Full Judgment Text
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CASE NO.:
Appeal (crl.) 948 of 2001
PETITIONER:
KULDIP SINGH AND ANOTHER
Vs.
RESPONDENT:
STATE OF PUNJAB
DATE OF JUDGMENT: 14/08/2002
BENCH:
N. SANTOSH HEGDE & BISHESHWAR PRASAD SINGH.
JUDGMENT:
Bisheshwar Prasad Singh, J.
This appeal by special leave is directed against the judgment
and order of the High Court of Punjab and Haryana at Chandigarh
dated 13.02.2001 in Criminal Appeal No.439 (DB) of 1997,
whereby the High Court dismissed the appeal preferred by the
appellants and confirmed the judgment and order of the learned
Additional Sessions Judge, Ferozepur dated 29.4.1997 in Sessions
Case No.76 of 1994, Sessions Trial No.43 of 1997 finding the
appellants guilty of the offences under Section 302 and 201 IPC
and sentencing them to undergo rigorous imprisonment for life
under Section 302 IPC and rigorous imprisonment for two years
under Section 201 IPC.
The appellants along with one Jasbir Singh were accused of
having committed the murder of Kuldip Kaur, the wife of the
informant, and Soni, the daughter of the informant. Since, it was
found that Jasbir Singh was a juvenile, his case was separated for
trial by the competent court. We are informed that he has since
been acquitted. The appellants herein were acquitted by the trial
court of the charge levelled against them for the murder of Soni,
which order has been affirmed by the High Court.
The informant, Sucha Singh is the elder brother of Kuldip
Singh, appellant No.1. Bakshish Kaur, appellant No.2 is the wife
of the younger brother of the informant namely, Gurmit Singh.
The victims were the wife and daughter of the informant.
The FIR was lodged by Sucha Singh, PW-6 on 19.02.1994
at 8.15 p.m. In his report the informant stated that he was a
resident of village Pirojwal Mangal Singh. He has three younger
brothers namely, Gurmit Singh, husband of accused No.2, Surjit
Singh and Kuldip Singh, appellant No.1. They all resided in the
Dera constructed by them in their fields. Kuldip Singh, the
youngest brother was unmarried. The informant was married
twelve years ago to Kuldip Kaur (deceased) and they had four
children, the eldest being a daughter, Soni aged about 9 years. The
informant was employed as a Foreman at a Sheller at Moga. His
younger brother, Gurmit Singh, husband of appellant No.2, was
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also employed as a Foreman at a Sheller in Bhuche Mandi. About
three years ago Gurmit Singh was married to Bakshish Kaur,
appellant No.2. Last year there were disputes between his wife,
Kuldip Kaur (deceased) and the wife of Gurmit Singh, namely,
appellant No.2, Bakshish Kaur. The disputes related to the
partition of the house, clothes and jewellery etc.. Such disputes
were a regular feature. On 02.01.1994, which was a Sunday, when
the informant came home on the weekend he was told by his wife
Kuldip Kaur (deceased) that there was again a quarrel with
Bakshish Kaur, appellant No.2 regarding distribution of jewellery
etc.. Appellant No.2 had threatened her that she must leave this
house or else she will finish her. On 03.01.1994, while going on
duty the informant assured his wife that he will take premises on
rent at Moga and shift his family.
On 06.01.1994 Bakshish Kaur, appellant No.2 came to his
work place at Moga and informed him that his wife was missing
since last night, and his daughter had died on account of electric
shock. He immediately rushed to his Dera and found his daughter
dead. The left hand of his daughter was charred, perhaps on
account of electric shock. The informant was perplexed and
disturbed and in that state of mind acceded to the advise given to
him by the appellants to throw away the dead body of Soni in the
Satluj river. On 07.01.1994, he appeared before Malkiat Singh,
ASI, Incharge Chowki P.P. Kamalke and reported regarding his
missing wife. He was ever since searching for his wife.
