Kulwaht Singh vs State of Punjab

V.K. Bali, J.—Kulwant Singh, who was tried along with his co-accused Piara Singh, his brother, and Bhira Singh, his son, u/s 302 read with Section 34 of the Indian Penal Code as also Section 201 of the Indian Penal Code, stands convicted for life u/s 302, I.P.C. and to pay a fine of Rs. 2000/ -, in default whereof to further undergo R.I. for six months as also for three years u/s 201, I.P.C. and to pay a fine of Rs. 500/- and in default whereof to further undergo R.I. for one month vide order of conviction and sentence dated February 16, 1993, passed by Mrs. Bakhshish Kaur, Sessions Judge, Gurdaspur. It is this order which has been challenged in the present appeal by him.

The information with regard to occurrence leading to missing of Chanan Singh son of Harnam Singh, whose dead body was later found, was reported by his wife Juginder Kaur on May 14, 1991 at 5 p.m., on the basis whereof a case came to be registered u/s 364, I.P.C. against all the accused as she entertained a doubt that it is these people, who were instrumental in doing away with Chanan Singh, her husband. Her statement was recorded by Sardul Singh, A.S.I., before whom she stated that she was resident of village Bhambri and had four sons, namely, Gurdev Singh, Hardev Singh, Gurvail Singh and Harjit Singh and three daughters, namely, Rajvinder Kaur, Harjit Kaur and Amarjit Kaur. About 15-16 years back, Harjit Kaur was married to Swaran Singh son of S. Gurnam Singh, resident of village Bharath. Harjit Kaur had three sons, namely, Nachhattar Singh, Sakkattar Singh and Major Singh and one daughter Ramanjit. About three years ago, Swaran Singh had expired. About 1 1/2 years ago, Harjit Kaur was killed by the terrorists at village Bharath. She had brought the children of Harjit Kaur in her village for bringing them up. On the morning of May 12, 1991, her husband Chanan Singh had gone to the tubewell at village Bharath for irrigating the land. On the same day at about 4 p.m., her Dhota (dauther''s son) Sakattar Singh, resident of village Bharath had gone there with the meal for her husband. On his return at about 6 p.m., he told her that he had served the meal. On May 13, 1991, at about 6.30 a.m., Nachhattar Singh had gone to serve the meal at the tubewell but he did not return. Avtar Singh son of Naranjan Singh, Jat, resident of Bhambri, who was related to her as her JATHIA, came to her house and told that Chanan Singh was not present at the tubewell. On receipt of this information, all the family members and she searched for Chanan Singh in the fields and in his relations but he could not be traced anywhere. She suspected that Sant Singh, Piara Singh, Kulwant Singh sons of Harnam Singh, Buha Singh son of Sant Singh and Bheera Singh son of Kulwant Singh, Jat, residents of Bharath, who were brothers and nephews of her son- in-law, Swaran Singh, in connivance with each other had kidnapped her husband with an intention to kill him because they wanted to forcibly occupy the land measuring about 5 1/2 acres belonging to her son-in- law. Her husband himself used to cultivate that land and they were taking ill of it. Since no clue of her husband had been found, she had gone to the police station on the day, the FIR was recorded, and reported that Chanan Singh was missing from the intervening night of 12 and 13th May, 1991. Accordingly, Sardul Singh, A.S.I. registered a case u/s 364 of the Indian Penal Code. Piara Singh, Constable No. 2177 carried the special report which was received by Shri G. S. Sandhu, Judicial Magistrate I Class, Batala on May 15, 1991 at 7.15 a.m.

The prosecution, with a view to bring home the offence against the appellant and his coaccused, examined P.W. 1, Dr. Gurpal Singh, who conducted post-mortem on the dead body of Chanan Singh on June 1, 1991 and found the following injuries :-

There was no obvious external injury on the body. The whole body was putreified and swollen and the body was wet. On the occipital region of head, bone was depressed and small pieces of skull bone was present and underlying brain matter was putrefied and dark coloured blood with liquid mass type present in posterior cranial fossa.

Both lungs were putrefied and there was no water present on both the lungs. Heart and pericardium were putrefied, All the other organs of the body were also putrefied.

