Crl. A. No.311-DBA of 2001 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No.311-DBA of 2001
Date of Decision: September 16, 2008
State of Haryana .......Appellant
Versus
Jaskaran Dass .......Respondent
CORAM:- HON'BLE MR.JUSTICE K.S.GAREWAL
HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Ms.Naveen Malik, Additional AG Haryana
for the appellant.
Mr.NK Sanghi, Advocate
for the respondent.
...
JITENDRA CHAUHAN, J.
1. The appellant-State has filed this appeal against the order dated
13.11.2000, passed by the Additional Sessions Judge, Sirsa whereby
accused Jaskaran Dass @ Karna was acquitted on the grounds that the
evidence on record was not sufficient to connect the accused with the
commission of the offence.
2. There is no eye witness in the present case. The prosecution
has tried to establish its case on the basis of the circumstantial evidence and
the theory of `last seen’.
3. Banta Singh, son of Pritam Singh, resident of village Dabwali
got the statement recorded to the effect that they were two brothers, namely
Crl. A. No.311-DBA of 2001 -2-
Hardev Singh and Banta Singh. The deceased Hardev Singh was elder to
him. Both the brothers lived in one house and were jointly engaged in
cultivation. Hardev Singh, the deceased had two sons, namely Jaspal Singh,
aged 22/23 years and Rampal Singh, aged about 20 years. Banta Singh had
one son, who was aged about 13/14 years.
4. On 7.5.1998, Hardev Singh reached home from Mandi
Dabwali at about 11.00 A.M. and after having taken meals, went to the rear
room of the Baithak (outer room) and slept there. The nephews of Banta
Singh i.e. Jaspal and Rampal along with other members of the family were
present there. When Banta Singh returned home at around 1.00 O’Clock, he
saw that his brother was lying in a pool of blood on the double bed and was
unconscious. He had sharp edged weapon injuries on his head and blood
was oozing out. The other members of the family joined him after he raised
an alarm. The vehicle of Harcharan Singh, Ex-Sarpanch was requisitioned
to take Hardev Singh to the Hospital. Satkartar son of Ranjit Singh and
Sukhminder son of Gurdev Singh took Hardev Singh to the hospital as per
Ex. PL. Hardev Singh breathed his last at the Hospital.
5. The statement of Banta Singh was recorded by Sher Singh, Sub
Inspector on 7.5.1998 and the same is part of the record as Exhibit PD. As
per statement Exhibit PD, the murder had been committed by some
unknown person. Police proceedings Exhibit PD/2 were prepared by Sub-
Inspector Sher Singh, Police Station City Dabwali on 7.5.1998 at 4.15 P.M.
On the basis of the ruqa, Exhibit PD/2, FIR No.102 dated 7.5.1998, under
Section 302 of the Indian Penal Code was registered at Police Station City
Dabwali. After the registration of FIR, the ruqa was sent to the Sub
Inspector at the spot and a copy of the FIR, as a special report, was sent to
Crl. A. No.311-DBA of 2001 -3-
the higher authorities.
6. As per the post mortem report dated 7.5.1988 conducted by
PW7-Dr.Kulwinder, Medical Officer, Civil Hospital, Choutala, the
following injuries were found on the body of the deceased:
1. “13.4 cm x 3.2 cms incised wound was present on right
fronto parietal region obliquely placed starting from inner
end of right eyebrow extending upward and laterly. On
dissection, infiltration of blood was present in neighbouring
tissue. On further dissection, supra trochlear supra orbital
and branches of superficial temporal arteries were found cut.
On further dissection, underlying bones were, cut coinciding
with the wound. Brain tissue was coming out of the wound.
2. 4 cm x 1.2 cms incised wound was present on left side of
the forehead starting from medial end of left eye brow
parallel to injury No.1. On dissection, adjacent tissue
infiltrated with blood were found. Wound being bone deep.