On 19.01.1994, Resham Singh, PW-7, informed him that his
wife who used to take milk from him regularly, did not come to
take milk on 05.01.1994. He, therefore went to her house at about
7 p.m. There he heard raula (noise) and saw appellant No.2,
Bakshish Kaur and her brother, Jasbir Singh catching hold of
Kuldip Kaur by her legs while Gurmit Singh, appellant No.1 was
strangulating her. Kuldip Kaur died, but out of fear this witness
did not talk to anyone. On the basis of the information given to
him by Resham Singh, the informant, was lodging the FIR
complaining that Jasbir Singh had killed his wife as well as his
daughter and had concealed the body of his wife. The FIR further
records that the informant along with Resham Singh were going to
the police station for registration of the case when they met the
Station House Officer at Dharamkot bus stand, and the report was
recorded there.
The case was investigated by Surinder Pal, Sub Inspector,
PW-12. After recording FIR, he searched for the accused on that
day but he could not trace them out. On 20.02.1994 he again
searched for them but they were not traceable. On 21.02.1994,
Buta Singh, Sarpanch, PW-8, produced all the three accused before
him and he interrogated them separately. He first interrogated
Kuldip Singh whose voluntary statement was recorded (Ex. PN),
thereafter he interrogated Jasbir Singh and Bakshish Kaur,
appellant No.2 whose voluntary statements were recorded which
have been marked Ex. PO and Ex. PQ respectively. From the
voluntary statements made by them it became known that the body
of Kuldip Kaur had been concealed in the courtyard of Kuldip
Kaur under a heap of Parali. He, therefore, sent a written request
to the Sub Divisional Magistrate, Zira for permission to exhume
the dead body of Kuldip Kaur. The medical officer was similarly
requested for post mortem examination of the dead body. Shri
Inder Dev Singh, Naib Tehsildar was deputed to supervise the
proceeding, Dr. Rachhpal Singh Sandhu, medical officer had also
come to the place of occurrence. In the presence of all these
persons the dead body of Kuldip Kaur was exhumed and memo
Ex. PK was prepared which was attested by the informant, Sucha
Singh, Inder Dev Singh, Naib Tehsildar, the Medical Officer, Dr.
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Rachhpal Singh and Sukhvinder Singh, PW-10.
The case of the prosecution is that the three accused had
come to the house of Buta Singh, PW-8 on 21.02.1994 and had
told him that the police was searching for them and that he should
help them since he had considerable influence with the police.
They had confessed before him that they had committed the
murder of Kuldip Kaur. The prosecution, therefore, in support of
its case pressed into service the extra judicial confessions said to
have been made by the accused before Buta Singh, PW-8.
Apart from Resham Singh, PW-7, who claimed to be an eye
witness, the case of the prosecution rests on circumstantial
evidence. The circumstances on which the prosecution relied are
two, namely, confessions made by the appellants before the
Sarpanch, Buta Singh, PW-8, and voluntary statements made by
the accused before the Investigating Officer resulting in the
discovery of the dead body of Kuldip Kaur. Since Resham Singh
resiled from his statement made in the course of investigation and
categorically stated that he had not seen anybody committing the
murder of Kuldip Kaur, and reported nothing to anyone, the courts
below have rightly held that his evidence is of no help to the
prosecution. The courts below have recorded finding of guilt, on
the basis of these two circumstances.
It was contended before us on behalf of the appellants that
the courts below have erred in relying upon these two
circumstances which were not even established by cogent evidence
on record. The evidence adduced by the prosecution was
contradictory and created a grave doubt about the truthfulness of
the prosecution case. He submitted that the very first requirement
in cases that rested on circumstantial evidence, namely that the
incriminating circumstances in the first instance must be
established by cogent and reliable evidence, was not fulfilled.
Having regard to the submission urged before us we now proceed
to examine the relevant evidence on record.
We shall first examine the evidence of PW-7 who, as stated
earlier, was declared hostile to the prosecution. He has stated that
he knew the family of the appellants who were having their
residence in their fields. He also admitted that Kuldip Kaur, wife
of Sucha Singh used to collect milk from his house and that Kuldip
Kaur (deceased) and Bakshish Kaur, appellant No.2 used to
frequently quarrel. He, thereafter, went on to state that on
05.01.1994, he had gone to Moga to recite Akhand Path, and in his
absence Kuldip Kaur (deceased) had collected milk from his
house. On the next day he heard that the daughter of Sucha Singh
namely, Soni had died on account of electric shock. He had,
therefore, gone to the house of Sucha Singh for condolence. He
categorically stated that he had not seen anyone committing the
murder of Kuldip Kaur.