The cause of death, in the opinion of the doctor, was due to haemorrhage and shock as a result of head injury. All the injuries were ante mortem in nature and were sufficient to cause death in ordinary course of nature. In his cross-examination, the doctor stated that the type of injury on the dead body of Chanan Singh could take approximately 2 to 3 hours resulting into death, and the duration between the death and post-mortem was between two to four weeks, Joginder Kaur, widow of Chanan Singh, who was examined as P.W. 2, deposed in tune with the F.I.R., lodged by her. P.W. 3 Tarsem Singh was examined to prove that the appellant Kulwant Singh and his coaccused had made extra judicial confession before him on May 15, 1991, whereas Gurdev Singh, P.W. 4, was examined to prove the recovery of dead body at their instance. Besides that, the prosecution tendered into evidence affidavit of Piara Singh, Constable No. 2177, who was also cross-examined by the defence and P.W. 6 Sardul Singh, Sub-Inspector, was examined to give some details pertaining to the investigation of the case. He stated that investigation of this case was entrusted to him on May 14, 1991. Joginder Kaur had come to the police station and had made statement before him which was reduced into writing and the same was Ex. P.B. He along with other police officials accompanied by Joginder Kaur had gone to the place of occurrence at village Bharath and had prepared the rough site plan, Ex. P.F. He had also recorded the statements of witnesses, namely, Avtar Singh, Nachhattar Singh and Sakkattar Singh and searched for the accused but they were not available. On May 23, 1991 he recorded the statement of Kulwant Singh, Member Panchayat of village Bhambri. On June 3, 1991 he along with SHO Gurdeep Singh, was present in the Police Station when Kulwant Singh, accused, who was already in police custody, was taken out of the police lock-up and interrogated in his presence by SHO Gurdeep Singh. Appellant Kulwant Singh, on interrogation, disclosed that he had kept concealed a DANG in the Musal of his tubewell in the field and offered to get it recavered. The appellant, in pursuance of his disclosure statement led them to the place of recovery and got recovered a DANG which was lying concealed in the Musal. It was taken into possession vide recovery memo Ex. P.H. attested by him and Gurvail Singh. Since SI Gurdeep Singh, who had prepared the site plan of the place of recovery, had died, this witness also proved the site plan, Ex. P.J..

The appellant and his co-accused, when examined u/s 313 of the Code of Criminal Procedure, while admitting relationship inter se, denied their participation in causing the death of Chanan Singh in any manner whatsoever. They, however, led no defence. After resultant trial, whereas his co-accused, namely, Piara Singh and Bhira Singh were acquitted by giving them the benefit of doubt, appellant was convicted in the manner fully detailed above.

Concededly, there is no witness, who might have seen the occurrence and the prosecution relies upon some circumstances to prove charge against the appellant. As is clear from the narration of facts given above, the chain of circumstances consists of motive, extra judicial confession and recovery of dead body and dang, said to be weapon of offence, at the instance of appellant Kulwant Singh. The only question that, thus, arises for determination in the present case is as to whether the chain of circumstances is so complete as it might lead to only one ehypothesis, i.e. guilt of the accused or that there are missing links in this chain of circumstances.

We have heard Mr. M. S. Rakkar, learned Senior Advocate, appearing on behalf of the appellant as also Mr. S. S. Dhaliwal, learned Deputy Advocate General, Punjab. With their assistance, we have also gone through the record of the case. From the totality of facts and circumstances, brought on records of this case, we are, however, of the view that the prosecution, but for proving motive on the part of the appellant, has not been able to prove other circumstances and, therefore, it cannot be said that the chain of circumstances is so complete so as to return a verdict of guilt.

