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CASE NO.: Appeal (crl.)  675 of 2006

PETITIONER: Kulwinder Singh

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 05/12/2006

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J :                  Appellant herein was arrayed as Accused No. 4 before the trial court.   He along with one Baldev Singh was allegedly hired to kill Rajbir Singh  (deceased) by Nirpal Singh, Nardev Singh and their father Pargat Singh.   

       A First Information Report was lodged by Harinder Singh son of the  deceased.  The incident occurred at about 7.45 a.m. on 15.10.1997 at village  Behman Diwana.  The family members of informant are agriculturists.  The  informant and his father had gone to their field situated at Niai Wala.  They  gave some instructions to their agricultural workers.  When they were  returning back on foot to their village, the deceased was walking 30/35 steps  ahead of the informant.  When his father reached near the Circular Road of  the village, two persons covering their bodies with ’khes’ were standing  there.  They raised exhortations to kill him.  Hearing that, the deceased  started running towards the street leading to the village.  He was followed by  both the said persons.  They opened fire from their pistols which they had  been holding in their respective hands.  The shots fired from the pistols hit  the deceased on his back.  He fell down with his face downward in front of  the house of  one Budha Singh.  The door was closed.  The informant raised  an alarm.  Hearing it they fled away towards the Circular Road.  Harinder  Singh could not identify them immediately but in the FIR he claimed that he  would be able to do so.  In the First Information Report itself needle of  suspicion was pointed out to Nirpal Singh, Nardev Singh and their father  Pargat Singh as they had land dispute with the deceased.  The deceased was  taken to hospital.  He breathed his last at the hospital.

       The investigating officer came to the spot.  He prepared a site plan.  In  the said plan, the veracity whereof is not in dispute, the place wherefrom the  informant witnessed the occurrence was shown.  It was marked as Point A in  the site plan.  Point B was also shown from where the appellant and Baldev  Singh were said to be present.  The incident was seen by Gurbux Singh  (PW-3) and Gurmit Singh.  Their statements were recorded on the same day  near the place of occurrence.  They had named the assailants, the appellant  being one of them.   

       Balbir Singh was a Vice-President of a Cooperative Society Behman  Diwana.  The parties in regard to their dispute had gone to him on an earlier  occasion.  A purported settlement was arrived at his instance.  

       Accused Nos. 1 to 3, viz., Nirpal Singh, Nardev Singh and Pargat  Singh went to him.  Balbir Singh who was examined as PW-7 to make a  confession to which we would advert to a little later.  Accused Nos. 1, 2 and  3 were known to him.  Nirpal Singh, Nardev Singh and Pargat Singh were  sons-in-law of one Chand Kaur.  The deceased was said to have been  adopted by the said Chand Kaur.  The lands of the said Chand Kaur had

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been partitioned.  Some lands had been transferred to the deceased Rajbir  Singh which made Nirpal Singh and Nardev Singh unhappy.  A quarrel took  place amongst them.  Allegedly, the deceased assaulted Nardev Singh as a  result whereof his arm was fractured.  They were thus bearing grudge  against the deceased.

       According to PW-7, on 18.10.1997, Accused Nos. 1,2 and 3 stated  that they had hired Baldev Singh and Kulwinder Singh alia Kala to kill  Rajbir Singh and they got him murdered.  They had requested him to  produce them before the police as the police was after them.  They came to  him as PW-7 was said to have some influence with the police authorities.   He asked them to bring Baldev Singh and the appellant with them on the  next day.  On 19.10.1997, he went to the police station and made a statement  there before the Investigating officer.

