Balwan Singh @ Lal vs State of Punjab

A.L. Bahri J

Balwant Singh aged 22 years resident of village Kariyal challenges his conviction and sentence recorded by Additional Sessions Judge, Ferozepur, on 7.2.1987. He was sentenced to imprisonment for life and to pay a fine of Rs. 2000 or in default to undergo further rigorous imprisonment for six months under section 302, Indian Penal Code, for committing the murder of Mohinder Singh,

The report to the police was lodged by Jora Singh, resident of village Pokri Butteran although Mohinder Singh was resident of village Kariyal. Jora Singh was informed by Malkiat Singh and, on that basis, he reported to the police on July 8, 1986, as under :

Malkiat Singh had come to help Mohinder Singh, his wife''s brother, in planting paddy a month earlier. On July 7,1986, there was a quarrel between Mohinder Singh on the side and Balwant Singh alias Lal, Gurpal Singh alias Pal, sons of Bakhtawar Singh, and Bakhtawar Singh, on the other. On the intervention of Malkiat Kaur, wife of Mohinder Singh and Narain Singh, the matter was pacified. Mohinder Singh left for the police station to report. Balwant Singh, Gurpal Singh and Bakhtawar Singh followed him and was seen at Bus Stand Kariyal by Balwinder Singh and Malkiat Singh PWS. Thereafter Mohinder Singh did not return to the house. Balwant Singh and others were also not seen. A search was made for Mohinder Singh. Finding no clue. Malkiat Singh went to Jora Singh. It was suspected that Balwant Singh Gurpal Singh and Bakhtawar Singh, having connived with one another, kept concealed. Mohinder Singh with the intention to kill him or they might have killed him. The motive for the offence was also suggested in the first information report that there was a dispute of partition of land between Mohinder Singh on one side and brother of Bakhtawar Singh on the other. Bakhtawar Singh and another wanted to have good quality of land by putting pressure on Mohinder Singh.

After registration of the case, investigation was taken in hand Balwant Singh accused was apprehended. He made a disclosure statement and ultimately got recovered dead body of Mohinder Singh from the grove of safaida trees in the area of Dharamkot. Gurpal Singh accused was arrested. He got recovered a Kassi. The police, after investigation, put up challan against Balwant Singh and Gurpal Singh. As Bakhtawar Singh was found to be innocent during investigation of the case, he was not prosecuted.

The present case entirely depends on circumstantial evidence. Out of PW4 Jora Singh and PW5 Malkiat Singh, direct evidence of Mohinder Singh deceased last seen in the company of the appellant is of PW5 Malkiat Singh. Jora Singh PW4 deposed whatever was told to him by Malkiat Singh. The other piece of evidence is regarding recovery of dead body at the instance of Balwant Singh appellant and in this respect, is again the evidence of PW5 Malkiat Singh and PW7 ASI Mal Singh, with record to the motive, the evidence consists of PW5 Malkiat Singh and PW6 Narain Singh that there was a dispute between Mohinder Singh on one side and the accused and their father on the other side and Narain Singh and others intervened and separated them. The prosecution also produced some formal evidence. The appellant denied the prosecution allegation and pleaded that it was a false case and he was named on suspicion. He was arrested on July 8, 1986, along with his coaccused and fourfive other persons. Lateron the case was foisted upon him. He denied the recovery of dead body at his instance. According to him headless dead body as recovered on July 8, 1986 and on the same day the head was recovered from a different place by the police. Similar plea was taken by Gurpal Singh coaccused. No evidence in defence was produced. Additional Sessions Judge, Ferozepur, acquitted Gurpal Singh. He however convicted Balwant Singh appellant on the evidence aforesaid.

