Balbir Singh and Another vs State of Punjab

Arvind Kumar, J.—The Appellants were tried and ultimately convicted under Sections 302 read with Section 34 IPC for committing the murder of Malkiat Singh by the then learned Sessions Judge, Jallandhar by dint of judgment dated 26.4.2002 and have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each. In case of default of payment of fine, the defaulter was further required to undergo rigorous imprisonment for three months.

The facts, necessary for the disposal of instant appeal be noticed first. Malkiat Singh (since deceased) was having cordial relations with one Joginder Singh, the father of Appellant Balbir Singh. Joginder Singh and his sons owes about Rs. 60,000/- to Malkiat Singh, which they promised to return soon. On 17.4.2000 Malkiat Singh had gone to Ludhiana for some work, but did not return, for which a DDR was got entered by Jaspal Singh, the son of Malkiat Singh, giving details of his father, aged about 70 years. They also apprised the police that despite search, they could not trace Malkiat Singh. On 22.4.2000 the dead body of Malkiat Singh was recovered from village Kadiana. On the same day Mohan Singh, the brother of Malkiat Singh got recorded his statement (Ex. PB) to the police wherein he raised suspicion that the sons of Joginder Singh namely Gurnam Singh, Gurdev Singh and Balbir Singh, who had to return the money to Malkiat Singh and to avoid the repayment thereof, committed the murder of Malkiat Singh and threw the dead body in the river.

On the basis of the aforesaid statement, case FIR No. 82 dated 22.4.2000 was registered under Sections 302 IPC at P.S. Phillaur and investigated upon. The dead body was subjected to autopsy and then handed over to the relatives.

On 3.5.2000 accused Balbir Singh and his relative Chhinda Singh were arrested and on 5.5.2000 during interrogation both of them suffered their disclosure statements Ex. PC and Ex. PD respectively admitting their involvement in the murder of Malkiat Singh and pursuant thereto Balbir Singh got recovered one shirt having one purse of red colour containing some papers, amount of Rs. 12500/- and one gold ring which were taken into police possession vide recovery memo Ex. PE whereas accused Chhinda got recovered one turban, one bed sheet, one parna and pair of shoes which were taken into police possession vide memo Ex. PF. The site plan of the place of recoveries were prepared and thereafter on completion of usual formalities of investigations, final report was submitted against them for trial.

Charge u/s 302 read with Section 34 IPC was framed against them, to which they pleaded not guilty and claimed trial. The prosecution in all examined fifteen witnesses and the gist of their evidence is as under:

P.W. 1 Dr. Amarjit Singh examined the viscera of Malkiat Singh and found autolytic changes in the heart and brain while the bone shows trabecula of dead bone with autolytic marrow tissue.

P.W. 2 Mohan Singh, the author of the FIR deposed that on 17.4.2000 his brother Malkiat Singh had gone to meet Joginder Singh in village Ror, but did not return. On 19.4.2000 he along with Balbir Singh Sarpanch went to village Mor where Joginder Singh told them that Malkiat Singh had come to him on 17.4.2000 and they assured them to return the money and in the evening had gone with Balbir Singh in the tractor trolley. After the registration of the case he joined the investigation. In his presence the accused were interrogated and they suffered their disclosure statements admitting their guilt and further got recovered the articles and cash amount belonging to Malkiat Singh. He attested the recovery memos.

P.W. 3 Dr. Usha Sidhu conducted the post-mortem examination on the dead body of deceased Malkiat Singh. The dead body was decomposed. In her opinion the cause of death was due to asphyxia resulting from smothering.

P.W. 4 Const. Parmodh Kumar and P.W. 5 Const. Ajay Kumar tendered their affidavits in evidence.

P.W. 6 Kirpal Singh Draftsman prepared the scaled site plan at the instance of Mohan Singh.

P.W. 7 Const. Baldev Raj proved the copy of report No. 9 dated 21.4.2000 pertaining to the missing of Malkiat Singh.

P.W. 8 Head Const. Kailash Chander and P.W. 9 Const. Vijay Kumar also tendered their affidavits in evidence.

P.W. 10 Joga Singh son of Mehar Singh claimed that on 17.4.2000 he had gone to Ludhiana from his village; at about 4:30 p.m. when he was crossing the river, he saw Balbir Singh and Chhinda accused with Malkiat Singh, all sitting in the tractor trolley. On 24.4.2000 he learnt that dead body of Malkiat Singh had been found near Satluj river. He suspected the accused and made a statement to the police in this regard on 25.4.2000.

