Labh Singh and anr. vs State of Haryana

S.D. Bajaj, J.

Fatherinlaw Rulia Singh and motherinlaw Smt. Akki of the author of the First Information Report named Niranjan Singh were both killed by someone around 10.30 P.M. on 24th July, 1986 inside their house in village Amani, Police Station Tohana, district Hissar. Granddaughter of the two deceased named Kumari Mohinder Kaur aged about 11 years who was allegedly sleeping by their side at the relevant time detected it on her sudden awakening on hearing gurgling sound emanating from their throats and raised alarm attracting Pohla to the place of occurrence. After seeing injuries on the person of the two deceased caused with a sharpedged weapon, Pohla along with Gurcharan Singh and Surjit Singh came to the house of Niranjan Singh and apprised him of it around 12.30 A.M. on 2571986. Niranjan Singh in turn came to the Police Station, Tohaus and lodged the First Information Report therein at 1.30 A.M. on the same day. The special report of the occurrence reached the Illaqa Magistrate at 8.15 A.M. on 25th July, 1986.

During the course of investigation it came to be known that the two accused; who are real brothers inter se had a grievance against deceased Rulia Singh for his having not stood by them to advance them loans on all the three occasions of their need and accused Labh Singh was seen by Mohinder Kaur P.W. 13 hovering around the place of occurrence shortly thereafter. Other circumstances appearing against the two accused were extrajudicial confession allegedly made by them before Thakar Singh P.W 16, disclosure and discovery of the weapon of offence and the ring belonging to the deceased at the instance of Labh Singh accused from inside his conscious possession and identification of the ring aforesaid by Mohinder Kaur P.W. 13 as one belonging to Rulia Singh deceased.

On being charged for the commission of murder of the two deceased under section 302 of the Indian Penal Code principal accused Labh Singh and for the commission of the offence under section 302 read with section 34 of the Indian Penal Code in connection with the same murder coaccused Gurmail Singh both pleaded not guilty and claimed to be tried. Principal accused Labh Singh also pleaded not guilty to the charge under section 404 of the Indian Penal Code for dishonest misappropriation of the ring belonging to Rulia Singh deceased at the time of his death on 24th July, 1986; which was recovered from his conscious exclusive possession on 30th July, 1986.

Vide its impugned judgment dated 11th January, 1988 learned trial court convicted both the appellants of the commission of the offence under section 302 read with section 34 of the Indian Penal Code for having murdered both Rulia Singh and his wife Smt. Akki in pursuance of their common intention shared by them both and sentenced each one of them separately to undergo imprisonment for life and to pay Rs. 500/ as fine. In default of payment of fine each one of the two coaccused was ordered to undergo individually rigorous imprisonment for a further period of six months. Feeling aggrieved therefrom both the convicted accused have jointly filed Criminal Appeal No. 137DB of 1988 in this Court.

We have heard Shri Ajay Lamba, Advocate, for the appellants, Shri S.V. Rathee, Advocate, for Haryana State assisted by Shri Baldev Singh, Advocate, for the complainant party and have carefully gone through the entire evidence on record.

