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2019 DIGILAW 2988 (PNJ)

Devinder Singh v. State of Punjab

2019-11-14

AJAY TEWARI, ALKA SARIN

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Judgment Mr. Ajay Tewari, J. (Oral):- This appeal has been filed against the judgment of conviction and order of sentence dated 20.12.2003 passed by the Sessions Judge, Amritsar, whereby the appellants 2 and 3 (since appellant No.1 has died during the pendency of this appeal) were convicted. The appellant No.2 was convicted under Sections 302 read with Section 34 IPC whereas appellant No.3 was convicted under Section 302 IPC and both sentenced to undergo imprisonment for life along with a fine of Rs. 1,000/- each and, in default thereof to further undergo RI for six months each in case FIR No. 35 dated 23.2.2000 registered under Sections 302 read with Section 34 IPC at P.S. Chheharta. 2. The allegations against the appellants were that appellant No.1 -Devinder Singh and appellant No.3-Raj Mohan Singh had illicit relation with appellant No.2-Balwinder Kaur (wife of the deceased) and, because her husband Gurbachan Singh (deceased) was objecting to that illicit relation, he was murdered on the night of 22.2.2000. 3. As per the FIR, the case set up was that on the fateful date, the deceased-Gurbachan Singh had gone out of the house to ease himself and when he did not return till about 11:00 p.m his father went to look after him on the asking of the appellant No.2 -Balwinder Kaur. At that time, appellant No.1 Devinder Singh also accompanied him. Their search could not fructify but at about 10:00 a.m on the next morning they discovered the dead body of the deceased lying on the bank of the drain towards the side of the railway line having injuries with sharp edge weapon on his forehead, head, stomach and left hand and leg. One month later on 22.3.2000, the uncle of the deceased (PW-6 Avtar Singh) filed a private complaint Ex. PK (which was ultimately directed to be heard alongwith the FIR case) stating that in fact PW-6 Avtar Singh and his another brother PW-7 Jaswant Singh had gone to ease themselves in the fields on the night of 22.2.2000 and they heard the sound ‘mar ditta mar ditta’ and with the aid of the light of the BSF post nearby, they saw that Devinder Singh, Rajmohan Singh and Balwinder Kaur (all the three appellants) were inflicting blows upon Gurbachan Singh (deceased). The complaint further stated that the Police had not recorded the correct version and that is why the private complaint was filed. 4. The three accused persons were sent up for trial and in the course of the trial, as many as 11 prosecution witnesses were examined. The accused-appellants were examined under Section 313 Cr.P.C. in the course of which they took the plea of being falsely implicated in the offence alleged and made a statement that they were innocent. Two defence witnesses were examined. Thereafter at the conclusion of the trial the learned trial Court on consideration of the evidence and material on record, passed the impugned judgment and order convicting and sentencing the appellants as mentioned above. 5. We have gone through and considered the judgment and order under challenge and the evidence of the prosecution witnesses apart from hearing the learned counsel for the appellants and learned Deputy Advocate General, Punjab. The important witnesses being PW6, PW7 and PW8, their testimony would require a close scrutiny. 6. PW8-Ajit Singh deposed in his statement that on 22.2.2000 at about 9/10:00 p.m, his brother PW6-Avtar Singh and PW-7 Jaswant Singh came and told his that his son-Gurbachan Singh had been killed by the appellants and his dead body was lying near sewerage drain. Then PW-6 and PW-7 accompanied him to the police station to lodge the report. Thereafter, the entire occurrence was narrated to the Officer and the Officer asked him to sign on a white paper stating that he will record the FIR. Then he along with his brothers went to the place where dead body of Gurbachan was lying. He deposed that the Police reached on the place of occurrence on the next day and after observing that the police was not working according to the facts which he had narrated to them, PW-6-Avtar Singh decided to lodge a private complaint. He further deposed that his signatures which were obtained on blank paper in the police station were Ex.PL (encircled) on the paper Mark ‘C’ . He further deposed that he had appeared as a witness in the complaint which was filed by Avtar Singh (PW6). 7. He further deposed that his signatures which were obtained on blank paper in the police station were Ex.PL (encircled) on the paper Mark ‘C’ . He further deposed that he had appeared as a witness in the complaint which was filed by Avtar Singh (PW6). 7. PW-6 Avtar Singh and PW-7 Jaswant Singh had deposed that on 22.2.2000 at about 9/10:00 pm they went to the fields to ease themselves and when they reached near the bridge of drain near the Dera of a Baba, they heard cries and in the light of the BSF Colony they saw the appellant No.1-Devinder Singh armed with a ‘Datar’, appellant No.3- Raj Mohinder Sigh with a knife and appellant No.2-Balwinder Kaur with empty hands giving blows on Gurbachan Singh. They deposed that Devinder Singh gave blows with ‘Datar’ on the head, Raj Mohinder Singh was gave blows with the knife to Gurbachan Singh and Balwinder Kaur caught hold of Gurbachan Singh from his legs. They further deposed that they heard them saying that Gurbachan used to restrain them from entering his house to have illicit relations with his wife-Balwinder Kaur. They further deposed that when hue and cry was raised by them, the assailants fled away along with their weapons. Then they went to the house of PW-6 Ajit Singh to apprise him about the incidence. Then they along with PW-8 Ajit Singh went to Police Station-Chheharta and the entire story was narrated to the Police Inspector who got signatures of PW-8 on a blank paper stating that he would record the FIR and proceeded ahead with the investigation. Thereafter, they reached the place of occurrence where the dead body was lying. The Police reached at that spot on the next day and after completion of the paper work, sent the dead body for post-mortem examination. 8. The Court believed the eye witnesses testimony and convicted all the three appellants, and that is how the present appeal was filed. 