HIGH COURT OF JAMMU AND KASHMIR AT JAMMU. Cr Appeal No. 11 OF 2008 AND Conf No. 4 OF 2008 1. Harjeet Singh 2. State Petitioners 1. State 2. Harjeet Singh and anr Respondent !Mr. Sunil Sethi, Sr. Advocate with Ms. Veenu Gupta, Advocate ^Mr. P. C. Sharma, AAG MR. JUSTICE HAKIM IMTIYAZ HUSSAIN, JUDGE. MR. JUSTICE J. P. SINGH, JUDGE. Date: 24/08/2009 :J U D G M E N T :
J.P.Singh-J
Sentenced to Imprisonment for life and fine of Rs.
5000/-, under Section 302 RPC, besides to
Imprisonment for five years and fine of Rs. 5000/- under
Section 452 RPC, And to, two years imprisonment and
fine of Rs. 2000/- under Section 4/25 of the Arms Act,
for committing the murder of Kuldeep Kumar Badyal,
Principal Government Boys Higher Secondary School,
Gandhi Nagar, Jammu, the appellant, Harjeet Singh,
2
the appellant, has filed this appeal seeking setting aside
of his conviction and sentence, ordered vide judgment
of March 18, 2008 and order of March 19, 2008
respectively, of the learned Second Additional Sessions
Judge, Jammu, herein after to be referred as the ‘trial
court’, for short.
Facts necessary for disposal of the appellant’s
Criminal Appeal and Confirmation Reference no. 4/2008
of the trial court, may be stated, in brief, thus:-
FACTS:
PW1, Rajinder Singh, the Vice Principal of the
Government Boys Higher Secondary School, Gandhi
Nagar, Jammu, delivered his complaint to the Police
Station Gandhi Nagar, Jammu through PW 12, Madan
Lal, which reads as follows:-
“To
The Station House Officer,
Police Station Gandhi Nagar,
Jammu.Sir,
Respectfully, I have to state as :-(a) Today at about 11.15 AM, two sikh youth aged
about 26 years and 20 years, one of them
named Mr. Deepinder Singh, came to me, when
I was teaching 11th Class Section A with the plea
to issue a certificate certifying that Deepinder
Singh has performed required numbers of
practicals in Physics and Chemistry for 12th
class.3
I told them to approach the board
authorities for necessary permission, as his
application has already been submitted to Joint
Secretary board.(b) At about 1.35 P.M. same two youth appeared in
the Principal’s Chamber in very furious mood
and demanded the requisite certificate without
getting any sanction from board. There were
heated exchanges between the Principal, myself
and Sikh youths in the office Chamber in
presence of Subash Jamwal office clerk of the
School.(c) We came out of the office along with the youths
in the Varanda with exchanges.In the meantime, these two youths ran
away from the school, one of them Harjeet Singh
age about 26 years appeared on spot with sharp
edge weapon and attacked the Principal Sahib,
who became unconscious, fell down and was
taken to GMC by the staff members on auto,
being in old age and Cancer patient could not
bear the scene and went away.It is therefore requested that necessary
investigation may kindly be initiated under law.Yours faithfully ( Rajinder Singh ) Dated: 3.2.99 (V. Principal) Sr. Lect. Physics Gandhi Nagar."FIR no. 54/1999 was, accordingly, registered on
the aforementioned complaint, under Sections 307, 452,
332, 34 RPC and 4/25 of the Arms Act at Police Station
Gandhi Nagar, Jammu.After completion of the investigation, a Final Police
Report, was laid with the Chief Judicial Magistrate
Jammu, indicating commission of offences punishable
under Sections 302, 333, 452, 34 R.P.C read with
Section 4/25 of the Arms Act, by the appellant and
4
under Sections 302, 452, 333, 34 RPC by one Deep
Inder Singh, in committing the murder of Kuldeep
Kumar Badyal, with a Butcher’s hatchet, called “Toka”
in local dialect.Finding prima facie case for trial, the appellant and
Deep Inder Singh were charged, for commission of the
offences indicated hereinabove, by the trial court.Denying the charge, the appellant and his
co- accused claimed trial.In order to sustain the charge, the prosecution
examined 33 out of 39 witnesses listed in the Final
Police Report.Denying the incriminating circumstances appearing
in the prosecution evidence, the appellant and his co-
accused put up the plea of total denial of the incident
opting not to lead any evidence in defence.After appreciating the prosecution evidence and
the material placed on the records, the trial Court
acquitted Deep Inder Singh but convicted and
sentenced the appellant as indicated at the threshold.5
