Criminal Appeal No. 244-DB of 2007 1
Criminal Appeal No. 521-DB of 2007
THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 244-DB of 2007
Dated of Decision: 21.01.2009
Meena wife of Late Shri Attar Singh, caste Jat, Village
Dehkora, Tehsil Bhadurgarh, District Jhajjhar
(Haryana).
... Appellant
Versus
State of Haryana.
...Respondent
Criminal Appeal No. 521-DB of 2007
Dated of Decision: 21.01.2009
Mohan son of Jagdish, caste Pandit, resident of Asaudha
Siwan.
... Appellant
Versus
State of Haryana.
....Respondent
Criminal Appeal No. 244-DB of 2007 2
Criminal Appeal No. 521-DB of 2007
CORAM: HON'BLE MR. JUSTICE K.S. GAREWAL
HON'BLE MR. JUSTICE SHAM SUNDER
1. Whether Reporters of Local Newspapers may be
allowed to see the judgement?
2. To be referred to the Reporters or not?
3. Whether the judgement should be reported in the
Digest?
Present: Mr. H.N. Mehtani, Advocate,
for the appellant,
in Criminal Appeal No. 244-DB of 2007.
Mr. C.B. Goel, Advocate,
with Mr. Manoj Sharma, Advocate,
for the appellant,
in Criminal Appeal No. 521-DB of 2007.
Mr. H.S. Sran, Additional Advocate General,
Haryana, for the respondent - State,
in both the appeals.
****
SHAM SUNDER, J.
This judgement shall dispose of Criminal Appeal No. 244-
DB of 2007, filed by Meena, wife of Sh. Attar Singh, and Criminal
Appeal No. 521-DB of 2007, filed by Mohan, son of Jagdish, accused
(now appellants), against the judgement of conviction and the order of
sentence, dated 17.02.2007, rendered by the Court of Additional
Sessions Judge, Jhajjar, vide which, it convicted them, for the offence
Criminal Appeal No. 244-DB of 2007 3
Criminal Appeal No. 521-DB of 2007
punishable under Section 302/34 of the Indian Penal Code, and
sentenced them, to undergo imprisonment for life each and to pay a
fine of Rs. 2000/- each, in default to undergo rigorous imprisonment
for a period of three months each, and further convicted Mohan,
accused, for the offence, punishable under Section 25 Arms Act, and
sentenced him to undergo rigorous imprisonment for a period of one
year, and to pay a fine of Rs. 1000/- in default to undergo rigorous
imprisonment for one month. The substantive sentences of Mohan were
ordered to run concurrently.
2. Shorn of unnecessary details, the prosecution case
proceeded, in the manner, that Attar Singh (now deceased), nephew of
Joginder Singh, prosecution witness, was married to Meena, accused,
and was having two sons namely Vikas, aged about 14 years, and
Parkash, aged about 12 years. Attar Singh, was serving in the Army, as
Hawaldar. On 03.04.2004, he retired and came to village Dehkora.
Mohan Singh, accused, was practising, as doctor, in the village. He
used to treat accused Meena, wife of Attar Singh. During that
treatment, he developed illicit relations with Meena Joginder,
prosecution witness, came to know about this fact. He raised objection
to the continuance of such illicit relations. When he told this fact to
Attar Singh, Meena blamed Joginder, prosecution witness, saying that
he used to tease her. Accordingly, Joginder, prosecution witness,
Criminal Appeal No. 244-DB of 2007 4
Criminal Appeal No. 521-DB of 2007
stopped raising objection, regarding the illicit relations of Meena with
Mohan, accused.
