State of Punjab vs Jaswant Singh

S.S. Grewal, J.

Jaswant Singh son of Ram Singh son of Shankar Singh aged 21 years, resident of Katra Sher Singh, Amritsar, while working as a domestic servant in the house of Onkar Chopra committed the murder of Raj Kumari widow of Buta Ram and Raj Rani wife of Gian Chand and committed theft in respect of one chain of gold, one ring of gold, one Katora of silver and other valuables. He was tried and convicted under Section 302 of the Indian Penal Code, on two counts for intentionally committing the murder of Raj Kumari and Raj Rani and was sentenced to death of each count vide order of Additional Sessions Judge, Amritsar, dated 5th February, 1994.

The learned trial Court has made reference under Section 366 of the Criminal Procedure Code, 1973 for confirmation of the death sentence awarded in this case whereas Jaswant Singh appellant has filed Criminal Appeal No. 105DB of 1994 against the order of conviction and sentence passed by the learned trial Court. As common question of law and fact are involved in the Murder Reference as well as in the appeal filed by Jaswant Singh appellant, both these matters shall be disposal of by one judgment.

In brief facts of the prosecution case as emerged from the first information report recorded on the basis of the statement of Jai Pal PW by Inspector Sukhwinder Singh are that Jai Pal the first informant is working as a clerk in the Electricity Department of Municipal Corporation, Amritsar. His father''s sister Raj Kumari widow of Buta Ram Chopra was residing with the family of her son Onkar Chopra in House No. 95/96 Katra Sher Singh Wala, Amritsar. Onkar Chopra who runs a furniture shop near the Regent Talkies, took his children, who were on vacation to Dalhousie and left them there at the house of their maternal grandparents about 15 days prior to the present occurrence. On 15th July, 1990 Onkar Chopra again went to Dalhousie. On the request of Raj Kumari, Raj Rani mother of Jai Pal first informant stayed with Raj Kumari who was all alone in house. On 18.7.1990, Jai Pal PW received telephonic message that some occurrence had taken place in the house of Raj Kumari. The first informant immediately rushed to the house of Onkar Chopra. At that time, he saw that many persons had already gathered in front of the said house. Jai Pal PW went inside the house and saw the dead bodies of Raj Kumari his father''s sister and Raj Rani his mother besmeared with blood were lying on the cots. Both the dead bodies bore injuries marks with sharp edged weapons on the faces. It was further mentioned in the first information report that some unknown person had murdered his mother Raj Rani and his father''s sister Raj Kumari and that he does not suspect any body. After the first information report at 9.20 a.m. on 18.7.1990 Inspector Sukhwinder Singh went to the spot and inspected the same in the presence of Jai Pal and other police officials. He prepared inquest reports concerning dead bodies of Raj Kumari and Raj Rani deceased, got the scene of occurrence photographed and also prepared rough site plan of the place of occurrence. After the dead bodies were sent for postmortem examination, Inspector Sukhwinder Singh lifted blood stained earth, one small hammer (Hathora) with broken handle and one broken lock affixed in the Almirah lying in the bed room of Raj Kumari and the same were taken into possession through seizure memos. Meanwhile Onkar Chopra also came back to Amritsar and after verifying made statement concerning valuable articles missing from the house. Jaswant Singh accused was produced before Inspector Sukhwinder Singh by Gopal Krishan and Tarlok Singh PWs on 20.7.1990 and he was taken into custody. Apart from bills and currency notes recovered from the possession of Jaswant Singh accused, pass book of J & K Bank Branch was recovered from the left side pocket of the pant of the accused. Passbook contained an entry concerning deposit of more than Rs. 5000/ in that account. On interrogation by Inspector Sukhwinder Singh, Jaswant Singh accused made a disclosure statement in pursuance of which he got recovered blood stained Datar from a drum full of sand lying in the garage of Onkar Chopra PW, which was duly sealed and taken into possession through seizure memo. Jaswant Singh accused got recovered Silver Katora, golden chain and ring buried under the earth near the electric pole in Company Bagh, Amritsar. In pursuance of his disclosure statement, Jaswant Singh accused got recovered blood stained shirt from the roof of the electric power house building in the Company Bagh, Amritsar.