3. 6 cm x 3.1 cms x bone deep incise wound was present on
left parietal region in coronal plane, 18 cms from the left eye
brow. On dissection, infiltration of blood was present in
adjacent tissue.
4. 8.2 cms x 2.3 cms x bone deep incise wound was present on
left temporal parietal region. On dissection, infiltration of
blood was present in adjacent tissue. On further dissection,
bone underlying found fractured. Branches of superficial
temporal arteries were cut. All the wounds numbering 1 to 4
were covered with clotted blood.”
7. After investigation, the accused was arrested on 21.5.1998. On
12.8.1998, the case was committed by the Court of learned Sub-Divisional
Judicial Magistrate, Dabwali. The charge sheet was prepared on 6.2.1999
by the Additional Sessions Judge, Sirsa whereby accused Jaskaran Dass, son
of Boota Dass was charged for having committed murder of Hardev Singh
son of Pritam Singh and thereby committing an offence punishable under
Section 302 of the Indian Penal Code within the cognizance of the Court of
Additional Sessions Judge, Sirsa on 7.5.1998.
8. The prosecution to prove its case examined as many as 14
Crl. A. No.311-DBA of 2001 -4-
witnesses. However, the material witnesses are PW5-Banta Singh, PW6-
Boota Singh, PW7-Dr.Kulwinder, PW11-Baldev Singh, PW12-Bir Singh
and PW 14-S.I. Sher Singh.
9. PW5-Banta Singh stated that Hardev Singh once gave a beating
to the accused on the issue of turn of water prior to the occurrence about
12/13 years ago. Extra-judicial confession was made by the accused in the
presence of PW6-Boota Singh, Lamberdar and PW9-Boota Singh son of
Kaka Singh. The recovery of the axe Exhibit P-1 was affected in pursuance
of the statement of accused. PW11-Baldev Singh and PW12-Bir Singh saw
the accused coming out of the room of Hardev Singh holding axe in his
hands.
10. Statement of accused Jaskaran Dass, son of Boota Dass was
recorded under Section 313 of the Code of Criminal Procedure on 29.8.2000
without oath. He denied the charge against him stating that he had been
falsely implicated on mere suspicion and further denied any enmity with the
deceased-Hardev Singh or having any direct litigation with him. He further
denied that he was beaten up by deceased Hardev Singh about 11/12 years
ago on any cause, as suggested by the prosecution. He further stated that
otherwise also, 12 years is a long time to forget such an incident and
claimed innocence.
11. We have heard the learned counsel for the parties and
perused the record.
12. As there is no eye witness of the occurrence, therefore, the
main thrust of the prosecution is to prove its case on the theory of ‘last seen’
evidence and on the basis of other circumstantial evidence. In this context,
it is relevant to mention that two adult sons of the deceased and the women-
Crl. A. No.311-DBA of 2001 -5-
folk were present in a portion of the same house (of the deceased) at the
time of commission of the alleged crime. It was about 1.00 P.M. when
Banta Singh PW5, brother of deceased Hardev Singh returned to the
Baithak and found his brother lying in the pool of blood. The deceased was
then rushed to the hospital immediately.
13. However, surprisingly Satkartar Singh and Sukhminder Singh,
who took the deceased to the hospital were not joined in the investigation
nor were they cited as witnesses by the prosecution.
14. We feel that both these witnesses were relevant and material
witnesses who could have provided valuable information about the manner
in which the dead body was recovered and subsequently brought to the
hospital. Therefore, the trial Court has rightly held that non-joining of
Satkartar Singh and Sukhminder Singh in investigation of the case is a
missing link in the chain of events in this case.
