Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No. 43-DB of 2000.
DECIDED ON : 26.2.2009
Dilbag Singh
Appellant.
VERSUS
State of Haryana
Respondent.
Crl. Appeal No.44-DB of 2000.
DECIDED ON : 26.2.2009
Kuldeep Singh
Appellant.
VERSUS
State of Haryana
Respondent.
CORAM :HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. R.S.Cheema, Sr.Advocate, with
Ms. Tanu Bedi, Advocate, for
appellants.
Mr. K.S.Godara, Deputy Advocate
General, Haryana.
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 2
JORA SINGH,J.
Dilbag Singh filed Criminal Appeal No.
43-DB of 2000 and Kuldeep Singh filed Criminal Appeal
No. 44-DB of 2000 to impugn the judgment dated
4.12.1999 and order dated 8.12.1999 rendered by
Additional Sessions Judge, Karnal in Sessions Case No.
157 of 1999; Sessions Trial No. 210 of 1999 bearing
First Information Report No. 1093 dated 26.12.1990,
registered under Section 460 of the Indian Penal Code,
at Police Station City Karnal whereby they were
convicted under Section 460 of the Indian Penal Code.
Dilbag Singh also convicted for the offence punishable
under Section 25 of the Arms Act. Appellants-accused
were sentenced as under:-
“Both the accused were sentenced to
undergo life imprisonment for life under
Section 460 of the Indian Penal Code;
Further more accused Dilbag Singh
was hereby sentenced to undergo rigorous
imprisonment for one year for the commission
of offence punishable under Section 25 of the
Arms Act.”
Separate challan was presented against
Joginder Singh accused. Vide judgment dated
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 3
16.11.1999, he was acquitted of the charge levelled
against him.
Against acquittal of Joginder Singh, no appeal
was preferred by the State.
Prosecution story, in brief, is that Surinder
Kumar complainant was serving in PWD B&R as S.D.O.
Accordingly to him, his office was situated near I.T.I
Chowk Kunjpura Road, Karnal. On 21,12,1990 Surinder
Kumar had withdrawn amount from State Bank of India,
Mall Road, Karnal for making payment to the labourers.
Out of the above said amount, an amount of
Rs.1,30,000/- was got transferred from the chest of
Provisional Division No.3 to his own chest. Payment was
kept in the chest in the presence of Zile Singh SDC. One
key of the chest was with the complainant and the
second key was with Zile Singh SDC. On 22.12.1990
complainant had distributed some payment to the local
labour at about 7.30 P.M. and Muster roll was placed in
the chest after payment. On Sunday, Rs.37,000/- was
distributed amongst the labourer. Balance amount was
in the chest. Rs.30,000/- brought from the Bank was
already in the chest for payment to the labourers and
payment of Petrol and Diesel bills etc. Payment was to
be distributed on 26.12.1990.On 22.12.1990 complainant
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 4
and Zile Singh SDC had gone to their respective houses.
Shugan Chand Beldar was on duty as Chowkidar since
14.12.1990 in place of Nand Ram Chowkidar. On
26.12.1990 at 9 A.M. complainant came and the office
was found locked. Shugan Chand Chowkidar was not
present there. Sultan Beldar was sent to locate Shugan
Chand Chowkidar but Shugan Chand Chowkidar was
not available. Lock of the office was broken. Shugan
Chand Chowkidar was found lying dead on the cot with
injuries on his person. The chest was found open and
about Rs.1,12,000/- were stolen from the chest. An iron
rod was lying near the chest. Some unknown assailants
had stolen the cash by damaging the chest, after
murdering Shugan Chand Chowkidar. Statement of
Surinder Kumar SDO was recorded by Fateh Singh Sub
Inspector when he had gone to the Police Station.
In view of the statement of Surinder Singh
SDO, formal First Information Report was registered.
Special Report was sent to the Ilaqa Magistrate.
Wireless message was sent to summon Forensic Science
Laboratory team and dog squad.
Police party headed by Fateh Singh Sub
Inspector had gone to the spot. Inquest report was
prepared. Photographer was also arranged. Dead body
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 5
was sent for post mortem examination. Rough site
plan with correct marginal notes was prepared. Blood
stained earth, locks Darri, iron rod, pair of shoes were
lifted from the spot. Blood stained earth was lifted from
the spot and made into a sealed parcel. Sealed parcel
along with other articles lifted from the spot were
taken into police possession vide separate memos
attested by the witnesses. Sealed parcel of the clothes
worn by the deceased was produced before Fateh Singh
Sub Inspector . Parcel was taken inot police possession
vide memo attested by the witnesses.
