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2009 DIGILAW 1683 (PNJ)

Satish Kumar Alias Jalia Ram v. State Of Punjab

2009-09-24

ASHUTOSH MOHUNTA, MOHINDER PAL

body2009
Judgment ASHUTOSH MOHUNTA, J. 1. The appellant Satish Kumar has filed this appeal against the judgment and order of sentence dated 29.9.2006, whereby, he has been convicted and sentenced to undergo r. I. for life and to pay a fine of Rs.10,000/-and in default of payment of fine to further undergo R. I. for 6 months under Sec.302 ipc. He was also sentenced to undergo R. I. for 10 years and to pay fine of Rs.10,000/- in default of payment of further undergo R. I. for 6 months under Sec.392 IPC. He was further sentenced to undergo R. I. for 7 years and to pay a fine of Rs.10, 000/- and in default of payment of fine to undergo R. I. for 6 months under Sec.201 IPC. All the sentences were ordered to run concurrently. The case of the prosecution in brief is that on 28.10.2000, Inspector Jasdeep Singh (PW20)along with ASI Sukhvir Singh, ASI Kewal Singh, constable Jasvir Singh, Constable Resham singh and SPO Sukhvir Singh was present at bus Stand Nurmahal, Phillaur where complainantgurmail Singh son of Hari Singh came and got recorded his statement to the effect that he is resident of village Haripur khalsa, Police Station Phillaur and is an agriculturist by profession. 2. On 28.10.2000, he had gone to look after his fields situated near the brick kiln of village Haripur. At about 8.30a. m. When he reached near his Mustard crop which is situated near the metalled road, he saw a dead body of a man aged about 25-26 years lying near the butt and his clothes were smeared with blood. It appeared that some unknown persons with sharp edged weapons had killed that man and had thrown him in his fields. Further the complainant also got recorded in his statement that he left the dead body in the custody of Sukh dev Singh s/opiara Singh and then he proceeded to report the matter. On the basis of the aforesaid statement (Ex. PDD) recorded on 28.10.2000 at 9.30 a. m. , formal FIR (Ex. Further the complainant also got recorded in his statement that he left the dead body in the custody of Sukh dev Singh s/opiara Singh and then he proceeded to report the matter. On the basis of the aforesaid statement (Ex. PDD) recorded on 28.10.2000 at 9.30 a. m. , formal FIR (Ex. PDD/3) under section 302/201 IPC was recorded by ASI lachhman Dass at 9.40 a. m. There after, inspector Jasdeep Singh along with other police party went to the spot and near the dead body one empty liquor bottle, one glass and a purse along with driving licence of Harjit singh were found the reand the same were taken into possession vide separate recovery memos. 3. He also prepared the site plan. The dead body was sent for post mortemexamination. In order to connect the accused with the commission of the crime; the investigating officer recorded the statements of Sohan Lai Chauhan, Santokh singh S/o Chanan Singh and Ravinder Singh. Ravinder Singh is the witness who had last seen the deceased in the company of the accused and he also stated that on 28.10.2000, he came to know that Kuldeep singh and Satish had fled away with Tata sumo bearing No. PB01-2362 after committing murder of Harjit Singh with sharp edged weapon and threw his dead body. Santokh Singh is also the witness of last seen. The extra judicial confession was made before PW18 Sohan Lal Chauhan. On 5.11.2000, the accused were seen roaming in the Tata Sumo on the Ferozepur-Ludhiana road in suspicious circumstances and said Tata Sumo was taken into possession by the Police of Police Station Sarabha Nagar, ludhiana. On 10.2.2001, accused Satish kumar was arrested on the identification of santokh Singh and his blood stained clothes were taken into possession. On 11.2.2001, in pursuance of his disclosure statement, the accused Satish got recovered the knife allegedly used for committing the offence and the same was taken into possession. 