It would not be out of place to mention here that uptil 1.30 A.M. on 25th July, 1986 when the First Information Report came to be recorded the author of the First Information Report stated before the police, "Some unknown accused persons have committed the murder of my motherinlaw and fatherinlaw. Till now we have no suspicion on anybody." The noose around the neck of the accused was fitted by the police on the basis of the statement made by Kumari Mohinder Kaur P.W. 13 who states, "About more than one year ago I was sleeping along with my NanaNani in the compound in my house when at about 10.30 P.M. I heard a noise. Again said I heard gurgling of my maternal grand father or mother. I got up and put water in the mouth of my Nana (maternal grand father) and I saw that there were injuries on the neck and face. Then I saw my maternal grand mother and found injuries on her face and neck. In the morning I could recollect about two months earlier prior to the occurrence Labh Singh accused had come to my Nana to borrow a sum of Rs. 2000/ for the muklava ceremony of his sister. My maternal grand father gave him Rs. 1400/ and he came back to us after about 15 days and asked for a sum of Its. 1000/ on the plea that the muklava ceremony proved a bit expensive. The said amount was given by my Nana to Labh Singh. Entry was made regarding these amounts by the accused himself in the Bahi maintained by my Nana. After about 4/5 days both the accused came to my Nana and asked for a sum of Rs. 600/ to meet expenses regarding birth of male child to sister of Labh Singh. My Nana asked Labh Singh to put the land on mortgage for sale. Labh Singh told my Nana, he shall do so in the coming month of Assad (June), on which my Nana refused the amount on credit. On 24786 both the accused came to my Nana and asked for a sum of Rs. 100/ as their brotherinlaw (Gainer) has come but my Nana refused to do so, at which Gurmail Singh accused had threatened that they will not pay the amount taken on credit and shall deal with properly with my Nana. On the day of murder I saw accused Labh Singh roaming about near our Batora. From this I am convinced that the accused are the murderers of my NanaNani. My Nana used to wear a gold ring which was found missing after murder. I saw the said ring after three months at Tehsil headquarter, Tohana. The same was shown to me by Tehsildar. Ex. P. 2 is the same ring which my Nana used to wear." Merely because she saw Labh Singh accused roaming about near the Batora of the house of the deceased on the day of occurrence, therefore, she concluded that the two accused have murdered her NanaNani. There is no tangible basis for this conclusion by the child witness. In the first instance Labh Singh alone was seen by her and, therefore, there was no occasion for the witness to include coaccused Gurmail Singh amongst the suspects, Then again she did not make a mention of it to Nirajan Singh, author of the First Information Report, when she saw him at 12.30 A.M. on 25th Jaly, 1986 before he lodged the First Information Report. The inference given out by the witness is obviously an afterthought unworthy of credence.

Then again the person refusing to advance loan to the accused was Rulia Singh and not his wife Smt. Akki. The appellants could (if at all) nurse a grudge against Rulia Singh alone and there was no earthly reason for their killing Smt. Akki as well. It would thus appear that there is no legally sustainable basis for inculpating the two accused for the murder of two deceased on the basis of motive evidence and the suspicion voiced by Kumari Mohinder Kaur.

Adverting to extrajudicial confession alleged by Thakar Singh P.W. 16, to have been made by the two accused before him around 8.30 A.M. on 30th July, 1986, it must be said that Gurmail Singh never made it. It was only Labh Singh who did the talking and said, Labh Singh further disclosed that thereafter he and Gurmail Singh started for the house of Rulia Singh at about 10.30 P.M. Labh Singh further disclosed that thereafter reaching the house of Rulia, he scaled the wall and reached the compound of the house gave injuries to Rulia with Kulhari and thereafter to Akki and both died. He also disclosed that lie removed the golden ring from the finger of Rulia and ran away from the rear door where Gurmail was present and thereafter disclosed to Gurmail that he had killed the old man and the old lady." Besides the operative part aforesaid, the witness also asserts, "About more than one year ago, around 8.30 A.M., both the accused standing in the court came to my house in my village. I asked them the purpose of their visit and they replied that they had come for a very important purpose. Labh Singh accused had told me that they had monetary dealings with Rulia Singh deceased and that 11/2 months prior to their murder, they had gone to the house of Rulia to borrow a sum of Rs. 2,000/ but he gave them only Rs. 1400/ They again went to him, 10115 days later to borrow a sum of Rs. 1000/ which was given by Rulia. They again went to him after 6/7 days to borrow Rs. 600/ which Rulia refused. Rulia Singh deceased also told the accused to sell the land already under mortgage with him and he will give them the amount as desired. Accused told Rulia Singh that they will get the sale deed effected only in the month of Assad, so the money was not given by Rulia. Labh Singh further told me that he and Gurmail Singh again went to Rulia Singh on the day of the murder and demanded a sum of Rs. 100/ from Rulia which he refused to pay. They had an altercation with Rulia because he had grabbed their land and was now refusing to give them money on credit. At that time Gurmail Singh also told me that he had gone to Rulia Singh deceased to sell one killa for a sum of Rs. 10000/. The said killa of land was already with mortgage with Bhoop Singh of Bhodia Khera, though the same had since been got redeemed from the mortgagee but the entries had not been made regarding it in the revenue record. Rulia Singh on this ground refused to purchase the killa offered by Gurmail Singh accused. Labh Singh further told me that he felt strongly offended at the refusal of Rulia Singh to give money on credit and suggested to Gurmail Singh that Rulia Singh should be done away with. Thereafter, Labh Singh told me that they both went to their house and from there to Tohana then to Sunam where some case was pending. He further disclosed that on return the next day in the evening, they made enquiries about the suspects in the murder case and when they were told that they were the suspects, they absconded to escape arrest. They further pleaded that I should produce them before the police. The entire facts were disclosed by Labh Singh first and then corroborated by Gurmail Singh." The witness having not disclosed the reasons for the two, accused reposing confidence in him and blurted out evidence of motive as part of the extrajudicial confession allegedly made by the two accused to him. no evidentiary value can be attached thereto. Speaking in this behalf their lordships of the Supreme Court observed in Rahim Beg v. State of U.P., A.I.R. 1973 S.C. 343; Lakhanpal v. The State of M.P., A.I.R. 1979 S.C. 1620; Mukhtiar Kaur v. State of Punjab, A.I.R. 1980 S.C. 1871 and Heramba Brahma and another v. State of Assam, A.I.R. 1982 S.C. 1595 :