Dr. Jaswant Singh PW. 5 conducted autopsy on the dead body of Raj Rani deceased on 18.7.1990 at 3.30 p.m. and found six incised injuries on the face and neck. Death in the opinion of the said doctor was due to shock and haemorrhage as a result of injuries to both sides of neck accompanied with fracture. These injuries were sufficient to cause death in the ordinary course of nature. On the same day at 4.30 p.m. the said doctor conducted autopsy on the dead body of Raj Kumari deceased and found six incised injuries on the face, neck, right and left side of the chest and right shoulder. Death in the opinion of the said doctor was due to shock and haemorrhage as a result of injury to carotid vessel accompanied with fracture and the said injury was sufficient to cause death in the ordinary course of nature.

After completion of the investigation, Jaswant Singh accused was challaned, tried, convicted and sentenced by the learned trial Court, as stated earlier.

The learned counsel for the parties were heard and we have carefully perused the record with their help.

The prosecution case entirely rests on circumstantial evidence. Thus in order to bring home charge against the appellant beyond reasonable doubt the prosecution must prove all the links in the chain of evidence so far complete as would be consistent only with the hypothesis of the guilt of the appellant and not with his innocence.

The first circumstance relied upon by the prosecution is that Jaswant Singh appellant during the days of occurrence was working as domestic servant in the house of Raj Kumari deceased. Testimony of Onkar Chopra PW. 10 finds ample corroboration from the testimony of Kuljit Singh PW to the effect that Jaswant Singh accused was working as a domestic servant in the house of Onkar Chopra PW during the days of occurrence. From the evidence of Kuljit Singh PW it is quite evident that on 17.7.1990 at about 7 p.m. he went to the house of Onkar Chopra where Raj Kumari and her sisterinlaw Raj Rani as well as Jaswant Singh appellant were present, at that time, whereas Onkar Chopra, his wife and children were not present. There is no material on the record to show that Kuljit Singh PW was in any manner inimical towards the accused and has motive to false implicate him in this case. His testimony that he had seen Jaswant Singh appellant as well as both Raj Kumari and Raj Rani in the house of Onkar Chopra on the evening of 17.7.1990 is worthy of credence.

According to Jagdish Rai PW. 2 whose house is situated opposite to the house of Raj Kumari deceased he saw Jaswant Singh appellant leaving that house at about 4 a.m. on 18.7.1990. The appellant at that time was holding one bag in his hand. On his enquiry from Jaswant Singh (appellant) whether Onkar Chopra had returned from Dalhousie, Jaswant Singh (appellant) informed Jagdish Rai PW that Onkar Chopra would come on the following day. Jaswant Singh (present appellant) was in a perplexed mood at that time immediately went away. Jagdish Rai PW who is a brickkiln owner returned from his work to his house at about 4 p.m. on 18.7.1990 and came to know about the commission of murder of Raj Kumari and Raj Rani in the house of Onkar Chopra PW. On his enquiry about Jaswant Singh he was told that Jaswant Singh was missing. Jagdish Rai PW was not crossexamined on this point. Thus the testimony of Jagdish Rai to the effect that he did not see Jaswant Singh accused at the house of Raj Kumari deceased on 18.7.90 after he had seen Jaswant Singh leaving the house of Raj Kumari deceased at about 4 a.m. can be safely relied upon. According to Jagdish Rai PW, who is neighbour of the deceased Raj Kumari he had come out of his house at about 4 a.m. in order to go to the temple when he met Jaswant Singh appellant in the lane and enquired from Jaswant Singh appellant, as to when Onkar Chopra PW would be returning and Jaswant Singh appellant informed him that Onkar Chopra would be returning on the following day. Jagdish Rai PW also observed that Jaswant Singh appellant was greatly perplexed at that time. The demeanour of Jaswant Singh appellant at the time when he left the house of his employer Onkar Chopra after committing the murder of Raj Kumari and Raj Rani deceased is another circumstance which points towards his guilt. No plausible explanation concerning the continued absence of Jaswant Singh appellant from the house of the deceased after the murder of Raj Kumari and Raj Rani came to light on the morning of 18.7.1990 till his arrest on 20.7.1990 by Inspector Sukhwinder Singh, has been put forth on behalf of the defence. Continued absence of Jaswant Singh appellant from the house of Raj Kumari deceased where he was working as a domestic servant as detailed above is a strong circumstance which strongly points out towards his guilt.