9. The primary argument raised by learned counsel for the appellants is that in fact, first version given to the Police was correct and the subsequent complaint was filed only to implicate the three appellants. 8. The Court believed the eye witnesses testimony and convicted all the three appellants, and that is how the present appeal was filed. 9. The primary argument raised by learned counsel for the appellants is that in fact, first version given to the Police was correct and the subsequent complaint was filed only to implicate the three appellants. He has pointed out that if it is believed that the Police was working hand in glove with the accused persons, there was no reason for them to have been arrested on 13.3.2000 and 15.3.2000 (one week before the filing of the complaint). He has further pointed out that in the complaint it was only mentioned that the Police had taken thumb impressions of the father of the deceased on the blank paper and ‘had recorded wrong version’. In the testimony, these two witnesses stated that when they appeared to give their evidence these witnesses struck to the first part of the statement viz. that the thumb impression/signatures of the father of the deceased had been taken by the Police on blank papers, but they kept on saying that they had narrated the true facts to the Police which were recorded wrongly. He has, however, pointed out that it was not a simple case of narration because the signatures of these witnesses appeared on the statement under Section 161 Cr.P.C., on the inquest report and on a subsequent statement which was recorded by the DSP Incharge who had taken over the investigation. As per him, there is no explanation by these persons as to how and in what circumstances their signatures appeared on these documents. He has further pointed out that there is no evidence that there was any BSF Post in the vicinity of the place where the dead body was discovered. He has also pointed out that in the complaint it was mentioned as ‘the light of BSF post’ but in their testimony they stated that ‘light was from the BSF Colony’ and no evidence was led as to whether there was any BSF Colony nearby or not. He has also pointed out that in the complaint it was mentioned as ‘the light of BSF post’ but in their testimony they stated that ‘light was from the BSF Colony’ and no evidence was led as to whether there was any BSF Colony nearby or not. He has further pointed out that both these witnesses stated that the murder had taken place in wheat fields but as per the plan prepared by the Investigating Officer, the dead body was found on the bank of the ‘nala’ and the place where the blood stained earth was removed was also on the bank of the ‘nala’ and nothing was discovered from the wheat fields. He has further put emphasis on the fact that no representation was ever made by them that their version had wrongly been recorded to any higher authority and even the complaint was filed after one month and there is no explanation as to when and how they came to realize that a wrong version has been recorded, moreso, Devinder Singh and Rajmohan Singh were arrested prior to the filing of the complaint (on 13.3.2000 and 15.3.2000). He further stated that it was very strange that when they saw the incident happening they did not step forward to defend the deceased, they even did not bother to take him to the hospital if he was alive and stated that they first went to inform their brother. 10. Learned Deputy Advocate General has defended the judgment by stating that the testimonies of these witnesses were unshaken in cross-examination. He has also pointed out that victim came from poor family while Devinder Singh and Rajmohan Singh were from affluent family because their father was a ‘Sarpanch’ and grand father was a Minister and it was in these circumstances, the family of the deceased had to file a private complaint. 11. In our opinion, the appeal must succeed. The circumstances which vitiate the statements of the two witnesses have been enumerated by the learned counsel for the appellants. We also cannot close our eyes to the fact that if they had seen the blow being inflicted, their first duty would have been to step forward to intercede, but even if they did not want to do that, was it not expected to at least first see what was the condition of the deceased ? Was he alive ? We also cannot close our eyes to the fact that if they had seen the blow being inflicted, their first duty would have been to step forward to intercede, but even if they did not want to do that, was it not expected to at least first see what was the condition of the deceased ? Was he alive ? Could he be taken to the hospital ? Not only that, even after informing the father, they did not go back to see the condition of the deceased but rather decided to go to the police station. To our mind, this conduct is inexplicable and incredible. No human being would act like this. Added to it, the fact that there was no evidence led of there being any source of the light in the vicinity, as also the fact that they pointed out to the wheat fields as the site of the murder but the objective evidence had disclosed otherwise. It also cannot be lost sight of the fact that after Devinder Singh and Rajmohan Singh were arrested by the Police, how and when they came to know that their wrong version had been recorded. Moreover, the two witnesses did not explain how their signatures happened to appear on the statement under Section 161 Cr.P.C, on the inquest report and their subsequent statement recorded by the DSP. To our mind, their presence at the spot is doubtful and if that is so the mere recovery of a ‘Datar’ (on which no kind of identification was carried out for blood stains etc.) would not justify the finding of the guilt. 12. In view of the facts and circumstances of the case coupled with the infirmities pointed out above can not lead to the conviction of the appellants. We are, therefore, of the view that the conviction of the accused-appellants as recorded by the learned trial Court and the sentence imposed is not legally tenable. We, therefore, set aside the same, acquit the accused-appellants and allow the appeal. 13. The appellants Nos. 2 and 3 are on bail. Bail bonds/surety bonds, if any, stand discharged. 14. Since the main case has been decided, the pending criminal miscellaneous application, if any, also stands disposed of.