From the cross examination of this witness, it appears that in
the course of investigation his statement was recorded under
Section 161 Cr. P.C. wherein he had stated that on 05.01.1994,
Kuldip Kaur as usual had not come to collect milk and after
waiting he had gone to the Dera of Sucha Singh at about 7 p.m.
and had witnessed the murder of Kuldip Kaur from a distance. He
had seen that in the room of Gurmit Singh, Bakshish Kaur,
appellant No.2 and Jasbir Singh, her brother, had caught hold of
Kuldip Kaur from her legs while Kuldip Singh strangulated Kuldip
Kaur to death. He had not narrated this incident to anyone out of
fear. He denied having narrated this incident to Sucha Singh. He
even denied having accompanied Sucha Singh to the police station
and that on 19.02.1994 the FIR was recorded in his presence. He
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was confronted with his statement under Section 161 Cr. P.C. but
he denied having made any such statement.
In our view the courts below have rightly held that the
evidence of Resham Singh is of no help to the prosecution. We are
then left with the evidence led by the prosecution to establish the
two circumstances on which the case of the prosecution rests. We
shall first consider the evidence relating to the confession said to
have been made by the appellants before the Sarpanch, Buta Singh,
PW-8. PW-8 deposed that on 21.02.1994, all the three accused
came to his house and told him that they were being chased by the
police and have therefore come to him since he had influence with
the police. They confessed before him that they had committed the
murder of Kuldip Kaur and Soni as there used to be frequent
quarrels between Kuldip Kaur and Bakshish Kaur. According to
PW-8, nothing else was told to him. Leaving all the three accused
in his house he proceeded to the city but met Surinder Pal, SHO,
PW-12 on the canal. He informed him that all the three accused
were with him and he wanted to produce them before him. PW-12
asked him as to when he would produce the accused and he told
him that if they could stay there for some time he will produce
them immediately. Thereafter, he went to his village, brought all
the accused with him and produced them before PW-12. His
statement was recorded by the police. He denied to have told the
police that he had told the accused persons who had confessed
before him that they should come after a day or so and that in the
meantime he would talk to the officers concerned, and that the
accused had left his house. He also denied to have stated in his
statement under Section 161 Cr. P.C. that on 05.01.1994, Jasbir
Singh had met his sister Bakshish Kaur and they along with Kuldip
Singh had conspired to eliminate Kuldip Kaur. He also denied
having stated that Bakshish Kaur, appellant No.2, had invited
Kuldip Kaur to her house and when Kuldip Kaur came to her room
she was strangulated by Kuldip Singh, while Bakshish Kaur and
Jasbir Singh caught hold of her by her legs. He also denied having
told the police that after some time Soni, daughter of Kuldip Kaur
aged about 9 years came to the house of Bakshish Kaur and on
seeing her mother dead she started weeping. The accused
apprehending that she may disclose their secret electrocuted her
with live electric wire.
It will thus appear that the version given by this witness
before the Court is quite different from the version in his statement
under Section 161 Cr. P.C. This witness cannot be said to be
reliable, and therefore, one has to critically scrutinize his evidence
before acceptance. As regards the production of the accused
before the police, he stated that the accused were not interrogated
in his presence, neither was his signature obtained by the police on
any paper regarding production of the accused. He categorically
asserted that he had produced the accused on 21.02.1994 and his
statement was recorded on that day. His statement was not
recorded by the police on 20.02.1994. This witness asserted that in
the statement made by him in the course of investigation he had
told the police that all the three accused were in his house and
further told PW-12 that he would produce them before him where
upon PW-12 asked him as to when they would be produced and he
replied by saying that he could produce them right away. He was
confronted with the statement recorded under Section 161 Cr. P.C.
where it was not so recorded.