The next important circumstance relied upon by the prosecution is the extrajudicial confession said to have been made by Jaswant Singh appellant before PW 3 Gopal Krishan who is an ExMunicipal Commissioner. According to Gopal Krishan PW he was on visiting and friendly terms with Onkar Chopra PW and had met Jaswant Singh appellant at the house of Onkar Chopra. Gopal Krishan PW is a respectable person of the locality and he helped in producing the appellant before the police on 20.7.1990. In these circumstances it was quite natural and probable for Jaswant Singh appellant to repose such confidence in Gopal Krishan PW in order to go and confess his guilt before the latter. Mere fact that Buta Ram, father of Onkar Chopra was Municipal Commissioner during the same period when Gopal Krishan PW was also a Municipal Commissioner, would not be sufficient to hold that Gopal Krishan PW would go out of the way to help the prosecution or, would not speak the truth. The fact that Gopal Krishan and Tarlok Singh took Jaswant Singh appellant directly to the Police Station and then to the place where Inspector Sukhwinder Singh was present without informing or going to the house of Onkar Chopra PW can hardly be considered sufficient ground for disbelieving Gopal Krishan PW, whose conduct is quite consistent with the responsible position he holds in the society. The argument advanced on behalf of the defence that Gopal Krishan PW. 3 did not mention in his statement before the police about the extrajudicial confession made by Jaswant Singh appellant before him is hardly tenable in view of the fact that in the statement of this witness Ex. DD this fact is specifically mentioned.

The next question which arises for determination is as to whether the testimony of Gopal Krishan PW concerned the extra judicial confession made by Jaswant Singh is credible and trustworthy. According to Gopal Krishan PW Jaswant Singh appellant came to him on 20.7.1990 and in the presence of Tarlok Singh PW made an extra judicial confession to the effect that on 17.7.1990 he committed the murder of the wife of Buta Shah and mother of Onkar Chopra and maternal aunt of Onkar Chopra (i.e Raj Rani). There is no reliable evidence on the record from which it can be reasonably inferred that Gopal Krishan PW who is a man of status was at the beck and call or under the influence of Onkar Chopra a PW or, was inimical towards the appellant. In the absence of such material in our view the testimony of Gopal Krishan PW has rightly been relied upon by the learned trial Court which had the added advantage of watching the demeanour of the witnesses. We are further satisfied that the extra judicial confession made by Jaswant Singh appellant before Gopal Krishan PW 3 who is a respectable person in the locality and bore no animus against Jaswant Singh appellant was true, voluntary and has a ring of truth about it. Thus the same can be safely relied upon in the present case even without any corroboration. The present case rests entirely on the circumstantial evidence. Thus as an abundant caution we have sought independent corroboration concerning the extra judicial confession made by Jaswant Singh appellant before Gopal Krishan PW. In our view we find sufficient independent corroboration to the testimony of Gopal Krishan PW concerning the extra judicial confession made by Jaswant Singh appellant before him from the circumstantial evidence already discussed in detail particularly from the testimony of Jai Pal PW 1 who went to the house of Raj Kumari his aunt on the morning of 18.7.1990 and found the dead bodies of Raj Kumari and his mother Raj Rani lying in the house of Raj Kumari where Jaswant Singh appellant had been working as a domestic servant.