4. After completion of all the necessary formalities, chall an against the accused was presented under Sec.302, 392, 201 IPC. Charge against the accused Kuldeep and satish was framed to which they pleaded not guilty and claimed trial. It is pertinent to mention here that the accused Kuldeep expired during the pendency of the trial. To substantiate its case, the prosecution examined as many as20 witnesses. PW1 Dr. Charge against the accused Kuldeep and satish was framed to which they pleaded not guilty and claimed trial. It is pertinent to mention here that the accused Kuldeep expired during the pendency of the trial. To substantiate its case, the prosecution examined as many as20 witnesses. PW1 Dr. Jai Kishan, Medical Officer, Civil Hospital, phillaurconducted autopsy on the dead body of Harjit Singh on 28.10.2000 and found 28 incised and stabbed injuries on the dead body of Harjit Singh. He has opined that the cause of death in this case was due to shock and haemorrhage due to the injuries which were sufficient to cause death in the ordinary course of nature. All the injuries were found to ante mortem. PW2dr. Mukesh Walia stated that Harjit Singh was engaged as driver on his vehicle Tata Sumo No. PB01-2362. PW3 Santokh Singh stated that on dated 5.11.2000 he had seen Satish and Kuldeep singh in Tata Sumo. 5. At that time Kuldeep Singh was driving the vehicle and Satish Kumar was sitting on the seat. He further that stated that he learnt later on that driver of that vehicle had been murdered; PW4 Constable Desu Dass proved the mechanical report of Tata Sumo Ex. PF. PW5 Sh. A. S. Grewal, Addl. Chief Judicial magistrate, Jalandhar, stated that Satish kumar accused was produced before him on 14.02.2001 and an application Ex. PG for taking his specimen finger prints was made on which Satish Kumar has no objection. He proved the statement of Satish Kumar (Ex. PG/1 ). 6. He further stated that application was ex. PH for taking the finger prints of Kuldeep singh was also made and regarding no objection statement of Kuldeep Singh Ex. PH/1 was recorded. He also proved the specimen finger prints of the accused. PW6 Inspector bal Krishan, Finger Prints Expert, Finger Prints bureau, Phillaur proved his report Ex. PL. PW7 virender Singh, Sr. Clerk of the office of State transport Commissioner, Chandigarh proved the registration certificate of vehicle No. PB01-2362 Ex. P3. PW8 Mangat Rai, Jr. Asstt. Of the office of DTO Jalandhar proved the driving licence of Harjit Singhex. P5. PW9 Kirpal Singh draftsman, proved the scaled site plan ex. PN. PL. PW7 virender Singh, Sr. Clerk of the office of State transport Commissioner, Chandigarh proved the registration certificate of vehicle No. PB01-2362 Ex. P3. PW8 Mangat Rai, Jr. Asstt. Of the office of DTO Jalandhar proved the driving licence of Harjit Singhex. P5. PW9 Kirpal Singh draftsman, proved the scaled site plan ex. PN. PW10 Parvinder Singh who is the brother of Harjit Singh stated that on28.10.2000, he came to know that Harjit singh had been killed by Satish Kumar and kuldeep Singh and thereafter they fled away with Tata Sumo. PW11 H. C. Jaswinder Singh, pw15 H. C. Jasbir Singh, PW16 Constable harbans Singh and PW17 Constable Mohan singh proved their affidavit Ex. PO, Ex. PAA, expbb, Ex. PCC respectively. PW12 ASI paramjit Singh interrogated Kuldeep Singh on 8.2.2001 and he confessed his guilt before the ASI. PW13 ASI Sukhvir Singh has stated about the recording of the statement of gurmail Singh complainant and recovery of bottle, glass and purse. PW14 H. C. 7. Pawan Kumar stated regarding handing over Tata Sumo to ASI Sukhvir Singh on 20.12.2000 vide memo Ex. PR. PW18 Sohan singh Chauhan stated about the extra judicial confession to have been made by the accused on 27.11.2000. PW19 ASI Lachhman Dass has given the details of investigation conducted by Inspector Jasdeep Singh. PW20 DSP jasdeep Singh who is the investigating officer has given the details of investigation conducted in this case. 8. On closure of the prosecution evidence, statement of accused was recorded. The accused-appellant stated that he had a quarrel with Kuldeep Singh due to which he got him falsely implicated in this case. Learned counsel for the appellant has contended that the entire case is based upon circumstantial evidence and the onus was on the prosecution to prove that the chain of events was complete. Learned counsel has contended that the prosecution has failed to prove the last seen evidence beyond reasonable doubt. 