Birbal and Another vs State of Punjab

Jaswant Singh, J.—By filing the instant appeal, two accused-appellants have laid challenge to judgment and order dated 17.02.2003 passed by the learned Sessions Judge, Ferozepur convicting them for the offence u/s 302 read with Section 34 of the Indian Penal Code and sentencing them to undergo imprisonment for life and to pay a fine of Rs. 100/- each and in default of payment of fine to undergo further rigorous imprisonment for six months each.

Prosecution was set in motion on the statement (Ex.P1) of Tarsem Singh-PW1 (complainant) S/o Chuhar Singh, Caste Jat, R/o Ghuriana made on 06.04.1997 at 1.30 p.m. before SI-Sandeep Kumar (PW12) SHO Police Station Sadar Abohar, whereby he stated that he has a bore in his Donale Wala fields and on that day when he with his Seree (Servant) went to his fields for irrigation at about 8.00 a.m, he noticed blood on the outer region of the bore (well). When he looked into the well, he found a dead body of some unknown person floating his face downwards in the water. He informed the Sarpanch and thereafter his statement (Ex.P1) was got recorded. Accordingly, a formalized FIR (Ex.P1/B) was registered in Police Station Sadar, Abohar. Special report reached the Sub Divisional Judicial Magistrate, Abohar on 6.4.1997 at 3.00 p.m. Investigating Officer-Sandeep Kumar (PW12), proceeded to the place of occurrence and prepared the rough site plan (Ex. P33) and took out the body from the well. He lifted bloodstained earth, which was taken into possession vide recovery memo Ex.P34. He also took into possession a broken glass and one stopper of bottle vide recovery memo (Ex.P35) after calling finger-points expert at the spot. Inquest of the unidentified dead body was conducted vide report (Ex.P7) and was sent for post mortem examination to Civil Hospital, Abohar. The autopsy was conducted by Dr. R.K. Arora (PW5), SMO, Civil Hospital, Abohar on 7.4.1997 at 1.00 p.m (as per post mortem report Ex.P5). Thereafter, the unidentified dead body was handed over to Municipal Committee, Abohar for cremation by Constable Sukhchain Singh (PW2).

On 7.4.1997, Chhelu Ram @ Sadhu Ram (PW8) got his statement (Ex.D1) recorded u/s 161 Cr.P.C before I.O Sandeep Kumar (PW12) stating that accused Birbal Singh and Banarsi Dass @ Raj Kumar had taken liquor, when Balraj @ Baj Singh (since deceased) was also with them on the evening of 5.4.1997 in the fields of Tarsem Singh-PW1 (complainant). They had demanded a sum of Rs. 15,000/-, which Balraj (since deceased) was carrying. Upon his refusal, Birbal armed with kappa and Banarsi Dass armed with takua inflicted injuries on the person of Balraj. He (PW8), at that time, had gone in the fields to answer the call of nature and upon seeing the injuries inflicted on Balraj and being threatened by the accused, he fled to his native village Ratia (Haryana).

Accused Birbal was produced before the I.O-Sandeep Kumar (PW12) by Vijay Kumar on 22.6.1997 and accused Banarsi Dass @ Raj Kumar was arrested on 1.12.1997. Upon interrogation and in pursuance of his disclosure statement (Ex.P36), accused Birbal Singh got recovered bloodstained dattar (Ex.MO1) from near the Pakka Khal, which was taken into possession vide recovery memo Ex.P37. No disclosure statement was made by accused Banarsi Dass.

After completion of investigation, accused were charged for the offence u/s 302 read with Section 34 IPC to which they pleaded not guilty and claimed trial. To prove its case, prosecution examined as many as 13 prosecution witnesses besides leading documentary evidence.

In the statement recorded u/s 313 Cr.P.C., accused-appellant Birbal Singh stated that he has been falsely implicated in this case. He was in possession of poppy husk for his own consumption, which he had brought from Rajasthan. He stated that after taking him into custody, police had falsely involved in this case. Accused-appellant Banarsi in his statement u/s 313 Cr.P.C also pleaded the false implication besides stating that accused Birbal was arrested by the police for having been found in possession of poppy husk, which he had brought from Rajasthan for his personal consumption and when he had gone to police station, Abohar for release of accused Birbal, money was demanded from him by the police. His name and address was noted and thereafter he was arrested from his house and involved in the case.

