Prem Singh vs State

A. P. Chowdhri, J.

Prem Singh (27) was convicted by the learned Sessions Judge. Hisar, under Section 302, Indian Penal Code, and sentenced to life imprisonment and a fine of Rs. 1,000/ by order dated 331988. In default of payment of fine, he has further sentenced to rigorous imprisonment for three months. Through this appeal, the accused has challenged the conviction and the sentence.

The appellant was a neighbour of the family of Jarnail Singh PW1 at village Boda, Police Station Ratia, District Hisar. Jarnail Singh was posted as SubInspector in the Police Department at Delhi. His wife Joginder Kaur PW4 was living at village Boda with her two sons Baldev Singh deceased (25) and Harvinder Singh (22). The appellant was on visiting terms with the family of Jarnail Singh; His sister sometimes worked at their house and frequently visited them. In fact the appellant and his sister were treated like children by Joginder Kaur PW4.

On April 21, 1987. the appellant went to the house of Joginder Kaur at about noon time and played with the children there. He disclosed that he had acquired an occult art whereby he by recitation of some mantra given to him by his Guru, could double the gold and silver ornaments. Amongst others, this information was passed on to Joginder Kaur PW4. At about 4 or 5 p.m. the same day the appellant called Joginder Kaur to his house through his sister and told Joginder Kaur that particular day happened to be auspicious and he would be glad to do anything in order to double her ornaments that day. Joginder Kaur, however, told him that she would avail of the offer only in the presence of her son Baldev Singh. Baldev Singh returned from the fields in the evening. The appellant also came to their house soon afterwards. Joginder Kaur disclosed about the claim made by the appellant with a view to seeing the reaction of Baldev Singh. Baldev Singh deceased told his mother that there was no harm in relying on the appellant as he was their close neighbour. Joginder Kaur then brought out four pairs of earrings, three pendants and two Karas, all made of gold. The accused told them that he would recite the mantras at some other place in the presence of Baldev Singh. Both the appellant as well as Baldev Singh left the house of the latter at about 7/8 p.m. along with the ornaments.

At about 11 p.m. the appellant came and enquired from Joginder Kaur PW4 as to whether Baldev Singh had returned to the house or not. Joginder Kaur replied in the negative, whereupon the appellant told heir that after the ornaments had been doubled. he had sent Baldev Singh to his house and assured Joginder Kaur that Baldev Singh would be coming shortly. Joginder Kaur kept waiting for Baldev Singh to return the whole night. The accused again came to her house in the morning to enquire about Baldev Singh and on being told that Baldev Singh had not turned up, he told Joginder Kaur that she would suffer the loss of a member of her family or some evil consequence will follow in case she published the fact that Baldev Singh had not come back home.

On April 22, 1987, a relation of Joginder Kaur, namely, Bhal Singh came. She sent him to Delhi to apprise her husband that her son Baldev Singh had left along with the accused and had failed to return. Bhal Singh left for Delhi on April 23, 1987, and he returned along with Jarnail Singh PW1 the same evening. Jarnail Singh made a search of his missing son amongst the relations and in the neighbouring villages. Ultimately he proceeded to PS Ratia. On the way he met S.I. Krishan Dutt PW11 at Rattangarh where he made statement Exhibit PA on April 25, 1987, at 8,20 p.m. The statement was forwarded to PS Ratia where formal FIR Exhibit PA/1 was recorded under Sections 364 and 420, Indian Penal Code. SI Krishan Dutt came to the village. Boda and searched for the accused there as also in the nearby villages Nangal and Bhamanwala etc. in vain, he also recorded statements of Joginder Kaur PW4 and Dhara Singh PW3

On April 30, 19 87, SI Ram Kishore PW12, S.H.O. Police Station Ratia, came to the village in connection with the investigation. Balwant Singh PW2, Member Panchayat of the village, produced the appellant before him. He was taken into custody and interrogated. The accused made a disclosure statement and in pursuance thereof got recovered shoes Exhibits P1 and P2 from the bushes near the bank of Bhakra canal and the gold ornaments of Joginder Kaur which had been buried in a dilapidated kotha of his house, in which he kept his cattle. The shoes were identified by Jarnail Singh as belonging to his son Baldev Singh. The jewellery was identified by Joginder Kaur as belonging to her. It was a so identified by Lachhman Singh PW5, Goldsmith, who had prepared the ornaments for Joginder Kaur and also some for the wife of Baldev Singh about four years earlier. The Investigating Officer then deputed SI Krishan Dutt PW11 to try to trace the dead body of Baldev Singh as also the cycle borrowed By Baldev Singh and the appellant from Karam Chand PW6 before going towards Nangal on the evening of occurrence. Jarnail Singh PW1 and his brother Ajaib Singh accompanied SI Krishan Dutt for identifying the dead body in case it was found. With the help of an iron hook, search for the cycle was made near the place where, according to the accused, the deceased had been pushed into the canal. Cycle Exhibit P12 was found. It was identified by Karam Chand PW6. Enquiries were made with regard to the dead body from passers by some graziers disclosed that they had seen a bloated dead body of a Sikhgentlemen floating ahead of Gulawala Head. The dead body was found floating there in the area of village Khuiyan. it was taken out and was identified by Jarnail Singh and his brother to be of Baldev Singh. Inquest proceedings were held and the dead body was despatched for postmortem examination. The offence was converted into one under Section 302, Indian Penal Code.