       Appellant, the said Baldev Singh and Pargat Singh came to the house  of PW-7 on 26.10.1997.  They made a statement that owing to greed of  money, they had murdered Rajbir Singh and they may be taken to the police.   When they were going to the police station, they met the police party at the  crossing of village Behman Diwana.  They were taken in custody.  The  appellant on being interrogated by Davinder Singh SI in presence of Ajaib  Singh ASI disclosed that he had concealed by burying a .32 bore pistol in the  pits near the bank of canal at a distance of 1 = furlong from the bridge of  canal.  He made an offer to get the same recovered.  The statement to that  effect was reduced into writing.  His thumb impression was also obtained.   Similarly, Baldev Singh on interrogation disclosed that he had kept  concealed and buried a .12 bore pistol wrapped in a glazed paper at a  distance of about 1 furlong from the bridge of the canal in the said area.  His  statement was recorded, reduced to writing and marked as Ex. PQ/1.  It was  also signed by him and attested by PW-7.  Indisputably, recoveries were  made pursuant to the informations furnished by the appellant and the said  Baldev Singh.  The said country-made pistols were sent for examination  before the Forensic Science Laboratory, Punjab.  No definite opinion could  be given regarding firing of the vital shot from the said weapons due to lack  of sufficient individual characteristic obtaining marks therein.

       Rajbir Singh was examined by Dr. Shushil Gupta (PW-1).  He found  the following injuries on his person:

"(1) One wound of entry which is lacerated  and 2  x 2 cm. circular in shape with inverted margin and  it is situated on the right side of the back of chest  and about 8th-9th rib area, 10 cm. medial to the  vertebral column.  Fresh blood from wound was  present.  On probing the wound that was going at  lower side of abdomen.  Injury kept for X-ray.

(2)  Wound of entry which was lacerated and 2 x  1<  cm circular in shape with inverted margins and  situated on the right side of the back just on the  vertebral column and on the  survical throx (sic)  region.  Blood was present on the wound.  Wound  could not probe up.   Injury kept for X-ray."

       Post mortem examination was conducted by Dr. U.S. Sooch (PW-2)  on 16.10.1997 at 1.15 p.m. and he found the following injuries:

"(1)    Lacerated wound >" x =" with inverted  Margins on the right interscapular area in its lower  part near the vertebral column.

(2)     Circular lacerated wound > x >" with  inverted margins just below the inferior angle of  the right scapula.  Surgical midline vertical wound

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on the front of the abdomen 6" long was present.   Two Surgical drain wounds on each side of flanks  of the abdomen and two  surgical stiched drain  wound on both sides of the chest with vene section  wound on the left ankle and left elbow."  

                Relying on or on the basis of the said evidences brought on record by  the prosecution, the learned Additional Sessions Judge convicted the  appellant, Baldev Singh, Nirpal Singh and Nardev Singh under Section 302  of the Indian Penal Code and Sections 25 and 27 of the Arms Act and  sentenced them to suffer imprisonment for life.  Pargat Singh, however, was  acquitted.     

       Appeals thereagainst were preferred by all the four convicted accused  before the High Court.  A criminal revision application was also filed by  Harinder Singh against the order of acquittal of Pargat Singh.  By reason of  the impugned judgment, the Division Bench of the Punjab and Haryana  High Court dismissed both the appeals and revision.

       Mr. Yashank Adhyaru, learned senior counsel appearing on behalf of  the appellant, would submit that having regard to the fact that the appellant  was not named in the First Information Report, his participation in the  commission of the offence is doubtful.  It was pointed that he was a resident  of Jodhpur Pakhar village which was situated at a distance of 45 kms. from  the place of occurrence and, thus, it was unlikely that he would undertake to  commit a heinous offence, particularly, in view of the fact that no money  was proved to have passed hands.  Identification of the accused by PW-3,  it  was urged, is also doubtful.  The statements made by the said witness as also  the informant that they had known the appellant and the said Baldev Singh,  the learned counsel contended, thus,  were wholly unreliable; as had it been  so they would have been named in the First Information Report and specific  overt acts on their parts would have been mentioned therein.  It was argued  that there was no reason as to why for a period of about 11 days, the  appellant could not be arrested and, thus, the possibility of their having been  falsely implicated cannot be ruled out.   

