Joginder Singh vs State of Punjab

R.L. Anand, J.

This appeal filed by Joginder Singh and Balwinder Singh is directed against the judgment and order dated 10.10.1996 passed by the Court of Additional Sessions Judge, Amritsar who convicted the appellants under Section 304/34 IPC and sentenced each of them to undergo R.I. for ten years and a fine of Rs. 2,000/ each or in default to undergo further R.I. for six months each.

The brief facts of the case are as follows :

Complainant Shri Mukhtiar Singh was owner of truck No. PCJ 9948. Balwinder Singh, accused was driver of this truck and Iqbal Masih deceased, sister''s son of the complainant, was Cleaner. On 17.12.1995, the said truck was hired by Joginder Singh, appellant whose sugarcane was loaded in the truck from village Koka Kotli and it was taken to Sugar Mill situated at village Bhala Pind. After loading sugarcane both the accused and Iqbal Masih came to Ajnala and from there Iqbal Masih cleaner took the `Sweater'' and `Loi'' from the house of the complainant Shri Mukhtiar Singh and then all the three went to Sugar Mill Bhala Pind. On 18.12.1995 in the morning at about 4 A.M. Gopal Singh father of Driver Balwinder Singh, accused, Joginder Singh, accused and one Devinder Singh came to the house of complainant at Ajnala and told him that Iqbal Masih had died all of a sudden in the premises of sugar mills and his dead body is lying in the yard. Then the complainant alongwith his cousin brother, Tarlok Singh and uncle Darshan Singh and other members of his brotherhood accompanied aforesaid Joginder Singh, Gopal Singh and Devinder Singh to the yard of the sugar mills where the dead body of Iqbal Masih was lying at a distance of 2''/3'' from truck No. PCJ 9948 and Balwinder Singh accused was sitting near the dead body. Many other tractor trolleys loaded with sugar cane were also standing there. Balwinder Singh, accused also told the complainant that Iqbal Masih has died all of a sudden. The complainant identified his dead body and then after informing the Deputy Officer they took the dead body to Ajnala in truck No. PUF 196. The relations of the complainant were called for the purpose of cremation. The complainant did not suspect anybody and did not find any visible mark of injury on the body of the deceased but he requested the police to get the post mortem examination done from a Doctor. The statement of the complainant was recorded by S.I. Gurbachan Singh who had completed the inquest report and then the dead body was forwarded to the Hospital for post mortem examination. The post mortem report disclosed that there were about 13 injuries on the body of the deceased and the doctor opined that all the injuries except injuries No. 1, 3 and 4 were ante mortem and were sufficient to cause death in the ordinary course of nature. Consequently, on the statement of the complainant a case under Section 304 IPC was registered against the accused appellants. During investigation the Investigating Officer recorded the statement of Mohinder Singh before whom the accused are alleged to have made extra judicial confession stating that while loading the sugarcane in the truck at Koka Kotli some sugar cane fell down and as a result of which an altercation took place between Joginder Singh accused and Iqbal Masih, deceased and that in the yard of the sugar mill they had killed the deceased. One Lal Masih was also examined who had stated that he had overheard the accused talking to each other that they gave kick blows to the deceased as a result of which he suddenly died. The rod with which the injuries were alleged to have been given by the accused was also recovered from Joginder Singh, accused/appellant when both the accused were arrested in this case. Rough site plan of the place of occurrence was also prepared.

After the arrest of both the accused and after completion of all other formalities both the accused were challaned in the Court of Ilaqa Magistrate under Section 304/34 IPC. Copies of the documents were supplied to the accused and vide commitment order dated 20.3.1996 both the accused were committed to the Court of Sessions to which they pleaded not guilty and claimed trial.