Dr. Gulab Singh PW10 conducted postmortem examination 5 p. m. on April 30, 1987. He noted the age of the deceased as about 25 years male. The length of the dead body was 6 feet 2 inches. Evidence of putrefaction was present all over the body. There was a cocacola colour thread around the waist and a metallic Kara on the right wrist. Skin was peeling off the body. Another thread of light blue colour was tied around the waist. The upper and lower limbs were partially separated from the body from the flexors side. Scalp hair were missing. Face was distorted slightly. Tongue was protruding out. There was a contusion on the chin. Eyeballs were soft and protruding out. The body was giving foul smell. Lips were swollen and averted. Frothy reddish blue mixed with mucus was coming out of the mouth and nostrils on pressing of the chest. Rectum was protruding out. Hair were absent. The doctor gave the opinion that the cause of death was asphyxia as a result of drowning, which was sufficient to cause death in the ordinary course of nature. The probable duration between injury and death was within a few minutes and between death and postmortem. it was from one week to ten days. According to the doctor, the dead body was identifiable only by close relations and Jarnail Singh father and Ajaib Singh, uncle of the deceased, had identified the dead body.

At the trial, the prosecution led evidence to establish the following circumstances :

(i) Motive

(ii) Last seen

(iii) Extrajudicial confession

(iv) Incriminating recoveries, and

(v) Medical Evidence.

The plea of the accused was one of denial. He led no evidence in his defence.

On a careful consideration of the evidence, the learned trial Court held the case proved beyond reasonable doubt against the appellant, who was accordingly convicted and sentenced, as stated above. Hence, this appeal.

Shri Atul Lakhanpal, learned counsel for the appellant, has taken us through the material parts of the evidence. We have, however, perused the entire record.

Shri Lakhanpal contended that the conduct of Joginder Kaur PW4 was so highly unnatural that no reliance could be placed on it. According to her, the appellant left along with her son Baldev Singh at about 7/8 p.m. on April 21, 1987, and her son failed to return the whole night and yet the did not raise hue and cry and only quietly sent a word to her husband on April 22, 1987, Bhal Singh having actually left for Delhi on April 23, 1987. We have given our earnest consideration to the contention. In the facts and circumstances of the case, we find that Joginder Kaur PW4 was steeped in ignorance and superstition. She was utterly credulous. She gave her ornaments as also some ornaments of her daughterinlaw and. therefore, there is nothing extraordinary in believing that she not only believed the appellant in the first instance that he could double her ornaments by some occult art, but also believed that if she published the fact that her son had failed to return, she would be visited with some evil consequences. It will be recalled that the accused met her on April 21, 1987, at 11 p.m. and again on the morning of April 22, 1987, assuring her that. Baldev Singh would return. On the second meeting on the morning of April 22, 1987, the appellant administered a veiled threat to Joginder Kaur not to publish the fact that her son was missing. The further assurance which was available to Joginder Kaur was that the appellant had not made himself scare.

Shri Lakhanpal next criticized the evidence of Joginder Kaur PW4 on the ground that while she had not given the weight, in grams and milligrams of various ornaments to the police, nor had her husband provided those details, her statement recorded under section 61, Code of Criminal Procedure, nevertheless contained those details. This appears to be a case of some over zealousness on the part of the Investigation Officer or Jarnail Singh PW1 husband of Joginder Kaur, who is himself a Police Sub Inspector. Evidence of witnesses cannot be evaluated. from. such narrow angles. The correct approach. in our view. is to see whether the testimony of the witness was true in so far as the main facts of the prosecution version were concerned. Considered in this light, we are satisfied that the testimony of Joginder Kaur PW4 inspires confidence and it does not deserve to be rejected out of hand simply on the ground. that the statement recorded by the police gives precise details of the weight of various ornaments which she admits having not been given by her.