3. On 11.04.2004, at about 5.30 PM, Joginder, prosecution
witness, heard a noise of “killed killed”. He went to the roof of his
house and saw that the hands and legs of Attar Singh, had been tied
with scarves (chunnies) and Mohan, accused, was touching the body of
Attar Singh, with an electric iron rod. On seeing the aforesaid incident,
Joginder, prosecution witness, went there, but both Meena and Mohan,
accused, fled from the scene. Joginder, prosecution witness, untied
Attar Singh, and after arranging a vehicle, took him to Sampla, in a
private clinic, where he was declared dead. Thereafter, the dead-body
of Attar Singh, was taken to Civil Hospital, Bahadurgarh. Thereafter,
Joginder, prosecution witness, made statement exhibit P1/C, to the
Police, on which, endorsement P1, was made. The statement was sent
to Police Station, on the basis whereof, First Information Report, P1/A,
was registered.
4. Thereafter, Randhir Singh, Assistant Sub Inspector, and
Joginder, prosecution witness, went to Civil Hospital, Bahadurgarh,
where the inquest report of the dead-body of the deceased was
prepared. Post-mortem on the dead-body of Attar Singh, was got
conducted. Ajit Singh, Assistant Sub Inspector, posted at Police Post
Asaudha, Police Station Bahadurgarh, received a telephonic message
Criminal Appeal No. 244-DB of 2007 5
Criminal Appeal No. 521-DB of 2007
and reached the bus-stand, where both the accused were apprehended.
From the possession of Meena, accused, one MOTOROLA mobile-
phone, one gold chain, one pair of anklet and two gold finger rings
were recovered, which were taken into possession, vide memo P7. On
14.04.2004, Mohan, accused, was interrogated, who made a disclosure
statement that he had concealed electric rod, used for the commission
of murder of Attar Singh and one country-made pistol with one live
cartridge, of which, he only knew, and could get the same recovered,
by pointing out. In pursuance of the disclosure statement, made by him,
he got recovered electric rod P16, pistol P17 and cartridge P18. Sketch
of pistol P14, was prepared. Thereafter the pistol, the cartridge and rod,
were taken into possession, vide memo exhibit P15. Accused Mohan,
also made a disclosure statement, regarding the concealment of scarves
(chunnies), which were used, in the crime, and got recovered the same,
from a room meant for keeping fodder, which were taken into
possession, vide memo P13. Site plan of the place of recovery P29, was
prepared. The place of occurrence was demarcated by Mohan, accused.
The memo of demarcation P30, was prepared. Meena, accused, also
demarcated the place of occurrence and demarcation memo P31, was
prepared. Meena, accused, also got recovered two ear rings, while
Mohan, accused, got recovered one mobile-phone NOKIA No.
9813064559, P19, which were taken into possession, vide memo
Criminal Appeal No. 244-DB of 2007 6
Criminal Appeal No. 521-DB of 2007
exhibit P8. The statements of the witnesses were recorded. The site
plan of the place of recovery was prepared. The cause of death of Attar
Singh, was due to cardio-respiratory failure, on account of electric
shock, which according to the doctor was sufficient, to cause death, in
the ordinary course of nature. After the completion of investigation, the
accused were challaned.
5. On their appearance, in the Court of the Committing
Magistrate, the accused were supplied the copies of documents, relied
upon by the prosecution. After the case was received by commitment,
charge under Section 302 read with Section 34 of the Indian Penal
Code, against both the accused, as also, under Section 25 of the Arms
Act, against Mohan, accused, was framed, which was read-over and
explained to them, to which they pleaded not guilty, and claimed
judicial trial.