After that, Om Parkash Inspector had carried
out the investigation of the case. On 26.12.1990 Om
Parkash Inspector had recorded the statement of Zile
Singh SDC. On 1.1.1991 police party headed by Om
Parkash was present near Railway Chowk, Gharaunda.
Surinder Kumar SDO met the police party at about 9.30
A.M. In the meantime, Dilbag Singh was noticed near
the chowk. He was apprehended. On search of the
accused one revolver and two live cartridges were
recovered. Regarding recovery of armed and
ammunition, separate case was registered against
Dilbag Singh. Accused was interrogated and on
interrogation accused suffered disclosure statement that
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 6
he has kept concealed the stolen money in the “Turi
Wala Kotha”. He knew about the same and can get the
same recovered. As per disclosure statement suffered by
the accused, accused got recovered Rs.47403/- from the
specified place along with acquaintance roll. Cash along
with acquaintance roll was taken into police possession
vide separate memo attested by the witnesses. After that
police party had gone to the fields of Kuldeep Singh. He
was also apprehended and interrogated. Accused
suffered disclosure statement that he has kept
concealed cash in envelop in the kotha. He knew about
the same and can get the same recovered. As per
disclosure statement, accused got recovered Rs.63,803/-
from the specified place. Amount with envelope was
taken into police possession vide separate memo attested
by the witnesses.
Third accused Joginder Singh was arrested
from village Staundi. Accused was interrogated but no
recovery was effected from him.
On return to the Police Station, case property
was deposited with the MHC.
On 2.1.1999 accused Dilbag Singh was again
interrogated. He suffered disclosure statement that he
has kept concealed a bunch of keys near the Krishna
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 7
Mandir, Kunjpura Road. He told that he knew about the
same and could get the same recovered. In pursuance of
the disclosure statement, accused got recovered bunch of
keys from the specified place. Keys were taken into
police possession vide separate memo attested by the
witnesses.
On 3.1.1999 Dilbag Singh accused was again
interrogated. Dilbag Singh suffered disclosure
statement that he has kept concealed a knife in his
house. He knew about the same and could get the same
recovered. In pursuance of the disclosure statement,
accused got recovered a spring actuated knife . Sketch
of the spring actuated knife was prepared and was
taken into police possession vide separate memo attested
by the witnesses. Case property was deposited with the
MHC.
After completion of investigation, accused were
challaned.
The Case was committed to the Court of
Session for trial.
All the accused were charged under Sections
460 I.P.C. to which they pleaded not guilty and claimed
trial.
Dilbag Singh accused was separately charged
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 8
under Section 25 of the Arms Act. Accused pleaded not
guilty and claimed trial.
In order to substantiate the charges, the
prosecution examined PW-1 Dr. R.A.Mittal who had
conducted post mortem examination on the dead body of
Shugan Chand son of Shri Parsa Jhinwar on 26.12.1990
and found the following injuries on his person:-
1. Incised wound 1.5 cm x 1.5 cm was present
over left side of neck on anterior-lateral
aspect in the middle. It was 5 cm deep and
horizontally probing could be done upto 10
cm. Major vessels on this side were cut.
2. Incised wound of 2 cm x 1 cm size was
present over left side of neck running
transversely 1 cm from mid line in middle
part of neck. It was 5 cm deep.
3. Incised wound 3 cm x 1.5 cm was present
over left side of lower part of abdomen 9 cm
infero-lateral to umbilicus. It was 1 cm deep.
4. 1 cm above and lateral to injury No.3, there
was another incised wound of 3 cm x 1.5 cm
size it was 9 cm deep, small intestine had
come out of it.
5. Incised wound of 2.5 cm x .5 cm was present
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 9
over left side of abdomen in upper part. It
was 5 cm supero-lateral to umbilicus. It was
.5 cm deep.
6. Incised wound of 3 cm x 2 cm size was
present over right side of abdomen in lower
part. It was 9 cm deep and was 10 cm lateral
to umbilicus.
Cause of death as per opinion of the Doctor was
due to shock and haemorrhage. Injuries were ante
mortem in nature and sufficient to cause death in
ordinary course of nature. Probable duration that
elapsed between death and post mortem was within 48
hours.
PW-2 Manohar Lal had prepared scaled site
plan Ex. PD.
