JUDGMENT
A.N. Jindal, J.
1. This case relates to the murder of Sukhcharan Singh son of Iqbal Singh, whose body was lying buried under the earth in the open fields was recovered on 7.3.1992, at the instance of Gurdip Singh accused for which four accused namely Manjit Singh, Raj Singh, Gurdip Singh and Jassa Singh were challaned by the SHO, Police Station Sadar, Faridkot, under Sections 302/34 read with Section 201 IPC. Accused Jassa Singh was declared Proclaimed Offender whereas the remaining three accused faced trial. On conclusion of the trial, the accused Raj Singh and Manjit Singh were acquitted whereas accused Gurdip Singh was convicted for the offence under Sections 302/34 read with Section 201 IPC. Consequently, he was sentenced to undergo rigorous imprisonment for life and to pay fine of Rs. 500/-. In default of payment of fine to further undergo rigorous imprisonment for two months under Section 302/34 IPC. He was further sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs. 200/-. In default of payment of fine to further undergo rigorous imprisonment for one month under Section 201 of IPC. Both the sentences were ordered to run concurrently.
2. The compendious facts which culminated into trial against the accused are that on the intervening night of 2/3.3.1992 Sukhcharan Singh had gone for irrigating his fields but did not return. His missing report was recorded by Iqbal Singh at Police Station Sardar, Faridkot on 5.3.1992 but his whereabouts could not be known up to 7.3.1992.
3. On 7.3.1992, when further enquiry was made by Inspector Darshan Singh from Iqbal Singh, he disclosed that from his secret enquiry he had come to know that Sukhcharan Singh was murdered by Gurdip Singh alias Sheera, Manjit Singh son of Ran Singh resident of village Lohke, P.S. Zira, Jassa Singh resident of Talwandi Nepalan and Raj Singh son of Balwant Singh. He further informed that they after killing Sukhcharan Singh had buried his dead body at some unknown place. On the aforesaid statement Ex.PC made by Iqbal Singh, case FIR No. 19 dated 7.3.1992 was registered at Police Station Sadar, Faridkot on 7.3.1992 at 9.15 AM. Consequently, the investigation was commenced. Inspector Darshan Singh after associating Mukhtiar Singh Lambardar, Darbara Singh Chowkidar conducted raid at the house of Raj Singh but he was not available. However, he arrested Gurdip Singh when he was returning from his fields along with cattle fodder. On interrogation of Gurdip Singh, he named three other accused and stated that they had committed the murder of Sukhcharan Singh and buried his dead body in the fields about which he knew and could get the same recovered. On the basis of the aforesaid disclosure statement Ex.PG made in the presence of Nachhattar Singh and Mukhtiar Singh, he took the police party to the fields of Balwant Singh and got recovered the dead body of Sukhcharan Singh from the disclosed place after removing some earth with Kassi. The accused also got recovered a pair of shoes from near the dead body. The Investigating Officer also took into possession the blood stained earth and simple earth from near the dead body and after converting the same into parcel took it into possession. He also prepared the inquest report of the dead body and he later on sent the dead body for post mortem examination. He also arrested the accused.
4. On 15.3.1992, he arrested Raj Singh accused and recorded the statements of the witnesses. Some investigation was also carried out by DSP Bharpur Singh Grewal. On completion of the investigation, accused Raj Singh and Gurdip Singh were challaned whereas the remaining accused were declared as proclaimed offenders. Later on accused Manjit Singh was also arrested. Consequently, charge against him was also framed on 11.8.1993. The accused Jassa Singh is still proclaimed offender.
5. In order to bring home the charge against the accused, the prosecution examined Dr. K.K. Aggarwal (PW1) who proved the autopsy which was conducted by him on the body of the deceased. Ravinder Singh Patwari ( PW1, number repeated due to inadvertence by the trial Court). Darbara Singh (PW2) is the eye witness to the last seen of Sukhcharan Singh in the company of the accused persons on the intervening night of 2/3.3.1992. Iqbal Singh (PW3) is the father of the deceased who reiterated the allegations as set up by him in the FIR Ex.PC/2. MHC Mohinderjit Singh (PW4), LC Jaskaran Singh (PW5) and Harpal Singh (PW8) are formal witnesses. Mukhtiar Singh (PW6) and Nachhattar Singh (PW9) are the witnesses in whose presence the dead body was got recovered by Gurdip Singh accused. Amarjit Singh Photographer (PW7) took the photographs of the dead body on 7.3.1992 of the place of occurrence. Darshan Singh Inspector (PW10) is the witness to the recovery of the dead body got effected by Gurdip Singh accused on 7.3.1992. On the same day, he had summoned Iqbal Singh for enquiry and had recorded his statement Ex.PC on the basis of which FIR Ex.PC/2 was registered by Mohinderjit Singh MHC (PW4). He has also proved the disclosure statement Ex.PG made by the accused Gurdip Singh; recovery memo Ex.PH vide which a pair of chappels was taken into possession; recovery memo Ex.PJ vide which dead body was taken into possession; recovery memo Ex.PK vide which blood stained earth and simple earth were taken into possession from the place of occurrence; rough site plan Ex.PM of the place of recovery; inquest report Ex.PD; parcel containing clothes of the deceased and post mortem report Ex.PN. After examining the aforesaid witnesses, the prosecution closed its evidence.
