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CASE NO.: Appeal (crl.)  1304 of 2005

PETITIONER: Avtar Singh

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 13/10/2006

BENCH: B.P. SINGH & ALTAMAS KABIR

JUDGMENT: JUDGMENT

WITH  CRIMINAL APPEAL NO. 1305 OF 2005 Rajinder Singh and another                                  \005 Appellants Versus State of Punjab                                               ...Respondent WITH CRIMINAL APPEAL NO. 1645 OF 2005 Sewa Singh and others                                        ...Appellants Versus State of Punjab                                                ..Respondent WITH CRIMINAL APPEAL NO. 1646 OF 2005 Sandhura Singh and another                                ...Appellants Versus State of Punjab                                            ...Respondent

B.P. Singh, J.

       There are 9 appellants in these four appeals which have been  preferred against a common judgment and order of the High Court  of Punjab and Haryana at Chandigarh dated July 1, 2005 in  Criminal Appeal Nos. 671-DB/2003; 701-DB/2003 and 696- DB/2003.   The appellants had been convicted and sentenced by  the learned Additional Sessions Judge, Bathinda by his judgment  and order dated 5th August 2003 and 7th August, 2003 to undergo  imprisonment for life and to pay a fine of Rs.3,000/- each, in  default of payment of fine, to undergo rigorous imprisonment for 6  months under Section 302 read with Section 149 IPC.  They had  also been sentenced to undergo rigorous imprisonment for 10 years  and to pay a fine of Rs.1,000/- each, in default of payment of fine,  to undergo rigorous imprisonment for 2 months under Section 364  read with Section 149 IPC and Section 436 read with Section 149  IPC.   They had also been sentenced to undergo rigorous  imprisonment for 1 year and 6 months each respectively under  Section 148 and Section 427 read with Section 149 IPC.  All the  sentences had been directed to run concurrently. The High Court  by its impugned judgment and order dated 1st July, 2005 dismissed  the appeals preferred by the appellants against the judgment and  order of the Additional Sessions Judge, Bathinda dated 5th August,  2003 and 7th August, 2003.

       The facts of this case disclose that in village Kamalu there  were two groups inimically disposed towards each other which  resulted in several murders.  The appellants herein belong to one  group while the family members of the informant and others

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belong to the rival group.  The case of the prosecution is that on  19th November, 1989 the informant Chhoto, PW-1, alongwith her  brother Shivraj Singh and her sister-in-law (brother’s wife) Balbir  Kaur, PW-2 went to their fields in Village Bangi Kalan where they  had also constructed a farm house.  While they were there, the  appellants came on a jeep and a tractor variously armed with  deadly weapons including a double barrel gun.  They also belong  to village Kamalu, the village of the informant.  Seeing them, the  informant’s brother Shivraj Singh hid himself in a room meant for  storing chaff but the accused set the room on fire so that he was  compelled to come out.   He was immediately abducted by the  appellants. The informant apprehended that they may kill Shivraj  Singh.  It is an undisputed fact that thereafter no one has seen  Shivraj Singh alive, nor was his body recovered.  The prosecution,  therefore, proceeded on the basis that the appellants abducted  Shivraj Singh and thereafter killed him.   

       The case of the informant PW-1 is that soon after the  occurrence she returned to her village and immediately reported  the matter to Namberdar Gurnam Singh and Chokidar Tohla Singh  (both not examined).  Along with them she went to P.S. Raman but  despite their insistence the police did not take any interest in the  matter and did not record the information she wanted to give.   They, therefore, came back to the village.  The informant admitted  in her deposition that except the Namberdar and the Chowkidar she  did not report the matter to any other person in the village on that  day.  She, in particular, named Major Singh Thanedar, PW-6, and  stated that she had met him in P.S. Raman but he refused to take  down the information which she wanted to lodge.   

Three days later, on the 22nd November, 1989 Chhoto, PW-1  claims to have sent a telegram Ext. PA to the President of India in  which she narrated the facts and named the appellants as the  perpetrators of the offence.  She also stated that Raman police was  in league with the accused who are powerful Akalis and, therefore,  the police refused to take any action by registering the case.  PW-1  stated that since police took no action she waited for 2-3 days.  Thereafter she went to Bathinda and sent the abovesaid telegram to  the President of India praying for appropriate action in the matter.              Thereafter on 4th December, 1989, PW-1, made a written  complaint to the Senior Superintendent of Police (SSP), Bathinda  in which she narrated the incident which took place on 19th  November, 1989 and complained that police were not taking any  action and even refused to record the information which she sought  to give to the police for taking appropriate action.  In the said  complaint to the SSP it was also stated that the appellants with  their other companions had taken away 14 killas of cotton and  plucked kinnus from two killas.  They had also taken away girders,  cement and fertilizers etc. lying in the fields.  A complaint had  been lodged by her with the police, but no action was taken.  The  said complaint made by PW-1 was sent to Raman Police Station  where a case was registered against the appellants.  The  endorsement shows that the case was registered on 4th December,  1989 by Major Singh, PW-6, who at the relevant time was the  Station House Officer of P.S. Raman.