PW-3 Kanshi Ram Clerk stated that he used to
prepare TA bill and acquaintance roll. Ex.PE was
prepared by him on 19.12.1990.
PW-4 Kiru Ram brother of the deceased had
identified the dead body of Shugan Chand
PW-5Head Constable Om Parkash had
delivered special report to the Ilaqa Magistrate at 1.55
P.M. on 26.12.1990.
PW-6 Ram Singh Clerk stated that he had sent
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 10
sanction order of crossing the efficiency bar of Shri
R.P.Sharma, Sub Divisional Engineer after making entry
in the despatch register on 29.11.1990.
PW-7 Constable Siri Krishan; PW-8 Constable
Jai Ram; PW-9 Head Constable Chand Singh and PW-10
MHC Bhim Singh had tendered their affidavits Ex. PH,
Ex.PJ. Ex.PE and Ex.PL respectively.
PW-11 Zile Singh SDC and PW-12 Surinder
Kumar SDO (complainant) in this case have supported
the prosecution story by saying that Sughan Chand was
Chowkidar in the office. On the intervening night of
21/22.12.1990 Dilbag Singh and Kuldeep Singh came to
office at 3 A.M. On 26.12.1990. Sughan Chand was
found murdered in the office. Surinder Kumar SDO
further stated that he had withdrawn payment from the
bank for making payment to the labourers. Rs.30,000/-
was already lying in the chest. Some of the amount was
brought from Divisional Office. On 21.12.1990 total
cash in the chest was Rs.1,30,000/-. An amount of
Rs.37000/- was distributed to the labourers. Remaining
cash was to be distributed on 23.12.1999. On that day,
Junior Engineer was not available. Amount was to be
distributed on 26.12.1990. Shugan Chand was murdered
in the office. Chest was found broken. Cash was stolen.
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 11
He had lodged report to the police and later on in his
presence, Dilbag Singh got recovered cash, acquaintance
roll. Kuldeep Singh also got recovered cash, and one
envelope.
PW-13 Head Constable Raghbir Singh had
tendered his affidavit Ex.PV.
PW-14 Assistant Sub Inspector Raghbir Singh
was with the police party of Om Parksash and in his
presence case was investigated.
PW-15 Inspector Fateh Singh had initially
investigated the case in hand.
PW-16 Inspector Om Parkash had partly
investigated the case. He had arrested Dilbag Singh and
Kuldeep Singh on 1.1.1991 and as per disclosure
statement got recovered cash, Muster Role, key and
envelop etc.
After close of prosecution evidence, the
accused were examined under Section 313 Cr.P.C. to
explain the allegations levelled against them. Accused
denied all the allegations and claimed to be innocent.
Defence version of Kuldeep Singh was that
half killa of land was owned by Bijay Singh and the
same was to be purchased by them. Bijay Singh had
demanded Rs.75,000/- but they were ready to pay
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 12
Rs.60,000/-. An amount of Rs. 50,000/- was borrowed
from Daya Nand son of his maternal uncle, Arjan. An
amount of Rs.65,000/- was taken away by the police from
his house on the allegation that number of currency
notes are to be tallied with the currency notes stolen
from the PWD office. Money was not returned inspite of
repeated requests and the same was utilized to implicate
him in the present case.
Defence version of Dilbag Singh and Joginder
Singh was that they were innocent.
In defence, Doctor P.K.Bhatia appeared and
stated that he had medico legally examined Dilbag
Singh. Disability certificate Ex.PE was issued.
Disability was 70%.
DW-2 Daya Nand stated that he was owning
land. Suger Cane was supplied to the mill. Payment
was received from the mill. Rs.50,000/- was given to
Kuldeep Singh to purchase land.
DW-3 Bijay Singh stated that he was owning
about 8-1/2 killas of land. ½ killa was to be sold to
Kuldeelp Singh in the sum of Rs.80,000/- but Kuldeep
Singh was ready to pay Rs.50,000/-.
DW-4 Mange Ram stated that he was going
towards the fields. Police was seen near the house of
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 13
Kuldeep Singh. Police had recovered some amount. He
was requested to sign the document but he had not
agreed to sign.
DW-5 Samay Singh Record keeper had brought
record of Sugar mill and proved payment sheets Ex.DF,
Ex. DG and Ex.DH.