6. The prosecution, in support of its case, examined Rajbir
Singh, Assistant Sub Inspector (PW1), who on receipt of ruqa PA,
recorded the First Information Report, P1/A, Jai Chand, Constable
(PW2), who prepared the scaled site plan P2, Mukesh Kumar,
Constable (PW3), who deposited the viscera of the deceased, handed
over to him, by the Moharrir Head Constable, in Pathology
Department, Rohtak, and gave the receipt of deposit, to the Moharrir
Head Constable, Karan Singh, Head Constable (PW4), who tendered
Criminal Appeal No. 244-DB of 2007 7
Criminal Appeal No. 521-DB of 2007
his affidavit P3, Dalbir Singh, Constable (PW5), who was handed-over
an envelope of viscera by Karan Singh, Moharrir Head Constable, and
he deposited the same, in the Office of Forensic Science Laboratory,
Dr. Sunita Tanwar (PW6), who conducted post-mortem examination,
on the dead-body of Attar Singh, Rattan Singh, Assistant Sub
Inspector, Armourer, Police Line Jhajjar (PW7), who examined pistol
P5 and gave his report exhibit P5/A, Joginder (PW8), who claimed that
he witnessed the occurrence, and also deposed with regard to the
motive, Jagbir Singh (PW9), who deposed that on 11.04.2004, on
hearing noise of Joginder, he went inside the house of Attar Singh, and
saw Mohan, accused, who pushed him and ran away, whereafter, he
alongwith Joginder, prosecution witness, untied the hands and legs of
Attar Singh, Kanwar Singh (PW10), who proved P6, sanction order for
prosecution of Mohan, accused, for the commission of offence, under
Section 25 Arms Act, Mahinder Singh, Constable (PW11), Ajit Singh,
Assistant Sub Inspector (PW12), who associated with the Investigating
Officer, during the course of investigation, Sikandar Singh, Constable
(PW13), who was handed over three envelopes and he delivered the
same to the Deputy Superintendent of Police, Superintendent of Police
and Illaqa Magistrate, Randhir Singh, Assistant Sub Inspector (PW14),
the Investigating Officer, who partly investigated the case and Rajbir
Singh, Inspector (PW15), who also partly investigated the case.
Criminal Appeal No. 244-DB of 2007 8
Criminal Appeal No. 521-DB of 2007
Thereafter, the Public Prosecutor for the State, closed the prosecution
evidence.
7. The statements of the accused, under Section 313 of the
Code of Criminal Procedure, were recorded. They were put all the
incriminating circumstances, appearing against them, in the prosecution
evidence. They pleaded false implication. Meena, accused, in her
statement, under Section 313 of the Code of Criminal Procedure, took
up the following plea:-
“I am innocent and am not the paramour of
my co-accused Mohan. There is a long history
of unnatural death in the family of my
deceased husband Attar Singh. My brother-
in-law Bhola Singh, who was the real brother
of my husband Attar Singh, died unnaturally
and the husband of my nanand Kamla also
died unnaturally. PW8 Jogender was
cultivating my land 16 killa on batai during
the life time of my deceased husband Attar
Singh, in order to grab the said land he
manipulated the unnatural death of my
husband Attar Singh while watering in field
and falsely implicate me. My nanand Kamla
in order to ruin my life has illegally taken the
custody of my children and she had also filed
a suit for Succession Act at Bahadurgarh
Court. These Jogender Singh, Kamla Devi
and one Braham Parkash had hatched a
conspiracy to grab the amount of gratuity of
my husband Attar Singh and to grab the
ancestral property get me falsely implicated.”
8. Mohan, accused, in his statement, under Section 313 of the
Code of Criminal Procedure, besides pleading that he was falsely
Criminal Appeal No. 244-DB of 2007 9
Criminal Appeal No. 521-DB of 2007
implicated, also took up the following plea:-
“I have no illicit relation with my co-accused
Meena. There is long history of unnatural
death in the family of deceased Attar Singh.
The brother-in-law of Meena Bhola Singh,
who was the real brother of deceased Attar
Singh had died in unnatural death and the
husband of deceased sister Kamla had also
died unnatural death. PW8 Jogender Singh to
whom I refused to give treatment and tablets
long time back has involved me falsely and
fabricated in the said case. PW8 Jogender had
used to cultivate the agricultural land of
deceased Attar Singh and in order to grab the
land of deceased Attar Singh, Jogender Singh
manipulated the unnatural death of deceased
Attar Singh, while irrigating the field and
falsely implicated me. The sister of deceased
Attar Singh Kamla in order to bring the life
of accused Meena and her sons, who had also
filed a suit for succession at Bahadurgarh
Court has hatched a said conspiracy in order
to grab the amount of gratuity and other
funds of deceased Attar Singh and also to
grab the ancestral property of deceased Attar
Singh. I used to treat the persons in the
village and never involved in any case till
date. PW Jagbir had also a quarrel with me
about 3 ½ years back and because of this he
had appeared as a false and fabricated witness
against me.”
