Gurnam Kaur vs State of Haryana

K.S. Tiwana, J.

Matu Singh, PW3, resident of village Talwari, District Hissar, was a Siri of Harnek Singh of his village. On the morning of 18th of March, 1984 after irrigating the fields, he started for his house. At about 5.30 a.m. he saw the dead body of Joginder Singh of his village lying in a field near the bundle of sticks. He went to Nachhatar Singh Sarpanch of his village, who went to the police Station, Jakhal and made the first information report at 9.45 a.m. on the same day.

Sub Inspector Gurbachan Singh, PW15 after recording the first information report went to the place where dead body was lying and prepared the inquest report on it. He sent the dead body for postmortem examination. He lifted three moulds from the place of occurrence. He also collected some pieces of garlic, agajhalo, shoes, chappal and cotton sticks and blood stained earth. These were turned into separate parcels and sealed.

Dr. S.K. Batta, PW1, on 19th March, 1984, at 9.30 a.m., performed autopsy on the dead body of Joginder Singh and found the following injuries :

(1) There was incised wound on left side of neck measuring 4 x 11/2" x 11/2" deep. It was extending from a point of 1/2" below and 1/2" in front of angle of left mendible. It was extending backward in an oblique manner slightly downward on the neck. Margins were smooth and regular. Underlying sub cutaneous tissues, muscles, vessels and nerves were cut. External carotid and jogular veins on left side were completely out. There was lot of haemorrhage present around the wound and in deep tissues.

(2) There was an incised wound 2" x 1/2" x 1/2" deep on left side of neck. 1" below injury No. 1.

(3) There was an incised wound 1" x 1/2" x skin deep present on neck half inch below injury No. 2.

(4) There was an incised wound 1" x 1/8" x skin deep present half inch below injury No. 3.

(5) There was a stab wound 1" x 1/4" on left side of chest at 10th space in mid axillary lin. On exploration, there was lot of haemotoma in intervening muscles and tissues and there was a cut 3/4" x 3/4" in the spleen, and pertitional cavity was full of blood stained fluids.

(6) A dark red coloured contusion irregular shaped 2" x 1" on top of left shoulder, was present.

(7) A dark red coloured 11/4" x 1/4": transversely placed was present in middle of back of left arm.

(8) There was a dark red contusion 3/4" x 11/4" on front of right forearm near wrist joint.

The peritoneal cavity was full a blood. There was green discolouration on the illiac fossa and lower abdomen. In the opinion of the doctor shock and haemorrhage caused by the mulhole ante mortem injuries were sufficient to cause the death of Joginder Singh in the ordinary course of nature. The death occurred instantaneously and the post mortem was conducted within 12 to 48 hours of the death.

On 22nd of March, 1984, Gurnam Kaur accused wife of Joginder Singh deceased went to Jaswant Singh PW9, a Lambardar of village Sadhanwas and stated that she had got murdered her husband from Baldev Singh, Maghar Singh and Bhira accused. She, however, did not give any cause for the murder of her husband. Jaswant Singh took Gurnam Kaur accused and produced her before Sub Inspector Gurbachan Singh on the same day, who arrested her. On 25th of March, 1984, Baldev Singh and Bhira accused came to Gurdev Singh PW12 resident of village Talwara, at the bus stop of his village. They confessed before him that they along with Maghar Singh approver PW6 committed the murder of Joginder Singh deceased at the instance of his wife Gurnam Kaur. Both the accused also told him, that they had illicit relations with Gurnam Kaur accused. When Gurdev Singh PW12 was still talking to the accused Gurbachan Singh Sub Inspector PW15 with the police party came there. Gurdev Singh PW12 produced the accused before Gurbachan Singh Sub Inspector PW15, who arrested them.

Baldev Singh accused on interrogation made a statement to the effect that he had kept concealed one spear in the field of the Karnail Singh in the reads and could get the same recovered. The accused took Gurbachan Singh, Sub Inspector and the witnesses to the place indicated in his statement and got recovered the spear. Bhira accused also made a disclosure statement on interrogation that he had kept concealed on Khapra beneath Sarkandas in the field of Karnail Singh and could get the same recovered. He then got recovered the Khapra from the specified place. Both the spear and Khapra were taken into possession and turned into separate parcels and sealed. The Serologist found these two weapons to be strained with human blood. Bellbottom trouser worn by Bhira accused were also taken off his person and sealed.

Maghar Singh PW5 an approver was arrested on 27th of March, 1984. During the course of investigation, on his application, he was given pardon by the Chief Judicial Magistrate, Hissar and his statement was recorded. He was examined as an approver in this case.