DW-6 Rajinder Singh Clerk of Co-operative
Sugar Mill stated that vide payment sheets Ex.DF,
Ex.DG and Ex.DH. payment of sugar cane was given to
the supplier.
We have heard learned defence counsel for the
appellants, Mr. K.S.Godara, Deputy Advocate General,
Haryana for the State and have gone through the file
very carefully and thoroughly.
Defence counsel for the appellants-accused
argued that case is based on circumstantial evidence.
There is no direct evidence. According to the story
Shugan Chand was Chowkidar in the office of PWD
B&R. He was on duty on the intervening night of
25/26.12.1990. On the next day, he was found murdered
in the office. Cash was found stolen from the chest.
Only evidence on the file to connect the appellants-
accused with the crime is that on the intervening night
of 21/22.12.1990 Dilbag Singh and Kuldeep Singh had
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 14
slept in the office from 3 A.M. to 6 A.M as per Zile Singh
SDC. Second link is the recovery of cash as per
disclosure statements but prosecution story inspires no
confidence because Zile Singh was SDC. He was staying
in village Charao situated at the distance of seven
kilometer from the office. There was no cot or bed.
Zile Singh was not expected to stay in the office. Zile
Singh in his cross examination admitted that Kuldeep
Singh did not work in his office. Finger prints were
lifted. Lock of chest was intact but the chest was found
open. He did not supply his finger prints. Police was
requested not to take his finger prints. He did not
disclose to anybody that on the intervening night of
21/22.12.1990 Dilbag Singh and Kuldeep Singh had
slept in the office. Stay of Dilbag Singh and Kuldeep
Singh from 3 A.M. to 6 A.M. on the intervening night
of 21/22.12.1990 is not correct one. If finger prints were
available then why Zile Singh SDC was not willing to
supply his finger prints. Finger prints of the appellants-
accused were not got compared with the disputed finger
prints lifted from the spot. Surinder Kumar SDO is the
next witness but his statement is also without any
evidentiary value. There was no idea to withdraw heavy
payment from the Bank on 21.12.1990, when 23, 24 and
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 15
25.12.1990 were not the working days. An amount of
Rs.37,000/- was distributed. Remaining amount was to
be distributed on 23.12.1990 but no explanation why
amount was not distributed. Explanation put forward by
Surinder Kumar was that Junior Engineer was not
available. But nothing on the record that concerned
Junior Engineer was not on duty. On 1.1.1991 Surinder
Kumar was present near Railway Chowk Gharonda and
per chance police party was seen headed by Om Parkash
Inspector. First disclosure statement suffered by Dilbag
Singh is dated 1.1.1991. As per disclosure statement, an
amount of Rs.47403/- with Muster roll was recovered.
Muster roll was not a valuable document. There was no
idea to keep Muster roll with cash. Then Kuldeep Singh
got recovered cash and envelope as per disclosure
statement but envelope not on the file. No explanation
where envelope has gone. There was no identification
mark on the cash. Appellants-accused were not expected
to keep official envelope. Again, there is disclosure
statement dated 2.1.1991 by Dilbag Singh. As per
disclosure statement, bunch of keys was recovered.
Third disclosure statement is dated 3.1.1991 and as per
disclosure statement spring actuated knife was
recovered but knife was not sealed as per Investigating
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 16
Officer. Money was withdrawn on 21.12.1990. On
22.12.1990 was working day. Payment was distributed
on that day. When Dilbag Singh and Kuldeep Singh were
not known to Zile Singh SDC and no test identification
parade was arranged then story is doubtful that Dilbag
Singh and Kuldeep Singh had gone to the office of PWD
B&R and had slept there from 3 A.M. to 6 A.M. When
finger prints were available then question is why finger
prints of Zile Singh SDC and Surinder Singh SDO were
not taken for comparison. They were facing
departmental inquiry. Possibility of mischief at the
hands of Zile Singh SDC and Surinder Kumar SDO
cannot be ruled out. One revolver and two cartridges
were recovered from Dilbag Singh. Separate case was
registered under the Arms Act. Dilbag Singh was
acquitted of the charges levelled against him. That
means story qua arrest, recovery of revolver and
cartridges was found to be doubtful, that is why, Dilbag
Slingh was acquitted of the charge levelled aginst him.