In order to prove the charge, the prosecution examined PW1 Mukhtiar Singh who is complainant in this case and as per his statement Iqbal Masih, the deceased was Mohinder Singh''s sister''s son and was working as a cleaner on the truck in question. He further deposed that on 17.12.1995 Driver Balwinder Singh and his sister''s son Iqbal Masih went to village Rawopur Koka Kotli for loading the sugar cane of Joginder Singh. After loading sugar cane they went to Ajnala. After leaving Balwinder Singh, Driver in the truck, Iqbal Masih came to his house at about 5.00 p.m. and took sweater and a loi from his house and then Iqbal Masih and Balwinder Singh took the loaded truck to sugar mill at village Bhala Pind. Further it has been stated by this witness that on 18.12.1995 at about 4.00 a.m. Gopal Singh, father of Balwinder Singh driver and Joginder Singh, accused and Devinder Singh, Driver of truck No. 4377 came to his house and told him that his sister''s son Iqbal Masih has died all of a sudden and his dead body is lying at village Bhala Pind in the courtyard of the sugar mill. This statement of Mukhtiar Singh does not lead us anywhere to the fact that deceased was last seen by him in the company of Shri Joginder Singh and Balwinder Singh. Shri Mohinder Singh, PW is the principal witness of the prosecution on whose testimony the conviction has been relied upon. He is a witness of extrajudicial confession. As per his statement on 21.12.1995, when he was present at his house, both the accused came to him and told him that on 17.12.1995 they loaded truck of Joginder Singh from village Koka Kotli and while loading the sugar cane in the truck some sugar cane fell, as a result of which there was altercation between Joginder Singh, accused and Iqbal Masih, Cleaner of the truck. Thereafter they took the truck to Ajnala after loading the same with sugar cane and that both the accused remained present in the truck while Iqbal Masih went to the house of his maternal uncle from where he had brought a loi and one sweater. Iqbal Masih had some altercation with the accused. Balwinder Singh accused told that he gave a kick blow on the testicles of Iqbal Masih whereupon Iqbal Masih became unconscious and accused Joginder Singh took out an iron rod from the truck and gave rod blows on various parts of the body of Iqbal Masih and that Iqbal Masih died at the spot. Further it has been allegedly confessed by both the appellants that they have no previous enmity with Iqbal Masih and also requested him to produce them before Rajasansi Police. PW3 is Lal Masih. His testimony is to the effect that on 21.12.1995 when he was going from Amritsar to village Bhala Pind in a bus, he dropped at village Bhala Pind. He was taking tea at tea stall where both the accused were taking tea and they were inter se talking with each other saying that they had no ill will against Iqbal Masih but all of a sudden they gave him kick blow as a result of which he died. It was also stated that he overheard that accused had no ill will against Iqbal Masih but all of a sudden they gave him kick blows and Joginder Singh took out the rod from the truck and gave rod blows to Iqbal Masih as a result of which he died. PW4 is Rishi Ram, Draftsman who simply prepared rough site plan Ex. PF. Constable Manjit Singh is PW5 and his statement is of formal nature as he arranged post mortem examination on the body of Iqbal Masih. He produced the clothes which were handed over to him by the Doctor after post mortem examination. PW6 is Iqbal Singh who is an employee of the Ajnala Cooperative Sugar Mills, Bhala Pind and as per his statement on 17.12.1995 the truck No. PCJ 9948 entered in the mill loaded with sugar cane and token No. 1442 was issued regarding the entry of this truck in the mill. Dr. A.S. Thind, PW7, conducted post mortem examination on the body of Iqbal Masih and found as many as 13 injuries on his person which are detailed below :

"1. Abrasion 1 x 0.4 cm in the front of the left leg. Epitheliasation was complete. About 7 to 8 days old.

Contused abrasion 2x2 cms. 10 cms. below the right patella.

Abrasion 6x4 cm in front of the right leg post mortem in nature.

Abrasion 2x0.5 cm in the lower part of the right leg, post mortem in nature.

Contused area 8x6 cms in front of left thigh. On dissection there was collection of blood.

Contused area 8 to 4 cm on left thigh in its upper part. On dissection there was collection of blood.

Abrasion 2x0.1 cm on the lower eye lid on right side horizontally placed.

Abrasion 4x1.2 cm in the middle of the chest.

Two linear abrasions with contusions 7 cm x 0.4 cm vertically placed 1 cm apart near the left nipple.

Contused abration 5x2 cm on the posterior part of posterior axillary fold on left side.

Abrasion 6x1 cm, 2 cm above and 2 cm lateral to the preceding injury.

Abrasion 4x3 cm, 1 cm below and one cm lateral to injury No. 10.

Two abrasions 4 x 1.8 cm and 4x2 to 3 cm adjacent to each other on the posterior lateral aspect of right poplipeal fossa."

Doctor has further stated that on dissection of scrotum, the right testis shows contused area, left testis was however normal. Further Sternum shows fracture in the middle at the level of the nipple, third, 4th, 5th, 6th, 7th, 8th ribs on left side shows fracture in the mid clevicular plain. This doctor issued post mortem report Ex.PJ and stated that injuries were ante mortem in nature and were sufficient to cause death in the ordinary course of nature. The time elapsed between injuries and death was within six hours and between death and post mortem about 3648 hours. PW8 is Daya Singh, Inspector who is Investigating Officer while Inspector Gurcharan Singh is yet another Investigating Officer and has appeared as PW9.

The statements of both the appellants were recorded under Section 313 Cr.P.C. and all the incriminating circumstances appearing in the prosecution evidence were supplied to the accused. The accused denied those circumstances and pleaded that it was a false case. The plea of Shri Joginder Singh is as follows :

"I had not gone alongwith sugar cane. My son had gone but he returned in the evening and informed me that their turn of weighment may come in the afternoon. I have been falsely involved. I was kept in illegal detention."

Balwinder Singh in is statement recorded under Section 313 Cr.P.C. before the trial Court stated as follows :

"I am innocent. During the days of the occurrence I was not working as a truck driver. Previously I worked with the complainant. On 8.12.1995 I came to know about the death of Iqbal Masih. Many persons went to the house of Mukhtiar Singh. Mukhtiar Singh had gone out of station. He came later on. I have been named falsely in this case. There used to be many trucks parked in the yard. Many persons were questioned and detained on suspicion. I was kept in illegal detention and then involved in this case"

When called upon to enter their defence, the accused did not lead any evidence.

