Mehal Singh vs State of Punjab

T.H.B. Chalapathi, J.

This judgment will dispose. of Criminal Appeal Nos. 275SB and 276SB of 1986, as both these appeals arise out of the same judgment.

Liberty is the most cherished human right. These appeals provide a typical example how a citizen can be deprived of the Constitutional guarantee of personal liberty by the delays in disposal of the cases and thus bring the judicial mechanism to ridicule. The appellants served their sentence of five years of imprisonment long before listing of these appeals for hearing. A mere glance at the judgment of the trial Court clearly shows that these convictions cannot be sustained under law.

The appellants in these two appeals were tried by the Additional Sessions Judge, Patiala in Sessions Case No. 7T/1985/4.8.1985 for the offences under Sections 302 and 201 of the Indian Penal Code. The first accused and the complainant Balwinder Singh are brothers of Gurbax Singh while the second accused is the wife of the deceased. Gurbax Singh and his wife Anoop Kaur shifted to Samaria town from their native village. The first accused Mehal Singh also started living in the same town. It is the case of the prosecution that Mehal Singh developed illicit relations with the wife of the deceased Gurbax Singh. Gurbax Singh on coming to know this, complained about this to his other brothers. On the Lohri day, Balwinder Singh visited their house at Samana and found that his brother Gurbax Singh was not available at the house. On enquiry from the accused, they informed that Gurbax Singh had gone to Muktasar and he would return in four or five days. Balwinder Singh again visited the house of the deceased alongwith one Tek Chand when Anoop Kaur confessed to him that she and Mehal Singh have murdered Gurbax Singh and buried him in the house. Thereafter, Balwinder Singh went to the Police Station Samaria and gave a report. On the basis of the said report, the police registered a case in F.I.R. No. 28 dated January 30, 1985. After registering the case the Sub Inspector of Police reached the house of the deceased on the same day and recorded the statements of the accused and recovered the dead body from a room of the residence of Gurbax Singhdeceased. The dead body was sent for postmortem examination. After completion of investigation, he filed chargesheet in the Special Court, Judicial Zone, Patiala. The Special Judge took the case on file and framed charges against both the accused for the offences under, Section 302 read with Section 34 IPC and Section 201 IPC. Both the accused pleaded not guilty to the said charges. Thereafter, the case had been transferred to the Court of Sessions Judge, Patiala in view of the amendment of Terrorist Affected Areas (Special Courts) Act. In order to prove the guilt of the accused, the prosecution examined 12 witnesses and marked documents. On a consideration of the evidence on record, the learned Additional Sessions Judge, Patiala acquitted both the accused for the offence under Section 302 IPC but convicted the accused for the offence under Section 201 IPC and sentenced them to undergo rigorous imprisonment for a period of five years and to pay fine of Rs. 500/ each. Aggrieved by the said convictions and sentences imposed by the learned Additional Sessions Judge, both the accused preferred above appeals through jail.

It is to be seen whether there is legally acceptable evidence to show whether the accused were guilty of the offence under Section 201 IPC. There cannot be any doubt that Gurbax Singh died due to asphyxia as a result of strangulation in view of the evidence of P.W. 1, a Medical Officer who conducted the postmortem examination on the dead body of Gurbax Singh about more than ten days after the death. According to the case of the prosecution the dead body was buried in the house of the deceased consisting of only one room as per plan Ex. PJ by the accused to conceal the evidence of the murder. PW. 3 Balwinder Singh on whose complaint the case was registered by the police in FIR No. (sic) was declared result and was crossexamined by the prosecution. He stated that he did not lodge any report about the occurrence at Police Station Samaria. He further stated that he identified the dead body of Gurbax Singh at the time of postmortem. In the crossexamination by the accused, he stated that the police was searching and making enquiries about the disappearance of Gurbax Singh since 10/12 days prior to the recovery of the dead body. He also stated that Anoop Kaur (A.2) and his mother were also detained in the police station till the time of digging out the dead body. He also stated that A.1 was also detained in the Police Station for 10 or 15 days before recovery of the dead body. It is suggested to P.W. 3 in the crossexamination by Addl. P.P. that he stated in his complaint Ex.PD that Anup Kaur told him that the dead body was buried in the house.