The facts stand that the first information report by Jora Singh PW4 are based on the information given to him by Malkiat Singh. Thus confrontation of Jora Singh PW with regard to certain portions of the first information report marked `A'' to `A'' that "search for Mohinder Singh was made by them in village Khanna City Dharamkot, and hospital and from the relations" is of no consequence. Reading of the first information report, Exhibit PF, shows that Balwinder Singh and Malkiat Singh had made a search for Mohinder Singh at the aforesaid places and not Jora Singh. That being the position, the evidence of the witnesses recorded in Court is to be considered. First information report, Exhibit PF, cannot be treated as substantive evidence.

Malkiat Singh PW5 is the star witness produced on behalf of the prosecution. He happens to be omnipresent at all the stages of the prosecution case. The motive suggested in the case is regarding quarrel which took place on July 7, 1986, between Mohinder Singh deceased on the one hand and Balwant Singh and others on the other hand regarding partition of land. Malkiat Singh PW5 and Narain Singh PW6 have deposed about it that after exchange of hot words, the matter was pacified. Both of them stated that Mohinder Singh left for the police station to lodge a report. The benefit of the existence of motive can be taken by both the parties.

Out of the two witnesses, who had last seen Mohinder Singh deceased in the company of Balwant Singh, Gurpal Singh and Bakhtawar Singh, one was produced, namely, PW 5 Malkiat Singh, Balwinder Singh, the other witness, was not produced. The dead body was recovered from the cluster of trees at a distance of about 2 miles from village Kariyal PW5 Malkiat Singh happened to be present at the bus, stand of village Kariyal per chance when he witnessed Mohinder Singh going away followed by Balwant Singh deceased and others. Firstly, Mohinder Singh would have waited for some conveyance at the bus stand to go to Dharmkot. He would not have gone on foot. Secondly, he would not have gone alone. No implicit reliance can be placed on the evidence of PW 5 Malkiat Singh who did not accompany Mohinder Singh to Dhramkot, when, he had come to village Kariyal to help Mohinder Singh in his work. His conduct is unnatural and his presence at the bus stand is doubtful. Additional Sessions Judge did not accept the evidence of Malkiat Singh PW5 with respect to Gurpal Singh accused who was acquitted and, as already stated above, Bakhtawar Singh, father of the appellant, was not put up for trial by the police as this piece of evidence was not considered enough by the police to prosecute him. There were only two witnesses regarding the quarrel when had earlier taken place, namely, Malkiat Singh PW5 and Narain Singh PW6. If Mohinder Singh deceased was to report to the police regarding the incident, he could take along with him either of the two or any office holder of the village.

The only other circumstance against the appellant is that after his arrest on July 9, 1986, he made a disclosure statement Exhibit PG to the police and got recovered a dead body of Mohinder Singh which was lying in the cluster of Safaida trees near F.C. 1. Godown Dharamkot. Again, on this point is the evidence of Malkiat Singh PW5, Jora Singh PW4 and of the Investigating Officer ASI Mal Singh PW7. It was per chance that the police party accompanied by these two witnesses was going in a jeep that Balwant Singh accused was noticed coining from the side of village Dholewala and he was apprehended. It was S. I. Amarjit Singh, who interrogated Balwant Singh accused, before whom lie made the disclosure statement. Since S. I. Amarjit Singh was reported to have died, ASI Mal Singh PW 7 deposed about this fact. The statement Exhibit PG made by Balwant Singh accused was scribed by him and he proved it. The contention of the learned counsel for the appellant is that the inquest report shows that there was interpolation with respect to the date of recovery of the dead body and this interpolation was with a purpose as the dead body had already been recovered a day earlier than it is shown to be The inquest report has been perused. It is Exhibit PC. In column No. 3, which relates to the knowledge about the date and time of death, first of all it was stated as under

"Date : 871986 at 8.30 A. M."

The first figure `8'' has been changed to `9'' but no body has initialled the alteration. This contention of the learned counsel of the appellant cannot be accepted that merely from the aforesaid alteration it should be inferred that the dead body had been recovered a day earlier. This column is meant only to notice the date and time of death and not the date and time of recovery of the dead body.

