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2005 DIGILAW 1312 (PNJ)

Amarjit Singh v. State Of Punjab

2005-12-21

AMAR DUTT, KIRAN ANAND LALL

body2005
Judgment Kiran Anand Lall, J. 1. Harbans Singh son of Baru Singh, resident of Village Khokhar having been murdered on 4.8.1993 at about 8.00 p.m., appellant Amarjit Singh and one more, Mukand Singh, were sent up for trial by Police Station, Balianwali, on the basis of FIR No. 24, recorded under Section 302 read with Section 34 IPC on 5.8.1993 at 6.05 a.m. The trial Court acquitted Mukand Singh, holding that charge framed against him under Section 302 IPC read with Section 34 IPC had not been established. The appellant was, however, convicted under Section 302 IPC and was sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/-. In default of payment of fine, he was to undergo further rigorous imprisonment for two years. Fine, if recovered, was to be paid to the heirs of the deceased. 2. The prosecution case is that the complainant had four more brothers, out of whom Chhota Singh died about 8-9 years prior to the occurrence. The remaining four brothers had been living separate from each other. Out of them, Harbans Singh deceased and Sukhdev Singh were sharing a common house which was adjacent to the house of the complainant, Gurdev Singh. About two months prior to the occurrence, Sukhdev Singh sold his share in the house to Amarjit Singh-appellant and shifted his residence outside the village. On 4.8.1993, at about 8.00 p.m. the complainant along with his wife and children were present on the roof of their house. They were lying on cots and talking to each other, after having taken their meals. Chhinder Kaur, wife of Harbans Singh deceased, was away to her parents home at Village Balianwali, for the last about one and a half month. An electric bulb was on in the court-yard of the house of Harbans Singh deceased and Amarjit Singh appellant. Both of them along with Mukand Singh were taking liquor in the court-yard of the house. After about half an hour, the complainant and his family heard sounds of loud voices coming from the house of the deceased. He and his wife Balbir Kaur peeped over the wall and saw that the appellant was enquiring from the deceased as to why he was not bringing his maternal-uncles daughter, Chhinder Kaur. The deceased replied that he was not going to rehabilitate her. On this, there was exchange of hot words between them. He and his wife Balbir Kaur peeped over the wall and saw that the appellant was enquiring from the deceased as to why he was not bringing his maternal-uncles daughter, Chhinder Kaur. The deceased replied that he was not going to rehabilitate her. On this, there was exchange of hot words between them. Meanwhile Mukand Singh also abused the deceased and enquired as to why he was not rehabilitating his wife. He took the deceased in his grip and made him fall on the ground. The appellant gave 3-4 consecutive blows with a small axe (takua) on the front side of the neck (larynx) of the deceased. The complainant and his wife raised alarm "mar-ta mar-ta" (killed- killed) whereupon the appellant and Mukand Singh fled away from the spot along with the small axe. By the time the complainant and his wife reached there, the deceased had already expired due to the injuries inflicted on him. The complainant called his brother Sukhdev Singh to the spot and also informed Surjit Singh Sarpanch and Jasmeet Singh member panchayat about the incident. He did not go to police station at night time, due to the deteriorating law and order situation. In the morning, he along with Surjit Singh Sarpanch left for the police station for reporting the matter, leaving his brother Sukhdev Singh and Chowkidar of the village Munshi Singh to guard the dead-body of his brother, and got the case registered. 