Crl.A. No.D-163-DB of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.A. No.D-163-DB of 2007
DATE OF DECISION: September 24, 2009
SATISH KUMAR S/O JAILA RAM ...APPELLANT
VERSUS
STATE OF PUNJAB ...RESPONDENT
CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA.
HON'BLE MR. JUSTICE MOHINDER PAL.
PRESENT: MR. PREMJIT SINGH HUNDAL,
ADVOCATE FOR THE APPELLANT.
MRS. MANJARI NEHRU KAUL, ADDL.A.G., PUNJAB.
ASHUTOSH MOHUNTA, J.
The appellant Satish Kumar has filed this appeal against the
judgement and order of sentence dated 29.9.2006, whereby, he has been
convicted and sentenced to undergo R.I. for life and to pay a fine of
Rs.10,000/- and in default of payment of fine to further undergo R.I. for 6
months under Section 302 IPC. He was also sentenced to undergo R.I. for
10 years and to pay fine of Rs.10,000/- in default of payment of further
undergo R.I. for 6 months under Section 392 IPC. He was further sentenced
to undergo R.I. for 7 years and to pay a fine of Rs.10,000/- and in default of
payment of fine to undergo R.I. for 6 months under Section 201 IPC. All
the sentences were ordered to run concurrently.
The case of the prosecution in brief is that on 28.10.2000,
Inspector Jasdeep Singh (PW20) alongwith ASI Sukhvir Singh, ASI Kewal
Singh, Constable Jasvir Singh, Constable Resham Singh and SPO Sukhvir
Singh was present at Bus Stand Nurmahal, Phillaur where complainant
Gurmail Singh son of Hari Singh came and got recorded his statement to the
Crl.A. No.D-163-DB of 2007 -2-
effect that he is resident of village Haripur Khalsa, Police Station Phillaur
and is an agriculturist by profession. On 28.10.2000, he had gone to look
after his fields situated near the brick kiln of village Haripur. At about 8.30
a.m. when he reached near his Mustard crop which is situated near the
metalled road, he saw a dead body of a man aged about 25-26 years lying
near the butt and his clothes were smeared with blood. It appeared that
some unknown persons with sharp edged weapons had killed that man and
had thrown him in his fields. Further the complainant also got recorded in
his statement that he left the dead body in the custody of Sukhdev Singh S/o
Piara Singh and then he proceeded to report the matter. On the basis of the
aforesaid statement (Ex.PDD) recorded on 28.10.2000 at 9.30 a.m., formal
FIR (Ex.PDD/3) under Section 302/201 IPC was recorded by ASI
Lachhman Dass at 9.40 a.m.
Thereafter, Inspector Jasdeep Singh alongwith other Police
party went to the spot and near the dead body one empty liquor bottle, one
glass and a purse alongwith driving licence of Harjit Singh were found there
and the same were taken into possession vide separate recovery memos. He
also prepared the site plan. The dead body was sent for post mortem
examination.
In order to connect the accused with the commission of the
crime, the investigating officer recorded the statements of Sohan Lal
Chauhan, Santokh Singh S/o Chanan Singh and Ravinder Singh. Ravinder
Singh is the witness who had last seen the deceased in the company of the
accused and he also stated that on 28.10.2000, he came to know that
Kuldeep Singh and Satish had fled away with Tata Sumo bearing No.PB01-
2362 after committing murder of Harjit Singh with sharp edged weapon and
Crl.A. No.D-163-DB of 2007 -3-
threw his dead body. Santokh Singh is also the witness of last seen. The
extra judicial confession was made before PW18 Sohan Lal Chauhan. On
5.11.2000, the accused were seen roaming in the Tata Sumo on the
Ferozepur-Ludhiana road in suspicious circumstances and said Tata Sumo
was taken into possession by the Police of Police Station Sarabha Nagar,
Ludhiana. On 10.2.2001, accused Satish Kumar was arrested on the
identification of Santokh Singh and his blood stained clothes were taken
into possession. On 11.2.2001, in pursuance of his disclosure statement, the
accused Satish got recovered the knife allegedly used for committing the
offence and the same was taken into possession. After completion of all the
necessary formalities, challan against the accused was presented under
Section 302, 392, 201 IPC. Charge against the accused Kuldeep and Satish
was framed to which they pleaded not guilty and claimed trial. It is
pertinent to mention here that the accused Kuldeep expired during the
pendency of the trial.
