Bant Singh alias Jaswant Singh vs State of Punjab

Harbans Singh Rai, J.

Bant Singh was tried and convicted under Sections 302 and 201 IPC by Sessions Judge, Bhatinda vide his order dated January 9, 1989 and was sentneced to undergo imprisonment for life and to pay a fine of Rs. 2,000/ and in default of payment of fine to undergo further rigorous imprisonment for three months under Section 30 IPC and to undergo rigorous imprisonment for three years under section 201 IPC. Both the substantive sentences of imprisonment were, however, ordered to run concurrently.

Feeling aggrieved he has filed this appeal.

Prosecution case, in brief is, that Gurmel Singh deceased was son of Dalip Singh PW. He used to sleep in the ''Chaubara'' of the house.

On January 4, 1987 Gurmel Singh deceased went towards village Sath after taking his evening meals. In the morning, his mother who used to serve bed tea to him went to the " Chaubara" Gurmel Singh was not present in the " Chaubara" Dalip Singh made enquiries but Gurmel Singh was not found. When Gurmel Singh left the house, he was wearing cream colour shirt coca cola pant, "Mirch" colour turban and brown colour, "Desi" shoes. A report was lodged with the police about the disappearance of Gurmel Singh.

On January 11, 1987 ASI Mal Singh PW was present at Bus Adda of Village Ghuman Kalan. Ghumanda Singh informed him there that dead body of Gurmel Singh was lying near " Burji " No. 318 Kotli Branch Canal. ASI Mal Singh alongwith other police officials visited the spot and took out the dead body of Gurmel Singh from the canal. He prepared inquest report Ex. PC and despatched the dead body for postmortem examination.

On January 12, 1987 SI Bakhshish Singh visited the spot and prepared rough site plan Ex. PM.

On February 19, 1987 Bant Singh accusedappellant was produced by Gurdev Singh before SI Bakhshish Singh and he was arrested. On Feb. 21, 1987 in interrogation the accused made a disclosure statement and got recovered " Dang" Ex. P1 turban Ex. P6 and pair of shoes Ex. P7/12. All these articles were taken into possession vide memo Ex. PF.

After completing the formalities of investigation, challan was presented against the accusedappellant. He was tried, convicted and sentenced as mentioned in the earlier part of the judgement.

Prosecution, in support of its case, examined PW 1 Dr. Inderjit Kaur Walia who had performed postmortem examination on the dead body of Gurmel Sing on January 12, 1987 at 8.00 and found the following injury :

"Lacerated wound 8 cmsx/cm. over back of head in the occipital region 2 cms right to midline anteroposterior in direction and 12 cms above to right ear. On dissection, haematoma present beneath the skin. Underneath bone was fractured. Haematoma beneath skull present locally. Duramater injured locally. Brian was semiliquified.

Walls ribs and cartilages were healthy, Pleurae was healthy, Larynx trachea healthy. Right lung swollen, left lung swollen and covering the heart Paricardium, heart large vessels healthy. Abdominal walls were healthy. All there organs were healthy. Small intestines had gas Large intestines had gas."

In her opinion, case of death was due to haemorrhage and shock resulting from injury No.1. This injury was antemortem and sufficient to cause death in the ordinary course of nature. The probable crime between injury and death was instantaneous to few hours and between death and postmortem it was about one week.

PW 2 Pritam Singh, a respondent of village Bhai Desa stated that about 11 months prior to his making statement he had gone to have a round of his fields. His fields are situated across the Kotla Branch Canal in the village. It was about mid night. At that time, he noticed Bant Singh accused appellant coming from the side of the canal. Bant Singh had met him at a distance of about 100 Karams from the bridge of the canal towards the village. He had no talk with the accused. His statement was recorded 7/8 days later.

PW 3 Chhinder Singh stated that 11 months prior to his making the statement, Gurmel Singh deceased alongwith other boys was present in village Sath at about 11.00 P.M. and was just talking about the drama of Kissan Union. At about 1.30/11.45 P.M., they all left Sath. Gurmel Singh then stated that he was going to the fields across Kotla Branch Canal. Gurmel Singh left for the fields from the side of "Dharmshala".

PW 4 Gurdev Singh a resident of village Bhaini Bagha stated that about 91/2 months prior to his making the statement on December 9, 1987 Bant Singh accusedappellant had come to him and made extra judicial confession stating that his sister''s son Mithu Singh and Chhinder Singh had come to him and they has consumed 11/2 bottle of liquor. After taking liquor, he alongwith his sister''s sons slept in the village " Dharmshala". At about 11.15 P.M., Bant Singh accused had a call of nature and went in the fields with his "Dang" towards Kotla Branch Canal where he saw the deceased going ahead him. The accused further told him that he had land litigation with Dalip Singh, father of the deceased concerning Panchayat land and " Dharamshala". So, to take revenge on that count and finding an opportunity, he gave a " Dang" blow hitting Gurmel Singh on the back of his head. Gurmel Singh fell down on receipt of the blow and expired at the spot. The accused further stated to Gurdev Singh that he threw the dead body in the Kotla Branch Canal and after throwing the dead body, he came and slept in the " Dharmashala".

