bridge of Bhakra canal in the revenue limits of Ganda Kheri. S.I. Kaka Singh prepared inquest Report Ex.PC in the presence of Labh Singh and Gurdev Singh who attested the same. He drafted Ex.PD/1, the request for postmortem examination and the deadbody was handed over to Constable Harnek Singh for postmortem examination.

Part investigation was also conducted by S.I. Balwinder Singh (PW6), who stated at the trial that on 21.9.1990, he was posted as A.S.I. in Police Station Sadar, Rajpura. On that day, S.I. Paramjit Singh S.H.O. handed over the investigation to him and on 22.9.1990, he went to village Jakhran. He visited the place of occurrence in the presence of Harmesh Singh and Kulbir Singh and prepared rough site plan Ex.PK, with correct marginal notes and on 1.10.1990, he arrested both the accused from the Octroi Post of Rajpura. At one stage, the investigation of this case was also supervised by D.S.P. Surjit Singh (PW5) and on 10.9.1990, he received the orders on the report of Inspector Darshan Singh of C.I.A. Staff Rajpura, issued by the S.S.P., Patiala, to go through the report of Darshan Singh Inspector and to confirm the facts stated in the report and if these facts were found true, direction be issued for getting the case registered. D.S.P. Surjit Singh went to the village Jakhran and verified the facts and held preliminary enquiry. He recorded statements of Kulbir Singh and Harmesh Singh. He also prepared the rough site plan. On return to the Police Station Sadar, Rajpura, he ordered for the registration of a case on 21.9.1990. He also lodged the report DDR No. 27 Ex.PJ, regarding his return to the Police Station Sadar, Rajpura and for the registration of the case. P.W.7 D.S.P. Paramjit Singh formally recorded the F.I.R. Ex.PL on the directions of D.S.P. Surjit Singh. D.S.P. Paramjit Singh directed Constable Balbir Singh to take special report of this case to the Illaqa Magistrate and higher authorities on the same day, i.e. 21.9.1990.

P.W.3 Dr. I.C. Taneja on 30.8.1990, conducted the postmortem examination on the deadbody of Jagtar Singh deceased. After conducting the postmortem examination on the deadbody, the doctor deferred his opinion about the cause of death till the receipt of the report of the Chemical Examiner as viscera was sent to the Chemical Examiner. Dr. Taneja issued Ex.PD, carbaon copy of the postmortem report and on receipt of the report of the Chemical Examiner, the cause of death in this case was declared due to use of alcohol and head injury.

On the completion of the investigation of this case, both the accused were challaned under Sections 302/34 I.P.C. in the Court of Illaqa Magistrate Shri J.R. Singla, Sub Divisional Judicial Magistrate, Rajpura, who supplied the copies of the documents to the accused as required under the law and vide commitment order dated 2.1.1991, committed the case to the Court of Sessions.

Gurbax Singh appellant and Rachna (since acquitted) were charged u/S 302 read with Section 34 I.P.C. They pleaded not guilty to the charge and claimed trial.

In order to prove the charge, the prosecution examined as many as 8 witnesses. Affidavit Ex.PW.4/A of Constable Balbir Singh (PW4) was tendered into evidence. Labh Singh and H.C. Rajinder Parshad were given up as unnecessary. PWs Chand Singh D.S.P., Amrit Lal Draftsman and Inspector Darshan Singh were given up as unnecessary by the prosecution on 11.1.1993. Kulbir Singh P.W. was given up as unnecessary by the prosecution on 29.5.1993. Report of the Chemical Examiner was also tendered into evidence.

Statements of the accused u/S 313 Cr.P.C. were recorded and all the incriminating circumstances appearing against the accused were put to them. The accused denied those circumstances. Plea of Gurbax Singh accused was as under :

"I am innocent. I have three daughters, Lakhwinder Kaur aged 26 years is my eldest daughter. Younger to her is Smt. Sukhwinder Kaur aged 23 years. Both these daughters were married four years earlier to the death of Jagtar Singh. Lakhwinder Kaur gave birth to three children. The name of the third daughter is Miss Raji and she is hardly 8/9 years of age. I had no daughter by the name of Rano. I have five brothers, namely, Paras Ram, Malkiat Singh, Sucha Singh, Sahib Singh and Harmesh Singh. I have no brother by the name of Gurmit Singh. In the houses of my brothers, referred to above, there is no female child by the name of Miss Rano. Jagtar Singh died due to taking of excessive liquor and due to fall into canal. I have been implicated in this case due to misguided suspicion."