3. After registration of the case FIR, Ex. PE, SI Lachhman Singh (PW-4) accompanied the complainant and Surjit Singh Sarpanch to the spot where Sukhdev Singh and Munshi Singh were present near the dead-body. He prepared inquest report, Ex. PB, lifted blood-stained as well as simple earth from there and took the same into possession vide memo, Ex. PJ, after making two separate sealed parcels thereof. The post-mortem examination of the dead-body, which was identified by Sukhdev Singh and Pritam Singh, was conducted by Dr. Charanjit Singh (PW-1), on the police request, Ex. PC, made for the purpose. Thereafter, investigation was entrusted to SI Baljinder Kumar (PW-5) on 7.8.1993. Surjit Singh Sarpanch produced the appellant and Mukand Singh before him on 20.8.1993 and he arrested them. On 22.8.1993, he interrogated the appellant, who made a disclosure statement, Ex. Charanjit Singh (PW-1), on the police request, Ex. PC, made for the purpose. Thereafter, investigation was entrusted to SI Baljinder Kumar (PW-5) on 7.8.1993. Surjit Singh Sarpanch produced the appellant and Mukand Singh before him on 20.8.1993 and he arrested them. On 22.8.1993, he interrogated the appellant, who made a disclosure statement, Ex. PM, in the presence of Jang Singh and Shingara Singh Constables, to the effect that he had kept concealed an axe under a heap of sticks near the wall of the village school and he alone knew about the place of concealment. Thereafter, he led the police party to the place of concealment and got the axe recovered. After preparing sketch of the blade of the axe, Ex. PN, the SI took it into possession, vide memo, Ex. PQ. He also prepared the site plan of the place of recovery, Ex. PR. 4. On completion of investigation, police challaned the appellant and also Mukand Singh. 5. On receipt of the case, by way of commitment, the trial Court charged the appellant for the offence under Section 302 IPC and the other accused, Mukand Singh, for the offence under Section 302 read with Section 34 IPC. since both of them pleaded not guilty to the charge, prosecution was called upon to lead evidence. They examined five witnesses viz. PW-1 Dr. Charanjit Singh, PW-2 Gurdev Singh, PW-3 Balbir Kaur, PW-4 S.I. Lachhman Singh, and PW-5 S.I. Baljinder Kumar in support of their case. 6. On completion of prosecution evidence, statements of the appellant and Mukand Singh were recorded under Section 313 Cr.P.C., wherein they disputed the correctness of the prosecution evidence. The plea taken up by the appellant runs as under :- "I am innocent. I purchased house from Sukhdev Singh brother of the complainant Gurdev Singh. There occurred dispute about 15-20 days prior to the present occurrence about sale consideration of the house. Both the alleged eye-witnesses were present at Chauke and they were informed by Munshi Chowkidar and were brought from there in the early morning of August 5, 1993 and I have been falsely implicated at the instance of Sukhdev Singh PW." The plea of Mukand Singh was also on the similar lines. No evidence was led in defence. 7 On completion of trial Court acquitted Mukand Singh but convicted and sentenced the appellant, as already mentioned above. No evidence was led in defence. 7 On completion of trial Court acquitted Mukand Singh but convicted and sentenced the appellant, as already mentioned above. The latter, therefore, filed this appeal, challenging the verdict of his conviction and sentence. 8. We have heard arguments addressed by both sides and have also carefully considered the evidence on record. 9. According to the learned counsel for the appellant, once the trial Court had disbelieved the prosecution evidence qua Mukand Singh accused, it was not justified in making the same very evidence as the basis of conviction of the appellant. PW-2 Gurdev Singh and PW-3 Balbir Kaur, who are stated to be the eye-witnesses, it appears, were not present at the spot. They were, in fact, not even residing in Village Balianwali, at the relevant time. PW-2 Gurdev Singh admitted that for the last 8-10 years, he had been cultivating land (15 acres) in his mothers parental village i.e. Village Chauke. He had inherited this land from his maternal uncles (mamas). The land owned by him in Village Khokhar had been given on lease by him. This part of his testimony finds corroboration from the evidence of his wife, PW-3 Balbir Kaur, also wherein she stated that : "My husband has inherited some land in Chauke about 8-9 years ago from his deceased uncles (mamas). The land is being cultivated by us. My mother-in-law also lives in Chauke. We were informed at Chauke by some relative about the occurrence." 10. In view of the above categorical statements of PW-2 and PW-3, the prosecution version that they were residing in Village Khokhar and had seen the occurrence, clearly falls to the ground. 