       Our attention was also drawn to the statement of PW-3 wherein it was  stated that 4-5 days after the incident he had gone to the police station and  found the appellant to be in custody.

       It was furthermore stated that extra-judicial confession purported to  have been made by the accused before PW-7 appeared to be wholly  unnatural particularly in view of the fact that if the appellant and the said  Baldev Singh were hardened criminals they would not have gone to a person  of another village for the purpose of making confession. Although,  recovery  of the weapons might have been proved, keeping in view of the forensic  evidence that the shots could not be proved to have been fired from the  weapons,  would not lead to an inference that the appellant committed the  said crime.   

       Ms. Avneet Toor, learned counsel appearing on behalf of the State, on  the other hand, supported the judgment.

       Information about the incidence was received by PW-9 Davinder  Singh through a wireless message regarding admission of the deceased in the  Civil Hospital, Bhatinda.  He went to the hospital and recorded the statement  of the informant.  He on the same day itself went to the place of occurrence.   He recorded the statement of Gurmit Singh.  He also prepared the rough  sketch map.  He found a .12 bore cartridge at the spot as also an empty  cartridge of .32 bore.  He also recorded the statement of Gurbux Singh at the  spot as also Jaskaran Singh, Mohinder Singh and other witnesses.

       The appellant and the said Baldev Singh might not have been named  by the first informant in his First Information Report, but what, however, is

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clear and explicit in his statement made therein, was that they were the  persons who could be identified by the informant.  The occurrence took  place at 7.45 a.m.  In the same night, the investigating officer PW-9 came to  the spot and recorded the statement inter alia of PW-3 Gurbax Singh.  It is  not in dispute that in his statement, he named the appellant and the said  Baldev Singh as the persons who had fired on the deceased.  Their names  specifically found mention in the site plan prepared by the investigating  officer on the same day.  It is, therefore, not a case where the appellant and  the said Baldev Singh could be falsely implicated.  Appellant may be a  resident of village Jodhpur Pakhar, but  from the statements made by Gurbax  Singh, in his cross-examination, it appears that before the lands were allotted  by Chand Kaur to them, Nirpal Singh and others had been residing in the  said village. All the accused, thus, used to reside at village Jodhpur Pakhar.  They were, therefore, known to each other. The appellant and Baldev Singh  had been seen visiting the house of Nirpal Singh and Nardev Singh many  times.   

       Presence of PW-3 at the spot is not disputed as at his instance his jeep  was brought to the place of occurrence wherein the deceased was taken to  hospital.

       In his cross-examination, he had categorically stated that he had  disclosed the names of the appellant and Baldev Singh to the police when  the investigating officer came to the spot and prepared the recovery memo.   The first informant also  might have recollected their names after some time.

       It is furthermore not correct as was contended by Mr. Adhyaru that  the police did not take any sep to arrest the appellant from 15.10.1997 to  26.10.1997.  PW-9 in his deposition categorically stated that he had made  efforts to arrest the accused but were not successful in doing so. Nirpal  Singh and Nardev Singh were arrested on 24.10.1997 when they were going  from village Bir Behman to Behman Diwana.  Other accused persons  including the appellant were produced by Balbir Singh PW-7.  The statemnts  of PW-3 Gurbax Singh were corroborated in material particulars by the first  informant PW-4 Harinder Singh.   

       The site plan prepared by the investigating officer also clearly showed  the place where Gurbax Singh and Gurmit Singh were standing.  The place  of occurrence was intervened only by a vacant piece of land.   

       Certain minor discrepancies might be existing in their statements in  regard to the timing or the manner in which the occurrence had taken place  but nothing much turns out of the same.

       Recovery of the pistols is not in question.  Although in absence of any  specific characteristic of the said weapons having been fired, the fact as to   whether the empty cartridges seized from the place of occurrence were fired  from the respective weapons held by the appellant and the said Baldev Singh  could not be definitely ascertained, but the same by itself would not lead to  the conclusion  that they had not committed the crime.  We may furthermore  notice that no suggestion had also been put by the accused persons to PW-9  that the names of the appellant was not disclosed to him.