It may be recalled that Chanan Singh was reported missing by his wife on May 14, 1991 at 5 P.M. and it was stated in the F.I.R. that Chanan Singh was missing from the intervening night of 12/13th May, 1991. Special report with regard to commission of cognizable offence was brought to the notice of the Ilaqa Magistrate on May 15,1991 at 7.15 a.m. There may not be much substance in the contention of learned counsel for the appellant that there is unexplained delay in either lodging the FIR or sending the special report as, in the very nature of things, the wife and other relations of Chanan Singh, would have made an effort to trace him and it is only when such efforts were to fail that they were to report the matter to the police. But insofor as extra judicial confession of the appellant, said to have been made to Tarsem Singh, P.W. 3 and the recovery of dead body and dang is concerned, the same, in our view, is not proved or in any case the evidence led on that behalf is of very doubtful nature. Dealing with the extra judicial confession first, it shall be seen that Tarsem, Singh P.W. 3 stated that it is on May 15, 1991 that the appellant and his co-accused had met him at Kadian where he had gone to purchase some seeds and it is on that day that they had confessed that they murdered Chanan Singh. He stated that the appellant and his co-accused wanted him to produce them before the police. Since he was busy, he told them to come for that purpose on some other day. This witness further stated that the appellant and his co-accused did not turn up thereafter and, he, on his own, reported this matter to the police on May 23, 1991. The witness further stated that during all this while i.e. right from May 15, 1991 to June 1, 1991, he did not tell about this incident either to the police or any one in the village or even to the wife of the deceased. This witness belongs to the village of the deceased and it looks us highly improbable that being a Panch of the village, he would not report the matter to the police or higher authorities or even to Joginder Kaur, who by that time must have been running around to know the whereabouts of her missing husband. That apart, it does not appear to us to be plausible that the appellant and his co-accused would have gone to Kadian where they were to incidently meet Tarsem Singh and then were to confess before him that they had murdered Chanan Singh. The dead body is said to have been recovered in the presence of Gurdev Singh, son of the deceased and Gurnam Singh, son-in-law of the deceased. Gurnam Singh was not examined and in fact he was given up. Gurdev Singh, who was examined as P.W. 4, stated that on June 1, 1991 he was present at the Bus Stand, Harchowal where Gurnam Singh was also present. Kulwant Singh appellant came at the bus stand. The police was already present there and the appellant was arrested by the police. He, on interrogation, made disclosure statement before S.I. Gurdeep Singh that he had thrown in the abandoned well known as Jatherianwala Khuh the dead body of Chanan Singh and could get the same recovered. The accused thereafter led the police party to the well and got recovered the dead body which was taken into possession vide memo Ex. P.D., attested by him and Gurnam Singh. He identified the dead body of Chanan Singh, which was of his father. In cross-examination he stated that the appellant was arrested at 11 a.m. He happened to be there at the bus stand as he was to go to Police Station, Harchowal to enquire about his father. He admitted that there were 70-80 shops at Bus Stand, Harchowal, and that there were residential houses. There was Primary Health Centre near the Bus Stand and 4-5 persons were present at the Bus Stand. He admits that none of them was joined at the time of interrogation of the appellant. It is rather strange to note that even though so many people were present, the investigation agency did not think it proper to join any independent witness knowing it fully well that the case was based upon circumstantial evidence and it is only the circumstances which might lead to the involvement of the appellant and his co-accused. While collecting such circumstances, it is rather strange that they chose such witnesses to prove the same who were interested despite the fact that independent witnesses were available. It has further come in evidence that the dead body of Chanan Singh was recovered from an abandoned well and that there were 3-4 deras nearby where people were residing. Concededly, none of the persons residing in nearby deras was also associated. Insofar as recovery of dang is concerned, the witnesses to establish the same were S.I. Sardul Singh and Gurvail Singh, son-in-law of the deceased. As mentioned above Gurvail Singh was not examined and on the sole testimony of Sardul Singh, S.I., the recovery of dang cannot be held to have been established. We have mentioned in the earlier part of the judgment that the appellant did have a motive as it is his brother''s land which was in possession of the deceased and, may be, the appellant was wanting that it is he and his other brothers and nephews, who were entitled to derive benefits from the land that originally belonged to their clan but that, in our view, at the most might raise a suspicion which, as per the settled law, cannot take place of proof, howsoever, strong it may be. That apart, it has come in evidence that Chanan Singh and his son Hardev Singh were challenged for the murder of one Bir Singh of village Aulakh. That would show that it is not only the appellant who might have motive to commit the crime but there were others also who could nurse a grudge against the deceased Chanan Singh.

In view of the discussion made above, we hold that the prosecution has not been able to prove its case against the appellant Kulwant Singh beyond shadow of reasonable doubt and, therefore, he too deserves to be acquitted. Consequently, order of conviction and sentence dated February 16, 1993 recorded by the learned Sessions Judge, Gurdaspur, against the appellant is set aside and the present appeal is allowed.