Gurdev Singh vs Labh Singh

M.L. Singhal, J.

Labh Singh, Gursewak Singh and Binder Singh accused were convicted by Additional Sessions Judge, Faridkot vide order dated 11.5.1996 in Sessions Case No. 115 of 29.7.94/FIR No. 41 of 27.3.94 of PS Lambi under Section 364 Indian Penal Code and were sentenced to undergo rigorous imprisonment for 5 years and to pay fine of Rs. 500/ each, in default of payment of fine to further undergo RI for 3 months. At the same time, he acquitted them of the charge under Section 302/404 Indian Penal Code framed against them.

Not satisfied with this order of acquittal of Labh Singh, Gursewak Singh and Binder Singh passed by Additional Sessions Judge, Faridkot acquitting them of the charge under Section 302/404 Indian Penal Code. Gurdev Singh has come up in revision to this Court. Gurdev Singh is the father of Satwinder Singh @ Pappi who was allegedly kidnapped/abducted by them with intent to murder and was actually murdered. The prosecution case in brief is that on 25.3.94 at about 9 PM, Satwinder Singh @ Pappi was present in his house situated in village Lalbai PS Lambi. His mother Smt. Nachhatar Kaur and father Gurdev Singh were also present. All of them had taken their meals at about 8.45 PM. At about 8.45 PM, Satwinder Singh @ Pappi was called and he opened the door in response to that call. Labh Singh, Gursewak Singh and Binder Singh were standing in front of the door of the house and they had one bicycle with them. Labh Singh asked the deceased to accompany him and the other accused and to bring his own bicycle. Satwinder Singh @ Pappi deceased went inside the house and brought bicycle Atlas make bearing No. Ch801725 with him and he accompanied Labh Singh, Gursewak Singh and Binder Singh. Gurdev Singh and Smt. Nachhatar Kaur asked the accused why they were taking their son Satwinder Singh @ Pappi with them. Accused replied that they were taking him in connection with some urgent work. Gurdev Singh and Nachhatar Kaur tried to persuade their son not to accompany the accused but he left with the accused. He did not return during the night. On the following morning, Gurdev Singh went to the house of the accused to know about the whereabouts of the accused and his son and he was told by the members of the families of the accused that the accused, too, had not returned. Gurdev Singh could not find any clue to the whereabouts of his son on 26.3.94. Since after 8.45 PM on 25.3.94, Satwinder Singh @ Pappi was neither heard of alive or dead. On 26.3.94, the panchayat was convened. On 27.3.94 at about 1.30 PM when Gurdev Singh was unable to find out the clue to the whereabouts of his son, he lodged FIR Ex.PD at PS Lambi under Section 363/34 Indian Penal Code. Motive set up was that six months prior to this occurrence, accused Labh Singh surprised the deceased in compromising position with his sister and so that the modesty/honour of his sister did not suffer in the village, Labh Singh did not talk over the matter to any other person in the village. In the FIR, it was recited that all the three accused had abducted Satwinder Singh @ Pappi with the intention to murder him in concert with each other.

On 27.3.94, Inspector Anokh Singh accompanied by complainant Gurdev Singh, Sarpanch Gurcharan Singh and other persons inspected the house of the complainant and prepared the site plan. Satwinder Singh's dead body was found floating in the waters of the canal by the police party and Gurdev Singh when they were going in a Canter along the canal bank in search of the dead body. Dead body was taken out of the canal water which was identified by Gurcharan Singh Sarpanch and Gurdev Singh PWs. Inquest Ex.PB was prepared on the dead body. Injury report Ex.PJ was also prepared. Dead body was taken into possession vide memo Ex.PE. Dead body was sent for autopsy in the company of Gurdev Singh and Gurdial Singh. Inspector Anokh Singh prepared site plan Ex.PK respecting the place from where the dead body was recovered. Dr. Balkar Singh who held autopsy on the dead body on 28.3.94 found that there was a traversely placed ligature mark over the front of the upper most part of the neck 1.5 cm x 2 cm broad extending on both sides upto the angles of the lower jaw. On dissection, clotted blood was found underneath the ligature mark. Doctor opined that the cause of death was asphyxia due to strangulation. In his opinion, the probable time that elapsed between injuries and death was instantaneous. Time that elapsed between death and post mortem was approximately between 48 to 72 hours. Doctor removed shirt P1, pant P2, underwear P3 and steel kara P4 worn on the dead body. He took these belongings of the deceased into possession vide memo Ex.PL.

On 4.4.94, Gurdev Singh complainant (first informant) informed the police that the accused were available in the village. When the police party reached the village, it had transpired that the accused had left the village on a bicycle. Accused were intercepted while pedalling bicycle towards village Thraj. It was Cycle No. CH801725 Atlas make which the accused were pedalling. It was taken into possession vide memo Ex.PG. After investigation, accused were challaned under Section 364/302/404 Indian Penal Code. They were charged under Section 364/302/404 Indian Penal Code by the Additional Sessions Judge, Faridkot. Accused pleaded not guilty to the charge and claimed trial.