Questioning the judgment and order of the trial
Court, the appellant’s learned counsel urged as
follows:-APPELLANT’S COUNSEL’S SUBMISSIONS:
1. Prosecution having failed to lead any
evidence to prove that the appellant had hit
the deceased at his office with a Toka, his
conviction and sentence was unwarranted,
particularly when almost all the prosecution
witnesses, in unambiguous terms, had
refused to identify the appellant as the same
sikh boy, who had attacked the Principal on
the day of occurrence.2. The statement of PW-1, Rajinder Singh, was
un-worthy of credence, in that, his presence
on spot at the time of the occurrence has not
been proved by the prosecution.3. The attesting witnesses to EXPW/VP, the
appellant’s alleged Disclosure Statement,
having not supported the prosecution
regarding appellant’s making the disclosure
statement leading to the recovery of Toka, the
trial court erred in relying upon the Disclosure
Statement and the recovery of Toka made
pursuant thereto, on the basis of the
statement of PW-39, Yash Pal Bakshi, the
6
Investigating Police Officer, which could not
be relied upon, in absence of any
corroboration thereto, being the statement of
the Police Officer interested in success of the
prosecution case.4. The investigating agency having failed to hold
any Test Identification Parade for identification
of the appellant, during investigation of the
case, the statement of PW-1 could not be
believed, in view of the admitted case of the
prosecution that the witness had neither seen
the appellant before the occurrence nor would
he know his name or other particulars for his
identification.5. Suffering from tainted investigation, and
based on ante-timed FIR, the prosecution
case was liable to be rejected when the
prosecution had failed to prove the appellant’s
motive for commission of the offence.STATE ADVOCATE’S SUBMISSIONS:
The learned Additional Advocate General
submitted that the evidence and the material
produced in the case by the prosecution was
sufficient enough to sustain the appellant’s
7
conviction and sentence, notwithstanding the
prosecution witnesses’ resilience from a part of their
statements made under Section 161 Cr.P.C.,
regarding, identification of the appellant. According
to the State counsel, the statement of PW-1,
supported by EXPW-RS, his written FIR, has proved,
beyond any reasonable doubt that it was the
appellant and appellant alone, who was responsible
for the murder of the Principal. There was no need to
hold any Test Identification Parade during
investigation of the case, because according to the
evidence led in the case, it has been proved beyond
any shadow of reasonable doubt that PW-1 had
seen the appellant thrice on the day of the
occurrence in the school and had thereafter
identified him in the Court as the same person who
had attacked the Principal in his office, says the
learned counsel. Absence of motive, according to
the counsel was not fatal to the prosecution case, in
view of the law settled by the Hon’ble Supreme
Court of India in this respect. According to him, the
8
statement of the Investigating Police Officer is
worthy of credence and cannot be dis-believed
merely because he happens to be a police officer, in
the absence of any infirmity appearing therein.
We have considered the submissions of learned
counsel for the parties and gone through the
statements of the witnesses and the other material
available on the records.DISCUSSION
We do not want to burden this judgment by
reproduction of the statements of all the prosecution
witnesses, resume whereof is contained in the
judgment of the trial court, and shall refer to the
statements of the witnesses, wherever necessary to
deal with the appellant’s Appeal and the submissions
made by learned counsel for the parties at the Bar.The prosecution had citied PW-2 Ramesh Lal,
PW-4 Gurcharan Singh, PW-5 Subash Singh, PW-6
Mst. Ravinder Kour, PW-7 Mst. Savita Sharma, PW-
8 Mst. Reeta Sharma and PW-9 Mst. Manjit Kour,
besides PW-1 Rajinder Singh as eye witnesses to
9
the occurrence; but while appearing in the Court,
these witnesses, barring PW-1 Rajinder Singh, had
refused to identify the appellant and his co-accused
as the same Sikh boys who visited the school and
the Principal on the day of the occurrence.