6. On closure of the prosecution evidence, the accused were examined under Section 313 of Cr.P.C. in which they denied all the incriminating circumstances appearing against them as incorrect and pleaded their false implication in the case. Accused Gurdip Singh further pleaded as under:
I am innocent. I have been falsely implicated at the instance of Nachhattar Singh and Mukhtiar Singh because Iqbal Singh and Darbara Singh brothers are the party men of Nachhattar Singh and Mukhtiar Singh. was arrested by the police of Police Station Sadar, Faridkot on 6.3.1992 and my father Karnail Singh gave telegram to the Governor of Punjab on 7. 3.1992 that I was taken by the police on 6.3.1992. My arrest was shown later on.
7. The remaining accused also pleaded that they are innocent and have been falsely implicated in this case.
8. In their defence, the accused produced postal receipts Ex.DB, Ex.DC, telegram Ex.DD, copy of the statement Ex.DE, copy of the judgment Ex.DF and copy of the decree sheet Ex.DG, certified copies of the telegrams Ex.DH and Ex.DJ, postal receipt Ex.DK and closed their defence.
9. After examining the evidence and other records of the case, the trial Court vide its judgment dated 1.5.1997 acquitted accused Raj Singh and Manjit Singh, however, convicted accused Gurdip Siingh under Section 302/34 read with Section 201 IPC and sentenced him accordingly. Hence this appeal.
10. No appeal has been preferred against the acquittal of the accused Manjit Singh and Raj Singh by the State.
11. We have heard the rival contentions, and have re-scanned the records of the case very carefully with the able assistance of Mr. D.R. Singla, learned Counsel for the appellant and Mr. M.S. Sidhu, learned Senior Deputy Advocate General, Punjab.
12. It is a blind murder case based on circumstantial evidence. The circumstances which according to the trial Court establish the guilt of the accused are as follows:
1. The evidence of last seen on the evening of 2.3.1992 by Darbara Singh (PW2) in the company of the accused. He has deposed that on 2.3.1992 at about 7/8.00 PM, when he was returning from his fields and reached the village pond then Sukhcharan Singh, Gurdip Singh, Raj Singh, Manjit Singh and Jassa Singh were seen. On his enquiry Raj Singh accused replied that he was going to operate the tubewell. He had informed about this fact to his brother on the next day i.e. on 3.3.1992 at about 3.00 PM. 2. The recovery of dead body along with pair of chappel of the deceased at the instance of accused Gurdip Singh on 7.3.1992. 3. Extra judicial confession made by Raj Singh accused on 14.3.1992 about the commission of the crime before Nachhattar Singh.
13. It is unfortunate that an young man of 25 years of age lost his life but still in order to fasten the person responsible for the commission of this crime, sufficient evidence is required which may satisfy the human conscience and enable us to hold that the chain of evidence is so complete and incapable of explanation of any other hypothesis then that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. No doubt, that the conviction can be based solely on the circumstantial evidence but it should pass the test of cardinal principles of law relating to the circumstantial evidence laid down by the Apex Court as back as in the year 1952 in case Hanumant Govind Nagundkar and Anr. v. State of Madhya Pradesh wherein the Apex Court observed as under:
It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.
14. Before analysing the factual aspect it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. Where there are no eye witnesses, then the offence can be proved by circumstantial evidence. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from fatum probans, that is, the evidentiary fact. To put it differently circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
15. Now delineating the scene concerning the instant case, we observe that Sukhcharan Singh went missing on the intervening night of 2/3.3.1992. The prosecution has cited Darbara Singh as the witness who had last seen the deceased in the company of Manjit Singh, Jassa Singh, Raj Singh and Gurdip Sinigh and he informed about this fact to Iqbal Singh father of the deceased when he was searching for the deceased. Failing to search the deceased up to 5th March, 1992, he got recorded the DDR Ex.PB wherein he did not doubt any one. He did not disclose about the conversation between him and Darbara Singh (PW2) about the last seen of the deceased in the company of the accused by Darbara Singh. Again on enquiry by the police, Iqbal Singh (PW3) got registered FIR against the accused at 9.15 AM on 7.3.1992. The accused was arrested within half an hour. Thereafter in pursuance of his disclosure statement, he got recorded the dead body of the deceased from the fields. Dr. K.K. Aggarwal (PW1) who conducted the autopsy on the dead body of the deceased, observed the following injuries on his person:
1. Brownish contusion which was 4 cms broad present on front of neck over thyroid, cartilage and above it and going to both sides of neck. It was transversely placed. On dissection of the neck transverse band of accomosis which was 4 cms broad corresponding to contusion on neck and was extending from front to both sides of neck. Platysme was torn in the area of ecobymosis. Clotted blood was present beneath the thyroid muscles of neck. Mucous of trachea and larynx was congested and full of frothy blood stained fluid.