Learned trial Court on the basis of eye witness account of PW8-Chhelu Ram and ''last seen'' evidence of PW7-Pappu convicted the accused-appellants and sentenced them as aforesaid.

Learned Counsel for the appellants has argued that there are material contradictions in the statements of PW7-Pappu and PW8-Chhelu Ram @ Sadhu Ram (cousin of the deceased), which makes the prosecution story doubtful. Learned Counsel submitted that the dead body was cremated as being unidentified after the same had been handed over to the Municipal Committee, Abohar on the evening of 7.4.1997 whereas PW8 (cousin of deceased) has deposed that he had seen the dead body floating in the well and had informed the police on 6.4.1997. Learned Counsel further submitted that the conduct of the eye-witness (PW8) is most unnatural and, therefore, his testimony is untrustworthy. Learned Counsel next contended that the last seen evidence of PW7 also cannot be relied upon to establish the guilt of the accused-appellants because the time gap between the ''last seen'' and the time of death sought to be established by the medical evidence.

On the other hand, learned state counsel supported the reasoning adopted by the learned trial Court.

After hearing learned Counsel for the parties and perusing the evidence on record, we find that the contentions raised by the appellants deserve to be accepted.

PW8-Chhelu Ram, the alleged eye witness, has deposed that he and Pappu Ram(PW7) and Baj (since deceased) had come to village Panniwala to purchase the tractor, when accused Birbal and his companion (accused Banarsi Dass) met them in village Panniwala. Then all the five persons came to village Karam Patti on foot. Birbal asked us that there were some cattles for sale in village Ghuriana and he asked them to go there for purchase of the said cattles. Since they had purchased some calves earlier, so they left Pappu (PW7) in village Karam Patti to watch the calves and then he, Baj (since deceased) and both the accused came to village Ghuriana at about 6.00 p.m. There they looked for some cattles in 2-3 houses but did not make any purchase. Birbal purchased some liquor from the village and then we left back for village Karam Patti. Birbal and Banarsi Dass took liquor on the way. He, during the way (to village Karam Patti) went to jungle to answer the call of nature. Baj @ Balraj was having Rs. 5000/- with him at that time. When he came back, he heard noises in the fields. When he went there, he found Birbal and his companion Banarsi Dass armed with takua and kuhari and they were giving injuries to Balraj (Since deceased). When he asked them as to why they were giving injuries to Baj @ Balraj, then the accused threatened him that if he will come in the way, he will also be killed. Then, he ran for safety and went to his native village Ratia instead of village Karam Patti. He further deposed that thereafter, he came back to village Karam Patti (the next day i.e 6.4.1997) and met Pappu (PW7) and informed him that his brother Baj @ Balraj had been killed. Then, they both informed the police regarding the occurrence. He further deposed that "I had seen the dead body of Balraj lying in the well and had shown the dead body to the police". In his cross-examination, he admitted that Baj @ Balraj (since deceased) and brother of deceased Pappu (PW7) are his cousins (bhua''s sons) and that village Ghuriana is at a distance of 5-6 kms from village Karam Patti and his native village Ratia is at a distance of 100 kms from village Karam Patti while the village of Baj Singh is at a distance of 25 kms from his native village Ratia. He further stated that he was present with the police when the Doctor had performed the post mortem and the police had performed the last rites.

PW7-Pappu, brother of the deceased, has deposed that he and his brother Balraj (since deceased) were dealing with sale and purchase of cattles and accused Birbal and Banarsi Dass were working as Commission Agents in the trade of cattles. He has deposed that on 5.4.1997, he along with his brother Balraj (since deceased) and Chhelu Ram-PW8 and both the accused had gone to village Karam Patti, where they purchased three cattles head. He remained with the earlier purchased cattle at village Karam Patti whereas Balraj and Chhelu Ram (PW8) and both the accused went to see more cattles in village Ghuriana. They did not return to village Karam Patti that night and on the next day, Chhelu Ram (PW8) came back to him and informed him that the accused had caused injuries to Balraj, when he had gone to answer the call of nature. Then, he and Chhelu Ram (PW8) had gone to the spot and they saw the dead body of Balraj in the ''well'' and police had already arrived there, where they identified the dead body of Balraj. In his cross examination, he has deposed that the SHO had not shown them the dead body as the dead body was already burnt and they were shown only the clothes of the dead body.