To substantiate its case, the prosecution examined as many as
20 witnesses. PW1 Dr. Jai Kishan, Medical Officer, Civil Hospital, Phillaur
conducted autopsy on the dead body of Harjit Singh on 28.10.2000 and
found 28 incised and stabbed injuries on the dead body of Harjit Singh. He
has opined that the cause of death in this case was due to shock and
haemorrhage due to the injuries which were sufficient to cause death in the
ordinary course of nature. All the injuries were found to ante mortem. PW2
Dr. Mukesh Walia, stated that Harjit Singh was engaged as driver on his
vehicle Tata Sumo No.PB01-2362. PW3 Santokh Singh stated that on
dated 5.11.2000 he had seen Satish and Kuldeep Singh in Tata Sumo. At
that time Kuldeep Singh was driving the vehicle and Satish Kumar was
Crl.A. No.D-163-DB of 2007 -4-
sitting on the seat. He further that stated that he learnt later on that driver of
that vehicle had been murdered. PW4 Constable Desu Dass proved the
mechanical report of Tata Sumo Ex.PF. PW5 Sh. A.S. Grewal, Addl. Chief
Judicial Magistrate, Jalandhar, stated that Satish Kumar accused was
produced before him on 14.02.2001 and an application Ex.PG for taking his
specimen finger prints was made on which Satish Kumar has no objection.
He proved the statement of Satish Kumar (Ex.PG/1). He further stated that
application was Ex.PH for taking the finger prints of Kuldeep Singh was
also made and regarding no objection statement of Kuldeep Singh Ex.PH/1
was recorded. He also proved the specimen finger prints of the accused.
PW6 Inspector Bal Krishan, Finger Prints Expert, Finger Prints Bureau,
Phillaur proved his report Ex.PL. PW7 Virender Singh, Sr. Clerk of the
office of State Transport Commissioner, Chandigarh proved the registration
certificate of vehicle No.PB01-2362 Ex.P3. PW8 Mangat Rai, Jr. Asstt. Of
the office of DTO Jalandhar proved the driving licence of Harjit Singh
Ex.P5. PW9 Kirpal Singh Draftsman, proved the scaled site plan Ex.PN.
PW10 Parvinder Singh who is the brother of Harjit Singh stated that on
28.10.2000, he came to know that Harjit Singh had been killed by Satish
Kumar and Kuldeep Singh and thereafter they fled away with Tata Sumo.
PW11 H.C. Jaswinder Singh, PW15 H.C. Jasbir Singh, PW16 Constable
Harbans Singh and PW17 Constable Mohan Singh proved their affidavit
Ex.PO, Ex.PAA, ExPBB, Ex.PCC respectively. PW12 ASI Paramjit Singh
interrogated Kuldeep Singh on 8.2.2001 and he confessed his guilt before
the ASI. PW13 ASI Sukhvir Singh has stated about the recording of the
statement of Gurmail Singh complainant and recovery of bottle, glass and
purse. PW14 H.C. Pawan Kumar stated regarding handing over Tata Sumo
Crl.A. No.D-163-DB of 2007 -5-
to ASI Sukhvir Singh on 20.12.2000 vide memo Ex.PR. PW18 Sohan
Singh Chauhan stated about the extra judicial confession to have been made
by the accused on 27.11.2000. PW19 ASI Lachhman Dass has given the
details of investigation conducted by Inspector Jasdeep Singh. PW20 DSP
Jasdeep Singh who is the investigating officer has given the details of
investigation conducted in this case.
On closure of the prosecution evidence, statement of accused
was recorded. The accused-appellant stated that he had a quarrel with
Kuldeep Singh due to which he got him falsely implicated in this case.