One of the appellants-accused namely Dilbag Singh is
handicapped. Disability was 70%. Recovery of cash was
effected from a room which was not owned by Dilbag
Singh, particularly, when he cannot walk properly
without help. Recovery of cash from the “Turi Wala
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 17
Kotha” is also doubtful. In fact, Zile Singh and Surinder
Kumar SDO to save their skin had arranged the money
and the same was shown to have recovered as per
disclosure statement suffered by Kuldeep Singh and
Dilbag Singh. No recovery from Joginder Singh. Chain
of circumstantial evidence is not complete. Evidence on
the file was not properly appreciated.
Mr. K.S.Godara, Deputy Advocate General,
Haryana argued that Shugan Chand was Chowkidar in
the office of PWD B&R. On 21.12.1990, Surinder Kumar
SDO had withdrawn payment from the Bank for
distribution to the labourers. Some of the amount was
distributed. Remaining amount was kept in the chest.
On the intervening night of 21/22.12.1990, Dilbag Sing
and Kuldeep Singh had slept in the office from 3 A.M.
to 6 A.M. On 22.12.1990, Zile Singh SDC and Surinder
Kumar SDO, had gone to their respective houses.
Payment lying in the chest was to be distributed on
26.12.1990 but on the intervening night of
25/26.12.1990, Shugan Chand was found murdered in
the office. As per disclosure statement suffered by
Dilbag Singh and Kuldeep Singh, payment was
recovered along with muster roll, bunch of keys and
knife. Zile Singh, SDC and Surinder Kumar SDO had no
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 18
enmity with the appellant-accused. Evidence on the file
was rightly appreciated by the trial court to hold that
chain of evidence is complete.
First submission of learned defence counsel
was that case is based on circumstantial evidence. No
eye witness but chain of circumstantial evidence is not
complete. No documentary evidence on the file as to how
much amount was withdrawn from State Bank of India
on 21.12.1990 and how Rs.1,30,000/- was got
transferred from the chest of Provisional Division No.3
to the chest of the complainant. As per story, some of
the amount was distributed to the labourer on
22.12.1990 but regarding distribution, no documentary
proof on the file Rs.37,000/- was distributed on Sunday
but as per First Information Report on 22.12.1990,
complainant and Zile Singh SDC had gone to their
respective houses, regarding distribution of Rs.37,000/-
on Sunday no proof on the file story qua withdrawal
and distribution is doubtful. Submission of Learned
defence counsel seems to be reasonable one. When
payment is withdrawn from the Bank by any office,
then cheque is issued. Regarding issuance of cheque
and receipt of payment entry is made in the register, but
no receipt on the file whether payment was against
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 19
cheque and in case, payment was withdrawn from the
Bank and how much payment was withdrawn then who
had collected the payment. Regarding withdrawal of
payment, no entry in the record. Rs.1,30,000/- was got
transferred by the complainant to his own chest but
regarding withdrawal of Rs.1,30,000/- from the main
chest and transfer to his own chest by the complainant,
again no record. Rs.30,000/-was already lying in the
chest, but regarding this payment, again no proof.
According to the First Information Report on
22.12.1990, after distributing some payment, Zile Singh
SDC and Surinder Kumar SDO had gone to their houses,
then the question is as to how much payment was kept
in the chest by the complainant till the close of his office
on 22.12.1990. If complainant had gone to his house on
22.12.1990, then how Rs.37,000/- was distributed on
Sunday. Record is maintained in the office as to how
many were the labourers and to whom payment was
made. Without record, it is very easy to state that
payment was withdrawn from the Bank. Some of the
payment was distributed and remaining amount was
kept in the chest. So, story qua withdrawal of payment
from the State Bank of India, Karnal and distribution of
some payment is not genuine one.
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 20
Next submission of learned defence counsel
was that as per evidence, Dilbag Singh and Kuldeep
Singh had gone to the office of complainant on the
intervening night of 21/22.12.1990 and had slept in the
office from 3 A.M. to 6 A.M. Dilbag Singh and Kuldeep
Singh were not known to Zile Singh SDC or the
deceased, then there was no idea to allow Dilbag Singh
and Kuldeep Singh to sleep in the office. Story qua last
seen is also doubtful.
We have gone through the evidence on the file
and agree with the submission of learned defence
counsel. Zile Singh SDC admitted in cross examination
that his village is at a distance of 105 kilometer. He was
staying in village Chayo situated at a distance of seven
kilometers. Kuldeep Chand and Dilbag Singh were not
known to him and admitted that Kuleep Singh did not
work in his office. Zile Singh was confronted with the
statement under Section 161 Cr.P.C. In the statement,
Zile Singh SDC stated that Kuldeep Singh had worked in
his office for few days. No record on the file whether
Kuldeep Singh and Dilbag Singh had worked in the
office of PWD B&R at any stage. Kuldeep Singh and
Dilbag Singh were not from the village of the deceased.
