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2011 DIGILAW 37 (PNJ)

Malkiat Singh @ Ghita v. State of Punjab

2011-01-05

HEMANT GUPTA

body2011
JUDGMENT Hemant Gupta, J. (Oral) :- The present appeal is directed against the judgment dated 07.11.2002 passed by the learned Addl. Sessions Judge, Ferozepur, whereby the appellant was convicted for the offences under Section 302, 364 and 201 read with Section 34 IPC. The appellant was sentenced to undergo life imprisonment and to pay a fine of Rs.2000/- for the offence punishable under Section 302 IPC. In default of payment, the appellant was directed to further undergo rigorous imprisonment for a period of three months. The appellant was also sentenced to undergo rigorous imprisonment for a period of 10 years and to pay a fine of Rs.1000/- for the offence punishable under Section 364 IPC. In default of payment of fine, the appellant was directed to further undergo rigorous imprisonment for a period of two months. The appellant was also sentenced to undergo rigorous imprisonment for a period of 04 years and to pay a fine of Rs.500/- for the offence punishable under Section 201 read with 34 IPC. In default of payment of fine, the appellant was directed to further undergo rigorous imprisonment for a period of one month. 2. The prosecution case was set in motion on the basis of statement (Ex.P8) of Kasan son of Boota, resident of Chuck Tahliwala @ Molviwala made to ASI Naranjan Singh, P.S. Mamdot on 10.09.2000. He has stated that his son Jassa, aged about 25 years, who used to work on the brick kiln for making bricks, had developed relations with Veero daughter of Joginder Singh resident of Sultanpur Lodhi. For the last one year, his son Jassa Singh and Veero had gone to some unknown place and came back to the house 7-8 days earlier. They remained in the house for the night. Next day at about 10-11 AM, Malkiat Singh @ Ghita son of Charan Singh, resident of Tour, who is said to be the friend of his son and well-known to him as he was on visiting terms, accompanied by two other persons came to their house. His son Jassa and Veero went with them. When they did not come back, he enquired their whereabouts from the brick kiln of Jhok Nodh Singh. Since his son could not be traced, a DDR in this regard was lodged at about 7.30 PM on 10.09.2000. His son Jassa and Veero went with them. When they did not come back, he enquired their whereabouts from the brick kiln of Jhok Nodh Singh. Since his son could not be traced, a DDR in this regard was lodged at about 7.30 PM on 10.09.2000. It was on 11.09.2000, during investigation Veero allegedly suffered a disclosure statement (Ex.P1) on the basis of which the dead body of Jassa was recovered from a deserted well located in the area of Village Karri Khurd. On the same day, the disclosure statement of the appellant Malkiat Singh was also recorded on the basis of which, the well was said to be demarcated and weapon of offence i.e. Kahi (Spade) was recovered. The blood stained soil from the place of occurrence was also removed by ASI Niranjan Singh. 3. After completion of investigation including conduct of postmortem examination, two accused namely Malkiat Singh @ Ghita and Veero were made to stand trial inter-alia on the basis of the disclosure statements under Section 27 of the Evidence Act, for an offence punishable under Sections 364/302/201 read with Section 34 IPC. Whereas, Veero, who was stated to be juvenile was tried by Juvenile Justice Board for an offence punishable under Sections 364/302/201 read with Section 34 IPC, and was acquitted of the charges framed against her on 02.09.2005. However, two other accused namely Tega Singh and Baj Singh, who also participated in the commission of crime, could not be arrested and were declared as proclaimed offender. 4. Apart from the other formal witnesses, the prosecution has examined PW-1 Surjit Singh, as the witness of the disclosure statement of Veero; PW-2 Chand Singh, as the witness to the disclosure statement of Malkiat Singh; PW-5 Rattan Singh, Sarpanch, witness to the recovery of the dead body and PW-13 ASI Naranjan Singh, the Investigating Officer, apart from PW 6 Kasam, father of the deceased, to prove its case. 5. The learned trial Court convicted the appellant relying upon the statements of PW-2 Chand Singh and PW-6 Kasam that the deceased Jassa was last seen with Malkiat Singh, Veero and two others during first week of September 2000. Thus, the appellant is liable to explain the subsequent disappearance of the accused and death. 