Baggar Singh vs State of Haryana

M.L. Koul, J.—The appellant Baggar Singh (hereinafter referred to as the accused) stands convicted and sentenced for an offence under Sections 302 392 read with Section 397 of the Indian Penal Code, by the Addl. Sessions Judge, Sirsa, vide order dated 8 -7 - 1994 and ordered to undergo imprisonment for life and to pay a fine of Rs. 2000/- u/s 302, 1PC, in default of payment of fine to further undergo rigorous imprisonment for two years. For the other offence he is ordered to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs. 1000/-; in default of which further ordered to undergo rigorous imprisonment for one year. However, both the sentences were ordered to fun: concurrently against the accused.

The brief facts of the case giving rise to this appeal tare that on the statement of the complainant (P.W. 6) Krishan Kumar, who is resident of village Mandi Dabwali the First Information Report No. 319 dated 29-11-1991 was lodged at Police Station Sadar, Dabwali, with the allegation that he had purchased a tractor bearing registration No. PUT-9916 with trolley from one Teja Singh son of Jangir Singh resident of village Pathrala, Punjab, about 8/9 years prior to the date of occurrence. The said Teja Singh was holding back the registration and other papers with him for he had purchased the tractor in question on loan and certain instalments, with regard to the cost of the tractor were not yet cleared by him.

On 27-11-1991 his driver namely Jagga Singh went on leave for 2/3 days under the pretext that his wife was in a family way. On 28-11-1991 at about 4 p.m. the complainant and his uncle Jagdish Rai (now the deceased) were present on the shop when a young sikh having small beard with wheatish complexion about 30/40 years old speaking Punjabi came at his shop. He told the1 complainant that he was resident of village Dhaban (Rajasthan) wanted to sell his Narma (cotton) at Mandi Dabwali and desired to hire his tractor. The complainant declined to provide him his tractor for the reason that his driver was on leave. However, the accused told him that he himself was a tractor-driver and had to bring cotton from his village to Dabwali as he did not want to sell his Narma crop at Sangharia where he was in debts with a commission agent. The complainant declined to provide him his tractor but his uncle Jagdish Rai (deceased) agreed to do so. He along with his uncle went with the accused on the tractor sitting on the mudguard. At a distance of about 2 kms. from village Dhaban on the kacha way, the accused told them that Rajasthan Border was only 5/6 kms away from there and he had to bring his men who were busy in irrigating the fields, He wanted one of them to accompany him and his uncle agreed to do so. The accused had taken the handle with him for starting the tractor. Yet only two killas of land was covered by the accused, he heard some noise "Maar Diya-Maar Diya" Bachao-Bachao, from his uncle Jagdish Rai. He immediately rushed to the spot and noticed that accused inflicted 2/3 handle blows on the head of Jagdish Rai, who had fallen on the ground on account of the injuries sustained by him from the accused: The complainant ran away out of fear because he was threatened by that man to be killed if raised a voice or narrated the incident to anybody. Thereafter, that man (the accused) escaped with the tractor and the trolley. When he found that Jadish Rai was dead, he went to village Dhabani and met Balwinder Singh Sarpanch to whom the incident was narrated. The said Sarpanch" despatched two persons namely Jasbir Singh, and Satbir Singh with him and assured him that he would inform the police. Thereafter, he went back to the place of occurrence along with Jasbir Singh and Satbir Singh and remained there for the whole night near the dead body of the deceased. Since till morning neither 1 the police visited the spot nor the Sarpanch reached there therefore, he went to village Lohgarh on foot and waited for the bus. As the bus service was not available due to strike of bus drivers, therefore, he went to village Saktikhera and on the''T'' point police party met him and he made his statement, Ex. PJ with the police, recorded as FIR in the matter. Thereafter, the police swung into action and on completion of the investigation, the accused was challaned before the competent Court of law who after trial convicted and. sentenced him as said above.

This appeal is preferred by the accused from jail and so no formal grounds for consideration have been taken up in the appeal.

Heard Mr. M.S. Guglani, learned counsel; for the accused-appellant and Mr. N.K. Sanghi, Deputy Advocate General, Haryana, also had a, thoughtful consideration over the record on the file.