Rachna accused simply adopted the plea of his coaccused Gurbax Singh.

When called upon to enter into their defence, accused examined Sat Pal D.W.1. The accused also wanted to summon the clerk of Newspaper Daily ''Ajit'' dated 4.9.1990 and Shri Parkash Suri, Correspondent, but the Court had not granted the permission to the accused to summon these witnesses. As per news of the newspaper, dated 4.9.1990, it had been mentioned that Jagtar Singh died due to drowning. The newsitem was based on hearsay evidence. The Correspondent was not present at the time of the alleged occurrence. Hence the permission was declined.

Ultimately, the learned Sessions Judge acquitted Rachna accused after giving him the benefit of doubt and convicted Gurbax Singh accused (now appellant) under Section 302 I.P.C. and sentenced him to undergo imprisonment for life vide his judgment/order dated 2.11.1993. The accused Gurbax Singh was further ordered to pay a fine of Rs. 200/. In default of payment of fine, he was ordered to undergo further R.I. for one year.

Gurbax Singh has filed an appeal against the judgment/order dated 2.11.1993 of the learned Sessions Judge, Patiala against his conviction and sentence which is fixed before us for final hearing today.

Learned counsel for the appellant has contended that both the PWs, i.e. P.W.1 Gurdev Singh and P.W.2 Harmesh Singh are not reliable. Both of them have made material improvements at the trial and their evidence is discrepant, contradictory and unreliable. Harmesh Singh P.W.2, according to the learned counsel, has not seen the occurrence. He has, in fact, been introduced at a later stage by the prosecution and he is otherwise an interested witness being a friend of the deceased Jagtar Singh. The learned counsel further contends that the medical evidence does not support the prosecution story. The motive has not been proved in this case and there is an unexplained delay in lodging the First Information Report.

On the other hand, learned counsel for the State submits that the delay in lodging the F.I.R. has been explained. The medical evidence corroborates that the ocular testimony of the eyewitness Harmesh Singh. Motive has been proved on the record and the prosecution has proved its case beyond any reasonable doubt.

We have heard learned counsel for the parties and have gone through the record with their assistance.

Learned Sessions Judge, Patiala, has convicted and sentenced the appellant on the basis of the statement of Harmesh PW2, which according to him, is wholly reliable. Statement of Harmesh Singh PW, according to the learned Sessions Judge, is also corroborated by the medical evidence on the record and the motive to murder the deceased Jagtar Singh, according to the learned Sessions Judge, is also proved on the file. He has, of course, not relied upon Ex.PA/1 as well as Ex.PB as according to him, these were the statements/writings of Gurdev Singh PW1 who was admittedly not the eye witness of the case.

The learned Sessions Judge has held Harmesh Singh PW2 as a wholly reliable witness as according to him, his testimony has been fully corroborated by the medical evidence because he has told two latent facts at the trial; (i) that the deceased was given a head injury with the help of Soda water bottle and (ii) he was also taking liquor along with the accused Gurbax Singh and Rachna. According to the learned Sessions Judge had it been a blind murder, Harmesh Singh (PW1) could not have deposed about the taking to liquor by the deceased and the deceased having suffered injury with the striking of Soda water bottle. He has further observed that even if it is assumed for the sake of argument that it might have been known to the villagers that Jagtar Singh deceased was roaming about in drunken condition or that he was proceeding towards the side of Bhakra Canal in that condition, still it was difficult for Harmesh Singh to tell that the deceased had also suffered a head injury at the hands of the accused. The relevant portion of the statement of the doctor on which the learned Sessions Judge has relied upon is reproduced as under :

"When the postmortem was conducted on 30.8.1990 the condition of the dead body of Jagtar Singh was that there was peeling of skin, whole of the body was swollen and there was wrinkling on the skin of the deceased. The body was stained with sand. On opening the scalp the doctor had found a big hematoma (extra dural) on the left parietal region with compression of underlying brain matter vessels and nerves. On the right side small amount of sub dural haemorrhage was also present. Left middle menigeal artery was also lacerated. The cause of death at the first instance was deferred till the receipt of the report of the Chemical Examiner and after receipt of the report of the Chemical Examiner the doctor declared the cause of death due to the use of alcohol and head injury which had already been described in the post mortem report. The opinion of the doctor is Ex.PE in this regard and Ex.PD is the copy of the postmortem report."