We find from the analysis of evidence of PW8 and PW7 that there are contradictions in material particulars in their testimonies raising serious doubts about the prosecution case. PW8 has deposed that he saw both the accused inflicting injuries to his cousin Baj Singh with kuhari and takua and he did nothing to save him. Then instead of going to nearby village Karam Patti to inform and seek help of Pappu-PW7, his cousin and brother of deceased Baj Singh, who was stationed along with the cattles, which they had purchased, he travelled 100 kms to his native village Ratia. Then, he came back from the native village Ratia to village Karam Patti on 6.4.1997 itself and told PW7-Pappu that Baj had been killed. PW7 has deposed and agreed that PW8 had met him on 6.4.1997 and told him about the death of his brother. The testimony of PW8 is not worthy of any credence as (i) it is not explained as to how PW8 came to know that Baj was dead because he had only seen the accused inflicting injuries, (ii) the conduct of PW8 in not checking the fate of his cousin (deceased) and further not rushing to his other cousin and brother of deceased i.e PW7 stationed in the nearby village Karam Patti to disclose the incident but instead fleeing to his native village Ratia, 100 kms away is most unnatural, (iii) the explanation that he travelled by truck after the incident and then by bus and reached his village Ratia and after taking some rest and sending information regarding Baj Singh''s death to his parents, he started back on 6.4.1997 itself for village Karam Patti and met PW7 is also highly imaginative. It is not worthy of acceptance being most improbable.

PW8 further stated that he had seen the dead body of Balraj Singh lying in the well and had shown the same to the police whereas the evidence of PW12-IO Sandeep Kumar shows that the dead body was taken out of the well and inquest conducted and the body sent for post mortem examination on 6.4.1997 itself being that of an unidentified person. PW5-Dr. R.K. Arora has deposed that the autopsy was conducted on 7.4.1997 at 1.00 p.m (as per proved PMR Ex.P5) on the body of unidentified person. Still further PW2-Constable Sukhchain Singh in his affidavit (Ex.P2) has proved that the said body was handed over to Municipal Committee, Abohar on 7.4.1997 after conduct of the post mortem, although as per cross examination of PW8-Chhelu Ram, he was present at the time, when the post mortem was conducted by Dr.R.K. Arora (PW5). It is beyond comprehension to a normal prudent mind that inspite of presence of PW8-Chhelu Ram and brother of deceased i.e PW7, the dead body remained unidentified and the last rites were conducted by the official authorities. The answer is given by PW7 in his cross examination, then he admits that the SHO had not shown him the dead body as the dead body was already burnt and they were shown only the clothes of the dead body. IO-PW12 Sandeep Kumar in his cross examination stated that the body was identified from photographs. It is, thus, crystal clear that there are material contradictions in the evidence of PW8 and PW7, which go to the root of the prosecution case rendering it to be highly doubtful and thus entitling the benefit of doubt to be extended to the accused-appellants.

Even otherwise, the evidence of PW7 regarding ''last seen'' is very weak as the time gap between he having seen his brother-deceased with the accused and the probable time of death shown by the evidence of PW5-Dr. R.K. Arora is quite substantial, and therefore, the possibility of being with others cannot be ruled out. PW7 is stated to have seen them together on the morning of 5.4.1997 whereas the Dr. R.K. Arora-PW5, who conducted the autopsy on 7.4.1997 at 1.00 p.m, has opined that the probable time of death was between 24 to 36 hours and thereby fixing the probable time of death in the early morning hours of 6.4.1997.

The recovery of the bloodstained iron dattar on 23.6.1997 is only from Birbal and without associating any independent witness, and further I.O-PW12 Sandeep Kumar in his cross examination stated that the recovery was from a open place accessible to public. Thus, this evidence also is not of any help to the prosecution.

In view of the aforesaid discussion, we are of the view that the prosecution has not been able to establish the guilt of the accused-appellants of the charged offence beyond any shadow of doubt. Therefore, while extending the benefit of doubt to them, we set aside the judgment and order dated 17.02.2003 passed by the learned Sessions Judge, Ferozepur and acquit both the appellants of the charges.

Appeal stands allowed.