Perusal of their statements, however, reveals
that some facts disclosed by these witnesses, have
remained unchallenged during their cross-
examination. The facts so revealed, are as follows:-1. Mr. Kuldeep Kumar Badyal, the Principal and
PW-1 Rajinder Singh, the Vice Principal of
the Government Boys Higher Secondary
School, Gandhi Nagar, Jammu, were present
in the school on 03.02.1999 along with all the
witnesses cited by the prosecution as eye
witnesses to the occurrence.2. Two Sikh boys were demanding issuance of
a certificate for having completed practical
from the Principal in his office Chamber.3. One of the Sikh boy, having a Toka in his
hand, was seen running from the school
towards the road.4. The Principal died in the hospital, of the
injuries sustained in the chamber.10
In the background of the aforementioned facts,
the statement of PW1-Rajinder Singh needs to be
examined in detail.PW1- Rajinder Singh, says in his statement that
he was posted as Vice Principal of the Government
Boys Higher Secondary School Gandhi Nagar,
Jammu on 3.2.1999, when at about 11 a.m. the
appellant and Deep Inder Singh, whom he identified
in the Court, had come to him demanding a
certificate regarding completion of the practical in
Physics and Chemistry subjects, when he was
delivering lecture in the class room, to which he
replied that the application had been forwarded to
the Board of School Education. They thereafter left
the class but again appeared in the school at about
1.30 p.m. By that time the Principal of the school,
too, had reached his room. They informed the
Principal that according to the Board officials, he was
competent to issue the certificate and, accordingly,
demanded the certificate from him. They were
vigorously thumping the table lying in the Principal’s
11
room. The Principal told them that let us ask the
Board officials in this behalf and saying this the
Principal got up from his seat. The prosecution
witnesses Subash Singh and Darshan Lal, too, were
in the Principal’s room at that time. The accused,
however, came arguing out of the Principal’s room.
Tilak Raj and Subash Singh took them out of the
school gate. In the meanwhile, Mrs. PW-Ravinder
Kour, who had gone to the Bank to get salary, too
came back informing that the appellant was having a
Toka in his hand and that they should run away. The
appellant, however, in the meanwhile, appeared
there and started arguing with the Principal. Being a
cancer patient he ran away and could not see
anything thereafter. He had, however, seen the
appellant lifting the weapon in his hand upwards.
Getting frightened, he bolted himself in a room in the
school. He came out of the room only after about two
hours to see that the public was there to inform that
the Principal had breathed his last in the hospital.12
EXPW-RS/1, written by him was thereafter lodged in
the Police Station.While under cross-examination, he says that
the deliberations, which had taken place at 1.35 p.m,
continued for about 15/20 minutes whereafter at
about 2 p.m, PWs-Tilak Raj and Subash took the
accused out of the school gate. The Appellant
entered the school alone with the weapon at about
2.15 p.m. He had seen the occurrence for about 3/4
minutes only. He came out of his room where he had
bolted himself only after one and a half hour to lodge
the complaint that the Principal had died. He had
drafted the complaint after about 10/15 minutes of
his coming out of the room. He would not know as to
how much time PW-Madan Lal had taken to carry
the complaint to the Police Station, which had been
given to him at 4 p.m. PW-Ravinder Kour was not
present when the complaint had been drafted. He
had been working in the school for the last two years
and during this period Harjeet Singh did not remain
his student. He did not know Harjeet Singh
13
personally and had seen him for the first time on the
day of the occurrence and would not know his name
before that. He was unaware as to whether anyone
present there revealed the appellant’s name to him
or was it someone from the public or a teacher of the
school, who had revealed the appellant’s name.