The reason for placing reliance on the sole testimony of Harmesh Singh PW by the learned Sessions Judge thus is that had Harmesh Singh PW2 been not present at the time of the alleged occurrence, he could not tell that the deceased had suffered a head injury at the hands of the accused. We find that, the learned Sessions Judge has erred on facts in relying upon the testimony of Harmesh Singh PW2 on the basis of this reasoning.

The postmortem on the dead body of Jagtar Singh was conducted by Dr. I.C. Taneja (PW3) on 30.8.1990 at 8.00 P.M. Ex.PD is the copy of the post mortem report. It shows that on 30.8.1990 itself it was known to the police and others that deceased Jagtar Singh had an injury on his head and it is significant to note that statement of Harmesh Singh PW, Ex.DD, was recorded under Section 161 Cr.P.C. for the first time on 21.9.1990 by Balwinder Singh S.I. (PW6) when the postmortem report was already available about a month earlier i.e. on 30.8.1990. PW6 S.I. Balwinder Singh has deposed at the trial that he recorded the statement Ex.DD of Harmesh Singh and Harmesh Singh PW2 himself has admitted in his crossexamination that his statement Ex.DD was recorded for the first time by the police on 21.9.1990. He has further admitted that he did not appear himself voluntarily before the police in order to make his statement. Thus, the learned Sessions Judge has erred in holding that the presence of Harmesh Singh PW2 is proved at the time of occurrence and he was a wholly reliable witness as he had stated the fact that the accused had caused injury on the head of deceased Jagtar Singh. We would have justified the reasoning given by the learned Session Judge if Harmesh Singh had stated before the police at an earlier moment i.e. before the post mortem report came into existence on 30.8.1990, that the accused had caused injury on the head of the deceased but that was not done.

The statement of PW2 Harmesh Singh as regards the infliction of injury on the body of the deceased is itself discrepant and contradictory and is belied by the medical evidence. Harmesh Singh in his examinationinchief at the trial has stated that both the accused gave an injury on the left side of the head of Jagtar Singh deceased with something. In the cross examination he has stated that accused gave injury on the head of Jagtar Singh with empty soda water bottle and further he admitted in his crossexamination that only one blow with empty soda water bottle was given and that blow landed on the forehead of the deceased; when, admittedly according to the post mortem report and the statement of the doctor I.C. Taneja (PW3) no injury was found on the forehead of the deceased. Injury was found on the left parietal region which is contradictory to the statement of Harmesh Singh PW who has definitely stated and admitted in his crossexamination that only one blow with the empty sodawater bottle was given and that landed on the forehead of the deceased.

From the medical evidence which is before us, we also find that it is not a case of drowning. Medical jurisprudence tells us that in a case of death by drowning, the stomach is ordinarily bloated with air and water which is instinctively swallowed by the drowning person during the struggle for life. The facts that the stomach was not filled with water and bloated and no froth was coming out of the mouth of the deceased, are important symptoms which go a long way to exclude the possibility of death by drowning.

Dr. I.C. Taneja (PW3) who conducted the postmortem examination on the deadbody of Jagtar Singh stated as under :

"On opening of thorax wall ribs and cartileges were found healthy. On opening of larynx and trachea they were found healthy and did not contain water. On opening of both the lungs, they were found healthy and were not emphysematous.

On dissection of lungs, bloodstained froth the fluid did not come out. On opening of heart, right chamber contained small amount of blood and left chamber was found empty. Rest of the organs were found healthy. On opening of abdomen the larynx and Oesophagus were found healthy and congested. On opening of stomach, the stomach was found healthy and contained 5 ounces of semidigested food particles.

On opening of small intestines, they were found healthy and contained semidigested food particles. On opening of large intestines, it was found healthy and contained faecal matter and gases."

Dr. Taneja (PW3) when asked in the crossexamination, admitted that it was not a case of death by drowning. If it is not a case of drowning which so looks from the medical evidence, then the normal conclusion is that Jagtar Singh was first murdered and thereafter, after his death, he was thrown in the canal.

This factual position again renders the presence of P.W.2 Harmesh Singh at the time of occurrence as doubtful particularly in view of his statement at the trial which reads as under :

"Deceased Jagtar Singh tried to swim when he was thrown in the canal. Jagtar Singh appeared over the surface of the water thrice and then he submerged inside the water. Kulbir Singh threw his turban inside the canal for the rescue of Jagtar Singh who tried to catch hold of the end of turban but he could not do so."

If Jagtar Singh had tried to swim and rescue himself from drowning, then certainly the symptoms of drowning should have been found on his body after the death and as has been discussed above, no such signs have been found on the body of Jagtar Singh. It thus, proves that the ocular evidence of Harmesh Singh P.W.2 is belied by the medical evidence on the record and his presence at the time of occurrence is highly doubtful. It means that he is only a madeup witness joined by the prosecution and that also at a highly belated stage.

