Research › Search › Judgment

Punjab High Court · body

2008 DIGILAW 501 (PNJ)

Harbhajan Singh Alias Bhajna v. State Of Haryana

2008-02-22

ADARSH KUMAR GOEL, S.D.ANAND

body2008
Judgment S.D.Anand, J. 1. While recording a finding of conviction against the appellant, the learned Trial Judge upheld the following prosecution presentation at the trial. 2. PW5 Surjit Kaur has five sons, namely (Dev, Jagnandan, Mandar, Balwinder and Harbans) who are married in the same family i.e. to the five daughters of Jagar Singh of village Malhari. Her four sons are residing in village Baragudha; while her son Dev is residing in village Malhari. All are otherwise separate in mess and residence interse; except that Mst. Surjit Kaur was joint in mess and residence with her son Mandar Singh. 3. About one year ago (prior to the examination of PW5 Surjit Kaur at the trial on 4.3.1995) Mandar Singh had accompanied appellant Harbhajan Singh to caste his vote. On the return journey, they visited a daughter of Surjit Kaur in the area of village Gidderhera. They returned the following day to village Baraguda. On the day thereafter, Mst. Surjit Kaur and Mandar Singh were sitting in the house when the appellant came over there and desired Mandar Singh to accompany him to the Dera. Mandar Singh obliged. On that day, Mandar Singhs wife was away to village Malhari to attend the marriage of a son of Dev Singh. Mandar Singh did not return home thereafter. Appellant came over to Mst. Surjit Kaur the following morning to find the whereabouts of Mandar Singh. Surjit Kaur informed him that he was the best placed to indicate the whereabouts of Mandar Singh as he only had taken him along a day earlier. Thereafter, Surjit Kaur repeatedly visited the house of Harbhajan Singh appellant and made enquiries about the whereabouts of her son but in vain. All that the appellant informed her was that Mandar Singh had obtained liquor from him and that he had no idea about what happened thereafter. The dead body of Mandar Singh was found lying in a pool of water after 12 days thereof. The post mortem-examination revealed that he had been strangulated to death. 4. The learned Trial Judge placed implicit reliance upon the prosecution version, negatived appellants plea of innocence and recorded a finding of conviction. 5. The appellant is in appeal. 6. The dead body of Mandar Singh was found lying in a pool of water after 12 days thereof. The post mortem-examination revealed that he had been strangulated to death. 4. The learned Trial Judge placed implicit reliance upon the prosecution version, negatived appellants plea of innocence and recorded a finding of conviction. 5. The appellant is in appeal. 6. As would be apparent from a perusal of the material obtaining on the file, and it is a common ground even otherwise, that the prosecution draws sustenance from the last-seen evidence, the extra-judicial confession purporting to have been made by the appellant before PW 6 Jagsir Singh, an Up-Sarpanch of village Malhari and also the recovery of the wallet of the deceased which was got recovered by the appellant in pursuance of a disclosure statement. 7. We find, on appraisal of the evidence in the light of the presentation made before us, that the prosecution case is not free from doubt. The following observations shall cement our view. 8. It being beyond the pale of controversy that there is no ocular testimony to the commission of the impugned crime, the evidentiary value to be attached to the testimony of PW5 Surjit Kaur (i.e. the last seen evidence) would be of great importance. On her own showing, the deceased was taken along by the appellant for purpose of visiting the Dera. It was on the very following day that the appellant came over to Mst. Surjit Kaur and enquired from her the whereabouts of Mandar Singh whom he had himself fetched a day earlier. Further, it is her own version that she informed the appellant that he was the best placed to indicate the whereabouts of Mandar Singh because it is he only who had fetched him from the house a day earlier. The appellant is reported to have informed her that her son Mandar Singh had obtained liquor from him and that he had no idea about what may have happened thereafter (in the context of the whereabouts of Mandar Singh). Mst. Surjit Kaur was a mother who had been informed by none else or other than the person (who had fetched his son from her house a day earlier) that he had no idea about the whereabouts of her son. Mst. Surjit Kaur was a mother who had been informed by none else or other than the person (who had fetched his son from her house a day earlier) that he had no idea about the whereabouts of her son. He is further reported by her to have announced that her son had obtained liquor from him and that he had no idea about what happened to him thereafter. It is plainly incomprehensible that as a mother Mst. Surjit Kaur still opted to repeatedly visit the house of appellant and did not lodge a report with the police for a period of 12 days. Equally unacceptable is her statement that she did not make complaint to the police or any other officer regarding the non-return of Mandar Singh to the house ("I did not complain to the police or any other officer with regard to non-return of my son Mandar Singh."). She also told the Court that it was her brother-in-law (younger brother of her husband) Harnek Singh PW1 who had informed the police and that she had not informed Harnek Singh that Mandar Singh had accompanied the appellant. She went on to clarify ("My brother-in- law (Dewar) Harnek Singh had informed the police. I had not disclosed to Harnek Singh that my son had accompanied the accused. I did not disclose the above mentioned fact to anyone.") Her conduct is thoroughly is inexplicable when she informed the Court that she did not disclose that fact even to those who had gathered at the cremation of Mandar Singh. Her plea that she refrained from do so as she was not in a proper state of mind is not acceptable in the facts and circumstances of the case. In the context, it may be noted that though the Investigating Officer visited the village after cremation, he did not come over to her and she also did not go over to him "to disclose that my son had accompanied the accused before his death or the facts which I have stated today in the court". Any other mother circumstanced like Mst. Surjit Kaur would have immediately got into touch with the police the very following day her son did not return to the house. Any other mother circumstanced like Mst. Surjit Kaur would have immediately got into touch with the police the very following day her son did not return to the house. Her conduct in refraining from going to the police (even after being informed by the appellant that he had only provided liquor to her son and that he had no idea about what happened to him thereafter) is incomprehensible. 9. Insofar as the extra-judicial confession made by the appellant before PW 6 Jagsir Singh is concerned, it also cannot form the sole basis of finding of conviction in the peculiar circumstances of the case. As per the testimony of Jagsir Singh, one Buta Singh was available with him in his Baithak when the appellant came over there and made an extra-judicial confession. It may be noticed that the appellant is a resident of village Baragudha, while Jagsir Singh is Up-Sarpanch of village Malhari. Though he is holder of an office, there is no particular reason why the appellant would have refrained from making an extra-judicial confession before village functionary of his own village. There is also no particular reason why the appellant would have preferred Jagsir Singh to make an extra-judicial confession. Normally, an accused would make an extra-judicial confession before someone in office as he would be in a position to render some help in his surrender before the police. The basic idea is to avoid torture at the hands of the police. Further, a person inclined to make an extra-judicial confession would like to make it before a person in office in privacy and not in the presence of a third person. 10. Insofar as the recovery of wallet (containing coin of one rupee and a copper coin and a coin of 20 paise) of the deceased is concerned, it cannot clinchingly fasten liability for the crime upon the appellant. The articles recovered have no peculiarity and it cannot be said that such like articles are not available in the open market. The present is, thus, a case in which there is no ocular testimony about the commission of the impugned crime. The testimony of Mst. Surjit Kaur PW 5 mother of the deceased has been found to be unnatural. The extra-judicial confession has not been found to be natural. The present is, thus, a case in which there is no ocular testimony about the commission of the impugned crime. The testimony of Mst. Surjit Kaur PW 5 mother of the deceased has been found to be unnatural. The extra-judicial confession has not been found to be natural. We would, accordingly, allow the appeal, set aside the impugned judgment of conviction and order the acquittal of the appellant of the charge.