P.W. 11 Harbans Singh deposed that he was acquainted with Joginder Singh and his son Balbir Singh and other sons. They were earlier residing in village Pandhrawar, whom of it he is lambardar. Later Joginder Singh and his sons shifted to Ludhiana and village Raud. He claimed that on 23.4.2000 Balbir Singh and Chhinda accused came to him and disclosed that they had committed the murder of Malkiat Singh, to whom Balbir Singhg had to return the money and after committing the murder by strangulation, they threw the dead body in the river. The accused requested him to produce them before the police, but due to dark he asked them to come next day, but they did not. He told all these things to Mohan Singh and then to the police on 25.4.2000 where his statement was recorded.

P.W. 12 Const. Semson tendered his affidavit in the evidence.

P.W. 13 Joginder Pal son of Dewan Chand deposed that he was having money dealings with Malkiat Singh, who had come to him on 17.4.2000 and after taking a sum of Rs. 7300/- had left in the noon.

P.W. 14 Chander Pal son of Lajpat Rai also deposed that on 17.4.2000 Malkiat Singh had come to him and the sale proceeds of sugar cane of Rs. 5000/- were given by him to Malkiat Singh and he left him with Joginder Pal Chakkwala.

P.W. 15 Inspector Wazir Singh was the investigating officer and deposed about the manner in which he carried out the investigations of the present case.

When examined u/s 313 Code of Criminal Procedure the case of the accused was of their false implication. Both the accused, more or less, took the same stand. According to them Malkiat Singh died under mysterious circumstances and they were named by Mohan Singh, who is inimical to them. Joga Singh and Harbans Singh being the close friends of Mohan Singh were cited as a witnesses. They also claimed that they were arrested on 22.4.2000 and nothing was recovered from them.

In their defence they examined Gulzar Singh son of Jeeta Singh as D.W. 1, who deposed that the accused along with Joginder Singh were taken away by the police on 22.4.2000 while Joginder Singh was released after 3-4 days. He also deposed that one Jeet Singh was the lamberdar of village Pandror and not Harbans Singh (P.W. 11).

The learned trial Court, on conclusion of trial and after analyzing the evidence adduced by the prosecution, held the Appellants guilty under Sections 302 read with Section 34 IPC and sentenced them in the manner indicated above.

We have heard learned Counsel for the Appellants as well as learned State counsel and with the assistance rendered by them, have carefully gone through the records of the case.

The instant case is not an eye witness account, but based upon the circumstantial evidence and there is no direct evidence in this case. It is a settled rule of circumstantial evidence that every incriminating circumstance must be clearly established beyond doubt by reliable and clinching evidence and the evidence so proved must form a chain of events which was the only irresistible conclusion about the guilt of the accused can safely be drawn and no other hypothesis against the guilt is possible.

In the instant case the prosecution laid the foundation of its case against the accused on two circumstances i.e. last seen of deceased in the company of the accused, as per version of P.W. .10 Joga Singh and that of extra judicial confession admitting their guilty before P.W. 11 Harbans Singh on 23.4.2000.

Let us first take the circumstance of extra judicial confession allegedly made by the Appellants before P.W. 11 Harbans Singh on 23.4.2000. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. On a close look to the testimony of P.W. 11 Harbans Singh, we find some amount of artificiality in the evidence of this witness. This witness claimed that on 23.4.2000 both the accused came to him and confessed their guilt. Most of all what makes his evidence doubtful is his not informing the police or to the relation of the deceased about the confession, because after the alleged extra judicial confession by the accused on 23.4.2000, he remained silent and passed on no information to the police. It is only on 25.4.200 his statement was u/s 161 Code of Criminal Procedure was recorded wherein he stated about the alleged extra judicial confession made by the accused. Had he been so reputed person or a vigilant citizen, he must have passed on the information to the police or to the relatives that the accused were the real perpetrator of the crime, but the reasons best known to him, he remained silent. Rather, he very casually let off the accused with the assurance to come on the next day. If a witness professes to know about the incriminating circumstance against a person, it is expected of him to inform the same to the police or the relatives and if he does not inform it without any cogent reason, statement of such a person is bound to lose its value. Further, this witness admitted that on the day when the extra judicial confession was made he was neither lambardar or panch or sarpanch and that he remained lambardar of village Pandhrawar for 5-6 years but left that post about five-six years. He admittedly was neither Sarpanch nor the Ward member of that locality where the accused were residing. Thus, in the circumstances, there was no reason for accused to repose faith in him to seek their protection. In this background, we think it not safe to rely on the theory of extra judicial confession, propounded by prosecution on the strength of the statement of P.W. 11 Harbans Singh.