Apart from the fact that the medical evidence belies the ocular testimony of Harmesh Singh (PW2), Harmesh Singh''s statement at the trial is even otherwise discrepant, selfcontradictory and it contradicts the other prosecution witnesses at the trial on material particulars. However, we will discuss it at a later stage when dealing with the motive part of the case.

It is pertinent to note at this juncture that the first version of the occurrence was provided by Gurdev Singh (PW1) on 25.8.1990 on the date of occurrence itself when he got recorded before the police his statement Ex.PA wherein he had stated that when he heard a noise in the village that a person had drowned in the canal, he along with many other persons from village rushed to the canal where his son Kulbir Singh who was working in the fields at that time, told him that Jagtar Singh had an altercation with Gurbax Singh and his companion. While drinking liquor, they had grappled with one another and thereafter in the meantime, Gurbax Singh gave a push to Jagtar Singh as a sequel to which the latter fell into the canal.

He had further recorded in Ex.PA that they also threw the dol (container) of water and pipi (can) into the canal and that after sometime, Jagtar Singh was drowned and thereafter Gurbax Singh and his companion went towards village Kahnpur Relu on bicycles.

Then we have got a later version of Gurdev Singh (PW1) in the shape of an application moved by Gurdev Singh to the S.S.P. exhibited as PB, wherein he has prayed that a case under Sections 302/201/34 I.P.C. be registered against Gurbax Singh and Rachna because the local police was not registering the case against the above mentioned accused under the above referred to sections though he had lodged a report No. 29 dated 25.8.1990 (Ex.PA) before the police.

However, it may be noticed that P.W.1 Gurdev Singh has rather given a totally different version of the occurrence at the trial. He has deposed at the trial that on 25.8.1990, at 330 p.m., his son Kulbir Singh and Harmesh Singh (PW2) had gone to him and told him that Gurbax Singh of village Khanpur Gande and Rachna Chowkidar of village Dhangerian had thrown Jagtar Singh in the canal after causing an injury on his head with something and Jagtar Singh was drowned. He then deposed that Harmesh Singh further told him that on that day, they started taking liquor at 11 a.m. and that he, Gurbax Singh and Rachna accused and Jagtar Singh had taken the liquor and that Jagtar Singh deceased was asked by Gurbax Singh accused to bring liquor for the second time. Harmesh Singh further told him that Gurbax Singh and Rachna accused had a quarrel with Jagtar Singh deceased and then they grappled with him and threw him (Jagtar Singh) in the canal. His further material deposition before the trial Court is reproduced as under :

"Then I went to the Police Station with the respectables of the village and lodged report. I have heard the DDR Ex.PA. It was correctly recorded at my instance. Again stated when I reached the Police Station, I narrated the entire story to the Thanedar. Firstly my statement was recorded on a rough paper by the Munshi. Then the Thanedar asked the Munshi to scribe the report. Then I and the persons accompanying me requested the Thanedar to record the FIR statement. Then the Thanedar started reprimanding us. The Thanedar did not record the whole of my statement. He recorded half of it. The report Ex.PA was read over to me but I could not follow it as I was purturbed on account of the death of Jagtar Singh. It bears my signatures, on it. Then I moved the application Ex.PB before the Senior Superintendent of Police, Patiala. It also bears my signatures at point X encircled red. The deadbody was recovered on 29.8.90 from the canal in the area of village Ganda Kheri. I identified the deadbody of Jagtar Singh at the time of preparing the inquest report. I identify my signatures on the inquest report Ex.PC. My signatures mark ''X'' encircled ''X''. On my application Ex.PB Inspector of the C.I.A. was deputed to investigate the case. There was an injury on the left side of the head of the deadbody when it was recovered. The deadbody was recovered late in the evening and the police did not come in time and as such inquest report was prepared on 30.8.90 at 5 a.m. The deceased Jagtar Singh had illicit relations with the daughter of Gurbax Singh accused and for that reason Gurbax Singh had a grudge against Jagtar Singh. Both the accused were previously known to me. The daughter of the brother of Rachna accused is married to the brother of the wife of Gurbax Singh accused."