We find ample support in our view from the authority of the apex Court in Piara Singh and others v. State of Punjab, AIR 1977 S.C. 2274, wherein it was observed in para No. 10 of the report as follows:

"Law does not require that the evidence of an extra judicial confession should in all cases be corroborated. In the instant case, the extra judicial confession was proved by an independent witness who was a responsible officer and who bore no animus against the appellants. There was hardly any justification for the Sessions Judge to disbelieve the evidence of Balbir Singh particularly when the extra judicial confession was corroborated by the recovery of an empty from the place of occurrence."

To the same effect is the authority in Maghar Singh v. State of Punjab, AIR 1975 SC 1820 wherein it was held that the evidence furnished by the extra judicial confession made by the accused to witnesses cannot be termed to be an evidence and if corroboration is required it is only by way of abundant caution. If the Court believes the witnesses before whom the confession is made and it is notified that the confession was voluntary then in such a case conviction can be founded on such evidence alone as was done in Rao Shiv Bahadur Singh v. State of Madhya Pradesh, AIR 1954 SC 322.

Testimony of Gopal Krishan PW reveals that Jaswant Singh appellant was produced by the said witness and Tarlok Singh before Inspector Sukhwinder Singh who arrested the appellant and from latter''s personal search one purse containing bills Exs. P2 to P4 as well as currency notes worth Rs. 450/ were recovered from the left side pocket of the pant of the appellant. Besides passbook Ex. P12 in the name of the appellant was also recovered which reveals that the appellant had deposited Rs. 5,000/ in his account at Akhnoor on 19.7.1990. i.e. within a day or two of the commission of murder of two old and infirm ladies. There is no evidence on the record to prove that the amount of Rs. 5,000/ was personally deposited by Jaswant Singh appellant in his bank account. In the absence of further proof that the currency notes recovered from the possession of the appellant at the time of his arrest or the amount deposited by the appellant in his bank account had actually been stolen from the house or from the possession of Raj Kumari deceased and in view of the aforesaid infirmities in our opinion, it would not be safe to draw an inference that the currency notes recovered from the possession of the appellant or those deposited in the bank account of the appellant were actually stolen by him from the possession or from house of Raj Kumari deceased. As an abundant caution we are not placing any reliance on recovery of currency notes recovered from the possession of the appellant at the time of his arrest or amount of Rs. 5,000/ deposited in the bank account of the appellant.

Recovery of blood stained earth from two places where the dead bodies were earlier on lying near the spot has been amply proved on the record from the testimony of Gian Chand PW 9 and Inspector Sukhwinder Singh. Report of the Chemical Examiner and that of the Serologist show that the blood recovered in this case was of human origin. Recovery of blood stained earth is thus helpful in fixing the place of occurrence which has not been seriously disputed by the defence.

After the arrest Jaswant Singh appellant was interrogated by Inspector Sukhwinder Singh and he made a disclosure statement in pursuance of which be got recovered blood stained iron Datar from a drum full of sand lying in the garage of the house of Onkar Chopra PW i.e. from the garage of the same house where murder of Raj Kumari and Raj Rani was committed. Report of the Chemical Examiner and that of the Serologist show that the said Datar was found stained with human blood. As already discussed in earlier part of the judgment, Jaswant Singh appellant left the house of Onkar Chopra after committing the murder of two old inmates of the house and remained missing and did not return to that house before his arrest by the police on 20.7.1990. It is quite apparent that Jaswant Singh appellant did not want to run the risk of taking the weapon of offence with him when he left the house in the early hours of the morning of 18.7.1990. Thereafter he did not have any opportunity to take the weapon of offence concealed in that very house in the garage. Iron Datar recovered in this case was lying concealed in an iron drum underneath sand. It is quite obvious that the recovery of said Datar could not be effected by the investigating agency otherwise than in pursuance of the disclosure statement made by Jaswant Singh appellant. This aspect further shows that the appellant was in conscious possession of the weapon of offence recovered in this case.