From the evidence of Buta Singh, PW-8, it is evident that
the accused confessed before him on 21.02.1994 and on that very
day he produced them before the police when his statement was
also recorded. He categorically denied the fact that his statement
was recorded on 20.02.1994.
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On the other hand, we have the evidence of PW-12, the
Investigating Officer. He has stated that he had searched for the
accused on 19.02.1994 but they could not be traced. On
20.02.1994 also he searched for them but they could not be found.
On that day Sarpanch of the village came to the place of
occurrence and gave a statement before him under Section 161 Cr.
P.C. On the following day, i.e. 21.02.1994, when he along with
other police officials was present on the bridge of the canal, the
Sarpanch, namely, Buta Singh produced the three accused before
him. It would thus appear that according to the Investigating
Officer the statement of Buta Singh was recorded on 20.02.1994.
On the following day, he produced the accused before him. There
is obvious inconsistency in the testimony of these two witnesses.
The case of the prosecution as put forth before the Court is that the
accused were produced by Buta Singh, PW-8 before the
Investigating Officer, PW-12 on 21.02.1994. The question is as to
when the accused confessed their guilt before Buta Singh, PW-8.
If Buta Singh is to be believed, the accused confessed their guilt
before him on the same day on which he produced them before the
police. According to him, the accused were waiting in his house
while he went to meet the police officer. He categorically denies
having made any earlier statement before the police on 20.02.1994.
On the other hand, according to the Investigating Officer, PW-12,
Buta Singh had made statement before him on 20.02.1994 and had
thereafter produced the accused before him on 21.02.1994. The
evidence of these two witnesses gives rise to a lot of uncertainty
as to whether the confessions were made on 20.02.1994 or on
21.02.1994 and also whether the accused were taken into custody
on 20th or 21st February, 1994. If it is believed that Buta Singh had
produced the accused before the police on the same date on which
he made a statement before the Investigating Officer, then it must
follow that the accused were taken into custody on 20.02.1994. If
the confessions were made by them on 21.02.1994 while in
custody, they will be inadmissible in evidence. At the same time
there is considerable doubt as to whether the confessions were
made before Buta Singh on 20.02.1994. As it is, an extra judicial
confession, is considered to be a weak type of evidence. In the
instant case such extra judicial confession is said to have been
made before a witness who stands thoroughly discredited in his
cross examination. He has resiled from the version disclosed by
him in the course of investigation and recorded under Section 161
Cr. P.C. His evidence does not inspire confidence. In addition, his
evidence read together with the evidence of PW-12 creates
considerable doubt as to whether the accused confessed their guilt
before Buta Singh, PW-8 on 20.02.1994 or 21.02.1994.
Counsel for the appellants drew our attention to Ex. PC,
which was the requisition sent by the Investigating Officer to the
Sub Divisional Magistrate, Zira requesting him to get the body
exhumed. His letter states that the accused had admitted having
committed the murder of Kuldip Kaur. The Investigating Officer
in the course of his cross examination has admitted that the date
written on the said requisition was 20.02.1994 but the same has
been struck off and in its place the date 21.02.1994 has been
written. In normal course we would not attach much significance
to such correction being made, but having regard to the evidence
on record this correction of the date on Ex. PC acquires
significance. Having regard to the evidence on record, we are
satisfied that the evidence adduced by the prosecution to establish
the fact that the appellants had confessed before Buta Singh on
21.02.1994 is inconsistent and does not inspire confidence. The
prosecution, therefore, has failed to establish the first circumstance
in the circumstantial chain.
The second incriminating circumstance relied upon by the
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prosecution is that after the accused were produced before the
Investigating Officer, PW-12, they were interrogated separately
and in the course of interrogation they made voluntary statements
leading to the discovery of the dead body of Kuldip Kaur.
Accordingly, the body was exhumed and post mortem examination
conducted over the dead body of the deceased which was identified
to be that of Kuldip Kaur.