5. The learned trial Court convicted the appellant relying upon the statements of PW-2 Chand Singh and PW-6 Kasam that the deceased Jassa was last seen with Malkiat Singh, Veero and two others during first week of September 2000. Thus, the appellant is liable to explain the subsequent disappearance of the accused and death. The learned trial Court also took into consideration the report of the Chemical Examiner (Ex.P-13) to the effect that the soil removed from the place of crime adjoining to an abandoned and deserted well was smeared with human blood and that deceased Jassa died due to injury received by him in his head caused by the accused with kahi (spade) on the basis of post mortem report (Ex.P-10). The learned trial Court has also taken into consideration, the disclosure statements (Exs.P-17 & P-19) suffered by the appellant to return a finding that the accused duly pointed out and demarcated the place adjoining to the well, where Jassa was liquidated and murdered by the appellant with the active help of Veero and two others and thereafter the dead body of Jassa was thrown in the well in order to screen himself of the offence of murder. After returning such finding, the appellant has been convicted and sentenced by the learned trial Court, as mentioned above. 6. Before this Court, learned counsel for the respondent-State has supported the judgment of conviction and order of sentence passed by the learned trial Court by relying upon the following facts: (i) The deceased was last seen in the company of Malkiat Singh, which fact is proved by the testimony of PW-6 Kasam. Since the deceased was last seen in the company of the appellant, it is for the appellant to explain the circumstances of his disappearance and death. (ii) The appellant has demarcated the well from where the dead body of Jassa was recovered. Such demarcation of well is stands proved by the testimony of PW-1 Surjit Singh, PW-5 Rattan Singh and PW-13 ASI Naranjan Singh, the Investigating Officer. 8. We have heard learned counsel for the parties and have gone through the record with their assistance and found that the judgment of conviction recorded by the learned trial Court cannot be sustained in law. 9. The primary evidence is that of PW-6 Kasam, the father of the deceased. He has deposed that Malkiat Singh and his son were close friends. 9. The primary evidence is that of PW-6 Kasam, the father of the deceased. He has deposed that Malkiat Singh and his son were close friends. The prosecution has charged Malkiat Singh and Veero, but the statement of PW-6 Kasam does not indicate any incriminating circumstances against Veero, as to why she should join Malkiat Singh in elimination of his son Jassa. Since Malkiat Singh and Jassa were friends and the fact that PW-6 Kasam did not raise any suspicion soon after his son going with Malkiat Singh shows that his son voluntary left with Malkiat Singh. The lodging of report after 7-8 days of the occurrence and a day before the alleged recovery of the dead body show that the father of the deceased did not raise any suspicion against Malkiat Singh approximately till such time the dead body was recovered. 10. The recovery of the dead body is sought to be proved on the basis of disclosure statement suffered by Veero. PW-1 Surjit Singh is a witness of such disclosure statement on the basis of which the dead body of Jassa was recovered. Veero has not stood trial with the present appellant. The disclosure statement suffered by her cannot be used against the appellant. The disclosure statement (Ex.P-17) of Malkiat Singh refers to the deserted well from where the dead body was recovered. The pointing out of the well by Malkiat Singh in his statement Ex.P-17 is not a new fact, which can be taken as an incriminating circumstance against the appellant. Since the dead body stood already recovered on the basis of disclosure statement of Veero, the well also stood identified. The cross examinations of PW-5 Rattan Singh and PW-6 Kasam also show that the dead body of Jassa stood already recovered even before the arrest of the accused Malkiat Singh. 11. Another incriminating circumstance taken against the appellant is that of blood smeared soil near the well. Since the dead body was already recovered, the pointing out of the place of occurrence and recovery of blood smeared soil cannot be said to be at the instance of the appellant Malkiat Singh leading to disclosure of a fact. Still further, the prosecution has not proved any motive against Malkiat Singh in the commission of crime. Since the dead body was already recovered, the pointing out of the place of occurrence and recovery of blood smeared soil cannot be said to be at the instance of the appellant Malkiat Singh leading to disclosure of a fact. Still further, the prosecution has not proved any motive against Malkiat Singh in the commission of crime. The circumstantial evidence on the basis of which the conviction is sought to be maintained does not inspire confidence and has many weaklings. 12. In view of the above, we do not find that the findings recorded by the learned trial Court are sustainable in law. Consequently, we set aside the judgment of conviction and order of sentence dated 07.11.2002 passed by the learned trial Court and acquit the appellant Malkiat Singh @ Ghita of the charges framed against him by granting him benefit of doubt. He shall be set at liberty forthwith, if not required in any other case. ————0.B.S.0————