Testimony of Gopal Krishan further reveals that on interrogation by Inspector Sukhwinder Singh, the appellant disclosed that he had keep concealed one gold chain, one gold ring and one silver katora lying wrapped in a plastic paper near the electric pole in front the Adarsh Cinema in Company Bagh and in pursuance of the said disclosure statement he got recovered the aforesaid jewellery/articles. The place of recovery is situated just opposite to the Adarsh Cinema in the Company Bagh. Besides electricity office is also located there. There are shops on both sides of the Adarsh Cinema and milk bar is also situated at a distance of 50 yards from the place of recovery. It is difficult to believe that Jaswant Singh appellant would conceal the aforesaid valuable articles/jewellery near such a overcrowded place. Similarly recovery of blood stained shirt of the appellant after three days of the occurrence from near an electric pole in the vicinity where the alleged place of recovery of articles/jewellery is situated, seems doubtful as an abundant caution we are not placing any reliance on the recoveries of aforesaid articles/jewellery or the shirt of the appellant.

The medical evidence on the record reveals presence of six incised injuries each on the vital parts of the bodies of Raj Kumari and Raj Rani deceased. All the incised injuries of the deceased could be caused by a sharpedged weapon including Datar which was got recovered in this case by the police in pursuance of his disclosure statement. Taking into consideration the time when the postmortem examination on the dead bodies of Raj Kumari and Raj Rani deceased was conducted and the duration given by Dr. Jaswant Singh on cogent basis the probable time when the said deceased were murdered would be around about midnight on the night intervening 17.7.1990 and 18.7.1990. The medical evidence in this case is another important circumstance which strongly points out towards the guilt of the appellant.

The prosecution in the instant case has alleged a definite motive. Jaswant Singh appellant was working as a domestic servant and had committed the murder of Raj Kumari mother of Onkar Chopra as well as Raj Rani maternal aunt of Onkar Chopra PW who had come to stay with Raj Kumari. Onkar Chopra PW, his wife and children were away to Dalhousie. Taking undue advantage of the absence of Onkar Chopra PW, Jaswant Singh appellant committed the murder of both Raj Kumari and Raj Rani deceased with a view to rob or take away jewellery and other valuables from the house of Onkar Chopra. The prosecution has not been able to prove that greed or robbery was the motive to commit the murder of two old ladies. Besides the prosecution has not been able to connect the appellant with the alleged recovery of jewellery from the conscious possession of the appellant. Similarly the prosecution has failed to prove beyond reasonable doubt that the amount of currency notes recovered from the appellant after his arrest or amount of Rs. 5,000/ deposited in bank account of appellant formed part and parcel of the cash stolen by the appellant on that faithful night. Motive to commit crime is thus quite obscure.

On receipt of telephonic message concerning the incident, Jai Pal went to the house of Raj Kumari deceased and became aware of commission of murder of Raj Kumari his aunt and Raj Rani his mother. He then went and made a statement before the Investigating Officer at the Police Station at 9.35 a.m. and on its basis formal first information report was registered at the police station at 10.10.a.m. Special report in this case reached the Ilaqa Magistrate at 2.45 p.m. Delay in lodging the first information report has been adequately explained. However, there is some unexplained delay in sending the special report in this case. Mere remissness on the part of the Investigating Agency in this regard would not be sufficient to disbelieve the earliest version given by Jai Pal PW which has been quite consistent throughout. Delay in lodging the first information report per se would not be sufficient to disbelieve the prosecution story and its only affect is to scrutinize accordingly the version given by Jai Pal PW during the trial, which as already discussed above is consistent throughout. Moreover, it is a case of single accused and the fact that Jaswant Singh appellant who was domestic servant of Raj Kumari deceased was named as a culprit from an earlier stage, is another circumstance which points out towards the guilt of the appellant.