At the time the arrest of shoes of Bhira, Baldev Singh accused and Maghar Singh approver were taken into possession. In the presence of Shri Raj Kumar PW14, Executive Magistrate, the accused were made to walk on the prepared ground and foot moulds were taken by the police. These were sent to the Forensic Science Laboratory. The Expert at the laboratory opined that they could come from the same shoes.

At the trial Maghar Singh PW6 approver, resident of village Chular Khurd, stated that he, Baldev Singh and Bhira accused met in the village school. Baldev Singh accused was having a spear and Bhira accused had a khapra. The accused asked him to bring stick so that they could hunt pigs. He brought the stick and in their company he went to the house of Gurnam Kaur accused at village Talwari. Baldev Singh and Bhira told Gurnam Kaur accused that they will that day do the work entrusted to them by her Gurnam Kaur told them that it was a Phag day and nobody will doubt them and promised to send her husband Joginder Singh with them. She then made Joginder Singh to accompany them. All of them then went to the fields. Joginder Singh in the way uprooted certain garlic pieces. Near the heap of cotton sticks Baldev Singh and Bhira accused directed him to assist the deceased to lift the bundle of cotton. The deceased lifted the cotton sticks on his head. Joginder Singh deceased was going down the slope with a load of sticks on his head, when Baldev Singh accused gave him a spear blow on which he (deceased) fell down. Bhira accused gave 3/4 Khapra blows on the left side of the neck of the deceased Joginder Singh. Baldev Singh and Bhira accused asked him to inflict injuries to Joginder Singh and he gave two stick blows to the deceased. After that they returned to the house of Gurnam Kaur and told her that the work entrusted to them had been done and they had murdered Joginder Singh. Gurnam Kaur accused then suggested them and they should make a quick departure after the taking tea. After 8/9 days of the occurrence he contested his guilt to the Sarpanch of his village who produced him to the police. Gurdev Singh PW5 of village Talwari stated that he had seen Bhira accused armed with a Khapra Baldev Singh with spear and Joginder Singh deceased armed with a gandhala, along with a fourth person having a lathi with him moving in the village. Sarup Singh PW10 resident of village Chular Kalan testified that he had intimacy with Gurnam Kaur accused. She requested him to murder Joginder Singh as the latter used to beat her. He refused to act according to the wishes of Gurnam Kaur and disconnected his relations with her. The rest of the witnesses examined at the trial testified to the recoveries etc. which have been noticed in the earlier part of the judgment. The other witnesses were formal in nature.

At the close of the prosecution evidence when examined under Section 313 Criminal Procedure Code, the accused denied the case of the prosecution.

The learned Additional Sessions Judge, Hissar, after trial convicted Bhira and Baldev Singh accused under Section 302 read with Section 34 of the Indian Penal Code and sentenced each of them to undergo imprisonment for life and pay a fine of Rs. 500/. In default of payment of fine each of them has been sentenced to undergo further rigorous imprisonment for one year. They along with Gurnam Kaur accused have also been convicted under Section 120B of the Indian Penal Code for conspiracy and sentenced to undergo rigorous imprisonment for life and pay a fine of Rs. 500/; in default of payment fine they were directed to undergo further rigorous imprisonment for one year. Sentences awarded to Baldev Singh and Bhira were directed to run concurrently.

Vide separate trial Baldev Singh accused have been convicted under Section 25 of the Arms Act for keeping spear without licence and sentenced to under rigorous imprisonment for one year. His sentence under the Arms Act case was directed to run concurrently with the sentence under Sections 302/34 and 120B Indian Penal Code.

Dissatisfied with the order of conviction Gurnam Kaur, Bhira and Baldev Singh have come to this Court in appeal which have been registered as Criminal Appeal No. 495DB1985 (Gurnam Kaur v. State of Haryana), Cr. A. 542DB85 (Bhira v. State) and Cr. A. 152DB86 (Baldev v. State). Baldev Singh has also filed separate Criminal Appeal No. 153DB1986 challenging his conviction under the Arms Act. As the appeals concern with the same case and the witnesses are common they shall be decided together through a common judgment recorded in Criminal Appeal No. 485DB1985 (Gurnam Kaur v. State of Haryana).

The prosecution mainly relies on the evidence of Maghar Singh approver PW6. To support his evidence it has relied on the extra Judicial confession made by the accused, recoveries of the weapons of offence at their instance and also the evidence of Gurdev Singh PW5 who had last seen Baldev Singh and Bhira accused in the company of Joginder Singh deceased.