They are from village Gagsina, whereas the deceased
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 21
was resident of village Uchha Samana. No evidence on
the file that Kuldeep Singh and Dilbag Singh had ever
worked with the deceased or Zile Singh SDC or Surinder
Kumar SDO. Before the present occurrence, Dilbag
Singh and Kuldeep Singh had no litigation either with
the complainant and Zile Singh SDC or the deceased
then the question is how Dilbag Singh and Kuldeep
Singh had gone to the office of PWD B&R on the
intervening night of 21/22.12.1990 and had slept in the
office from 3 A.M. to 6 A.M. Zile Singh SDC was not in a
position to state that Dilbag Singh and Kuldeep Singh
came to his office on the intervening night of 21/22.
12.1990 and had slept from 3 A.M to 6 A.M. If Dilbag
Singh and Kuldeep Singh had slept in the office from 3
A.M. to 6 A.M. then Zile Singh SDC should have told the
police on 26.12.1990 that Dilbag Siongh and Kuldeep
Singh residents of village Gagsina came to the office and
had slept from 3 A.M. to 6 A.M. Statement of Zile Singh
is doubtful.
Defence counsel for the appellants-accused
submitted that lock of the chest was intact but the chest
was found broken. There was sub-chest but the same
was lying locked. Finger prints were available but no
effort was made to have finger prints of the complainant
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 22
and Zile Singh SDC. Zile Singh SDC in cross examination
stated that finger prints were lifted from the chest but
he did not supply his finger prints to the police. Surinder
Kumar SDO had also not supplied his finger prints to the
police. Police was also requested not to take their finger
prints. Surinder Kumar SDO appearing as PW-12 in
cross examination stated that he did not supply his
finger prints to the police. In case, finger prints were
lifted from the chest or any other article lying near the
place of occurrence, then there was no hitch for the
complainant and Zile Singh SDC to supply their finger
prints for comparison.
As discussed earlier, finger prints were lifted
from the spot but no effort was made to have the finger
prints of the appellants-accused for comparison. Finger
prints of the appellants-accused could easily be obtained
before the Magistrate for comparison with the disputed
finger prints. No explanation is forth-coming from the
side of the prosecution as to why finger prints of the
appellants-accused, Zile Singh SDC and Surinder Kumar
SDO were not taken.
Next submission of the learned defence counsel
was that an effort was made to connect the accused with
the crime by effecting recovery of cash as per different
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 23
disclosure statements, Dilbag Singh was arrested on
1.1.1991. Revolver along with two live cartridges was
recovered. Separate case was registered again Dilbag
Singh, but in the Arms case, Dilbag Singh was acquitted.
Story qua arrest, recovery of arms and ammunition is
doubtful. On 1.1.1991, a sum of Rs. 47,403/- and muster
roll was recovered. As per disclosure statement, Kuldeep
Singh got recovered Rs.63803/- with official envelope.
But envelope is not on the file. No documentary proof
that cash recovered is the same which was stolen from
the official chest. On 2.1.1991 again Dilbag Singh was
interrogated. As per disclosure statement, bunch of keys
was recovered. Again on 3.1.1991, Dilbag Singh was
interrogated. As per disclosure statement, Dilbag Singh
got recovered knife on 4.1.1991. Dilbag Singh was
handicapped. Disability was 70% as per doctor
P.K.Bhatia, who appeared as DW-1. Recovery was from
the kotha. Place of recovery was open and accessible.
Owner of the kotha was not joined in the investigation of
the case. With 70% disability, Dilbag Singh was not in a
position to conceal cash in the kotha of some other
person. Dilbag Singh was tortured. Disclosure
statement was not made voluntarily. If Dilbag Singh
and Kuldeep Singh had stolen cash from the official
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 24
chest, then there was no idea to keep muster roll or
bunch of keys with them. After committing crime,
muster roll, keys or knife could easily be destroyed.