2. Reddish brown abrasion 2 cms x 1 cm on right side of forehead 1 cm above right eye brow. It was scabbed. 3. Reddish brown abrasion 2 cms x 1 cm, 5 cms on middle of forehead 1 cm in front of anterior hair line, scabbed. 4. Reddish brown abrasion 1 cm x 1 cm on middle of forehead just above root of nose, scabbed.
16. He further opined that the injuries were ante-mortem in nature. The case of death according to him was asphyxia as a result of strangulation which was sufficient to cause death in the ordinary course of nature. The time lapsed between the injury and death was within few minutes and between death and post-mortem was within 3 to 5 days.
17. The trial Court disbelieved the first two circumstances while ignoring the testimony of Nachhattar Singh (PW9). We also do not deem it appropriate to believe the testimony of Darbara Singh (PW2) as the witness to the last seen. According to Darbara Singh (PW2) he had informed his brother Iqbal Singh about having seen the deceased in the company of the accused on 2.3.1992. Had Darbara Singh (PW2) actually seen the accused in the company of the deceased on 2.3.1992 and had informed Iqbal Singh (PW3), then Iqbal Singh (PW3) must have disclosed this fact on 5.3.1992 at the time he got recorded the DDR Ex.PB or at least on 7.3.1992 when FIR against the accused was registered. These two documents do not reveal if Iqbal Singh knew about the fact that his brother Darbara Singh had seen the deceased in the company of the accused. DDR No. 12 dated 5.3.1992 Ex.PB reveals that he had no suspicion against any one. His son had gone to the fields on 2.3.1992 at 8.30 PM and did not return. Since the factum with regard to going to the fields was so related with the other question as to in whose company he had gone, then non mention of this fact attracts us to hold that Darbara Singh (PW2) was imported later on. Similarly, in the FIR Ex.PC/2 Iqbal Singh (PW3) only disclosed that he had come to know through secret information that his son had been murdered by the accused and they after killing him had buried him at some unknown place. Thus, non mention of name of Darbara Singh (PW2) as a source of information makes him false witness. He made various improvements effecting the substratum of the case. The case of the prosecution is that dead body was recovered form the fields of Balwant Singh son of Kartar Singh but this witness states that the dead body was recovered from the fields of Harbans Singh. Though, he stated before the police that the accused and the deceased met him on the evening of 2.3.1992 near the village pond but he did not record this fact in his statement Ex.PA before the police. He had stated to the police that he told Iqbal Singh about having last seen him but he did not record this fact in his statement Ex.PA before the police. Darbara Singh (PW2) being the real brother of the complainant and uncle of the deceased could go to any extent to strengthen the case of the prosecution. His testimony does not find corroboration from any other evidence, therefore, such a shaky and contradictory statement of Darbara Singh cannot be relied upon to believe the theory of last seen.