Approver''s evidence cannot be accepted without material corroboration. As a matter of fact the prosecution has to prove the approver a truthful witness and has also to seek the corroboration of his testimony from unimpeachable and independent source. In the case in hand Maghar Singh PW6 does not get requisite corroboration from the evidence on record. He admitted in his statement that after the occurrence Bhira and Baldev Singh had washed the spear and Khapra. These two accused were arrested on 25th March, 1984 when according to the prosecution, the spear and Khapra were recovered with their pointing out. Inspite of the fact that the weapons had been washed, the prosecution asks the Court to believe that these were stained with human blood. In the presence of the statement of Maghar Singh PW6 it has to be held that there was no possibility of any blood remaining on these two weapons. It may be the investigating officer who had put blood on the weapon before turning these into parcles.

Gurdev Singh PW12 is the person who claims himself to have produced Baldev Singh and Bhira accused before Gurbachan Singh Sub Inspector PW15 after they had confessed to him. According to him, the accused was first taken to the place of occurrence by the Sub Inspector and then the recoveries were effected from them. Ved Ram PW13 states differently. According to him, the accused were interrogated first and recoveries made from them and then they were taken to the place of occurrence. In view of this conflict of evidence of the witnesses who had provided evidence for recoveries and the fact that the weapons of offence have been washed but still they contained stains of human blood cannot be accepted. The evidence of recovery of weapons of offence was a fabrication.

1314. Gurnam Kaur accused went to village Sadhan was to Jaswant Singh PW9 to make a confession. It is not known how she came to repose confidence in a man of different village, then of her own. There may be Lambardar, Panches and Sarpanch in her own village. We do not find any reason for her to travel to a man of different village to lighten the burden of her mind. The reason given by Jaswant Singh PW9 on the face of it is unconvincing. According to him Gurnam Kaur accused used to come to his neighbour Kapoor Singh. He had been her there but never had a talk with her. In the course she would have gone to Kapoor Singh with whom she was on visiting terms, and not to Jaswant Singh PW9. We do not feel impressed by the statement of Jaswant Singh PW9 that she had actually confessed before him. No reason has been put forth by the prosecution for his conduct of the accused.

Similarly, Bhira and Baldev Singh accused who rare residents of village Chular Khurd went to Gurdev Singh PW12 of village Talwari and made the confession. They did not have any confidence in the respectables of their own village of Talwari to which village the deceased belonged. It seems to be strange coincidence that the police which was in search of these accused after the arrest of Gurnam Kaur, came to the Bus Stand at the same time when these accused were making confessional statement to Baldev Singh PW12.

The evidence of extra Judicial confession is inherently a weak evidence. Reliance is difficult to be placed on it unless it is proved to have come in existence in the normal and natural and course of circumstances. We feel reluctant in the circumstances of the case to place reliance on them.

The evidence of Gurdev Singh PW5 that he had seen Bhira and Baldev Singh accused along with a third person in the company of Joginder Singh deceased is not of any help. He does not say how many days before the occurrence he had seen these four persons together. He did not identify Maghar Singh approver. He did not state in which direction these four persons had gone. In view of these circumstances his evidence does not extend any support to the prosecution.

The statement of the approver on the face of it is not impressive. According to him, he was lured by Bhira and Baldev Singh accused on the pretext of hunting pigs and made to join them in murdering Joginder Singh. There was no relationship between him and these two accused which could prompt them to place reliance on the approver. Baldev Singh and Bhira never took him in confidence to commit the murder. They never mentioned about their intention to him even obliquely before the actual assault. There was no necessity of the help of Maghar Singh PW6 as Baldev Singh and Bhira accused could commit the murder of Joginder Singh without assistance as they had actually done. Maghar Singh approver did not join his coaccused in assaulting the deceased. He did not voluntarily cause any injury to Joginder Singh deceased. He was persuaded to cause injuries to the deceased at a time when he had virtually died. The injuries inflicted by these two accused were fatal in nature and the injuries Maghar Singh ascribed to himself were simple. There was no requirement for them to carry Maghar Singh PW6 with them unnecessarily. A reading of his statement at the trial also is not impressive to describe him as a truthful witness.

The recovery of spear which is the subjectmatter of Criminal Appeal No. 153DB1986 has not been accepted by us as indicated from the discussion in the previous paragraphs.

In view of the aforesaid discussion we do not find any grounds to uphold the order of conviction in these appeals. The appeals are accepted, order of conviction are set aside and the accused are acquitted of the charges.