9. It is contended that the occurrence is alleged to have taken place on 28.10.2000, whereas the statement of Ravinder singh PW10 who was the younger brother of the deceased was recorded on30.12.2000. According to PW10 Ravinder Singh, the accused Satish Kumara long with the co-accused Kuldeep (deceased) had come to their house on27.10.2000, at about 2.00 p. m. and had hired the Tata Sumo for a sum ofrs.800/-. According to PW10 Ravinder Singh, the accused Satish Kumara long with the co-accused Kuldeep (deceased) had come to their house on27.10.2000, at about 2.00 p. m. and had hired the Tata Sumo for a sum ofrs.800/-. Thereafter, they went with his brother Harjit Singh in the Tata Sumo. The dead body of Harjit Singh was found. on 28.10.2000, lying in the area of village Haripur khalsa on a link road behind Sarkanda. It is contended that the deceased might have met various other persons between2.00 p. m. on 27.10.2000 up to the next date, i. e. on 28.10.2000 and as a lot of time had elapsed when the accused and the deceased were last seen together, hence it cannot be said with certainty that the deceased had not met any other person after 2.00 p. m. on 27.10.2000, till his death on the next day. lt is thus contended that the last seen evidence led by the prosecution does not establish that the accused had committed the murder of deceased Harjit Singh. 10. Learned counsel has further argued that the prosecution has placed reliance on the testimony of PW3 Santokh Singh who had earlier stated before the Police that he had seen the accused driving in the Tata Sumo on ferozepur Road, Ludhiana on 5.11.2000. However, this witness was declared hostile and hence this chain of circumstance has also not been proved by the prosecution. Counsel for the appellant has further submitted that an empty glass bottle and a glass tumbler were recovered from near the dead body of harjit Singh. The right hand thumb impression of both the accused Kuldeep and Satish Kumar were taken and were sent to the finger prints expert for examination. PW6 Inspector Bal krishan, Finger Prints Expert, Finger Prints bureau, Phillaur has stated that right thumb impression of accused Kuldeep were found on the empty glass bottle and glass tumbler, but no thumb impression of the appellant satish were found. 11. On the basis of the above, learned counsel submits that the finger prints of the accused appellant have not been found on the empty glass bottle and glass tumbler and therefore, it would be unsafe to convict him. 11. On the basis of the above, learned counsel submits that the finger prints of the accused appellant have not been found on the empty glass bottle and glass tumbler and therefore, it would be unsafe to convict him. Learned counsel has further argued that the extra judicial confession made by the accused before PW18 Sohan Lal Chauhan is no confession in the eyes of law as the occurrence is alleged to have taken place on 28.10.2000, whereas the confession is stated to have been made on25.11.2000. It has been submitted that extra judicial confession is a weak type of evidence and the same could not be relied upon as the accused would not make an extra judicial confession to a person who was not very well known to them. Learned counsel further submits that pw18 Sohan Lal Chauhan had never produced the accused before the Police and hence this witness cannot be relied upon. 12. It is thus contended that the prosecution has failed to complete the chain of events and that the prosecution has been failed to connect the accused Satish Kumar with the commission of offence, whereas the accused kuldeep Singh had already died during the pendency of the trial. It has lastly been argued that there was no motive for the accused to commit the murder of the deceased Harjit singh who was a mere taxi driver. 13. The arguments raised by the counsel for the appellant have been strongly controverter by the counsel appearing for the State, who has contended that both the accused Kuldeep singh and Satish Kumar have brutally murdered the deceased Harjit Singh. It is submitted by the learned counsel for the state that the prosecution has not only proved the last seen evidence by examining pw10 Ravinder Singh, younger brother of the deceased, but has also established its case by proving the extra judicial confession made by the accused before Sohan Lai chauhan PW1s. Learned counsel has further submitted that the prosecution has proved the recovery of Chura on the basis of disclosure statements made by the accused and has also proved the finger prints on the empty glass bottle and glass tumbler of kuldeep Singh and hence the judgment of the trial Court is liable to beupheld. We have heard learned counsel for the parties at length and have perused the record. 14. We have heard learned counsel for the parties at length and have perused the record. 14. The entire case rests squarely on circumstantial evidence. In C. Chenga Reddy and Ors. Vs. State of A. P. , reported as (1996) 10 SCC 193,it has been observed thus:- "in a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. 