It may be noted here itself that he has, for the first time, deposed that Harmesh Singh P.W. also accompanied his son Kulbir Singh when the matter was reported to him for the first time on 25.8.1990. Taking of liquor etc. by the accused Harmesh Singh and Jagtar Singh together has also been introduced for the first time. It is again noticeable that it is for the first time that a motive on the part of the accused to kill the deceased has been introduced. We may say so at the earliest that the new version of the occurrence introduced by P.W.1 Gurdev Singh cannot be believed mainly on the following grounds :

(1) At the first moment in his examinationinchief he has admitted that he had gone to the police station with the respectables of the village and lodged the report. He had heard the DDR Ex.PA which was correctly recorded at his instance.

(2) If he had any grudge against the police that the D.D.R. Ex.PA was not correctly recorded by the police, then he should have immediately reported it to the higher authorities. He moved an application to the higher authorities, i.e. Senior Superintendent of Police, Patiala later on, i.e. on 3.9.1990, but still in that application also, he did not make any grouse that the police did not correctly record his statement, as given by him to the police in Ex.PA. In his application Ex.PB before the S.S.P. only, a grouse was made that the police was not registering the case on his complaint, i.e. Ex.PA against the accused under Sections 302/201/34 I.P.C.

Now, his new version given at the trial that the Thanedar did not record whole of his statement and recorded half of it, cannot be believed in view of the facts just stated above.

Similarly, we feel that motive introduced by Gurdev Singh (PW1) at such a later stage when its mention was not made even before the S.S.P. in his application Ex.PB, is also an afterthought.

(3) Even otherwise, the statement of P.W.1 Gurdev Singh made at the trial regarding the occurrence including the motive etc. is not believable as he has made material improvements at the trial. A few of the improvements are mentioned hereunder :

"I stated before the police that Harmesh Singh P.W. was accompanying Kulbir Singh when they came to me on 25.8.1990 at 3.30 p.m. Attention of the witness has been drawn to Ex.PA where name of Harmesh Singh had not been mentioned.

I do not know if I mentioned name of Harmesh Singh in my application Ex.PB. Attention of the witness has been drawn to Ex.PB where name of Harmesh Singh has not be mentioned.

I stated before the police that I was informed by Harmesh Singh and Kulbir Singh that Rachna accused was also present along with his coaccused Gurbax Singh and that he also helped his coaccused in throwing the person of Jagtar Singh in the canal. Attention of the witness has been drawn to Ex.PA where name of Rachna does not find mention.

I did not state before the police that Gurbax Singh accused was accompanied by one more person whose name I did not know, and that name of his companion is only known to Gurbax Singh accused. Attention of the witness has been drawn to Ex.PA, portion A to A, where it is not so recorded.

I stated before the police that P.W. Harmesh Singh and Kulbir Singh told me that accused inflicted injury on head of Jagtar Singh with some object. Attention of the witness has been drawn to Ex.PA where it is not so recorded.

I stated in my application Ex.PB that accused inflicted injury on the head of Jagtar Singh with some object and it was so told to me by Harmesh Singh and Kulbir Singh. Attention of witness has been drawn to Ex.PB, where it is not so recorded.

I narrated to the police at the time of recording my DDR that Harmesh Singh PW told me that on the day of occurrence, both the accused, Jagtar Singh deceased and Harmesh Singh started taking liquor at 11 a.m. and that Gurbax Singh and Rachna accused asked Jagtar Singh deceased to bring more liquor. Attention of the witness has been drawn to Ex.PA where it is not so recorded.

I instructed the typist to make a mention in Ex.PB that Gurbax Singh accused asked the deceased Jagtar Singh to bring more liquor and that both the accused along with Jagtar Singh and Harmesh Singh started taking liquor on 25.8.90 at 11 a.m. Attention of witness has been drawn to Ex.PB where it is not so recorded.

I did not state in Ex.PB that when I went to the police station, I narrated the entire story to the Thanedar and that firstly my statement was recorded on a rough paper by the Munshi and that Thanedar asked the Munshi to scribe the report and that when myself and the persons accompanying me requested Thanedar to record FIR, Thanedar started reprimanding me and that he did not record whole of my version or that he recorded half of it. Attention of the witness has been drawn to Ex.PB where it is not so recorded specifically. However, it is recorded that police of P.S. Rajpura connived with the accusedparty, therefore, the complainant had no faith in the police and that he would not get justice at the hands of the police.

I stated before the Inspector that Thanedar of P.S. Saddar, Rajpura asked the Munshi to scribe the report or that firstly my statement was recorded on the rough paper by the Munshi or that myself and the persons accompanying me requested the Thanedar to record the FIR or that Thanedar started reprimanding me or that he did not record whole of my statement or that he recorded half of it. Attention of witness has been drawn to his police statement Ex.DA dated 28.10.1990 where it is not so recorded. I stated in Ex.PB that report Ex.PA was read over to me but I could not follow it as I was perplexed on account of death of Jagtar Singh. Attention of witness has been drawn to Ex.PD where it has not been so recorded.