According to PW-12, after the accused were produced
before him by Buta Singh, Sarpanch, PW-8, he first interrogated
Kuldip Singh who made a disclosure statement that he along with
Bakshish Kaur and Jasbir Singh had kept concealed the dead body
of Kuldip Kaur under a heap of Parali lying in the courtyard of the
house of Kuldip Kaur which he only knew and could get the same
recovered. The disclosure statement was reduced into writing and
the same was proved by him and marked as Ex. PN which is
signed by appellant Kuldip Singh and attested by ASI, Niranjan
Singh and Head Constable Chamkaur Singh. Thereafter he
interrogated Jasbir Singh who made similar statement which was
recorded and exhibited as Ex. PO. Lastly, he interrogated
Bakshish Kaur, who also made an identical statement. Her
disclosure statement was exhibited as Ex. PQ. Exhibits PN, PO
and PQ, the three disclosure statements have been recorded by the
Investigating Officer, PW-12. We have perused the disclosure
statements and we find that the Investigating Officer has made an
obvious mistake while stating that the accused had stated that the
body was kept concealed under the heap of Parali in the Dera of
Kuldip Kaur. In fact the disclosure statements are to the effect that
the body has been kept concealed in the Dera of Gurmit Singh,
husband of Bakshish Kaur.
Pursuant to the disclosure statements the Investigating
Officer, as earlier noticed, sought directions of the SDM to exhume
the dead body and also requested the medical officer to perform
the post mortem examination. The prosecution led evidence to
prove that the body was exhumed and the same was identified as
that of Kuldip Kaur.
The prosecution evidence is consistent that the body was
exhumed from the courtyard of Sucha Singh. PW-10, Sukhvinder
Singh, brother of deceased Kuldip Kaur, PW-12, the Investigating
Officer and other witnesses have said so. What is surprising is the
fact that Sucha Singh himself has not said a word about the
discovery of the body. In fact, in his deposition, he has not stated
anything about what happened after he lodged the FIR, though it
appears from the evidence of PW-10 that Sucha Singh, PW.6, had
also signed the inquest report as well the memo prepared regarding
taking possession of the dead body of Kuldip Kaur. However, it is
not necessary to dilate on this aspect of the matter.
It is obvious from the facts brought on record that according
to the disclosure statements made by the accused the dead body
was lying buried in the courtyard of Gurmit Singh, husband of
Bakshish Kaur. On the other hand, the evidence is equally clear
that the dead body was actually recovered from the courtyard of
Sucha Singh, husband of Kuldip Kaur. It cannot therefore be said
that the dead body of Kuldip Kaur was recovered pursuant to the
disclosure statements made by the accused. There is also no scope
for any confusion because the accused being members of the same
family could make no mistake about the courtyard of one or the
other. Moreover, Sucha Singh, PW-6, in his deposition has clearly
stated that he had constructed his house with a boundary wall and
his brothers also had separate houses with boundary walls. The
courtyards of all the three brothers were therefore clearly
demarcated and therefore the recovery cannot be explained by
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conjecturing that though they mentioned the courtyard of Gurmit
Singh actually they meant the courtyard of Sucha Singh. We may
only notice at this stage that Buta Singh in the course of
investigation had informed the Investigating Officer that Bakshish
Kaur had invited Kuldip Kaur to her house and she has been killed
there. Similarly, Resham Singh, PW-7, in the course of
investigation claimed to have seen the murder being committed in
the house of Gurmit Singh. We have referred to the statement
made by these witnesses in the course of investigation only to
recapitulate the background in which the disclosure statements
were recorded. But as a matter of fact the body was found buried
in the courtyard of Sucha Singh and not the courtyard of Gurmit
Singh.
Under these circumstances, it is not possible to hold that the
dead body of Kuldip Kaur was recovered pursuant to the alleged
disclosure statements made by the appellants herein. The
prosecution has therefore failed to establish the second
incriminating circumstance as well.
In view of our finding that the evidence regarding
confessions made by the appellants and recovery of dead body
pursuant to the disclosure statements made by them is unbelievable
and unacceptable, there is no other evidence on record on the basis
on which the conviction of the appellants can be upheld. We,
therefore, allow the appeal and set aside the impugned judgment
and order of the High Court dated 13.02.2001 and acquit the
appellants of the charges levelled against them. Appellant No.2 is
on bail. Her bail bonds are discharged. Appellant No.1 shall be
released forthwith unless required in connection with any other
matter.