Gurdev Singh produced the accused before the police. In his crossexamination, he admitted that he know Dalip Singh, father of the deceased, for the last 20/30 years. He also admitted that he had been appearing in police cases and that he had no social dealings with the accused.

PW 5 Sukhdev Singh stated that in his presence, SI Bakhshish Singh interrogated the accused who made a disclosure statement that he had kept concealed a " Dang", turban and pair of shoes in the heap of mustard crop chaff and offered to get the same recovered. His disclosure statement Ex. PE was recorded. The accused got these articles recovered in pursuance of his statement, from the place mentioned by him.

16 PW 6 Gura Singh stated that he alongwith Ghumanda Singh and Hardev Singh was proceeding along the bank of canal towards village Kotli Kalan. When they reached near Burji No. 318 in the area of village Kotli Kalan, they observed dead body of Gurmel Singh deceased. They managed to block the dead body and brought the same near the bank. Ghumanda Singh left for the Police Station to report the matter. ASI Mal Singh reached there and the dead body taken out.

PW 10 Dalip Singh is the father of the deceased. He has stated that he is the village Sarpanch. He had been pursuing litigation against illegal possession of panchayat land by the accused.

PW 11 Bogha Singh, Gram Sewak has produced the record showing that these had been efforts to get the encroachment on panchayat and vacated from the accused.

PW 12 Labh Singh Sarpanch of village Kamalu stated that in his presence, test identification parade was held and Dalip Singh PW had identified turban and shoes of Gurmel Singh correctly.

PW 23 ASI Mal Singh and PW 14 SI Bakhshish Singh are the Investigating Officers. They have stated about the steps taken by them during investigation.

After the close of prosecution case, the accused in his statement under Section 313 Cr.P.C. denied the prosecution allegations and pleaded false implication. Bant Singh accused has taken the following stand :

"I am innocent. I have been falsely involved in this case. I opposed Shri Baldev Singh Khiala MLA and supported Shri Raj Bhupinder Singh Sidhu in Assembly elections in 1985. The PWs were supporters of Shri Baldev Singh. Dalip Singh complainant has good relations with Shri Baldev Singh. I was doing Parvai on behalf of widow of my brother Jang Singh and Birpal Kaur minor daughter of Jang Singh in respect of the panchayat land. In order to prevent me from doing the Parvai, I have been involved in his false case. Our is the only Sidhu''s house in V. Bhai Desa and I have been expelled from my house and living with my sisters in V. Maghania."

In defence, reports under Section 173 Cr.P.C. were tendered to show that Gurdev Singh had been cited as a witness in a number of the police cases.

We has heard learned counsel for the parties and gone through the record, with their help.

There is no eyewitness. The prosecution case rests on circumstantial evidence. The first circumstance set up by the prosecution is the motive. It is in prosecution evidence that the accused had encroached upon Panchayat land and Dalip Singh, father of the deceased, was making efforts to get the encroachment vacated, being Sarpanch of the village.

The second circumstance brought by the prosecution against the accused is the recovery of " Dang" turban and pair of Shoes.

The third circumstance brought by the prosecution evidence is extra judicial confession made by the accused before Gurdev Singh.

We have considered all these circumstances. The prosecution evidence does establish that the accused had encroached upon Panchayat land and Dalip Singh was making efforts to get it vacated but that litigation or proof of motive by itself will not be a circumstances against the accused unless the other evidence proves his guilt.

The second circumstance i.e. recovery of certain articles at the instance of the accused is of no help to the prosecution as the articles are of normal wear and are of common pattern available with almost every citizen living in the rural area. There is no special mark of identification that those articles belonged to the deceased.

The last and most important circumstance brought in the prosecution evidence against the accused is extra judicial confession. It is stated that on February 19, 1987 the accused had gone to Gurdev Singh and made extra judicial confessing his guilt. Gurdev Singh belongs to a different village and his antecedents show that he had been appearing for the police as their witness. He admits that he had no social dealings with the accused. He further admits that he knew the father of the deceased for the last 20/30 years.

There is no other circumstance apart from the three circumstances mentioned earlier brought by the prosecution against the accused in their evidence. To base conviction on extra judicial confession alone, it is expected that the extra judicial confession should be such on which implicit faith can be placed. In this case that is not so. Gurdev Singh is the witness who had been appearing for the police earlier also. He had relations with the father of the deceased and had no social dealings with the accused. The extra judicial confession was made more than 11/2 months after the occurrence and there is nothing to suggest that the police was after the accused or the accused was apprehending his arrest. In the FIR, no body was named. The dead body had been recovered but still there was no clue to the murder of the deceased. In such a situation why the accused should go to a person at a different village and make an extra judicial confession especially when he had no social dealings with him. If there had been other circumstances to corroborate the extra judicial confession. It could be said that this extra judicial confession may also be accepted as a corroborating circumstance but there is no other circumstance. To base conviction on such an extra judicial confession which is shaky in many aspects may not be safe. In the circumstances of the case, we give benefit of doubt to the accused and acquit him of the charges. Consequently this appeal is allowed.