State of Punjab vs Major Singh and Others

Jasbir Singh, J.—This judgment will dispose of Cr. Misc. No. 47-MA of 2007, and Criminal Revision No. 365 of 2007, as both these cases arise out of one and the same incident and judgment. For facility of dictating judgment, facts are being taken from Cr. Misc. No. 47-MA of 2007.

State of Punjab has filed this application with a prayer to grant leave to file an appeal against the judgment dated October 4, 2006, passed by the Sessions Judge, Gurdaspur, acquitting the respondents of the charges framed against them.

Son of the deceased has also filed above said revision with a prayer to reverse the judgment under challenge, convict and punish the respondents as per law.

Respondents were made to face trial for commission of offences under Sections 302/307/34 of the Indian Penal Code. Process of criminal law was set in motion on a statement made by Amarbir Singh (complainant). Briefly stated, it was story of the prosecution that Amarbir Singh was permanent resident of village Butter Kalan. However, at the relevant time, he was residing in Mohalla Dharampura at Qadian. His grand parents were residing in village Buttar Kalan in their ancestral house. On May 21, 2000, in the morning, complainant Amarbir Singh had gone to his Dera to fetch milk, situated in his native village. His grand parents were not available there. He went to his ancestral house at about 6 AM. On opening of the outer door, which was locked from inside, he found dead body of his grand mother Surjit Kaur and his grand father Swarn Singh was lying in an injured condition. He called Lakhbir Singh on his telephone, who came to the spot. The injured was shifted to the Hospital. Motive to commit crime was old existing enmity. Lakhbir Singh was deputed to guard the dead body. The complainant along with Sarpanch Dilbag Singh went to lodge report with the police. On his statement, formal FIR was recorded on May 21, 2000. The Investigating Officer, Tilak Raj, SHO, Police Station Qadian, came in action, went to the spot, prepared rough site plan and after preparing inquest report, sent dead body of Surjit Kaur for post-mortem examination. He also lifted blood stained earth from the spot.

On September 11, 2003, investigation was handed over to Bhagwant Singh, Sub Inspector, who arrested Gurvail Singh, one of the respondents. On his interrogation, he suffered a disclosure statement and got recovered, the weapon of offence, a Datar from near the pond of village Buttar Kalan. It was further case of the prosecution that respondents Major Singh and Balkar Singh had made extra judicial confession, admitting commission of the crime by them, before Dilbag Singh (PW10) on November 12, 2000. In the meantime, Swarn Singh also died. It was case of the prosecution that before his death, his statement was recorded by the Investigating Officer on June 18, 2000, which was thumb-marked by him. Respondents were arrested and on completion of investigation, final report was prepared and put in Court for trial. In due course of time, the case was committed to the competent Court for further proceedings.

It is necessary to mention here that at the time of alleged occurrence, Gurvail Singh, respondent, was in the Army. In response to a letter, written by the police authorities, Army authorities, vide letter dated April 6, 2001, intimated that he would be tried by them. However, subsequent thereto, on receipt of a letter dated April 24, 2003, from the Army authorities, separate challan was prepared against above said Gurvail Singh and the same was submitted in Court for trial, which was consolidated with the pending trial.

Respondents were charge-sheeted, to which they pleaded not guilty and claimed trial. In order to prove its case, prosecution examined PW1 Dr. Jagdev Singh, PW2 Dr. Amandeep Singh, PW3 HC Dhir Singh, PW4 Baljit Singh, Constable, PW5 Dr. P.K.Jain, PW6 Baldev Singh, Inspector, PW7 Amarbir Singh, complainant, PW8 Prem Singh, Head Constable, PW9 Tilak Raj, Inspector, PW10 Dilbagh Singh, PW11 Bhagwant Singh, SI, and PW12 Diwan Singh, Reader, and tendered into evidence report of the Chemical Examiner Ex. PW11/E and PK. On conclusion of prosecution evidence, statements of the respondents were recorded u/s 313 Cr.P.C., wherein they denied all the allegations appearing against them, pleaded innocence and false implication. It was specifically stated by them that they were framed in this case at the instance of PW10 Dilbagh Singh, Sarpanch of the village, with whom they were inimical on account of pending litigation. Gurvail Singh, respondent, took up a stand that on the relevant date, he was present in his Army unit at a distant place and that he had been falsely roped in the present case. Respondents also led evidence in defence.

Trial Court, on appraisal of evidence as led by the parties, came to a conclusion that the prosecution has miserably failed to prove its case beyond a shadow of reasonable doubt. By giving benefit of doubt, they were acquitted of the charges, levelled against them. Hence this application and revision petition.

As per information supplied, respondent No. 1 Major Singh has died.

Shri D.S. Brar, Deputy Advocate General, Punjab, has vehemently contended that the trial Court has erred in acquitting the respondents. By making reference to the statement of complainant Amarbir Singh (PW7) and Dilbagh Singh (PW10), he argued that the guilt of the respondents was proved on record and that they have wrongly been let off by the trial Court. He further argued that medical evidence supports case of the prosecution. Extra judicial confession, made by two of the respondents, was proved on record. Despite lengthy cross-examination, the defence has failed to shatter testimony of PW10, before whom extra judicial confession was made. He further stated that medical evidence corroborates case of the prosecution. He contended that the dying declaration, made by Swarn Singh deceased, has wrongly been discarded by the trial Court merely on the basis of technicalities. He prayed that the judgment under challenge be set aside and the respondents be convicted and sentenced for the offences with which they were charged.