After the occurrence he had seen the appellant for
the first time in the Court. He however, saw the
photographs of the appellant and Deep Inder Singh
on the second day of the occurrence, when these
had appeared in the news paper. No identification
parade, for the identification of the accused was
conducted. He had not indicated Toka as weapon of
the offence in the FIR, which was, however,
indicated as a sharp edged weapon in the report.Before dealing with the appellant’s counsel’s
submissions, reference to the statements of some
more prosecution witnesses, which may be relevant
to deal with the submissions made at the Bar,
becomes necessary.14
PW-29 Dr. Anayatullah Shiekh, on conducting
the autopsy had found the following injuries on the
person of Kuldeep Kumar Badyal. These read as
under:-1. Incised chopped wound from left angle of mouth to
the angle of mandible on left side 11 c.m. x 1 c.m.
and deep into the oral cavity, cutting soft tissues left
upper and central incisors. The fractured remnants of
the teeth as produced by the I.O. were corroborated
with the body-injury and found to have been
separated from the deceased.2. Incised chopped wound on left lateral aspect of
scalp, cutting of the posterior third of external ear 11
c.m. x 1 c.m., cutting the underlined bones and brain
substance. It was deep interiorly.3. Incised chopped wound on the right lateral side of
occipital region. The flap was directed towards the
nape of neck of 8 c.m. x 7 c.m. The underlying bone
was fractured.4. Incised chopped wound on the right arm and fore-
arm on lateral aspects across the elbow 24 c.m. x 3
c.m. underlying bones cut and fractured into multiple
pieces.
5. Incised wound on the right wrist on the lateral aspect
5 c.m. x 3 c.m. underlying muscles tendence and
blood vessels were cut.
6. Incised wound on the right wrist 5 c.m. x 3 c.m., 3
c.m. above the injury No.5. The soft tissue and bones
were cut underneath.
7. Incised wound 3 cm. x 2 cm. on front of the left elbow
3 c.m. x 2 c.m.
8. An incised chopped wound on the left elbow on the
lateral aspect 3cm x 2 cm.
9. An incised wound on the left side of the chest in the
posterior axillaries 3cm x 1cm into muscle deep.
10. Contusions on the left ankle on the posterior aspect.
According to Dr. Anayatullah Shiekh, the cause
of the Principal’s death was hemorrhage and shock
as a result of the multiple injuries caused by a sharp
cutting weapon. The time since death, according to
15
him, was about one hour. The Post Mortem Report,
EXPW-AS, and the certificate EXPW-AS-1
indicating that the Toka produced before him by the
police could possibly cause the injuries found on the
person of the deceased, were admitted to have been
issued by him.
PW-27, H.C.Bhagat, Scientific Officer, Forensic
Science Laboratory Jammu, testifies to have issued
EXPW-KKP, his report, after conducting the
chemical and morphological examination of the
articles which he had received in the Laboratory on
8.2.1999 from the Sub Divisional Police Officer, City
South, Jammu, which, pursuant to his examination,
had indicated presence of human blood of AB group
on, (1) Exhibit K-416/99, the Toka with wooden
handle, seized in the case, (2) Exhibits K-425/99
and K-426/99, the cream coloured shirt and blue
coloured pant of the appellant, and (4) Exhibit K-
436/99, the blood of the deceased.
PW-39, Yashpal Bakshi has proved the
Disclosure Statement made by the accused to him,
16
the recovery of the weapon of offence, the seizure of
the clothes of the appellant, the site plan, the seizure
of the parts of the body of the deceased, i.e., a piece
of the ear and a tooth, from the place of occurrence
besides the documents which were prepared by him
during investigation of the case. According to him
there was no need to hold the Test Identification
Parade because the employees of the school and
others would know the accused. Appellant, Harjeet
Singh had made disclosure about the weapon of
offence when, after arrest, he was being carried in a
vehicle to the Police Station.
Perusal of the statement of PW-1, Rajinder
Singh, reveals, that his testimony to the facts
appearing hereunder, has remained un-challenged
during his cross-examination. These facts are as
follows:-
1. Appellant Harjeet Singh along with the
co-accused came to the school firstly
at about 11.a.m, when they had met
him in a class room of the Government
Boys Higher Secondary School,
17
Gandhi Nagar, Jammu where he was
delivering lecture to the students, and
for the second time at about 1.35 p.m
in the Principal’s room. Third time, it
was appellant Harjeet Singh alone,
who came to the Principal’s room at
about 2 p.m with a Toka in his hand.
He had seen him lifting the Toka
upwards whereafter he got frightened
and ran away therefrom to bolt himself
in a room.
