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2007 DIGILAW 879 (PNJ)

Dhira v. State Of Punjab

2007-04-18

ADARSH KUMAR GOEL, H.S.BHALLA

body2007
Judgment 1. This appeal is directed against the judgment dated 16.3.2004 passed by Additional Sessions Judge, Patiala, whereby he convicted the appellant under Sec.302 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life. He was ordered to pay a fine of Rs.1,000/-; in default thereof, he was further directed to undergo rigorous imprisonment for a period of three months. Appellant was convicted under Sec.25 of the Arms Act and sentenced to undergo rigorous imprisonment for one year. However, accused Cheeta, Bana, Sardar Hussain, Rasid, Alla Rakha and Setha were acquitted of the charges framed against them. A synoptical resume of the prosecution case is as under:- On 10.1.2000 Assistant Sub Inspector Rajesh Kumar, incharge P. P. Focal Point, Rajpura along with other police officials was present at Kalka Fathak, in connection with patrol duty, where jagdish Chand son of Bashambar Dass Goel made his statement before the police stating therein that he is retired from the department of Post and Telegraph, C. T. O. , Chandigarh and is running the business of STD/pco on Kalka road. His wife Sarswati has three sisters. His sister-in-law Satya Devi is married to Dhanpat rai resident of Rajpura. Second sister-in-law namely Kamla Devi is married to Shiv Kumar Gupta, who has a son namely Tarun Kumar @ Tinku, aged about 15 years. His father-in-law had no son. The whole of the property was divided between the husbands of all the three sisters according to the will executed by Lala Janki Dass and all are residing in their respective houses. His brother-in-law namely, shiv Kumar son of Ram Sarup was residing in the house which was near to his house along with his son Tinku. His sister-in-law namely kamla Devi died about two years back. The son of Shiv Kumar had gone to Sirsa for participating in tournament on 9.1.2000 and on that night, Shiv Kumar was sleeping in his house alone. In routine, his brother-in-law Shiv Kumar was seen walking in his verandah at 7.00 A. M. and they enquired about each other. On 10.1.2000 when he was going to his shop at about 8.30 A. M. Shiv Kumar was not seen in the verandah. He called Shiv Kumar but no reply was received. In routine, his brother-in-law Shiv Kumar was seen walking in his verandah at 7.00 A. M. and they enquired about each other. On 10.1.2000 when he was going to his shop at about 8.30 A. M. Shiv Kumar was not seen in the verandah. He called Shiv Kumar but no reply was received. Then he saw into the house and found that door of the room was open and the articles were lying scattered on the floor of the house. He saw that the body of Shiv Kumar was lying half on the bed and half was hanging. There were mark of injuries on his neck caused by sharp edged weapon. It appeared that some body in order to commit theft had murdered Shiv Kumar. On seeing this, he called his brother-in-law, namely, Dhanpat Rai and some other people of the locality also gathered there. On the basis of the statement made by Jagdish Chand, formal FIR was recorded. Police inspected the place of occurrence and prepared rough site plan and recorded the statements of the witnesses. The dead body of Shiv kumar was taken to A. P. Jain Hospital, Rajpura for post mortem examination. After completion of the investigation, accused was sent up for trial. 2 Accused was charge-sheeted under Sections 302/458/148/149 of the Indian Penal Code and under Sec.25 of the Indian Arms Act, to which accused did not plead guilty and claimed trial. Prosecution, in order to prove its case, examined as many as 11 witnesses, namely, Constable Sukhwinder Singh (PW-1), paramjit Singh Gurm (PW-2), Jagdish Chand (PW-3), Dhanpat Rai (PW-4), Om Parkash (PW-5), Baldev Singh, Assistant Sub Inspector (PW-6), Dr. Manjit Singh (PW-7), Rajesh Kumar, Assistant Sub inspector (PW-8), William Jeji, Sub Inspector (PW-9), Jaswinder singh (PW-10) and Balraj Singh, Inspector ( PW-11) and closed its evidence. 3. In his statement recorded under Sec.313 of the Code of Criminal Procedure, accused denied all the prosecution allegations levelled against him and pleaded that he has been falsely implicated in this case. He was called upon to enter upon his defence and during the course of defence evidence, accused tendered some certified copies of the statements of Om Parkash, Ex. D-5 and Ex. D-6 and closed the defence. 4. We have heard the learned counsel for the parties and have also gone through the record of the case. He was called upon to enter upon his defence and during the course of defence evidence, accused tendered some certified copies of the statements of Om Parkash, Ex. D-5 and Ex. D-6 and closed the defence. 4. We have heard the learned counsel for the parties and have also gone through the record of the case. The learned defence counsel has vehemently argued that om Parkash (PW-5) is a stock witness of the prosecution and this fact is proved from the documents placed on the file and therefore, no reliance can be placed on the extra-judicial confession made by appellant Dhira before Om Parkash (PW-5 ). He further submitted that no explanation has come forward as to why Om Parkash kept quite for about 10 months and did not disclose the alleged extra-judicial confession. The learned counsel has also challenged the statement of Om Parkash (PW-5) by submitting that this witness is not acquainted with Dhira and as such, there was no occasion for Dhira to suffer extra judicial confession before him. Learned counsel also submitted that the Investigating Officer could not identify Dhira, the main accused, in the Court and therefore, the prosecution story is doubtful. Learned counsel has further submitted that it is a case of blind murder and the accused has been falsely implicated in the instant case. 5. On the other hand, the learned Deputy Advocate General appearing for the respondent has submitted that appellant Dhira suffered extra judicial confession before Om Parkash (PW-5), wherein he has disclosed that he along with other co-accused has committed the murder of Shiv Kumar and also he confessed before this witness that he gave a knife blow on the person of Shiv Kumar and during the course of interrogation, Dhira appellant suffered disclosure statement and he got recovered the knife used in the occurrence for committing the murder of Shiv Kumar and as such, the case of the prosecution is proved against the accused and he has been rightly convicted and sentenced by the learned Sessions judge. 