On the consideration of the facts of the case based on the evidence recorded in the matter it emerges and is found that the whole case revolves around the statement of the complainant P.W. 6 who happens to be the real nephew of the deceased Jagdish Rai. He is the pivotal witness in the matter in lodging the delayed report, witnessing the occurrence, being the assumed owner of the tractor and having witnessed the disclosure statement and recovery of tractor, weapon of offence and other things as well.

According to him the occurrence took place in the fields near village Dhaban where the accused inflicted 2/3 handle blows on the head of Jagdish Rai, which were noticed by him in the torch light when on the cries of his uncle Maar Diya Maar Diya-Bachao Bachao, he reached on the spot. According to this witness when they reached near village Dhaban.on the tractor, the accused desired to bring some persons from Rajasthan the border of which was only 5/6 kms away from the place of occurrence. His uncle agreed to accompany the accused but after driving the tractor for about 2 killas he attacked the deceased Jagdish Rai and killed him.

There is no proof on the file that the accused in any manner was associated, related or acquainted with the cbmplainant or the deceased. It looks'' amazing arid unlikely that the complainant and his, uncle.(deceased) Jagdish Rai readily agreed to accompany an unknown person who belongs to the other State (Rajasthan) without any previous acquaintance or relationship of any kind whether business or blood. There is no evidence led by the prosecution to establish that the tractor in question actually belonged to the complainant or his uncle. It has come in his deposition that he had purchased it from one Teja Singh resident of Punjab some 8/9 years back. There is neither any documentary evidence nor the ocular evidence of Teja Singh to prove or establish that actually the tractor belonged to said Teja Singh who had sold it to the complainant verbally. No proof is available even otherwise to show that Rs. 40,000/- were paid by the complainant to said Teja Singh by way of a price for the said tractor and a receipt as a matter of proof was obtained by him from the said owner.

It was argued by the learned Deputy Advocate General, Haryana Mr. Sanghi that in the State of Haryana there are number of tractors which are being held by many people on verbal sales and such tractors are being plied by said prospective owners without any formal documents. May be such a system is prevalent in the State of Haryana that a good number of people are holding and plying the tractors on verbal sales without any valid documents or the registration certificates in their possession but such a breach of law in any manner does not legalize their ownership over such tractors.

In the instant case there is no proof nor the evidence of any villager available to show that the said tractor was held by the complainant P.W. 6 as owner for the last 8/9 years and he was using the same for hire purposes as well for ploughing the land of the others. No efforts have been made by the prosecution to eximine any witness in this regard. Neither the said Teja Singh, who had sold the said tractor to the complainant has been examined as a witness in the case to prove on the record that he had sold the tractor to the complainant tor Rs. 40,000/- 8/9 years back.

We are afraid to believe that on simple request of an unknown person belonging to the otherStat''e both the complainant and the deceased got motivated to hand over the tractor to him and not only that they also accompanied him to go to his village. It is in this background of the case to be seen and assessed as to whether delay of 20 hours in lodging the first information report is fully explained or not.

The complainant has made a statement that soon after his uncle was killed at 8.30 p.m. he went to village Dhaban to inform Balwinder Singh Sarpanch about the incident. The said Sarpanch provided him two people to guard the dead body and told him that he would in form the police himself about the murder. The complainant waited with those two people named Satbir Singh and Jasbir Singh for the arrival of the police for the whole night. Once in the morning he realised that neither the police nor the Sarpanch reached on the spot, he went on foot to lodge the report with the police but the buses were out of the roads due to strike of the drivers. In such circumstances, the delay of 20 hours was there. One could easily agree and understand that what the complainant says is correct provided two of the people who stood with him for the night to watch the dead body had appeared as witnesses on behalf of the prosecution to corroborate the statement of the complainant that they were really sentby the Sarpanch to guard the dead body because the complainant was afraid that he might be killed by the accused. Both these witnesses for unknown reasons have been given up by the prosecution and the presumption under the law is that if examined they would have spoken against the prosecution. In the same manner the Sarpanch Balwinder Singh has been given up by the prosecution without any reason and the presumption drawn is that if examined he was likely to speak against the prosecution.

In Ishwar Singh Vs. State of U.P., , wherein their Lordships of the Supreme Court have held that "it is well established that witnesses essential to the unfolding of the narrative on which the prosecution is based must be examined. Hence, where some of the eye-witnesses for the unfolding of the prosecution case are kept back without giving any explanation, the non-examination of these witnesses acquires a special significance in view of the discrepancy between the F.I.R. and the version of the occurrence given by the prosecution in Court. The Court has to take into account these circumstances in considering the probabilities of the case.