The sequence of the events, given by all those
prosecution witnesses, who were cited as eye
witnesses to the occurrence, but have refused to
identify the appellant in the court as the same person
who had attacked the Principal, are the facts
indicating the occasions, cause and the effect of the
relevant facts necessary to determine as to whether
or not it was the appellant who had attacked the
Principal of the School on 3.2.1999 with a Toka, as a
result whereof he succumbed to the injuries received
in the incident.
The statement of these witnesses corroborate
the version of the incident as narrated by PW 1-
18
Rajidner Singh, both in his statement in the Court as
also in his written report to the police, on the day of
the occurrence, barring, however, appellant’s
identification as the same person who had attacked
the Principal on the day of occurrence.
It is no doubt true that none of the
prosecution witnesses have deposed to their having
actually seen the appellant hitting the deceased with
a Toka on the day of occurrence, yet the sequence
of events narrated by these witnesses, rule out
completely the possibility of some one else’s, other
than the appellant, attacking the deceased.
The appellants’ act of having lifted the Toka to
attack the Principal, having been witnessed by PW-1
Rajinder Singh, the running of a Sikh boy from the
school with a Toka in his hand, and the teachers and
other employees, present in the school at that time,
finding the Principal in an injured condition having
received injuries with sharp edged weapon, after the
exit of the Sikh boy from the school with a Toka in
his hand, lead to the only conclusion that it was the
19
appellant and the appellant alone, who was the
author of the injuries found on the person of the
deceased.
According to PW 1 Rajinder Singh, the only
person who was LAST SEEN in the Principal’s room
was the appellant with a Toka in his raised hand to
attack the Principal. The Principal was immediately
thereafter found having injuries with sharp edged
weapon in the school by all those who were present
there. These circumstances, taken together, amply
demonstrate that it was the appellant and appellant
alone, who had injured the deceased with the Toka
in his hand and none else.
The first plea of the appellant’s learned
counsel, that the prosecution had failed to lead
evidence that the appellant had hit the deceased at
his office with a Toka, cannot, thus, be sustained
because the course of events narrated by the
prosecution witnesses and the appellant having
been seen last with the Principal with an attacking
mood and having a Toka in his hand, immediately
20
whereafter the Principal was found having injuries
with sharp edged weapon, proved beyond any
reasonable shadow of doubt that it was the appellant
and none else who was responsible for causing the
injuries on the person of the Principal.
The second ground of the attack to the
impugned judgment and order in question, too, is
found to be without any substance, in that, PW-1
Rajinder Singh’s statement is found worthy of
credence and his presence on spot at the time of
occurrence has been duly proved by the prosecution
from the statement of all the eye witnesses who
have, in unambiguous terms, stated about his
presence in the school on the day of the occurrence.
Coming to the third submission of appellant’s
learned counsel, it is found that the attesting
witnesses to the Disclosure statement have not
supported the making of the statement by the
appellant, as indicated in EXPW/VP and the
recovery of Toka at the instance of the appellant,
pursuant to the making of the Disclosure statement,
21
yet the factum of appellant’s having made the
Disclosure statement and got the weapon of offence
recovered from a place which he alone knew, is
proved by the Investigating Police Officer, who had
drawn the Disclosure Statement and the Seizure
Memo. The trend of the cross-examination of the
Investigating Police Officer indicates that he has not
been questioned by the appellant as to appellant’s
making the Disclosure Statement and recovery of
the weapon of offence pursuant thereto. We do not
find any material in the cross-examination of the
investigating Police Officer to discredit him on the
question of appellant’s having made disclosure to
him and his recovering the weapon of offence
pursuant thereto.
Merely because PW-39 is a Police Officer,
would not render his statement suspicious, as
sought to be projected by the appellant’s learned
counsel, in that, a Police Officer too is a competent
witness and his statement cannot be brushed aside
merely because he is a Police Officer entrusted with
22
the duty to investigate the crime, UNLESS proved to
be otherwise unacceptable for one or the other
reasons. The status of a witness as a police officer
would not, of itself, affect the acceptance of his
statement because the law in force does not
contemplate any distinction in the statement of a
police officer or for that matter of a civilian. It is only
a rule of caution that while appreciating the
statements of the Police Officers, investigating a
crime, that the courts have to be careful in accepting
the statement, as is required to be done in case of
interested witnesses.