Learned counsel for the appellant has contended that the entire
case is based upon circumstantial evidence and the onus was on the
prosecution to prove that the chain of events was complete. Learned counsel
has contended that the prosecution has failed to prove the last seen evidence
beyond reasonable doubt. It is contended that the occurrence is alleged to
have taken place on 28.10.2000, whereas the statement of Ravinder Singh
PW10 who was the younger brother of the deceased was recorded on
30.12.2000. According to PW10 Ravinder Singh, the accused Satish Kumar
alongwith the co-accused Kuldeep (deceased) had come to their house on
27.10.2000, at about 2.00 p.m. and had hired the Tata Sumo for a sum of
Rs.800/-. Thereafter, they went with his brother Harjit Singh in the Tata
Sumo. The dead body of Harjit Singh was found on 28.10.2000, lying in
the area of village Haripur Khalsa on a link road behind Sarkanda. It is
contended that the deceased might have met various other persons between
2.00 p.m. on 27.10.2000 upto the next date, i.e. on 28.10.2000 and as a lot
of time had elapsed when the accused and the deceased were last seen
together, hence it cannot be said with certainty that the deceased had not
Crl.A. No.D-163-DB of 2007 -6-
met any other person after 2.00 p.m. on 27.10.2000, till his death on the next
day. It is thus contended that the last seen evidence led by the prosecution
does not establish that the accused had committed the murder of deceased
Harjit Singh.
Learned counsel has further argued that the prosecution has
placed reliance on the testimony of PW3 Santokh Singh who had earlier
stated before the Police that he had seen the accused driving in the Tata
Sumo on Ferozepur Road, Ludhiana on 5.11.2000. However, this witness
was declared hostile and hence this chain of circumstance has also not been
proved by the prosecution.
Counsel for the appellant has further submitted that an empty
glass bottle and a glass tumbler were recovered from near the dead body of
Harjit Singh. The right hand thumb impression of both the accused Kuldeep
and Satish Kumar were taken and were sent to the finger prints expert for
examination. PW6 Inspector Bal Krishan, Finger Prints Expert, Finger
Prints Bureau, Phillaur has stated that right thumb impression of accused
Kuldeep were found on the empty glass bottle and glass tumbler, but no
thumb impression of the appellant Satish were found. On the basis of the
above, learned counsel submits that the finger prints of the accused-
appellant have not been found on the empty glass bottle and glass tumbler
and therefore, it would be unsafe to convict him.
Learned counsel has further argued that the extra judicial
confession made by the accused before PW18 Sohan Lal Chauhan is no
confession in the eyes of law as the occurrence is alleged to have taken
place on 28.10.2000, whereas the confession is stated to have been made on
25.11.2000. It has been submitted that extra judicial confession is a weak
Crl.A. No.D-163-DB of 2007 -7-
type of evidence and the same could not be relied upon as the accused
would not make an extra judicial confession to a person who was not very
well known to them. Learned counsel further submits that PW18 Sohan Lal
Chauhan had never produced the accused before the Police and hence this
witness cannot be relied upon. It is thus contended that the prosecution has
failed to complete the chain of events and that the prosecution has been
failed to connect the accused Satish Kumar with the commission of offence,
whereas the accused Kuldeep Singh had already died during the pendency
of the trial.
It has lastly been argued that there was no motive for the
accused to commit the murder of the deceased Harjit Singh who was a mere
taxi driver.
The arguments raised by the counsel for the appellant have
been strongly controverted by the counsel appearing for the State, who has
contended that both the accused Kuldeep Singh and Satish Kumar have
brutally murdered the deceased Harjit Singh. It is submitted by the learned
counsel for the State that the prosecution has not only proved the last seen
evidence by examining PW10 Ravinder Singh, younger brother of the
deceased, but has also established its case by proving the extra judicial
confession made by the accused before Sohan Lal Chauhan PW18. Learned
counsel has further submitted that the prosecution has proved the recovery
of Chura on the basis of disclosure statements made by the accused and has
also proved the finger prints on the empty glass bottle and glass tumbler of
Kuldeep Singh and hence the judgement of the trial Court is liable to be
upheld.
We have heard learned counsel for the parties at length and
Crl.A. No.D-163-DB of 2007 -8-
have perused the record.