       We may also notice that the appellant and the said Baldev Singh  refused to participate the in test identification parade.  They, according to  PW-9, were asked to muffle their faces but they did not do it.  

       It is interesting to note that the only suggestion given to PW-9 was  that the names of all accused persons had been mentioned in the site plan  only because it was prepared on 16.10.1997 and not on 15.10.1997 and by  that time he had come to know the names of other accused also.  It is,  therefore, the defence case that at least by the next date the names of the  accused who were not known to the investigating officer were mentioned in  the site plan.  It is, therefore, inconceivable that despite the same he would  not make any attempt to arrest them.  His statement, as noticed hereinbefore,

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that he had made attempts to arrest but did not succeed, thus, cannot be  disbelieved particularly in view of the fact that two of the accused persons  were arrested on 24.10.1997.

       Extra-judicial confession made by the accused before PW-7 must be  judged having regard to the entire factual matrix.  He was Vice-President of  a Cooperative Society.  The accused persons were known to him for about  four years.  The reason for making confession was that when Rajbir Singh  had assaulted Nardev Singh as a result whereof his arm was fractured, his  intervention was sought for.  They had gone to him so that he can exercise  his influence over the police. As he asked them to produce the appellant and  the said Baldev Singh, they must have been persuaded by the other accused  persons to go to him for similar purpose particularly when two of the  accused persons, viz., Nirpal Singh and Nardev Singh had already been  arrested by that time.  All the accused by that time came to know that their  involvement in the crime is known to the investigating officer.

       In his statements under Section 313 of the Code of Criminal  Procedure, the appellant might have contended that he did not know Baldev  Singh but the fact remains that he, Baldev Singh and Pargat Singh were  produced by PW-7.  PW-9 also said so.  He was not cross-examined on that  part.  Even otherwise nothing has been brought on record to show that they  had not been arrested on 26.10.1997 having been produced by PW-7 before  PW-9.  PW-7 categorically stated that the deceased Rajbir Singh although  was known to him but they were not friends.  He, therefore, had no personal  interest in the matter.  He was a witness to the recovery of the weapons also.

       PW-7 is an independent witness.  He also stated about the fight  between the deceased and Nardev Singh as a result whereof the arm of  Nardev Singh was fractured.  Thus, the land dispute between the parties had  been proved.  Fight on an earlier occasion between them had also been  proved.   

       Motive of the accused to eliminate Rajbir Singh also cannot be said to  be wholly non-existent.

       Both the learned Sessions Judge as also the High Court had relied on  the statement of PW7.  We do not find any reason why to differ therewith.

       The evidentiary value of an extra-judicial confession must be judged  in the fact situation obtaining in each case.  It would depend not only on the  nature of the circumstances but also the time when the confession had been  made and the credibility of the witness who testifies thereto.

       Existence of dispute between the parties has not been questioned.  It  has been brought on record that Rajbir Singh was the brother’s son of Chand  Kaur.  He was adopted by her.  He was residing with her along with his  children for a long time.  She transferred some land in his favour.  The  documents evidencing the said transfer being Ex. PU and Ex. PV had been  proved.  Nirpal Singh and Nardev Singh who are her sons-in-law were, thus,  bearing grudge against him.  In the First Information Report they and their  father were named as suspects although they were not present at the place of  occurrence.  They knew the appellant and the said Baldev Singh.  He  although belonged to a distant village but other accused had also been  resident of the same village.  The fact that he had been seen visiting Nirpal  Singh and Nardev Singh on some occasions is also not in much dispute.  He  must have undertaken to kill the deceased for greed of money.

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       Whether the money was paid by them to the appellant and Baldev  Singh was not necessary to be proved.  It was within their  special  knowledge.

       For the reasons aforementioned, we are of the opinion that the  impugned judgment does not suffer from any infirmity.  The appeal is  accordingly dismissed.