15 Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with is innocence" In padala Veera Reddy Vs. State of A. P. and Ors. , reported as AIR 1990 SC 79, it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:- " (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively should from achain so complete that there is no escape from the conclusion that within all human probability by the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation Of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. " 16. In the light of the aforementioned observations of the Honble Supreme Court, let us examine the evidence of the prosecution. The prosecution has strongly relied upon the last seen evidence. In this regard, reliance has been placed on the statement of PW10 ravinder Singh, younger brother of the deceased. This witness has stated that on27.10.2000; Satish Kumar and Kuldeep singh had come to their house at2.00 p. m. , when he was also present. They had hired the tata Sumo forrs.800/- and had told that they are to go to Phillaur with their relations and are to return on the next day. This witness has stated that on27.10.2000; Satish Kumar and Kuldeep singh had come to their house at2.00 p. m. , when he was also present. They had hired the tata Sumo forrs.800/- and had told that they are to go to Phillaur with their relations and are to return on the next day. Thereafter, they went with his brother Harjit Singh in the tata Sumo bearing registration No. PB-01-2362. On the next day, he came to know that Harjit Singh had been killed and his dead body was found lying in the area of village haripuar Khalsa on a link road. 17. Before accepting the last seen theory, it has to be established by the prosecution that the time gap, when the accused and the deceased were last seen together and when the deceased is found dead, is so small that chance of any other person coming in between becomes impossible. In Tipparam Prabhakar vs. The State of Andhra Pradesh, reported as 2000 (3) AICLR 289, the Honble Apex Court has held as under:- " (i) The last-seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. " In the present case, the accused and the deceased were last seen together by PW10 ravinder Singh, on 27.10.2000, at 2.00 p. m. The dead body of the Harjit Singh was found on the next day on 28.10.2000. One full day had elapsed between the time when Ravinder singh had last seen the accused and the deceased together. During this period the possibility that the deceased had met other persons also cannot be ruled out. 18 According to PW10 Ravinder Singh, he had come to know that his brother Harjit singh had been killed by the appellant and his co-accused Kuldeep Singh on 28.10.2000. However, this witness chose to remain silent and his statement was recorded on 30.12.2000, i. e. after more than 2 months of the murder of his brother. 18 According to PW10 Ravinder Singh, he had come to know that his brother Harjit singh had been killed by the appellant and his co-accused Kuldeep Singh on 28.10.2000. However, this witness chose to remain silent and his statement was recorded on 30.12.2000, i. e. after more than 2 months of the murder of his brother. In case, PW10 ravinder Singh had come to know that his brother had been murdered on 28.10.2000, then it is highly unnatural for him not to go to the Police and report the matter immediately. This witness has chosen to keep silent for more than 2 months before his statement was recorded. Thus, the last seen evidence of this witness is not reliable and trustworthy and it would be hazardous to convict the appellant on the baste of his testimony. The prosecution had also placed reliance on the statement ofpw3 Santokh Singh, who is alleged to have stated that on 5.11.2000, he sawthe accused in the Tata Sumo vehicle on ferozepur Road, Ludhiana. 19. This witness is also alleged to have stated that the accused did not make any disclosure statement regarding concealment of blood stained clothes. This witness was declared hostile and hence the prosecution has failed to prove that the accused were seen after the crime while driving the Tata sumovehicle. The prosecution has also taken into possession an empty glass bottle and a glass tumbler from near the place of occurrence. The fingerprints of both the accused Satish Kumar and Kuldeep Singh were also taken and sent to the Finger Prints expert. PW6 Inspector Bal Krishan, Finger prints Expert had stated that on 11.4.2001, ten copies of photographs long with two slips bearing ten digit impressions of Satish kumar and Kuldeep Singh were received for comparison. The photographs Mark-An on photograph No.1 was found identical with the right thumb impression of Kuldeep Singh. 