The entire case rests squarely on circumstantial evidence. In
C.Chenga Reddy and Ors. Vs. State of A.P., reported as (1996) 10 SCC 193,
it has been observed thus:-
“In a case based on circumstantial evidence, the settled law is
that the circumstances from which the conclusion of guilt is
drawn should be fully proved and such circumstances must be
conclusive in nature. Moreover, all the circumstances should
be complete and there should be no gap left in the chain of
evidence. Further the proved circumstances must be consistent
only with the hypothesis of the guilt of the accused and totally
inconsistent with is innocence”
In Padala Veera Reddy Vs. State of A.P. and Ors., reported as
AIR 1990 SC 79, it was laid down that when a case rests upon
circumstantial evidence, such evidence must satisfy the following tests:-
“(1) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively should from a
chain so complete that there is no escape from the conclusion
that within all human probability by the crime was committed
by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation of
any other hypothesis than that of the guilt of the accused and
Crl.A. No.D-163-DB of 2007 -9-such evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence.”
In the light of the aforementioned observations of the Hon’ble
Supreme Court, let us examine the evidence of the prosecution.
The prosecution has strongly relied upon the last seen evidence.
In this regard, reliance has been placed on the statement of PW10 Ravinder
Singh, younger brother of the deceased. This witness has stated that on
27.10.2000, Satish Kumar and Kuldeep Singh had come to their house at
2.00 p.m., when he was also present. They had hired the Tata Sumo for
Rs.800/- and had told that they are to go to Phillaur with their relations and
are to return on the next day. Thereafter, they went with his brother Harjit
Singh in the Tata Sumo bearing registration No.PB-01-2362. On the next
day, he came to know that Harjit Singh had been killed and his dead body
was found lying in the area of village Haripuar Khalsa on a link road.
Before accepting the last seen theory, it has to be established by
the prosecution that the time gap, when the accused and the deceased were
last seen together and when the deceased is found dead, is so small that
chance of any other person coming in between becomes impossible. In
Tipparam Prabhakar Vs. The State of Andhra Pradesh, reported as 2000(3)
AICLR 289, the Hon’ble Apex Court has held as under:-
“(i) The last-seen theory comes into play where the time-gap
between the point of time when the accused and the
deceased were seen last alive and when the deceased is
found dead is so small that possibility of any person
other than the accused being the author of the crime
becomes impossible. It would be difficult in some cases
Crl.A. No.D-163-DB of 2007 -10-to positively establish that the deceased was last seen
with the accused when there is a long gap and
possibility of other persons coming in between exists.”
In the present case, the accused and the deceased were last seen
together by PW10 Ravinder Singh, on 27.10.2000, at 2.00 p.m. The dead
body of the Harjit Singh was found on the next day on 28.10.2000. One full
day had elapsed between the time when Ravinder Singh had last seen the
accused and the deceased together. During this period the possibility that
the deceased had met other persons also cannot be ruled out.
According to PW10 Ravinder Singh, he had come to know that
his brother Harjit Singh had been killed by the appellant and his co-accused
Kuldeep Singh on 28.10.2000. However, this witness chose to remain silent
and his statement was recorded on 30.12.2000, i.e. after more than 2 months
of the murder of his brother. In case, PW10 Ravinder Singh had come to
know that his brother had been murdered on 28.10.2000, then it is highly
unnatural for him not to go to the Police and report the matter immediately.
This witness has chosen to keep silent for more than 2 months before his
statement was recorded. Thus, the last seen evidence of this witness is not
reliable and trustworthy and it would be hazardous to convict the appellant
on the basis of his testimony.
The prosecution had also placed reliance on the statement of
PW3 Santokh Singh, who is alleged to have stated that on 5.11.2000, he saw
the accused in the Tata Sumo vehicle on Ferozepur Road, Ludhiana. This
witness is also alleged to have stated that the accused did not make any
disclosure statement regarding concealment of blood stained clothes. This
witness was declared hostile and hence the prosecution has failed to prove
Crl.A. No.D-163-DB of 2007 -11-
that the accused were seen after the crime while driving the Tata Sumo
vehicle.