Contentions of counsel for the State have vehemently been opposed by counsel for respondents No. 2 and 3. He argued that there was no motive with the respondents to kill grand parents of the complainant. Further that it was a case of circumstantial evidence and the respondents were roped in merely on the basis of suspicion. He further argued that the prosecution has failed to prove on record that the deceased Shri Swarn Singh made any statement or that the statement, alleged to have been made by him, was properly recorded by the Investigating Officer. There was no question of the respondents making any extra judicial confession before Dilbag Singh (PW10), who was not on good terms with the family. He, being Sarpanch, was opposing a suit, filed by the respondents with regard to Gram Panchayat''s land. Furthermore, he was not a person of means, who could have saved them from clutches of the police. Before the date, when extra judicial confession was alleged to have been made, name of all the respondents had figured in the FIR and one was also arrested. There was nothing on record to show that they ever evaded their arrest. He supported judgment, passed by the trial Court, and prayed that the application and revision petition having no substance be dismissed.

Counsel for the parties heard. Perusal of paper books indicates that it was a case of circumstantial evidence. There is no eye witness to the alleged occurrence. To prove guilt of the respondents, prosecution has placed reliance upon dying declaration, allegedly made by Swarn Singh and extra judicial confession, made by two of the respondents, before PW10 Dilbagh Singh. The occurrence had taken place in the intervening night of 20th and 21st May, 2000. In the morning, Swarn Singh was found lying injured in his house. He was shifted to Civil Hospital, Qadian, then to Batala and thereafter to Kakkar Hospital, Amritsar. There is no evidence on record to show that when he was discharged from the hospital. He was 90 years'' old and died after seven eight months of the alleged occurrence. It was case of the prosecution that his statement Ex. PW12/A was recorded on June 18, 2000. The statement was attested by the D.S.P. on June 18, 2000. It was further case of the prosecution that that statement was produced before the Judicial Magistrate Ist Class, Batala. However, during trial Diwan Singh (PW12), Reader from the above said Court, deposed that the statement Ex. PW12/A was seen by the J.M.I.C. at Batala on May 26, 2000. Above said fact clearly casts a doubt that any such statement was ever made by Swarn Singh on June 18, 2000. The said statement was alleged to have been thumb-marked by Swarn Singh but no attempt was made to prove his thumb-impression. Furthermore, as per evidence on record, there was ample opportunity available with the prosecution to get statement of Swarn Singh recorded before a Magistrate but no such attempt was made.

It has also come on record that on the date of occurrence, i.e., May 21, 2000, deceased Swarn Singh was in a semi-conscious condition. On June 18, 2000, he was declared fit to make statement. Dr. P.K.Jain (PW5), on cross-examination, admitted that even on May 30, 2000, the deceased was conscious. The Doctor has nowhere stated that statement of Swarn Singh was recorded in his presence and the patient remained fit throughout when his statement was being recorded.

In view of facts, noted above, we are of the view that the story of dying declaration was rightly discarded by the trial Court.

So far as extra judicial confession, made before PW10 Dilbagh Singh is concerned, the trial Court has rightly disbelieved the same. Occurrence has allegedly taken place on May 20/21, 2000. Confessional statement was alleged to have been made on November 12, 2000. It was a joint confessional statement and furthermore, before the above said date, name of all the respondents had appeared in the investigation and one of them was also arrested. The respondents never evaded their arrest. PW10 was not a person of means, who could have saved them from any torture etc. Furthermore, it has also come on record that being Sarpanch of the village, PW10 was opposing suit, filed by the respondents, with regard to Gram Panchayat land. Trial Court has also noticed that as per prosecution, confessional statement was made on November 12, 2000. However, statement of PW10 u/s 161 Cr.P.C. was recorded on November 15, 2000. By noting various discrepancies and improvements in the statement of PW10, the trial Court has rightly discarded his testimony.

So far as recovery of weapon of offence on a disclosure statement, made by one of the respondents is concerned, the trial Court has discarded the same on the ground that no independent witness was joined at the time of interrogation of the accused or recovery of weapon of offence. The prosecution has not brought on record report of the Forensic Science Laboratory to show that Datar was stained with human blood.

As per investigation, conducted by the Army authorities, on the relevant date, respondent No. 4 Gurvail Singh was available in his unit.

Trial Court rightly held that there was no motive with the respondents to commit the alleged crime.

Counsel for the applicant has failed to make out a case, which may necessitate any interference by us in the judgment, passed by the trial Court.

Grounds, taken in the revision petition, also fail to persuade us to interfere in the impugned judgment. The view taken by the trial Court is as per evidence on record.

It is a case where in view of evidence on record, it can safely be said that the prosecution has failed to prove guilt of the respondents. Even in cases where two views are possible, after acquittal, in appeal benefit will go to the accused.

Their Lordships of the Supreme Court in Allarakha K. Mansuri v. State of Gujarat 2002 (1) RCR 748 held that where, in a case, two views are possible, the one which favours the accused has to be adopted by the Court. A Division Bench of this Court in State of Punjab v. Hansa Singh 2001(1) RCR 775, while dealing with an appeal against acquittal, has opined as under:

We are of the opinion that the matter would have to be examined in the light of the observations of the Hon''ble Supreme Court in Ashok Kumar Vs. State of Rajasthan, , which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.

Counsel for the State has failed to show that the judgment, under challenge, is perverse or based on misreading of evidence on record. For the reasons, mentioned above, this application and the revision petition fail and the same are accordingly dismissed.