The defence plea about the false implication of Jaswant Singh appellant or that he is innocent has not been substantiated on the record. Since the main occurrence took place in the house of Onkar Chopra PW where his mother Raj Kumari and maternal aunt Raj Rani were murdered and in view of the circumstantial evidence about the presence of Jaswant Singh appellant in that house on the night of occurrence and the fact that he was seen leaving that house at about 4 a.m. in suspicious circumstances by Jagdish Rai PW a neighbour, there is ample evidence on the record about the presence of Jaswant Singh appellant in that house where he was working as a domestic servant on that fateful night. Taking into consideration other circumstantial evidence on the record particularly the extrajudicial confession made by Jaswant Singh appellant before Gopal Krishan PW exMunicipal Commissioner and other circumstances referred to above, the defence plea about false implication of the appellant has not been substantiated on the record and, we have not the least hesitation in rejecting the same.

Taking into consideration the telltale circumstances proved on the record by the prosecution, we are of the view that the prosecution has been able to bring home charge under Section 302 of the Indian Penal Code on two counts concerning the commission of murder of Raj Kumari and Raj Rani deceased against Jaswant Singh appellant beyond reasonable doubt and he has rightly been convicted by the learned trial Court and we uphold his conviction under Section 302 of the Indian Penal Code on two counts.

While elucidating the principles applicable for imposition of death penalty their Lordships of the Supreme Court in Bachan Singh v. State of Punjab, AIR 1980 SC 898 in para No. 199 of the report observed as follows:

"As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of ''special reasons'' in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because ''style is the man.'' In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate watertight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. An it is only when the culpability assumes the proportion of extreme depravity that ''special reasons'' can legitimately be said to exist."

Dealing further with the question of imposition of death penalty or life sentence, it was observed in para 207 of the report as followed:

"There are numerous other circumstances justifying the passing of the lighter sentence as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless it cannot be overemphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expensive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion is so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the high road of legislative policy outlined in Section 354(3), viz. that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law''s instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."

Relying upon the authority in Bachan Singh''s case (supra) it was held by the apex Court inAllauddin Mian and others, Sharif Mian and another v. State of Bihar, AIR 1989 SC 1456, as under :

"In order that the sentences may be properly graded to fit the degree of gravity of each case, it is necessary that the maximum sentence prescribed by law should be reserved for the rarest of rare cases which are of an exceptional nature. Unless the nature of the crime and the circumstances of the offender reveal that the criminal is a menace to the society and the sentence of life imprisonment would be altogether inadequate, the Court should ordinarily impose the lesser punishment and not the extreme punishment of death which should be reserved for exceptional cases only."

Taking into consideration the over all circumstances of the present case, in our opinion, the motive for commission of the crime is obscure and it cannot be said with any degree of certainty that Jaswant Singh appellant committed the murder of Raj Kumari and Raj Rani merely out of greed to steal or deprive Raj Kumari deceased of her valuable articles including cash and jewellery. It is true that two old, infirm and defenceless ladies have been done to death, in our opinion, the extreme penalty of death sentence imposed by the learned trial Court is not justified and it is not rarest of the rare cases or an exceptional case which calls for imposition of extreme penalty of death on Jaswant Singh appellant. Accordingly, we decline the reference made by the learned trial Court for confirmation of death sentence to the said appellant. Jaswant Singh appellant is sentenced to undergo imprisonment for life under Section 302 of the Indian Penal Code on each of the two counts and to pay a fine of Rs. 5,000/ on each of the two counts. In default of payment of fine he shall further undergo rigorous imprisonment for one year. Out of the fine if realised the entire amount shall be paid as compensation in equal shares to the legal heirs of the two deceased. Substantive sentences of imprisonment shall run concurrently.

Both the appeal and the murder reference are disposal of accordingly.

JUDGMENTed accordingly.