I did not state in Ex.PB that deadbody was recovered late in the evening and police did not come in time and as such inquest report was prepared on 30.8.90 at 5 a.m. I stated before the D.S.P. on 21.8.1990 about this fact. Attention of the witness has been drawn to his statement dated 21.9.1990 Ex.DB where it is not so recorded. I did not state in Ex.PA that my sister''s son Jagtar Singh had illicit relation with daughter of Gurbax Singh accused and for that reason Gurbax Singh had a grudge against the deceased.

I did not state in Ex.PB that deceased Jagtar Singh had illicit relations with the daughter of Gurbax Singh accused and for that reason Gurbax Singh had grudge against Jagtar Singh.

It is incorrect that my statement was recorded at the time of preparation of the inquest report and in that statement I did not narrate any of the facts which I deposed on 20.1.1992 when my statement was recorded in this Court. I have seen my signatures on statement Ex.DC recorded u/S 175 Cr.P.C. The contents of Ex.DC have been read out to the witness in order to apprise him that narration given by him in this Court on 20.1.1992 has not been mentioned in Ex.DC. I did not state in Ex.DA that on 29.8.90 at about 4 p.m., I was present at my house when I heard a commotion in the village that one person had drowned due to fall in the canal and upon this, I along with other covillagers went to the bank of the canal, where my son Kulbir Singh alias Kaka and Harmesh Singh son of Gujar Singh were present near my fields and that they narrated the occurrence at that place. Attention of the witness has been drawn to portion A to A of Ex.DA where it is not so recorded."

He has admitted in the crossexamination that he did not state definitely in Ex.PB that Harmesh Singh saw the actual occurrence. He further admitted that before getting the application Ex.PB typed from the typist, he had consulted his relations before drafting the application Ex.PB.

Let us now take up the motive part of the case. It is a definite case of the prosecution and the witnesses at the trial that the motive for committing the murder of Jagtar Singh on the part of the accused was that deceased Jagtar Singh had illicit relations with Rano daughter of Gurbax Singh accused and for that reason, Gurbax Singh had a grudge against Jagtar Singh. The motive was introduced by both the witnesses Gurdev Singh (PW1) and Harmesh Singh (PW2) later on at the trial. P.W.1 Gurdev Singh did not mention about the motive either in his statement Ex.PA furnished to the police at the first instance on 25.8.1990 or in his application Ex.PB, which he later on, i.e. on 3.9.1990 submitted to the S.S.P., Patiala. A question put to him in this connection in the crossexamination and his reply at the trial shall be relevant. It reads as under :

"I did not state in Ex.PA that my sister''s son Jagtar Singh had illicit relations with daughter of Gurbax Singh accused and for that reason Gurbax Singh had a grudge against the deceased.

I did not state in Ex.PB that deceased Jagtar Singh had illicit relations with the daughter of Gurbax Singh accused and for that reason Gurbax Singh had grudge against Jagtar Singh."

Firstly, it is not proved that Gurbax Singh accused had any daughter named Rano. P.W.1 Gurdev Singh has admitted in his crossexamination that Gurbax Singh had three daughters. The name of his eldest daughter was Lakhwinder Kaur aged about 25/26 years and she was married in village Roorke. He then admitted that name of second daughter of accused Gurbax Singh is Sukhwinder Kaur. She is also married. He has further admitted in the cross examination that the third daughter of Gurbax Singh is aged about 6/7 years and she is known by the name of Raji. He has further admitted in the cross examination the nick name of the girl with whom Jagtar Singh deceased had illicit relations was Rano, but he could not tell the father''s name of Rano. Again said, Rano was daughter of Gurmit Singh who is the real brother of Gurbax Singh. Here in the crossexamination, this witness Gurdev Singh has shifted his earlier stand that Rano was daughter of Gurbax Singh accused. He has now stated that Rano was daughter of Gurmit Singh who is the real brother of Gurbax Singh accused. It has been specifically stated by the accused in his statement u/S 313 Cr.P.C. that he has got no brother named Gurmit Singh at all and had no daughter named Rano.