9. The accused examined Suraj Mal (DW1), Sh. Hari Parkash
(DW2), and Anil Kumar (DW3). Thereafter, they closed the defence
evidence.
10. After hearing the Counsel for the parties, and, on going
through the evidence, on record, the trial Court, convicted and
sentenced the accused, as stated above.
Criminal Appeal No. 244-DB of 2007 10
Criminal Appeal No. 521-DB of 2007
11. Feeling aggrieved, the instant appeals, were filed by the
appellants.
12. We have heard the Counsel for the parties, and have gone
through the evidence and record of the case, carefully.
13. The Counsel for the appellants, submitted that the alleged
occurrence, took place, on 11.04.2004, at about 5.30 PM, in the area of
village Dehkora, whereas, the First Information Report, was lodged, on
12.04.2004, at 12.20 PM i.e. after 19 hours, though the dead-body of
the deceased was taken, in the first instance, to Sampla, and thereafter,
to Civil Hospital, Bahadurgarh, at about 6/6.30 P.M., on 11.04.2004,
and the Police Station is at a distance of 1 km, from the said hospital.
The special report was received by the Judicial Magistrate 1st Class,
Bahadurgarh, at 4.00 PM. He further submitted that the delay of about
19 hours, in lodging the First Information Report, remained
unexplained. He further submitted that the delay of about 19 hours, in
lodging the First Information Report, resulted into concoction of story,
false implication of the accused, and introduction of false witnesses.
The submission of the Counsel for the appellants, in this regard,
appears to be correct. According to Joginder, PW8, Attar Singh,
deceased, died at the spot. It was his dead-body, which was taken, in
the first instance, to Sampla, and then to Civil Hospital, Bahadurgarh.
As soon as, the dead-body of Attar Singh, was taken to Civil Hospital,
Criminal Appeal No. 244-DB of 2007 11
Criminal Appeal No. 521-DB of 2007
Bahadurgarh, at which place the Police Station, is also situated, it is not
known, as to what prevented said Joginder, PW8, to lodge the First
Information Report, immediately thereafter. This clearly goes to show
that Joginder, PW8, did not witness the occurrence, but he wanted to
concoct the story, in the meanwhile, so as to involve the accused, in the
instant case. The First Information Report, is a vital piece of evidence,
containing the facts and circumstances, relating to the occurrence. If the
first version of the incident is delayed, without any plausible reason,
then certainly, a doubt can be entertained that there was something
remiss. It is, no doubt, true, that mere unexplained delay, in lodging
the First Information Report, in itself, is not sufficient to throw away
the case of the prosecution over-board. In that event, the Court is
required to scrutinize the evidence of the prosecution witnesses,
carefully and cautiously. After careful and cautious scrutiny, if the
Court, comes to the conclusion, that the evidence of the prosecution
witnesses inspires confidence, then the delay, in lodging the First
Information Report, may pale into insignificance. In the instant case,
the evidence of the prosecution witnesses, as would be discussed
hereinafter, is not cogent, convincing and reliable. In Thulia Kali V.