Learned trial Court as per the story of the prosecution convicted the appellants in the manner as indicated above.

I have heard Shri B.P.S. Dhillon, Advocate appearing for the appellants and Shri Randhir Singh, Deputy Advocate General, Punjab, appearing for the State and with their assistance I have gone though the record of the case.

It is a case of circumstantial evidence. So far as the position of law is concerned, it is well established that in such like cases the prosecution is first obliged to prove each fact on which it wants to rely in a conclusive manner and each fact so proved must lead to only one hypothetical view that the appellant has committed the offence. If the prosecution fails to discharge its initial burden, as stated above, the benefit of doubt has to go to the appellants. As already stated above, the prosecution in this case relies upon two factors. Firstly, extra judicial confession allegedly made by the appellants before PW 2 Mohinder Singh and the overheard statement allegedly made by the appellants which was heard by Lal Masih, PW3. The question now arises for determination is as to whether these two circumstances alone are enough to sustain the conviction of the appellants.

So far as the extrajudicial confession is concerned we know that it is a weak type of evidence. It is easy to coin but difficult to rebut but again we have to see the probability whether the appellants were in a position to make such extra judicial confession and whether they actually made it before Shri Mohinder Singh PW2 when the accused had committed the offence in security and where there is no witness as per the story of the prosecution, why the appellants would be so bold to make out a confession and that too before a person who was not an authority. There is not an iota of evidence on record that the appellants were having previous enmity with the deceased. Also, there is no evidence on record that Shri Mohinder Singh was the authority who could render assistance through the police for the benefit of the appellants. In these circumstances, the testimony of Shri Mohinder Singh cannot be accepted. Both the appellants hail from Ajnala which is satellite town in the Amritsar district having large population where there are Sarpanches, Lambardars and other respectable. PW2, Mohinder Singh hails from village Memmadpur. There are Lambardars and Sarpanches. The distance between the two villages is 8/10 kms. The village of the accused falls within the jurisdiction of Ajnala police station while that of this witness within the jurisdiction of Police Station Lopoke. The story of Mohinder Singh is that the appellants allegedly came to him on 25.12.1995 at about 5/6 p.m. and that he produced the appellants before S.I. Daya Singh on 26.12.1995 at about 8/9 a.m. Is it true ? Rather it appears that the testimony of Mohinder Singh is introduced by the Investigating Officer. In this regard, I refer to the statement of Daya Singh, PW8, who deposed that on 25.12.1995 he recovered iron rod from the possession of Joginder Singh. Thus the contradictory statement of Daya Singh PW8 and PW2 Mohinder Singh leads to two inferences. Firstly, that none of the appellants made any extrajudicial confession on 25.12.1995 nor on that day the recovery of the iron rod was effected at the instance of Shri Joginder Singh. Once the testimony of Shri Mohinder Singh PW2 is taken out from the record by holding him as a liar and that his statement must in all probabilities be that no extrajudicial confession was made before him, then we are left with only one circumstance i.e. the over heard statement allegedly heard by PW3 Lal Masih. The testimony of this witness also cannot be believed on the ground of his being a chance witness. As per his statement, he was coming to village Bhala Pind in a bus and when he dropped at village Bhala Pind, he was taking tea at tea stall where both the accused were allegedly present and were taking tea and they were inter se talking with each other that they had no ill will against Iqbal Masih but all of a sudden they gave him kick blows as a result of which he died. Joginder Singh was also saying that he took out the rod from the truck and gave rod blows to Iqbal Masih and he died. The conduct of Lal Masih cannot be accepted. He is an interested witness as he has admitted in his cross examination that Iqbal Masih was uncle''s son from the brotherhood. He further deposed that he attended the cremation of Iqbal Masih and if that was so he ought to have made the statement before the police on 21.12.1995 or on the next date. The statement of Shri Lal Masih to the police is to the effect that he heard the talk of the accused on 18.12.1995 at about 11.00 a.m. whereas in the trial Shri Lal Masih deposed that he heard the talk on 21.12.1995. Even if it is assumed for the sake of arguments that Shri Lal Masih heard the accused talking inter se, this circumstance alone will not be enough to maintain and sustain the conviction of the appellants. Iron rod was also not sent to the office of Chemical Examiner. It was not recovered at the instance of Joginder Singh under Section 27 of the Evidence Act. It is also not believable that Joginder Singh will keep the incriminating weapon with him for days together so that it can be easily produced before the police. Thus it can be safely concluded that iron rod has been planted just to corroborate the story of the prosecution.

As already stated at the outset that each circumstance on which the prosecution wants to rely has to be proved as a matter of fact, and the proved fact must lead to a conclusion that the appellants were guilty for the offence. In this case, the circumstances which have been gathered and relied on by the prosecution are too weak so as to maintain conviction of the appellants.

Resultantly, I accept the appeal, set aside the judgment and order of the trial Court. The appellants are acquitted of the charge framed against them. The fine, if realised, shall be refunded to them. The appellants are in custody. Let an intimation about the acceptance of this appeal be sent to Superintendent, Central Jail, Amritsar, so that the appellants may be released forthwith if not wanted or arrested in any other case.