It has not been proved on the record that Rano was daughter of Gurmit Singh and that Gurmit Singh was the real brother of Gurbax Singh accused. Definite stand of Harmesh Singh P.W. also in his examinationinchief was that Jagtar Singh deceased had loveaffair with the daughter of Gurbax Singh accused and that was told to him by Jagtar Singh deceased. In the cross examination, P.W.2 Harmesh Singh had admitted that Gurbax Singh had five children out of whom three were daughters. The name of the eldest daughter of Gurbax Singh is Lakhwinder Kaur. She is also known by the nick name of Raji. (here the statement of PW2 Harmesh Singh is contradictory with the statement of P.W. Gurdev Singh. Gurdev Singh had stated that the third daughter and not the eldest daughter of Gurbax Singh is known by the name of Raji). Sukhwinder Kaur is younger to Lakhwinder Kaur. Two daughters of Gurbax Singh, according to Gurmit Singh P.W. were married four years prior to the murder of Jagtar Singh. He could not tell the name of third daughter of Gurbax Singh. He could not tell the approximate age of third daughter of Gurbax Singh. In reply to a question asked to him in the crossexamination, he stated that he could not contradict the suggestion that she was aged 7 years or 8 years. He could not say whether she was of 10 years or 20 years. Then he further stated in the crossexamination that Jagtar Singh deceased used to tell him the name of the younger daughter of Gurbax Singh was Rano. Then he stated that he had seen Rano who was aged about 20/22 years. So, even from his own evidence, it is not proved that the third daughter of Gurbax Singh who had loveaffair with Jagtar Singh deceased was named Rano. In the earlier part of his cross examination, this witness has specifically stated that he could not tell the approximate age of third daughter of Gurbax Singh and he could not contradict the suggestion if she was aged 7 years or 8 years, but in the later part of the crossexamination, he stated that Jagtar Singh used to tell him that the name of youngest daughter of Gurbax Singh was Rano. He then further had a cheek to say that he had seen Rano and Rano was aged about 20/22 years. From the statement of this witness a definite impression is gathered that the story of motive has been falsely introduced by the prosecution definitely at a later stage and P.W.2 Harmesh Singh has been made to toe the line of the prosecution but he could not withstand the crossexamination of the defence and thus he has waivered in telling about the name and age of the third daughter of Gurbax Singh and could not fix the identity of Rano and much less that she was the daughter of Gurbax Singh accused who had love affair with deceased Jagtar Singh. His statement on this point is entirely contradictory with the statement of P.W.1 Gurdev Singh. Now perhaps he (PW1) wanted to shift his stand that Rano was the daughter of Gurmit Singh but unfortunately for the prosecution, there is no evidence on the file to indicate that there was any daughter of Gurmit Singh named Rano or that there was any brother of Gurbax Singh accused named as Gurmit Singh.

If there was any truth in the story of motive floated by PW1 and PW2 at a belated stage, it should have attracted attention of the police atleast. We have before us the statement of P.W.5 D.S.P. Surjit Singh on whose enquiry and orders the case was registered against the accused. Surjit Singh D.S.P. has admitted in his crossexamination at the trial that he did not conduct the investigation in order to find out about the number of daughters of Gurbax Singh accused. He also did not try to find out during the course of his investigation as to whether the deceased had any illicit relations with the daughter of Gurbax Singh accused or not.

P.W.6 S.I. Balwinder Singh who recorded the statement Ex.DD of Harmesh Singh (PW2), has also admitted in his crossexamination that he did not record the statement of any person from village Khanpur Relu whether accused Gurbax Singh had any young daughter by the name of Rano.

Later on, emphasis was supplied that Rano was not daughter of accused Gurbax Singh but was daughter of Gurmit Singh brother of Gurbax Singh deceased. There is no evidence on the record from where it could even be inferred that Gurmit Singh was the real brother of Gurbax Singh.

The learned Sessions Judge has tried to make entirely a different story which is neither the case of the prosecution nor of the witnesses PW1 and PW2 Gurdev Singh and Harmesh Singh, respectively. He has simply stated on conjectures as under :

"According to the prosecution, Rano is the daughter of Gurbax Singh accused. It appears that she was the daughter of Malkiat Singh, real brother of Gurbax Singh and not the daughter of Gurbax Singh though it has come in the evidence that Rano was the young girl of Gurbax Singh.

... ... ...

I have to appreciate the evidence that Rano was the daughter of Malkiat Singh who is admittedly the brother of Gurbax Singh."

He then further observed as under :

"No doubt, there is the statement of the prosecution that Rano was the daughter of Gurbax Singh and not of Malkiat Singh. In fact, there is no brother of the name of Gurmit Singh of Gurbax Singh accused. The defence wants to take the advantage of this slip of tongue on the part of the witness of the prosecution.