11. It is also material to note that PW-2 and PW-3 deposed that the deceased, appellant and Mukand Singh were taking liquor (together) when the occurrence took place. According to the former, the deceased, appellant, and Mukand Singh were sitting on cots and taking liquor, and when he and PW-3 reached (after the occurrence was over), they found one empty and one full liquor-bottle, lying there on a table. This version, however, does not find corroboration from the testimony of the investigating officer (PW-4), according to whom he did not find any liquor bottle, glass, or table etc. at the spot. This version, however, does not find corroboration from the testimony of the investigating officer (PW-4), according to whom he did not find any liquor bottle, glass, or table etc. at the spot. The doctor (PW-1) who conducted the post-mortem examination had also not found alcohol in the body viscera, blood, or urine of the deceased. Therefore, the prosecution story that occurrence took place when the deceased, appellant and Mukand Singh were taking liquor, is clearly a blatant lie. 12. Even the motive attributed by the prosecution, to the appellant, for committing the murder of Harbans Singh does not get established, on the basis of evidence available on record. The father-in-law of the deceased, Pritam Singh who was present at the time inquest proceedings were conducted and had even attested the inquest report, Ex. PB, was the best person to have told the police during investigation and the Court, during trial, about his daughter, Chhinder Kaur, having been deserted by the deceased or the latter having refused to rehabilitate her. But, he did not do so, either during investigation or at the time of trial. It is significant to note that though he was cited as a prosecution witness, he was not put in the witness-box and was given up as unnecessary. The motive part of the prosecution story also has, therefore, to be disbelieved. And, once it is so done, it has to be held that the appellant had no motive to kill the deceased. 13. Since PW-2 and PW-3 had refused to support the prosecution regarding the participation of Mukand Singh in the occurrence, prosecution treated them hostile to that extent and cross-examined them, with the permission of the Court. The learned counsel for the appellant, therefore, contended that the trial Court should not have believed their testimony, even qua the appellant. He referred to Jagir Singh v. The State (Delhi Administration), AIR 1975 Supreme Court 1400 in this regard, wherein it was held that : "It is now well settled that when a witness, who has been called by the prosecution, is permitted to be cross-examined on behalf of the prosecution, the result of that course being adopted is to discredit that witness altogether and not merely to get rid of a part of his testimony." 14. Since no judgment contrary to the above, could be cited by the learned Senior Deputy Advocate General, the said eye-witnesses had to be discredited, altogether. The trial Court had clearly gone wrong in disbelieving them qua one viz. Mukand Singh and believing them qua the other viz. the appellant. 15. The prosecution also tried to connect the appellant with the occurrence on the basis of recovery of an axe, allegedly got effected by him in pursuance of a disclosure statement made before SI Baljinder Kumar (PW-5), in the presence of Jang Singh and Shingara Singh constables. But, even this part of the stay cannot be believed unhesitatingly, as neither of the two witnesses of disclosure statement/recovery was put in the witness-box. Both were given up as being unnecessary. Here, it may also be stated that neither Sukhdev Singh whom the complainant had called to the spot soon-after the occurrence nor Surjit Singh Sarpanch or Jameet Singh member panchayat who too had, allegedly, reached there on getting information from the complainant about the incident, were produced in evidence. Holding back of evidence of such material witnesses also goes a long way against the prosecution. 16. It may also be stated that the prosecution case suffers from the vice of delay also. The alleged occurrence took place at 8.00 p.m., whereas matter was reported to the police on the next day, at 6.05 a.m., and there is no satisfactory explanation on file to explain this delay. Therefore, the possibility of the intervening period of 10 hours having been utilised by the prosecution in manipulations and concoction of a false version cannot be ruled out. For the reasons stated above, it is held that the prosecution having failed to prove the case against the appellant, beyond shadow of reasonable doubt, the trial Court had gone wrong in convicting/sentencing the appellant. The appeal is, accordingly, accepted and the appellant is acquitted of the charge framed against him.