After going through the statement of the
Investigating Police Officer, we have not been able
to find any such material therein, on the basis
whereof the making of Disclosure Statement by the
appellant and seizure of the weapon of offence at his
instance be doubted. The third submission made by
appellant’s learned counsel, too therefore, fails and
is accordingly rejected.
23
We do not find merit in even the fourth
submission of appellant’s learned counsel, in that, no
Test Identification Parade was required to be
conducted for the identification of the appellant, as
PW-1 Rajinder Singh had seen the appellant in the
broad day light, not only once but thrice on the day
of the occurrence in the school and had further
identified him when his photograph appeared in the
Newspaper on the second day of the occurrence.
The capacity of the witness to identify the appellant
as the same person who was seen by him with a
Toka in his hand in the Principal’s room, having not
been questioned in the cross-examination, we do not
find any difficulty in accepting his statement, holding
that there was no need to carry out any Test
Identification Parade in the case as the appellant
stood properly identified by PW-1 Rajinder Singh, as
the same person who had come to the school, met
him when he was delivering lecture in the class room
and was possessing a Toka in his hand while
24
arguing with the Principal in his office chamber, on
the day of the occurrence.
Coming to the last submission of the appellant’s
counsel, although we find that the police has anti-
timed the FIR reflecting it to have been lodged at 2
p.m., when it is stated to have reached the Police
Station after 4 p.m., but that, by itself would not, in
our opinion, affect, in any way, the veracity of the
prosecution case because of the unnecessary anti-
timing of the FIR by the over zealousness of the
officer, in indicating the FIR to have been made at 2
p.m., rather than at 4 p.m. to demonstrate its prompt
lodging, avoiding criticism which the police officers
usually face for omitting to lodge police reports with
promptitude.
Even otherwise, there is no reason to
disbelieve the prosecution story, as indicated in the
FIR, for, what we find from the records, is, that the
Special Report under Section 157 Cr. P. C., in the
case, had reached the Chief Judicial Magistrate,
25
Jammu, on the second day of the occurrence, i.e.,
04.02.1999, without any loss of time.
The motive of the appellant to kill the Principal,
for the latter’s refusal to issue certificate
demonstrating completion of practical in Physics and
Chemistry for the 12th Class by the appellant’s co-
accused, Deep Inder Singh, too stands proved from
the statements of the cited eye witnesses and PW-1
Rajinder Singh.
That apart, the appellant has not tendered any
explanation about the presence of the blood on the
clothes which he was wearing at the time of his
arrest and which were found smeared with blood, of
the group of the deceased as proved by PW-27,
H.C. Bhagat by his Report EXPW-KKP.
Another piece of evidence produced by the
prosecution in the case, indicating the blood of the
same group as that of the deceased, on the Toka
recovered at the instance of the appellant, pursuant
to his Disclosure Statement, has remained un-
explained by the appellant.
26
In view of the above discussion, we are of the
view that the prosecution has successfully proved its
case from the statement of its witnesses and the
material placed on the records, proving that it was
the appellant, and none else, who had struck the
deceased Principal at his office chamber on
03.02.1999 at about 2 p.m., as a result whereof, he
succumbed to the injuries, which he had received at
the hands of the appellant with a Toka seized in the
case, which according to PW-29 Dr. Anayatullah
Sheikh, could have caused the injuries found on the
person of the deceased.
Finding no sustainable reason or ground to dis-
believe the statement of PW-1 Rajinder Singh, which
finds support and corroboration from the statements
of other prosecution witnesses, and the material
placed on the records, we uphold the findings and
the conviction recorded by the trial court against the
appellant.
Accordingly, confirming the sentence proposed
by the trial court and allowing the Confirmation
27
Reference, we would dismiss the appellant’s appeal,
directing the Registrar Judicial to send a copy of this
judgment, under the seal of the Court, to the trial
court.
(J. P. Singh) ( Hakim Imtiyaz Hussain)
Judge Judge
JAMMU:
24.08 .2009
Tilak, Secy.
28