P.W. 9 was said to be present when the statements of the accused were recorded. He deposed that A.1 was asked by the Police if he killed Gurbax Singh and then he old the Police that he and his coaccused had buried the deadbody in the room and told the police recorded his statement. He also stated that A.2 was also present at the time when the statement A.1 was recorded and the Police recorded the statement of A.2 thereafter. PW. 10 was also said to be present when the accused were examined by Police Sub Inspector. According to P.W. 10, A1 told the police that he and his coaccused had buried the dead body of Gurbax Singh in the room of the house. In the crossexamination, he has stated that the Constable took him direct to the place of recovery telling him that he was to join the investigation of a murder case and also said that a dead body was to be recovered and so his presence was required. Thus it is clear that the P.W. 10 was informed by the police that he had to be a witness for recovery that the dead body even prior to the recording of the statement of the accused. P.W. 12 Sub Inspector of Police. He deposed that Mehal Singh (A. 1) was interrogated in the presence of P.Ws. 9 and 10 and he made a disclosure statement leading to the recovery of the dead body. According to him, the dead body was recovered at the instance of both the accused from the residence of Gurbax Singh deceased.

On the basis of the above evidence, the learned Additional Sessions Judge, Patiala convicted both the accused for the offence under Section 201 IPC. According to the learned Additional Sessions Judge, the dead body was recovered at the instance of the accused from the residence of the deceased where he was living. Therefore, according to him this circumstance is enough to convict the accused under Section 201 IPC.

The only question to be decided in these appeals is whether the dead body was covered at the instance of the accused. Ext. PD is the FIR in this case registered on the basis of the statement of Balwinder Singh, PW. 3. In the said statement it has been stated that the dead body was buried by the accused in the room. Thus, it is clear that the investigating officer was aware of the fact that the dead body was buried in the room even at the time of registration of the case. The evidence of P.W. 10 also supports the view that the investigation officer had prior knowledge of the place where the dead body was buried. Therefore, it cannot be said that the dead body was recovered only on the basis of information furnished by the accused. The fact that the dead body was buried in a room was already known to the Police even before the statements of the accused were recorded. The secalled confessional statements of the accused cannot, therefore, be used to show that the investigating officer for the first time came to know of the place where the dead body was buried only from the statements of the accused. To attract Section 27 of the Indian Evidence Act the recovery must be made only in pursuance of the statement of the accused and that where the police had no prior knowledge of the place where the dead body was buried. Therefore, it cannot be said that the dead body was recovered at the instance of the accused and in pursuance of the statements made by the accused. Therefore, the statements said to have been made before the Police cannot be made use of by the prosecution to show that the recovery was effected at the instance of the accused. If the statements of the accused are excluded from consideration, there is no evidence at all to show that the dead body was recovered at the instance of the accused. Therefore, their conviction under Section 201 IPC cannot be sustained. In this context, it is useful to refer to the decision of the Supreme Court in State of Rajasthan v. Smt. Kamla, AIR 1991 SC 967, wherein their Lordships observed as follows :

"Coming to the important piece of the circumstantial evidence, namely, the exhumation of the dead body in pursuance of the statement given by the respondent, the High Court has held that this piece of evidence does not in any way incriminate the respondent with the offence in question for the reason that even before the respondent gave the information to the police about the place where from the dead body exhumed, the respondent''s husband who stands convicted gave the information to the head constable as to where the dead body was buried. After carefully examining the materials placed before us, we are of the opinion that the reasons given by the High Court for discarding the evidence in regard to the recoveries as well the evidence with regard to the exhumation of the dead body do not suffer from any infirmity. On the other hand, those reasons are quite convincing and satisfactory."

Thus, it is clear that the accused have been convicted and sentenced on the basis of evidence which is not admissible under law. The conviction and sentence imposed by the learned Additional Sessions Judge on the accused appellants are, therefore, liable to be set aside and I accordingly allow both the appeals and set aside the conviction and sentence.

Before parting with the case, I must observe that the delay in disposal of the appeals made the accused to undergo the entire period of imprisonment, though the accused were sentenced in the year 1985 and appeals were filed in 1986 in this Court. No bail was granted to the accused and the appeals remained pending in this Court for eight years. The delay in disposal of the appeals caused irreparable loss and agony to the accused resulting in deprivation of their freedom. Though the appeals were directed to be posted for final disposal on June 2, 1986, the Registry has not taken any steps to post the appeals for bearing. I direct the Registry to place this judgment before my Lord the Chief Justice so that suitable instructions may be issued to the Registry to post all such appeals where the convicts are languishing in jails, at the earliest for final disposal.