15. The complainant had lodged the report Exhibit PD with the
police after 4.00 P.M. on 7.5.1998, wherein it is specifically mentioned that
some unknown person had hacked Hardev Singh to death. The conduct of
the police is also very surprising. Only Bir Singh could provide the police
with clues about the identity of assailant. He was present in the village when
statements were recorded by the police Inspector after 7.35 P.M. but he did
not appear before the DSP till then. This creates doubt in the mind of the
Court that Bir Singh had not provided the police with any clue about the
identity of the assailant, till at least the departure of the DSP from the
village. In the same way, the testimony of Baldev Singh, PW11, who
testified that he had seen Jaskaran emerging out of the Baithak of Hardev
Singh carrying an axe with him, does not inspire any confidence as he has
Crl. A. No.311-DBA of 2001 -6-
made many improvements in the statement made by him under Section 161
of the Code of Criminal Procedure. He and the complainant have common
ancestors. Baldev Singh and Bir Singh had made statements before the
police on the next day of the incident.
16. PW-11 Baldev Singh and PW-12 Bir Singh claimed to have
seen the accused closing the door of the Baithak but there is no reference
that they saw each other.
17. So far as the extra-judicial confession alleged to have been
made by Jaskaran Dass @ Karna in the presence of Boota Singh-Lamberdar
and Boota Singh son of Kaka Singh PW9 at about 10.00 A.M. on 21.5.1998
is concerned and as per the first version rendered by them, they met the
police at T- point and handed accused Jaskaran to Inspector Ramesh Pal
and he then made a disclosure statement, Exhibit PE, that subsequently led
to the recovery of axe, Exhibit P1. Moreover, he had given the date of
making of the extra-judicial confession as on 7.5.1998 in the examination-
in-chief, but in the cross-examination, it had come on record that they
produced the accused before the police within 6-7 days of the murder of
Hardev Singh. If this is to be believed, then the accused was handed over
to the police definitely on or before 14.05.1998 although the extra-judicial
confession was allegedly made on 21.5.1998.
18. The motive put-forth by PW5 Banta Singh does not seem to be
realistic and refers to the occurrence that took place 12-13 years ago.
19. While considering the ‘last seen’ evidence, the Hon’ble Supreme
Court in State of Goa Vs. Sanjay Thakran and another, 2007(2) RCR
(Criminal) 458 observed as under:
“In the light of the factors that evidence regarding the
Crl. A. No.311-DBA of 2001 -7-recovery of the incriminating materials from the accused
persons has been discarded; that there has been sufficient time
gap between the instances when the accused persons were last
seen together with the deceased persons; and in the absence of
any other corroborative piece of evidence to complete the chain
of circumstances to fasten the guilt on the accused couple, we
are of the opinion that the accused have been rightly given the
benefit of doubt by the courts below. We have found that the
finding of the High Court that the chain of circumstances is not
complete to conclusively establish that either A-1 or A-2 alone
or with the common intention of each other have committed the
dreadful crime of murder of newly married couple, is correct
and merely suspicion, however grave, cannot replace the
weight attached to the evidence.”
19. Accordingly, in view of above observations, in 66the present
case, the evidence of ‘last seen’ also does not inspire any confidence. As it
was a blind murder case, it seems that PWs Bir Singh and Baldev Singh
have been introduced in the present case and no one had seen the real culprit
either emerging out of the Baithak or anywhere in the vicinity. Further
PW6 Boota Singh, Lamberdar and PW9 Boota Singh son of Kaka Singh
have failed to prove that the accused confessed the guilt in their presence on
21.5.1998. There are material contradictions in their statements.
20. We feel in the instant case, the circumstances in which the body
was discovered are not clear. In our opinion, the prosecution has failed to
establish acceptable circumstances that in all probabilities the accused
Jaskaran Dass is the perpetrator of the alleged crime. The evidence on
record is insufficient to connect the accused with the commission of
offence.
21. In view of the above discussions, the present appeal filed by the
Crl. A. No.311-DBA of 2001 -8-
State is dismissed and the judgment dated 13.11.2000 passed by the
Additional Sessions Judge, Sirsa, is maintained.
( JITENDRA CHAUHAN )
JUDGE
( K .S. GAREWAL )
JUDGE
September 16, 2008
SR/mk
Note: Whether to be referred to reporter? Yes/No