The criminal cases are not to be decided on the preponderance of evidence but each circumstance of the case pleaded by the prosecution is to be established on cogent and unassailable evidence. The prosecution case appears to be a cock and bull story that some unknown person came to the shop of the complainant and demanded his tractor for carriage of cotton crop. As the driver of the complainant was not available and the accused told them that he himself was a tractor driver, they provided him the tractor and also accompanied him on the tractorto his destination. On the way the deceased was done away by the accused when the complainant had come down from the tractor only two bighas away from the place of occurrence. In all circumstances it appears to be a blind murder and somehow or the other the accused was involved for the murder of the deceased twenty hours after the incident when the complainant got twenty full hours for deliberation to lodge the report with the police against the accused. The accused was not known to the complainant or the deceased earlier and there was no relationship of any kind or a business transaction between them which became sore as a result of which murder of the deceased was committed by the accused. The reason for the motive taken by the prosecution is that after the tractor came into the possession of the accused, his intentions became bad and, therefore, in order to commit robbery he did away with the uncle of the complainant.

According to the prosecution the accused was in possession of an iron handle and once he could kill the complainant''s uncle, he would not have spared the complainant to leave behind the only eye-witness to prove the case of murder against him. Both the complainant and the deceased were empty handed whereas the accused is a well built man of 32 years old having a strong iron handle in his possession could easily kill both of them. Besides, it is the case of the prosecution that the tractor was found in an abandoned place and the trolley was recovered from the house of the accused under the heap of cotton sticks and the place was known to the accused only. In this regard reliance is placed on the disclosure statement of the accused. The said statement of the accused is not admissible in evidence because the accused in his disclosure statement has not only disclosed that he knows the place where the trolley was kept by him but had confessed before the police in custody that he killed the deceased in order to take away the tractor and had put the trolley concealed under the heap of cotton sticks. It also appears quite amazing that the tractor was abandoned by the accused in the fields and instead took the trolley with him to his house. Once the tractor was abandoned by the accused then as to how he carried the trolley to his house is not explained by the prosecution.

In no manner the trial Court has discussed any evidence or provided any reason to show as to how the prosecution has established that it was the accused and the accused alone who committed the murder of the deceased and that too in the night. No doubt the prosecution examined the President of Bus Association to say that on 29-11-1991 the buses were off the roads due to strike, therefore, the complainant was not able to travel 17 Kms. distance to lodge the report with the police in time. Such aversion is not acceptable for the fact that the complainant immediately after the incident reported the matter to the Sarpanch some two Kms. away from the place of occurrence and came back and stayed with the dead-body with two other people for the night. Even if it is accepted that nobody either from the police or the Sarpanch came on the spot for hours together to ascertain as to who had killed the deceased even then the complainant did not cover the distance of 17 Kms. to lodge the report with the police without causingdelay of hours together. It is strange that the complainant did not reach the police station but met some police officer at the T''-point and lodged the report with him who also took some time in recording the statement and then in turn got the FIR registered with the police station. By no stretch of imagination one could say that the delay was incidental and the complainant could not report the matter to the police within reasonable time. In all circumstances of the case it is shown and proved that the delay was deliberate. It was a blind murder and the compainant after due deliberation and consultation reported the matter to the police naming the accused as murderer of his uncle.

It is an established principles of law that extraordinary delay in lodging the FIR is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvements and embellishments and set up a distorted version of the occurrence.

It is one of basic principles of the Criminal Jurisprudence to observe that if 99 guilty people go unpunished no injustice is caused but a great injustice would be caused if one innocent person is punished.

One''s judicial conscience is not satisfied in the above circumstances of the case to hold that the murder of the deceased was committed by the accused. He had no motive to commit the murder for stealing away the property by robbery which does not at all belong to the complainant or his uncle or was proved to be in their possession at the time of occurrence. Hence, in all the probabilities and circumstances of the case, the prosecution had not been able to establish the case against the accused who is languishing in jail for the last more than six years. Hence his appeal is accepted and is acquitted of the charge of murder and robbery for which he stands convicted and sentenced by the trial Court.