6. It is crystal clear from the facts quoted above that the entire case of the prosecution revolves around extra-judicial confession suffered by appellant Dhira before Om Parkash (PW-5), who is the star witness of the prosecution. 6. It is crystal clear from the facts quoted above that the entire case of the prosecution revolves around extra-judicial confession suffered by appellant Dhira before Om Parkash (PW-5), who is the star witness of the prosecution. At this stage, we would like to peep through the statement of this witness and we find that this witness has disclosed the occurrence alleged to have taken place on the intervening night of 9/10.1.2000 and as per the statement of Om Parkash (PW-5) in the month of January,2000 while he had gone to see off his relative at Gaggan Chowk, Rajpura and was coming back towards Kalka road, Rajpura and near railway crossing. Dhira accused met him. Previously, he used to sell lottery tickets and he told him that they had committed a blunder and disclosed that he along with other coaccused had gone to Gaggan Chowk for the purpose of theft and he gave a knife blow on the person of Shiv Kumar deceased and thereafter, they left the house and the appellant requested to help him. Meaning thereby that, after 3-4 days of the occurrence, extrajudicial confession was suffered by accused Dhira before Om parkash (PW-5) and it was only on 1.11.2004, after a lapse of about 10 months, he suffered a statement before the police. All this shows that this witness remained silent for about 10 months and did not disclose this fact to anybody. During the course of crossexamination, it is admitted by him that he might have appeared as a witness in one or two cases and denied the suggestion that he is a stock witness of Rajpura police. He has further disclosed that he does not know the name of wife of Dhira nor he could disclose the children of the appellant. During the course of crossexamination, it is admitted by him that he might have appeared as a witness in one or two cases and denied the suggestion that he is a stock witness of Rajpura police. He has further disclosed that he does not know the name of wife of Dhira nor he could disclose the children of the appellant. Meaning thereby that it could not be established on the record as to how Om Parkash was known to the appellant except for an explanation submitted by Om Parkash that accused Dhira was previously known to him as he used to sell lottery tickets, but at the same time, no explanation has come forward as to why Dhira reposed confidence in Om Parkash, who was known to him casually and is neither a Sapranch nor a Municipal commissioner of the area where offence was committed nor Om parkash is the resident of the area of the accused, who is the resident of Old Mirch Mandi, Rajpura, whereas Om Parkash is the resident of village Dhamoli, which is located near the Railway crossing, Rajpura. In such like circumstances, we are of the view that the extra judicial confession alleged to have been made by the appellant before Om Parkash (PW-5), who is, in no way, a respectable and influential person, certainly creates a doubt in the mind of the Court as to why the appellant chose this witness disclosing the commission of the offence. Moreover, Om Parkash did not utter even a single word about this confession for about 10 months and it was only on 1.11.2004 that he realized one fine morning that the culprits should be brought to book. What were the circumstances under which he compelled to make a statement before the police that too after a lapse of 10 months of the incident puts a question mark on the credentiality of the evidence made by this witness before the police narrating the whole incident as disclosed by the appellant Dhira. In such like circumstances, it is unsafe to rely upon the testimony of this witness. 7. In such like circumstances, it is unsafe to rely upon the testimony of this witness. 7. Making an extra-judicial confession by the appellant before Om Parkash (PW-5) as to the commission of the offence, but not telling about it to any body by this witness, clearly spells out that the evidence of such a witness is not worthy of acceptance and no explanation has come forward as to why he disclosed the entire incident narrated to him by the appellant after a lapse of 10 months to the police. This reasoning of ours is supported by the law contained in State of Orissa Vs. Brahmananda Nanda, AIR 1976 supreme Court 2488, wherein their Lordships of the Apex Court have observed as under:- " Where in a murder case, the entire prosecution case depended on the evidence of a person claiming to be eye-witness and this witness did not disclose the name of the assailant for a day and a half after the incident and the explanation offered for non-disclosure was unbelievable, held that such non-disclosure was a serious infirmity which destroyed the credibility of the evidence of the witness and that the High Court was correct in rejecting it as untrustworthy and acquitting the accused. " In the instant case, non-disclosure of the occurrence by om Parkash (PW-5), who is witness to the Extra-judicial confession, to any one for more than 10 months and no explanation has been offered for the same and such non-disclosure certainly creates a serious infirmity in the prosecution version, which destroyed the credibility of the testimony of the witnesses and no reliance can be placed on such type of weak evidence. In such like circumstances, the testimony of Om Parkash (PW-5) as to the confession made by the appellant before him with regard to the murder of Shiv Kumar cannot be relied upon in any manner especially when it has been disclosed before the police after about 10 months of the occurrence. It appears that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting and is not free from doubts and suspicion. It also appears that after recording the disclosure statement, the prosecution thought of this witness, namely, Om Parkash (PW-5) to be cited as a witness. It appears that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting and is not free from doubts and suspicion. It also appears that after recording the disclosure statement, the prosecution thought of this witness, namely, Om Parkash (PW-5) to be cited as a witness. 8 In view of the discussion made above, we are of the opinion that the entire picture of the occurrence, as presented by the prosecution and its witnesses is doubtful. Appeal is, accordingly, allowed. Appellant is acquitted of the charges levelled against him. Appellant, if in custody, be set at liberty forthwith if not required in any other case. The result is unfortunate, but it cannot be helped. It is pity that brutal murder is going unpunished.