State of Tamil Nadu ( 1972) 3 Supreme Court Cases 393, it was held
that the FIR in a criminal case, is an extremely vital and valuable piece
of evidence, for the purpose of corroborating the oral evidence,
Criminal Appeal No. 244-DB of 2007 12
Criminal Appeal No. 521-DB of 2007
adduced at the trial. The importance of the report, can hardly be over-
estimated, from the standpoint of the accused. The object of insisting
upon prompt lodging of the report, with the Police, in respect of
commission of an offence, is to obtain early information, regarding the
circumstances, in which the crime was committed, the names of the
actual culprits, and the part played by them, as well as the names of the
eye-witnesses, present at the scene of occurrence. Delay in lodging the
first information report, quite often results in embellishment, which is
a creature of after-thought. On account of delay, the report not only
gets bereft of the advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account of the
prosecution story, as a result of deliberation and consultation. It is,
therefore, essential that the delay in the lodging the first information
report, should be satisfactorily explained. In that case, there was a
delay of about 20 hours, in lodging the F.I.R.,though the Police Station
was only at a distance of two miles. Hence this circumstance was taken,
as the one, to raise considerable doubt, regarding the veracity of the
case, and it was held that it was not safe to base conviction. In this view
of the matter, the submission of the Counsel for the appellants, being
correct, is accepted.
14. It was next submitted by the Counsel for the appellants, that
the occurrence did not take place, in the manner, as projected, by the
Criminal Appeal No. 244-DB of 2007 13
Criminal Appeal No. 521-DB of 2007
prosecution. They further submitted that Attar Singh, deceased, being
an ex-army personnel, was well built aged about 46 years. They further
submitted that no evidence was produced by the prosecution, that he
was intoxicated and when he became unconscious, he was tied and
electric shocks were given to him. They further submitted that Attar
Singh, would not have permitted the accused easily to tie him, so as to
give him electric shocks, but, on the other hand, would have resisted
fiercely, so as to save himself. The submission of the Counsel for the
appellants, in this regard, appears to be correct. As stated above, Attar
Singh, had retired from army. He was aged about 46 years, at the time
of the alleged occurrence. Ex-army personnel of the age of 46 years,
could be presumed to be strong enough, with a well built body. He, in
the normal circumstances, would not have permitted both the accused
to tie him with scarves (chunnies) and give him electric currents. He
would have certainly put up resistance, to the utmost, in those
circumstances, to save himself. In that even, he would have also caused
injuries, on the person of the accused, but there is nothing, on record,
that any injury was suffered by the accused, in that alleged process. The
story projected by the prosecution, regarding the occurrence, therefore,
does not inspire confidence, in the mind of the Court. It appears that the
occurrence took place, in some other manner, but with view to falsely
implicate the accused, in the instant case, it was projected, in a different
Criminal Appeal No. 244-DB of 2007 14
Criminal Appeal No. 521-DB of 2007
manner. The story of the prosecution, therefore, being highly doubtful,
the trial Court, was wrong, in placing reliance thereon.
15. It was next submitted by the Counsel for the appellants, that
both Joginder and Jagbir, prosecution witnesses, were introduced, later
on. They further submitted that they did not allegedly witness the
occurrence. According to Joginder, PW8, on hearing cries of “killed
killed”, he went to the roof of his house and saw that the accused had
tied Attar Singh, with scarves (chunnies), and were giving him electric
shocks. He further stated that he immediately went to the house of
Attar Singh, when the accused ran away. Exhibit P28, is the site plan of
the alleged place of occurrence, which was prepared by the
Investigating Officer. Point ‘A’, has been shown, in the site plan, as the
place, where the electric rod for heating the water was fixed. Point ‘B’,
is the place, where the hands of Attar Singh, deceased, were statedly
tied and he was being given electric shocks, with the rod aforesaid.
Point ‘C’, is the place, shown in P28, wherefrom, Joginder, PW8,
allegedly witnessed the occurrence. The distance between points ‘A’
and ‘B’, is 2 karams, whereas, distance between points ‘B’ and ‘C’, is 40
karams. It may be stated here, that both points ‘A’ and ‘B’, have been
shown in a room of the house of Attar Singh. It was, at that place, that
Attar Singh, was allegedly given electric shocks with rod aforesaid and
died. These points are not in the court-yard of the house of Attar Singh.