The next circumstance is of last seen together. In the case in hand, it is say of P.W. 10 Joga Singh that on 17.4.2000 he saw the deceased along with the accused near the river. But his statement does not inspire confidence. This witness admitted that he was not related to the deceased, but knew him being resident of nearby village. Though this witness claimed seeing the deceased with the accused on 17.4.2000, but he did not inform any of the relations of the deceased or anybody. Even after the discovery of dead body of Malkiat Singh on 22.4.2000, nothing was done by this witness. It is only on 25.4.2000 he came out with the version of last seen by way of his statement recorded u/s 161 Code of Criminal Procedure The explanation offered by this witness of remaining out of station is not worth believing. He admitted that he had gone to Ludhiana to meet Gurdev Singh, the father-in-law of his son and thus, it cannot be believed that he had remained there for more than seven days together there. In number of cases, it has been held that only circumstance namely that the deceased was seen in the company of the accused in itself is not sufficient to establish the guilt of the accused. In Inderjit Singh and another Vs. State of Punjab, , it has been held that the sole circumstance that the deceased was last seen in the company of the accused is not sufficient to connect the accused with the crime. Similarly, in the case of Anant Bhujangrao Kulkarni Vs. State of Maharashtra, , it has been held that accused could not be convicted merely on circumstances of last seen and that dead body was found near portion of building occupied by him. Further, in the case of State of Punjab v. Sarup Singh 1998 (2) RCR 417 (SC) the deceased and the accused left together and no other evidence was available and it was held that no inference can be drawn that the accused committed the murder and the order of acquittal was upheld.

P.W. 2 Mohan Singh complainant while lodging the FIR on 22.4.2000 claimed that on 19.4.2000 he along with Sarpanch of their village had gone to the house of Joginder Singh where the latter told them that Malkiat Singh had in fact come to him on 17.4.2000 but at about 4:00 p.m. had gone with Balbir Singh in tractor trolley. It is relevant to mention here that on 21.4.2000 when the police was informed regarding missing of Malkiat Singh, no mention of this fact was made.

Not only this, the manner in which the investigations were carried out, also create doubt about the veracity of the prosecution case. The arrest and recoveries can said to be fabricated. It has come on record that the accused were arrested on 3.5.2000 and pursuant to their disclosure statements made on 5.5.2000, they got recovered the purse, gold ring, cash amount of Rs. 12,5000/- and clothes of the deceased. But this part of the prosecution story totally belies when P.W. 2 Mohan Singh admitted that on 24.4.2000 when he went to the police station accused were in the police custody. Not only this P.W. 14 who is a witness with regard to the visit of the deceased Malkiat Singh to him on 17.4.2000 has admitted in his crossexamination that police had come to him after 4-5 days of 17.4.2000 and the accused were with the police at that time. That be so it can safely be inferred that investigating agency cooked up a story of their arrest on 3.5.2000 and subsequent recoveries effected pursuant to their disclosure statements on 5.5.2000, implicating the accused while foisting upon the recoveries. His statement, if taken from another angle rather supports the plea taken by the accused-appellants that they were arrested on 22.4.2000 and further negatives the circumstance of having made the extra judicial confession before P.W. 11 Harbans Singh on 23.4.2000.

Last but not the least, the learned Defence Counsel has made a reference to the application for police remand dated 4.5.2000 moved by the police wherein there is no mention either of last seen together or extra judicial confession, to contend that the whole story has been cooked up by the police subsequently and has referred to a decision of the Hon''ble Supreme Court in the case of Surender Kumar v. State of Punjab 1999 (1) RCR 164 wherein the factum of having made extra judicial confession before P.W. 6 therein had not been mentioned in remand application and though the High Court observed that all the details were not required to be given in that application, but was not agreed by the Hon''ble Supreme Court on the ground that if really such a confession was made before a witness and told to another witness i.e. the investigating officer, it was expected that in prayer for remand of the accused, the investigating officer would refer the same, for that was the only material on which the prosecution could primarily rely in justification of such prayer. The aforesaid case of Surender Kumar has been followed by this Court in the case of Anil Kumar v. State of Punjab 2008 (1) RCR 982. Learned State counsel has not been able to rebut this argument what to talk of rendering any explanation in this regard.

It is settled principle of criminal jurisprudence that the prosecution is required to prove its case against the accused beyond reasonable doubt. The Court is not required to act on mere suspicion, conjectures or surmises or suspicious circumstances, to bring home the guilt to the accused. In Datar Singh Vs. The State of Punjab, , the principle of law laid down was to the effect that it is often difficult for the Courts of law to arrive at the actual truth in criminal cases. The judicial process can only operate on firm foundation of actual and credible evidence on record. The mere suspicion or suspicious circumstances cannot relieve the prosecution of its primary duty to prove its case against an accused persons beyond reasonable doubt. In K.M. Nanavati Vs. State of Maharashtra, , the principle of law laid down was to the effect that it is the cardinal principle of criminal jurisprudence that the accused is presumed to be innocent and, therefore, the burden lies on the prosecution to prove his guilt beyond reasonable doubt. The prosecution is under legal obligation to prove each and every ingredient of the offence beyond any doubt, unless, otherwise so provided by any Statute.

For the reasons recorded above, the instant appeal is allowed.

The judgment and order of the conviction and sentence of the Appellant is set aside and they are acquitted of the charges framed against them.