18. Now we are left to determine whether circumstance of recovery of the dead body allegedly at the behest of the accused is duly proved. Having closely scrutinized the evidence on record, we are constrained to hold that the present case is an example of crude padding by the Investigating Officer and the recovery was not effected in the manner as presented and projected by him. The Investigating Officer Darshan Singh (PW10) recorded the statement of Iqbal Singh Ex.PC wherein he named the accused on 7.3.1992 which was completed at 8.30 PM on the basis of which FIR Ex.PC/2 was recorded at Police Station Saddar, Faridkot on the same day at 9.15 PM. Now while having a look at the inquest report Ex.PD prepared by Inspector Darshan Singh (PW10), it transpires that he was in possession of the dead body before recording the FIR as he has mentioned in column No. 3 of the inquest report (regarding date and hour of discovery) as 7.3.1992 at 8.00 AM. The column further reveals that Iqbal Singh and Darbara Singh were also with him at that time. From the perusal of the testimonies of Iqbal Singh (PW3) and Nachhattar Singh (PW5), it further transpires that the dead body was recovered before the FIR was registered. Iqbal Singh (PW3) has stated during cross examination that Gurdip Singh was apprehended by the police at 8.00 AM on 7.3.1992. They remained sitting in the sath till the arrival of the photographer since 7.00 AM. Similarly, Mukhtiar Singh (PW6) has also corroborated the statement of Iqbal Singh (PW3) while stating that constable came to summon him at 8.00 AM. Gurdip Singh accused was arrested by the police at about 9.00 AM and the police recorded his statement at the place where he was arrested. All this goes to show that the story set up by the prosecution regarding the recovery of the dead body in pursuance of the disclosure statement made by the accused at 9.30 AM is false and has been manufactured just to create evidence. The other circumstances that recording of FIR, recording statement of the accused, recovery of the dead body, recovery of the chappel (pair of shoes), recovery of the blood stained earth, simple earth and preparation of the site plan on one and the same day i.e. within two hours also goes a long way to prove that the story of the prosecution regarding the recovery of the dead body on the statement of Gurdip Singh accused under Section 27 of the Indian Evidence Act, is false. Though Darbara Singh (PW2) admitted that the recovery of the dead body was effected in his presence and in presence of Mukhtiar Singh (PW6), Nachhattar Singh (PW9) and his cousin Nath Singh, yet nothing has been stated by him if the said recovery was got effected in pursuance of the statement under Section 27 of the Indian Evidence Act. It would also be significant to mention that the witnesses examined by the prosecution namely Darbara Singh (PW2), Iqbal Singh (PW3), Mukhtiar Singh (PW6) and Nachhattar Singh (PW9) are contrary qua the place from where the dead body was recovered. According to Darbara Singh (PW2), dead body was recovered from the fields of Harbans Singh in his presence. To the contrary, Iqbal Singh (PW3) has stated that the accused had made the statement that he had buried the dead body Sukhcharan Singh in the fields of Raj Singh and he could get the same recovered. Thereafter he got recovered the dead body from the fields of Raj Singh. Again Mukhtiar Singh (PW6) made inconsistent statement to the statement of these two witnesses by stating that on interrogation accused Gurdip Singh disclosed that he and other accused had buried the dead body of Sukhcharan Singh in the fields of Balwant Singh and that he could get the same recovered. The testimony of this witness also bearing a note that first of all the witness disclosed in the Court that the accused had disclosed that dead body was buried out side the fields but on being questioned again he disclosed that the dead body was buried in the fields of Balwant Singh. The last witness namely Nachhattar Singh (PW9) has not mentioned about the owner of the field in which the accused buried the dead body. Thus all the four witnesses have made contradictory statements regarding the statement of the accused which he made under Section 27 of the Indian Evidence Act and regarding the ownership of the fields from where the dead body was recovered. Thus, this statement can be termed as too as vague to place reliance. The statement Ex.PG is also contradictory to the recovery memo of the dead body Ex.PJ. While taking the case from another angle, it is vividly clear from the testimony of Iqbal Singh (PW3) and Mukhtiar Singh (PW6) as well as the inquest report, that the police was in the knowledge of the dead body prior to the recording of the statement of the accused. Under such circumstances, the recovery of the incriminating article is inadmissible in evidence. Reference if any, can be made to the judgment delivered by the Apex Court in case Aher Raja Khima v. State of Saurashtra wherein it was observed as under:
Then we come to the recoveries. The false beard and mask were found buried in the grounds of Dewayat’s house and the appellant is said to have recovered them in the presence of panchas. But those discoveries are inadmissible in evidence because the police already knew where they were hidden.
19. It is true that Iqbal Singh (PW3) lost his son and he was in search of the real culprit. The dead body of his son was recovered within four days of his missing but it appears that inaction on the part of the police within these four days and failure to collect the sufficient circumstantial evidence pointing towards the guilt of the accused has ended in the acquittal of two accused at the trial Court level and one is going unpunished for deficiency of evidence. Not only this case, the present set up of the police forces lacks sufficient training regarding crime detection resultantly thousands of criminals of heinous crimes are going unpunished. There may be some truth in the allegations but the Court has to act only on the evidence brought before it but the Courts are rendered helpless where the Investigating Agency fails to bring sufficient evidence to the surface to connect them with the crime. Thus need of the time is to equip the Investigating Agency with ultra modern means to detect the crime and collect evidence and the State Governments should sharpen its vigil towards this side.
20. As an upshot of the above discussions and having scanned the impugned judgment, we are of the view that the material evidence as referred to above has not been anxiously looked into by the trial Court while holding complicity of the accused Gurdip Singh in the crime. As such the judgment deserves to be reversed.
21. Consequently, we accept the appeal, set aside the impugned judgment, acquit the accused of the charges framed against him and direct him to set at liberty forthwith if not required in any other case.