Criminal Appeal No. 244-DB of 2007 15
Criminal Appeal No. 521-DB of 2007
From point ‘C’, the alleged occurrence, at points ‘A’ and ‘B’, in the room
of the house of Attar Singh, could not, by any stretch of imagination,
be witnessed. Had the occurrence taken place, in the court-yard or in
the open area of the house of Attar Singh, one could say that Joginder,
PW8, from the roof of his house, could possibly have witnessed the
same. Not only this, if Joginder, PW8, and Jagbir, PW9, reached the
spot, and saw Attar Singh, having been tied and electric shocks, being
given to him, by the accused, they would not have allowed them
(accused), to run away, one of whom was a lady. They could certainly
apprehend either both the accused, or one of them. The presence of
both Joginder and Jagbir, alleged eye-witnesses, thus, was most
improbable and unnatural, at the time of the alleged occurrence. It
appears that the death of Attar Singh, took place, somewhere else, in a
different manner, but with a view to falsely implicate the accused, both
these witnesses were introduced later on. The trial Court, was wrong, in
coming to the conclusion, that both these witnesses witnessed the
occurrence. The submission of the Counsel for the appellants, carries
substance, and the same stands accepted.
16. Not only this, even the motive, set up by the prosecution
was not proved, from the evidence, on record. Attar Singh, was
admittedly an ex-serviceman. He retired from army service, and then
came to his village. According to the prosecution story, in the absence
Criminal Appeal No. 244-DB of 2007 16
Criminal Appeal No. 521-DB of 2007
of Attar Singh, the accused developed illicit relations with Meena, his
wife, which was even objected to by him (Attar Singh), and due to that
reason, his murder was committed. Joginder, PW8, stated that he came
to know, about the illicit relations of Meena, with Mohan, accused. He
further stated that he told about this to Attar Singh, but he did not take
any action, against Mohan, accused. Jagbir, PW9, did not state even a
single word, with regard to the motive. Joginder, PW8, did not state,
even a single word, as to what was the source of his information, that
Meena was having illicit relations, with Mohan, accused. During the
course of his cross-examination, Joginder, PW8, stated that after
08.04.2004, Mohan, accused, started living, in the house of Attar Singh
(now deceased). Had there been illicit relations between Mohan and
Meena, accused, Attar Singh, husband of the latter, would not have
allowed him to stay in his house, since 08.04.2004. No husband, would
tolerate the illicit alliance of his wife, with another person. Had there
been any such illicit relations, between the accused, Attar Singh, would
have certainly taken action against them, by approaching the Panchayat
or the relatives, of Meena. He could, in that event, even go to the extent
of, inflicting injuries, on the person of Mohan and Meena, accused. The
mere fact that he allowed Mohan, accused, to live in his house, since
08.04.2004, whereas the alleged occurrence, took place, on 11.04.2004,
in itself, could be said to be a strong circumstance, indicating that there
Criminal Appeal No. 244-DB of 2007 17
Criminal Appeal No. 521-DB of 2007
were no illicit relations between Meena and Mohan. Such a motive was
apparently set up, by Joginder, PW8, just with a view to see the success
of the prosecution case. The motive, therefore, was not proved. It is, no
doubt, true that there can be an occurrence, without motive. However,
when a specific motive, is set up, by the prosecution, and the same is
not proved, then certainly it can be said that the case of the prosecution
is not free from doubt.
17. Had the dead-body of Attar Singh, been recovered from his
house, it would have been said that the onus lay upon Meena, to
establish, as to under what circumstances, a living person, turned into a
corpse. The dead-body of Attar Singh, was admittedly not recovered
from his house. On the other hand, the dead-body was lying in Civil
Hospital, Bahadurgarh. It has been held above, that the occurrence took
place, in some other manner, outside the house of Attar Singh, but with
a view to see the success of the case, it was shown to have taken place
in the said house. Under these circumstances, no burden lay upon
Meena, wife of Attar Singh, deceased, to explain, as to under what
circumstances, the death of Attar Singh, took place. It was for the
prosecution to prove beyond doubt, as to how the murder of Attar
Singh, was committed. The prosecution, as stated above, miserably
failed to prove through cogent and convincing evidence, that the
accused committed the murder of Attar Singh.