As per evidence of PW4 Jora Singh, PW5 Malkiat Singh as well as PW7 ASI Mal Singh, the dead body was lying in the cluster of Safaida trees. None of these witnesses stated that the body was lying buried or concealed. According to their evidence, headless dead body was lying at one place and the head at a distance of threefour feet. Exhibit PJ is the recovery memo regarding taking into possession the bloodstained earth from that place. Jora Singh PW4 stated that the dead body was lying at a distance of 4 killas inside the cluster of forest''s Safaida trees from the main road and that the cluster of Safaida trees was accessible to all and sundry. PW5 Malkiat Singh also stated that the dead body was recovered from a place 5 killas away from the main road and he further stated that rice sheller was by the side of the safaida trees, were 4050 persons used to work. The said rice sheller was about 2 killas away from the place of recovery of dead body. The case of Malkiat Singh further is that he searched for Mohinder Singh in that cluster of trees as well before he contacted Jora Singh. If Malkiat Singh searched for Mohinder Singh in that cluster of trees, he would have noticed the dead body. If the dead body had been noticed by him, there was no reason for not reporting to the police and the police would not have let the dead body remain there after coming to know about it. It appears that Malkiat Singh did not search the cluster of trees and merely deposed about it. However, the fact remains that the dead body was lying in the grove of trees, which cannot be treated as a concealed place. It was open place accessible to all. In such circumstances, only knowledge of existence of the dead body can at the most be attributed to the accused appellant if he made the disclosure statement. That will be sufficient evidence to hold that it was the appellant who had committed the murder of Mohinder Singh deceased. At the most, may raise strong suspicion against him. The Supreme Court in Bakshish Singh v. The State of Punjab, 1971 Cri. LJ., 1452 : (AIR 1971 S. C. 2016), observed on the subject as under :

"Where in a case the body was recovered from the river by the police on the information given by the accused and on the bank of the river there were broken teeth and parts of human body lying. It was held that anybody who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. The accused person even if he was not party to the murder could have come to know the place where the dead body had been thrown."

The Supreme Court in Kanbi Karsan Jadav v. State of Gujarat, 1966 Cri. L.J. 605 : (AIR 1966 S.C. 821), observed that the mere fact that the dead body was pointed out by the prisoner or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder. The recovery of the dead body at the instance of Balwant Singh appellant, without anything, further, will not be sufficient to hold that it was Balwant Singh who had committed the murder of Mohinder Singh deceased.

Dr. Renu Mangla PW conducted postmortem on the dead body of Mohinder Singh and found the following two injuries.

Incised wound 2.5 cms x 1/2 cm x muscle deep on the back in the centre of the lumber region. Clotted blood was present. Corresponding cut was present on the shirt.

The head at the root of the neck was totally chopped off from the rest of the body. Underlying bones, blood vessels, muscles, nerves, trachea, larynx, esophagus and spinal cord were cut.

Exhibit PA is the copy of postmortem report. According is the doctor, death was due to injury No. 2 and was instantaneous. The medical evidence in the case does not connect the appellant with the crime.

As per the prosecution case, as set up in the first information report, three persons were last seen in the company of Mohinder Singh deceased, One of them was not prosecuted; the other was acquitted by the Additional Sessions Judge, at whose instance one Kassi was alleged to have been recovered. However, that was not stained with human blood. Out of the three who committed the crime, it cannot be said. The nature of circumstantial evidence produced in this case has not inspired confidence to be relied upon to base the conviction. In the case of circumstantial evidence, the prosecution is required to join all the links to hold that it was the accused who had committed the offence and none else. This conclusion cannot be arrived at in this case. The prosecution has failed to prove beyond reasonable doubt the charge framed against the appellant.

For the reasons recorded above, this appeal is accepted, the conviction and sentence passed by the Additional Sessions Judge upon the appellant are set aside and it is directed that the appellant be set at liberty forthwith.

Appeal accepted