... ... ...

The best evidence in this case has been withheld. Otherwise, the motive propounded by the prosecution stands proved."

We do not find any force in this finding of the learned Sessions Judge. As stated above, it is not proved on the record that there was any girl named Rano who was the daughter of Gurbax Singh or Gurmit Singh and there was no person named Gurmit Singh who could be the brother of Gurbax Singh. We thus, are unable to agree with this reasoning of the learned Sessions Judge which is based upon conjectures.

Harmesh Singh (PW2) has further invented a new theory in the cross examination that he saw loveletters written by Rano to Jagtar Singh and he saw those letters on 25.8.1990 on the day of occurrence. He has admitted in the crossexamination as under :

"I do not know if those letters were shown to police or not. I did not inform the police that the letters are lying at the tubewell of Jagtar Singh. However, it was brought to notice of police that I saw letters from Rano with Jagtar Singh deceased. Again said, I told to the police that love letters of Rano were lying at tubewell kotha of Jagtar Singh."

Thus, the statement of Harmesh Singh (PW2) also looks to be a cookedup story. If he had seen the letters of Rano lying at the tubewell, he should have immediately taken those letters into possession and should have handed over the same atleast to Gurdev Singh, Mama (maternaluncle) of the deceased, if not to the police. The statement of Harmesh Singh about the loveletters has not been corroborated by any witness at the trial. No reference of loveletters has come in any of the police references. Neither of the witnesses has stated that any such letter was either shown or handed over to them by Harmesh Singh (PW2).

P.W.2 Harmesh Singh has tried to improve his statement at the trial by deposing that he stated before the police that Rachna accused used to meet them (i.e. he himself and the deceased Gurbax Singh) at Gurbax Singh''s house but when he was confronted with his statement Ex.DD, the factum of Rachna accused having earlier visited the house of his coaccused Gurbax Singh was not mentioned. He had stated in his examinationinchief that both the accused were previously known to him and he and Jagtar Singh deceased used to visit the house of Gurbax Singh in village Khanpur Gande and there Rachna used to meet them at Gurbax Singh''s house. This statement has been contradicted by him when he admitted in the crossexamination that he visited the house of Gurbax Singh accused on two occasions only though he could not tell the month, date or the year of his visit to the house of Gurbax Singh. Then he admitted that he did not see Rachna accused at the house of Gurbax Singh on both the occasions. It shows that he was telling a lie and in fact, he neither visited the house of Gurbax Singh along with Jagtar Singh, nor he saw Rachna accused in the house of Gurbax Singh.

He (Harmesh Singh, PW2) then admitted in the crossexamination that he did not see Jagtar Singh at any time in the company of Rano. Another fact may be noted here that though the occurrence took place on 25.8.1990 and D.D.R. No. 29 was registered on the same day and the formal F.I.R. was registered after about a month, i.e. on 21.9.1990, still the Special Report was sent to the Illaqa Magistrate after four days, i.e. on 25.9.1990 which was received by him at 10.40 p.m. on that date.

Thus, the statement of P.W.2 Harmesh Singh which has been recorded at a much belated stage and which is belied by the medical evidence and is also discrepant, selfcontradictory and contradictory with the other prosecution witnesses, cannot be relied upon without sufficient corroboration. He has already admitted that he was a friend of the deceased.

The prosecution has failed to produce the material witness Kulbir Singh son of Gurdev Singh (PW1) who is stated to have been present at the time of occurrence and had informed his father Gurdev Singh about the occurrence on 25.8.1990.

The prosecution has not even produced Gujjar Singh son of Inder Singh, Nathu Ram son of Ram Dahiya Sarpanch, Nasib Singh son of Sadhu Singh, Saun Singh son of Bachan Singh and Jit Singh son of Nikku Singh, residents of village Jakhra, who had accompanied P.W.1 Gurdev Singh when he got recorded his first version before the police in the form of D.D.R. No. 29 on 25.8.1990 as admittedly, these persons had not only accompanied Gurdev Singh but Gujjar Singh and Nasib Singh had even signed the statement along with Gurdev Singh.

The prosecution has thus, not been able to prove its case beyond reasonable doubt.

In view of our discussion made above, the judgment/order dated 2.11.1993 of the learned Sessions Judge, Patiala is quashed and the appeal is accepted. The appellant is acquitted of all the charges framed against him and he is set at liberty forthwith until and unless he is wanted in any other case. Appeal is allowed.