"There was no history of previous association between the witness and the two accused as may justify the inference that the accused could repose confidence in him. In the circumstances, it seems highly improbable that the two accused would go to Mohd. Nasim Khan and blurt out a confession. It is also not clear as to why the two accused should try to run away on seeing the police party coming with Mohd. Nasim Khan if Mohd. Nasim Khan had gone to the police at the request of the accused.

The evidence shows that witness was not known to the appellant and, therefore, it is difficult to believe that the appellant would make a confession to a person who was not known to him at all. It is wholly unsafe to accept the evidence of the extrajudicial confession of the appellant.

It is not at all understandable as to why the appellant should suddenly decide to make a confession of all persons to Hari Singh. The witness admits in crossexamination that he did not know the neighbour of Mukhtiar Kaur nor had he ever been to the house of Mukhtiar Kaur. He further observed that never before Mukhtiar Kaur had come to him.

In these circumstances it is difficult to believe that the appellant will go suddenly to make a confession.

Witness speaks of an extrajudicial confession by three accused persons having simultaneously made and when reproduced in his language, it makes no sense. It is dangerous to rely upon such extrajudicial confession even if the witness''s credentials are not in question. The question that agitates is what language was used by each accused, in what words confession was made and whether each used the same language ? Evidence of the witness does not reproduce the words used by each accused.

Held : High Court wrongly accepted the evidence on this extrajudicial confession without examining the credentials of PW2 Bistriram without ascertaining the words used; without referring to the decision of this Court to be presently mentioned wherein it is succinctly stated that extrajudicial confession to afford a piece of reliable evidence must pass the test of reproduction of exact words, the reason or motive for confession and person selected in whom confidence is reposed."

The ring Exhibit P. 2 had the duck emblem and the words R.S inscribed on it. Identifying witness Mohinder Kaur only states that this ring a lone was shown to her by the Tehsildar and she identified it as belonging to and worn by her Nana Rulia Singh before his death. P.W. 1. Tehsildar Rampal Singh Dahia alleges mixing of ring Exhibit P. 2 with three other rings before bringing it to the witness for identification. Unless the Tehsildar could assert that mixed three rings besides Exhibit P. 2 also had some distinguishing identification marks, no evidentiary value can be attached to identification of ring Exhibit P. 2 in the course of identification parade conducted by the witness.

Discovery of Kulhari Exhibit P. 10 in pursuance of the disclosure statement Exhibit DD vide recovery memo Exhibit PEE is of no avail to the prosecution for connecting accused Labh Singh with the crime attributed to him because according to the expert medical opinion of Dr G.D. Mittal P.W. 7 after receipt of injury No. 1 the deceased could not have cried or uttered any sound while Mohinder Kaur P.W. 13 claims to have heard gurgling sound on sudden awakening and put water into the mouth of the deceased. Expert medical opinion thus conflicts with the ocular account of the occurrence. There is nothing brought on record to connect the two accused with the commission of the crime attributed to them. In almost similar circumstances in Ram Narain v. State of Punjab, A.I.R. 1975 S.C. 1727 their lordships of the Supreme Court observed, "Where the evidence of the witnesses for the prosecution is totally inconsistent with medical evidence or the evidence of the ballistic expert, this is most fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case. Where the direct evidence is not supported by the expert evidence then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence."

In result Criminal Appeal No. 13DB of 1988 succeeds and is allowed. Both the accused are given the benefit of doubt and acquitted.