Submission of the learned defence counsel for
the appellants-accused is genuine one. Occurrence was
on the intervening night of 25/26.12.1990, Dilbag Singh
and Kuldeep Singh were arrested on 1.1.1991. Presence
of Surinder Kumar SDO at the time of arrest is not
natural one. While posted as SDO in the office of PWD
B&R, Karnal how Surinder Kumar had gone to the place
of arrest of Dilbag Singh appellant-accused. After the
arrest of Dilbag Singh on 1.1.1991, revolver with two
live cartridges was recovered, but under the Arms Act,
Dilbag Singh was acquitted of the charge levelled
against him. This fact is clear from the copy of the
judgment Ex.DA on the file. So, story regarding arrest
of Dilbag Singh and recovery of revolver and two live
cartridges is doubtful when story qua recovery is
doubtful then not safe to opine that as per disclosure
statement dated 1.1.1991. Dilbag Singh got recovered
Rs.47,403/- with muster roll. On the same day, Kuldeep
Singh got recovered Rs.63,800/- with official envelope
but envelope is not on the file. Cash was expected to be
retained by the appellants-accused and not the official
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 25
envelope. On 2.1.1991, again Dilbag Singh handicapped
was interrogated. As per disclosure statement, bunch of
keys was got recovered. If appellants-accused had
committed the crime, then there was no idea to keep
bunch of keys. As per Zile Singh SDC, lock was intact.
Chest was found open by breaking. On 3.1.1991 again
Dilbag Singh suffered a disclosure statement and got
recovered knife but knife was not found to be stained
with human blood. As per report of Forensic Science
Laboratory, Madhuban Ex.PEE/1 material was found to
be disintegrated. Recovery of cash, bunch of keys and
knife is doubtful.
Defence counsel for the appellants-accused
argued that conduct of Zile Singh SDC and Surinder
Kumar SDO is doubtful. Firstly, Zile Singh SDC had no
occasion to stay in the office, if he was telling the truth,
then he should have supplied his finger prints for
comparison. Zile Singh SDC as per his statement under
Section 161 Cr.P.C. used to sleep in the office, but in
Court stated that he was not sleeping in the office daily.
On the intervening night of 21/22.12.1990, Zile Singh
SDC had stayed in the office as per his version, but he
did not disclose this fact to the police. There was no
bedding or cot in the office. When Zile Singh SDC was
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 26
staying in the village situated at a distance of 7
kilometer from the office then he was not expected to
stay in the office during night time. There were holidays
after 22.12.1990 till 26.12.1990, then there was no idea
to withdraw heavy amount on 21.12.1990. If payment
was withdrawn on 21.12.1990, then it was very easy to
disburse the amount amongst the labourers. No request
should have been made to the police not to take their
finger prints. That means, there was something in the
mind of Zile Singh SDC that is why he was not ready to
supply his finger prints for comparison. Surinder Kumar
SDO was present at the time of recoveries, but his
statement is also without any evidentiary value because
he was facing inquiry qua the present occurrence. He did
not supply his finger prints. Submission of learned
defence counsel seems to be reasonable one. Occurrence
was on the intervening night of 25/26.12.1990. Zile
Singh had stayed in the office on the night of
21/22.12.1990, but there was not cot or bedding for
stay in the office when finger prints were lifted from the
spot, then there was no idea not to supply finger prints .
Zile Singh SDC and Surinder Kumar SDO were facing
inquiry. Both seemed to be behind the seen. At the
instance of Zile Singh SDC and Surinder Kumar SDO,
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 27
appellants-accused were implicated by showing recovery
of cash in pursuance of the disclosure statement. Dilbag
Singh was handicapped. Disability was 70%. Chaff in
room was up to the hight 6/7 feet. Dilbag Singh was not
in a position to walk properly without help. Dilbag
Singh was not expected to conceal cash in the chaff
stored in the room owned by some other persons. If
Dilbag Singh was to conceal cash, then it was very easy
for him to conceal the same in his own house. So,
recovery of cash etc in the presence of Surinder Kumar
SDO, is doubtful. Statements of Zile Singh SDC and
Surinder Kumar SDO inspire no confidence.
No other contention was put forward.
In view of all discussed, we are of the opinion
that impugned judgment suffers from infirmity and
illegality and the same is set aside. Appellants-accused
are acquitted of the charges levelled against them.
Crl. Appeal No.43-DB of 2000.and Crl. Appeal No.
44-DB of 2000, are hereby allowed.
( JORA SINGH )
JUDGE
26.02.2009. ( JASBIR SINGH )
JUDGE
Anoop
Crl. Appeal No.43-DB of 2000.
Crl. Appeal No. 44-DB of 2000. 28