20. Photograph Mark-B on photograph No.2 and impression B-1 on photograph No.3 were also found identical with right index finger of kuldeep Singh. A perusal of his testimony shows that no finger prints were found of the appellant Satish Kumar. This witness has further stated that "it is correct that specimen signatures of Satish Kumar were different from the impressions on the photographs of bottle and glass tumbler". A perusal of his testimony shows that no finger prints were found of the appellant Satish Kumar. This witness has further stated that "it is correct that specimen signatures of Satish Kumar were different from the impressions on the photographs of bottle and glass tumbler". Thus, testimony of PW6 Inspector Bal Krishan shows that there were no fingerprints of the accused satish Kumar on the bottle and the glass tumbler and hence no inference can be drawn regarding the guilt of the appellant. Rather, the report of the Finger Prints Expert supports the case of the accused. Another circumstance upon which the prosecution has relied is evidence of PW18 Sohan Lal chauhan, before whom the accused are alleged to have made extra judicial confession. He is the President of Transship society. According to this witness, both the accused came to him on 25.11.2000, and told him that they had hired a taxi from jalandhar on 27.10.2000 and has committed the murder of Harjit Singh. Despite hearing the alleged confession of the accused, this witness never produced the accused before the Police and hence it would not be safe to convict the appellant on the basis of the extra judicial confession made by them before this witness. 21. Apart from the above, this witness could not tell about the family members of the appellant Satish Kumar, nor had he ever visited their house. He had also stated that the accused did not have any direct dealings with him. This dearly shows that the accused were not very close to PW18 Sohan Lal chauhan and hence it is highly improbable that a person would confess to his guilt before a person who is not very well known to him. Furthermore, a perusal of the post mortem report shows that there were 28 injuries on the person of the deceased, however, as per the inquest report, only 9 injuries were found and as such there is a discrepancy in the inquest report and the post mortem with regard to the injuries on the dead body harjit Singh. 22. As a result of aforementioned discussion, it is clear that although the deceased Harjit singh was killed brutally, but the prosecution has failed to connect the appellant with the commission of the crime. 22. As a result of aforementioned discussion, it is clear that although the deceased Harjit singh was killed brutally, but the prosecution has failed to connect the appellant with the commission of the crime. The prosecution has not been able to prove that after meeting pw10 Ravindersingh on 27.10.2000 at 2.00 p. m. , the accused did not meet any other person and hence the prosecution has not been able to prove the last seen evidence against the accused. The report of the Finger print Expert PW6 Inspector Bal Krishan is also against the prosecution, inasmuch as, it has been clearly stated by PW6 Inspector Bal krishan that specimen signatures of satishkumar were different from the impressions on the photographs of the bottle and glass tumbler. 23. The prosecution wanted to prove that the accused had been seen driving the Tata sumo vehicle by PW3 Santokh Singh on 5.11.2000, but this witness was declared hostile and hence this circumstance has also not been proved by the prosecution against the accused. Furthermore, the testimony of pw18 Sohan Lai Chauhan also does not inspire confidence, as firstly the accused did not know him very well to have made an extra judicial confession before him and secondly, the fact that the accused made extra judicial confession on 25.11.2000, and despite that this witness did not hand them over to the Police, hence it would not be safe to convict the accused-appellant merely on the basis of extra judicial confession. As a result of the aforementioned discussion, we are of the considered opinion that the prosecution has not been able to prove its case against the appellant Satish kumar beyond reasonable shadow of doubt. Accordingly, we give him the benefit of doubt and acquit him of the charges under Section 302, 392 and 201 IPC. The appeal filed by the appellant is allowed and the judgment of sessions Judge, Jalandhar dated 29.9.2006, is set aside.