Criminal Appeal No. 244-DB of 2007 18
Criminal Appeal No. 521-DB of 2007
18. Now coming to the recoveries, it may be stated here, that
the same were also planted against the accused, for the reasons, to be
recorded, hereinafter. It has come, in the evidence, that the rod was
allegedly left by the accused, in the house itself, when they ran away.
The accused were arrested, on the next day of the alleged occurrence.
Initially, Mohan, accused, made a disclosure statement, where he did
not disclose anything, with regard to the alleged concealment of rod.
On 14.04.2004, he statedly made a disclosure statement that he had
concealed a rod. Once the rod was left, in the house itself, and the
accused was arrested, on the next day, it is not known, as to how, he
could take the same and conceal the same. There is nothing, in the
statement of Joginder, PW8, that the scarves (chunnies), with which,
Attar Singh, deceased, was allegedly tied, were taken away, by the
accused, while they allegedly fled from the spot. On the other hand,
Jagbir, PW9, stated that Attar Singh, had been tied with a scarf
(chunni) and he untied the same. If Jagbir, PW9, untied Attar Singh, it
means that the scarves (chunnies), were at the spot. On the other hand,
according to the prosecution story, Meena, accused, allegedly made a
disclosure statement, on 14.04.2004, that she had concealed the scarves
(chunnies) in a room, meant for keeping fodder, and could get the same
recovered, and, accordingly, got the same recovered. Since, as per the
prosecution story, the accused allegedly ran away from the spot,
Criminal Appeal No. 244-DB of 2007 19
Criminal Appeal No. 521-DB of 2007
without taking the scarves (chunnies), then how it could be said that
Meena, had concealed the same somewhere. This clearly goes to show
that those scarves (chunnies) were planted against her. Some jewellery
was allegedly got recovered by Meena. Similarly, mobile-phone
‘NOKIA’, was got recovered by Mohan, accused. He also statedly got
recovered electric wire, plug and country made pistol alongwith a
cartridge. There is nothing, on the record, that, at the time, he allegedly
ran away, he took away electric wire and plug. There is nothing, on the
record, that he took away with him, a country made pistol, and a
cartridge. Even, there was no fire arm injury, on the person of Attar
Singh, deceased. All these articles were also apparently planted, against
both the accused. In this case, the recoveries were turned into
discoveries, so as to connect the accused, with the instant case. Had it
been the story of the prosecution that the accused while running away,
took away the aforesaid articles and, ultimately, got recovered the
same, the matter would have been different. The alleged recoveries, did
not fit in with the story of the prosecution, in any manner. The
recoveries aforesaid, were, thus, fabricated.
19. No other point, was urged, by the Counsel for the parties.
20. In view of the above discussion, it is held that the
judgement of conviction and the order of sentence, are not based on the
correct appreciation of evidence and law, on the point. The judgement
Criminal Appeal No. 244-DB of 2007 20
Criminal Appeal No. 521-DB of 2007
of conviction and the order of the sentence, warrant interference, and
are liable to be set-aside.
21. For the reasons, recorded above, Criminal Appeal No. 244-
DB of 2007, filed by Meena, wife of Sh. Attar Singh, and Criminal
Appeal No. 521-DB of 2007, filed by Mohan, son of Jagdish,
appellants, are accepted. The judgement of conviction and the order of
sentence, rendered by the trial Court, are set-aside. If the appellants are
on bail, they shall stand discharged of the bail bonds. If they are in
custody, they shall be set at liberty, at once, if not required, in any other
case. The Chief Judicial Magistrate, shall comply with the judgement,
with due promptitude, on receipt of a copy of the judgement.
(K.S. GAREWAL) (SHAM SUNDER)
JUDGE JUDGE
21.01.2009
Amodh