At the conclusion of the trial, Additional Sessions Judge found the charge under Section 302/404 Indian Penal Code not proved against the accused. He found the charge under Section 364 Indian Penal Code proved against the accused and sentenced them to undergo rigorous imprisonment for 5 years each and to pay fine of Rs. 500/ each and in default of payment of fine to further undergo rigorous imprisonment for 3 months each. Gurdev Singh has not felt satisfied with their acquittal recorded under Section 302/404 Indian Penal Code by Additional Sessions Judge, Faridkot vide order dated 11.5.96 and, therefore, he has come up in revision to this Court.

I have heard the learned counsel for the petitioner, learned Assistant Advocate General for the State of Punjab and have gone through the record.

In my opinion, no fault can be found with the order of Additional Sessions Judge, Faridkot whereby he acquitted Labh Singh, Gursewak Singh and Binder Singh under Section 302/404 Indian Penal Code and convicted them under Section 364 Indian Penal Code alone as the only evidence which is stated to be suggestive of the commission of the murder of Satwinder Singh @ Pappi by the accused, is the recovery of cycle from them on 4.4.94. According to the prosecution, the dead body of Satwinder Singh @ Pappi was recovered lying in the canal waters on 27.3.94. According to Dr. Balkar Singh when he held autopsy on the dead body on 28.3.94, the time that had elapsed between death and post mortem was 48 to 72 hours. If that was so, death should have taken place either on 25.3.94 or 26.3.94. It is not believable that the accused would keep cycle, allegedly belonging to the deceased, for 910 days. Nobody is so foolish as not a destroy a circumstance which is incriminatory of him and recoiling on him. Human nature is to destroy forthwith the evidence which can recoil upon him and land him in trouble. Assuming that the accused had taken hold of the cycle of the deceased after killing him, they would not make use of that cycle so openly and move on that cycle in the village. It looks unnatural and improbable that Gurdev Singh inserted the number of the cycle in the FIR as belonging to the deceased. No wonder, some cycle number was recorded by the police at random in the FIR and thereafter they procured cycle bearing that number and planted it upon the accused so as to connect them with the murder of Satwinder Singh @ Pappi.

There is no evidence of any person who allegedly saw the accused strangulating the deceased and eventually throwing him in the canal. There is no evidence of any person that he saw the accused and the deceased together on 26.3.94 i.e. shortly before he was strangulated and thrown in the canal. There is no evidence that Satwinder Singh was in the company of the accused immediately before he was strangulated and thrown in the canal. No wonder, the deceased had parted company with the accused either on 25.3.94 or 26.3.94. Prosecution should have ruled out the possibility of the deceased having not parted company of the accused on 25.3.94 or 26.3.94 by very inspiring, dependable and reliable evidence. In this case, however, there is no such evidence at all. From the mere recovery of cycle from the possession of the accused on 4.4.94, which appears to be an act of padding on the part of the police, it cannot be held that the deceased was murdered by no other than the accused and by none else but by the accused alone.

Prosecution case is based on circumstantial evidence: there being no direct evidence. In the case of Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622, their Lordships of the Hon'ble Supreme Court considered various cases of the High Courts as well as the decisions of the Apex Court and laid down the following principles in paras 151 to 153 regarding appreciation of circumstantial evidence :

"151. It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.

A close analysis of the decision reported as Hanumant v. State of Madhya Pradesh, 1952 SCR 1091 would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established.

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

It may be noted here that this Court indicated that the circumstances concerned `must or should'' and not `may be'' established. There is not only a grammatical but a legal distinction between `may be proved'' and `must be or should be proved'' as was held by this Court in Shivaji Sahebrao Bobade v. State of Maharashtra, 1973(2) SCC 793 : AIR 1973 SC 2622 where the following observations were made :

"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a Court can convict and the mental distance between `may be'' and `must be'' is long and divides vague conjectures from sure conclusions."

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty.

(3) the circumstances should be of a conclusive nature and tendency.

(4) they should exclude every possible hypothesis except the one to be proved, and

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.

These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence."

Faced with this position, learned counsel for the petitioner submitted that where the prosecution has established strong motive against the accused and also the fact that the accused were last seen together in the company of the deceased and the recovery of the cycle belonging to the deceased from the possession of the accused and the further fact that after the disappearance of the deceased, the accused continued absconding; these are circumstances strong enough leading to the only hypothesis that the accused were guilty. In support of this submission, he drew my attention to Rachhpal and another v. State of Punjab, 1985(1) Recent Criminal Reports 388 . May be at the cost of repetition, it must be stated that in this case, there is no evidence that the deceased was last seen in the company of the accused. There is no evidence that the dead body was recovered at the instance of the accused. There is no evidence that anybody saw the deceased being strangulated by the accused and thrown in the canal. Accused were never seen carrying the dead body of the deceased and going towards the canal. Recovery of cycle from the possession of the accused on 4.4.1994, allegedly belonging to the deceased, is the only evidence which according to the prosecution should induce me to hold that there had been miscarriage of justice on the part of the Additional Sessions Judge, Faridkot and he should have found the murder charge to have been proved against the accused. In my opinion, this sole circumstance is highly insufficient to suggest the accused to have committed the murder of Satwinder Singh @ Pappi.

For the reasons given above, this revision fails and is dismissed.

Revision dismissed.