It may be pointed out that Joginder Kaur treated the appellant. as well as his sister in the same way as she treated the other children in the house and no plausible reason could be brought on record why she would cook up an unfounded story to involve the appellant. The recovery of gold ornaments at the instance of the appellant, apart from several other facts, lends valuable corroboration to her testimony. Learned counsel for the appellant was unable to show us any material on record or circumstances which would render the testimony of Joginder Kaur in the least doubtful. The testimony of Joginder Kaur goes a long way to establish the motive as well as evidence regarding `last seen''. On the second aspect of last seen, there is independent and corroborative evidence of Karam Chand PW6 from whom Baldev Singh along with the appellant borrowed the bicycle in order to go to Nangal to ask someone to help him in harvesting

Learned counsel for the appellant assailed the recovery of shoes and the gold ornaments on the ground that both the places from which the aforesaid recoveries were made were accessible to all and sundry and, therefore, the recoveries did not provide any incriminating material against the appellant. It will be recalled that the shoes were recovered from some bushes near the canal bank and the gold ornaments were recovered from a portion of the house of the appellant which had fallen down. where the appellant keeps his cattle and which has no shutters. We find no force in the contention. The determining factor is whether the articles recovered could be found without prior knowledge as to the place where they had been hidden. In Lachhman Ram v. State of Orissa, 1985 SCC (Cri.) 263 the looted, articles were concealed under a stone under a bridge. They were recovered at the instance of the accused. It was contended that the articles were recovered from a place accessible to all and sundry. The contention was rejected by the Supreme Court and it was held that such articles could not be said to have been recovered from a place accessible to any ordinary person without prior knowledge, and, therefore, evidence regarding such recovery was not open to doubt.

It was next contended that identity of the dead body recovered in this case had not been established. It was argued that the dead body was in an advanced stage of putrefaction. Its skin had peeled off and it was, therefore, not possible to identify the same. Dr. Gulab Singh PW10 who conducted the postmortem examination. stated that the dead body was identifiable though by close relations and that the father and uncle of the deceased had identified the dead body of Baldev Singh. The other evidence to fix the identity of the dead body consisted of the identification of the Kara in the right wrist and the string found on the waist of the dead body which had been made from a piece of cloth of which Joginder Kaur PW4 had herself stitched her shirt. A note made by the learned trial Court at the time of recording supplementary statement of Joginder Kaur PW4 is to the effect that the colour and texture of the cloth of the shirt of Joginder Kaur PW4 and the string made out of a piece of cloth were the same. The other factors which help in determining the identity are the probable age, sex, and length of the body. Learned counsel for the appellant pointed out that according to the prosecution case, the deceased was pushed into the canal by striking the handle of the bicycle on his back. If that were so, the deceased would have received some mark of violence on his back. The argument is altogether misconceived, because the skin had peeled off from a good part of the body. It was, therefore, not possible to find any mark of violence on the back of the deceased.

1718. Learned counsel next argued that the dead body was discovered at a distance of 4/5 KMs from the place where the deceased is believed to have been pushed into the canal and it was found naked. There was no explanation as to how the dead body came to be in the state it was found. The facts that Baldev Singh was pushed into the canal where he died of drowning have been brought out on the basis of an extra judicial confession made by the accused. It is up to him to disclose the facts in detail as to what happened between him and the deceased. The possibility cannot be ruled out of his having kept back certain portions of the actual incident. It is possible that the cloths may have been removed in order to make the identification of the dead body more difficult and the clothes may have been disposed of by burning etc. Viewed in this context, we do not find the fact of the dead body being found, without clothes as an infirmity in this case. The fact that the dead body was found at a considerable distance downstream stands explained as water in the Bhakra canal was running and it must have carried the dead body downstream. 18. In the facts and circumstances of the present case, we are satisfied that the evidence of Balwant Singh PW2 with regard to the extrajudicial confession deserves acceptance. Balwant Singh PW2 is a member of the Panchayat of the village. He as well as the appellant originally belonged to another village called Urdan in district Amritsar. Both had shifted to village Boda later. This was, therefore, a special bond of affinity Both Balwant Singh as well as the appellant had been meeting each other almost daily. This was not a case of blind murder in the sense that nobody knew anything to connect the crime with a certain individual. The appellant had taken away Baldev Singh along with the ornaments from his house with the consent of his mother. In fact, the appellant had been assuring her that she need not worry and that Baldev Singh would come back home safe and sound. In these peculiar facts, the appellant could easily anticipate pressure being mounted against him and, therefore, there was compelling reason for him to go and make a confession to Balwant Singh. In the confession, the appellant furnished necessary details to Balwant Singh. In the crossexamination directed against Balwant Singh all that could be suggested was that while he was an Akali, the appellant was a Nirankari and on that account Balwant Singh had falsely deposed against him. The point of significance is that no animosity could be suggested. The facts that Balwant Singh and appellant originally belonged to the same village in district Amritsar and had later shifted to this village and were frequently meeting each other, have not been challenged in crossexamination. In the absence of any material brought out in crossexamination, we do not find any good reason to doubt his testimony.

A perusal of the statement of the appellant under Section 313, Code of Criminal Procedure shows that there is a wholesale denial of the various incriminating facts and circumstances appearing in evidence against him and the only reason suggested why the case has been made against him is that while he was a Nirankari and worshiped Baba Hardev Singh Nirankari, this was not to the liking of Balwant Singh who was an Akali. This fact of wholesale denial of various facts and circumstances also lends corroboration to the chain of circumstances established by the Prosecution on record.

For these reasons we find no merit in the appeal, which is accordingly dismissed.