The prosecution has also taken into possession an empty glass
bottle and a glass tumbler from near the place of occurrence. The finger
prints of both the accused Satish Kumar and Kuldeep Singh were also taken
and sent to the Finger Prints Expert. PW6 Inspector Bal Krishan, Finger
Prints Expert had stated that on 11.4.2001, ten copies of photographs
alongwith two slips bearing ten digit impressions of Satish Kumar and
Kuldeep Singh were received for comparison. The photographs Mark-A on
photograph No.1 was found identical with the right thumb impression of
Kuldeep Singh. Photograph Mark-B on photograph No.2 and impression B-
1 on photograph No.3 were also found identical with right index finger of
Kuldeep Singh. A perusal of his testimony shows that no finger prints were
found of the appellant Satish Kumar. This witness has further stated that “it
is correct that specimen signatures of Satish Kumar were different from the
impressions on the photographs of bottle and glass tumbler”. Thus,
testimony of PW6 Inspector Bal Krishan shows that there were no finger
prints of the accused Satish Kumar on the bottle and the glass tumbler and
hence no inference can be drawn regarding the guilt of the appellant.
Rather, the report of the Finger Prints Expert supports the case of the
accused.
Another circumstance upon which the prosecution has relied is
evidence of PW18 Sohan Lal Chauhan, before whom the accused are
alleged to have made extra judicial confession. He is the President of
Tarakshil Society. According to this witness, both the accused came to him
on 25.11.2000, and told him that they had hired a taxi from Jalandhar on
Crl.A. No.D-163-DB of 2007 -12-
27.10.2000 and has committed the murder of Harjit Singh. Despite hearing
the alleged confession of the accused, this witness never produced the
accused before the Police and hence it would not be safe to convict the
appellant on the basis of the extra judicial confession made by them before
this witness. Apart from the above, this witness could not tell about the
family members of the appellant Satish Kumar, nor he had ever visited their
house. He had also stated that the accused did not have any direct dealings
with him. This clearly shows that the accused were not very close to PW18
Sohan Lal Chauhan and hence it is highly improbable that a person would
confess to his guilt before a person who is not very well known to him.
Furthermore, a perusal of the post mortem report shows that
there were 28 injuries on the person of the deceased, however, as per the
inquest report, only 9 injuries were found and as such there is a discrepancy
in the inquest report and the post mortem with regard to the injuries on the
dead body Harjit Singh.
As a result of aforementioned discussion, it is clear that
although the deceased Harjit Singh was killed brutally, but the prosecution
has failed to connect the appellant with the commission of the crime. The
prosecution has not been able to prove that after meeting PW10 Ravinder
Singh on 27.10.2000 at 2.00 p.m., the accused did not meet any other person
and hence the prosecution has not been able to prove the last seen evidence
against the accused. The report of the Finger Print Expert PW6 Inspector
Bal Krishan is also against the prosecution, inasmuch as, it has been clearly
stated by PW6 Inspector Bal Krishan that specimen signatures of Satish
Kumar were different from the impressions on the photographs of the bottle
and glass tumbler. The prosecution wanted to prove that the accused had
Crl.A. No.D-163-DB of 2007 -13-
been seen driving the Tata Sumo vehicle by PW3 Santokh Singh on
5.11.2000, but this witness was declared hostile and hence this circumstance
has also not been proved by the prosecution against the accused.
Furthermore, the testimony of PW18 Sohan Lal Chauhan also
does not inspire confidence, as firstly the accused did not know him very
well to have made an extra judicial confession before him and secondly, the
fact that the accused made extra judicial confession on 25.11.2000, and
despite that this witness did not hand them over to the Police, hence it
would not be safe to convict the accused-appellant merely on the basis of
extra judicial confession.
As a result of the aforementioned discussion, we are of the
considered opinion that the prosecution has not been able to prove its case
against the appellant Satish Kumar beyond reasonable shadow of doubt.
Accordingly, we give him the benefit of doubt and acquit him of the charges
under Section 302, 392 and 201 IPC. The appeal filed by the appellant is
allowed and the judgement of Sessions Judge, Jalandhar dated 29.9.2006, is
set aside.
(ASHUTOSH MOHUNTA)
JUDGE
September 24, 2009 (MOHINDER PAL)
Gulati JUDGE