       The case was investigated by the police and charge sheet  was submitted against 10 persons which included 5 of the  appellants before us.  It appears from the record that the statements  of Amar Singh and Gurdev Singh were recorded by the police in  the course of investigation under Section 161 of the Code of  Criminal Procedure on 9th October, 1990 and on the basis of their  statements 5 other persons, namely Gurjit Singh, Harjinder Singh,  Jit Singh, Kuljit Singh and Ajaib Singh were arrayed as accused in

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the case alongwith 5 of the appellants, namely \026 Sewa Singh,  Sarabjit Singh @ Ujagar Singh @ Jagger Singh, Jagdeep Singh,  Hardeep Singh, and Avatar Singh @ Tari.

The trial court, however acquitted five persons who were  sent up as accused and tried by the Sessions Judge on the basis of  the statements of Amar Singh and Gurdev Singh.  Amar Singh and  Gurdev Singh were not even examined as witnesses at the trial.   The remaining two eye witnesses, namely \026 PW1 and PW-2 did  not implicate them.  

       However, four of the accused persons named in the first  information report against whom charge sheet was not submitted  were summoned for trial by the learned Additions Sessions Judge  under Section 319 of the Code of Criminal Procedure.  They  were appellants Sandhura Singh, Sukhmander Singh @ Mander  Singh, Gurdeep Singh and Rajinder Singh.         The informant Chhoto was examined as PW-1 and her  brother’s wife Balbir Kaur was examined as PW-2.  Major Singh,  SHO Raman Police Station was examined as PW-6.

       The appellants in their statements recorded under Section  313 of the Code of Criminal Procedure denied their guilt and it  appears to be their case from the suggestions made to the witnesses  that the alleged deceased Shivraj Singh was mentally handicapped  and that he may have gone somewhere which was not within their  knowledge.  Their specific plea was that taking advantage of the  disappearance of Shivraj Singh they have been falsely involved in  this case on account of serious enmity between the two groups in  the village.

       The statement of Sewa Singh was to the effect that he had  contested elections to the post of Sarpanch against Jugraj Singh  brother of the informant PW-1.  Once he had won and on the  second occasion he lost the election.  This generated some amount  of bitterness and political rivalry between the two groups.  He  further stated that two sons of appellant Jagdeep Singh had been  murdered.  Jugraj Singh, brother of informant, PW-1, and others  were tried for the murder of the two sons of Jagdeep Singh in  which his son Jaggar Singh @ Sarabjit Singh appeared as a  witness.  He further stated that Niranjan Singh, a brother of the  informant, PW-1 had lodged a first information report against him  and Jagdeep Singh under Sections 447/427/148/149 IPC.   However, in that case they were acquitted. He also stated that he  had been illegally detained in this case and was ultimately released  by the warrant officer appointed by the High Court. He further  stated that Niranjan Singh made a complaint against him which  was found to be false and was consequently filed but thereafter  action under Section 182 IPC was initiated against him.   

Sarabjit Singh son of Sewa Singh also made a similar  statement.

Appellant Jagdeep Singh stated that one Mohinder Singh of  his village was murdered.  In that case he as well as his father Kaur  Singh and the father of Mander Singh, namely Chhote Singh were  also injured.  In that case he had lodged a first information report  under Sections 302/307/324/148/149 IPC and Sections 25/27 of the  Arms Act.   He and his father had also deposed as eye witnesses in  that case and the accused in that case including Jugraj Singh were  convicted by trial court.  However, their conviction was set aside  by the High Court but on further appeal to the Supreme Court, the  order of the High Court was reversed and the order of the trial  court convicting them was upheld.  It is also on record that the  brother of the informant PW-1, namely Jugraj Singh was

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undergoing his sentence when the instant occurrence took place.  It  also appears that Namberdar Gurnam Singh was also a co-accused  in that case with the brothers of the informant, but it is not clear  whether he was acquitted in that case since there were several  accused persons in that case.  They included the two brothers of  the informant.  Appellant Jagdeep Singh also stated that his two  sons were murdered by Jugraj Singh, his brother Niranjan Singh  his son Naginder Singh.  Jugraj Singh and Niranjan Singh, as  earlier noticed, are the brothers of the informant.  In that case as  well Hardeep Singh deposed as an eye witness.  Appellant Sarabjit  Singh was the other witness examined in that case.

Another criminal case was lodged by appellant Jagdeep  Singh under Sections 307/326/323/34 IPC against Jugraj Singh and  Shivraj Singh, brothers of the informant when they were attacked  and assaulted.    Jagdeep Singh also stated that he alongwith Seva  Singh, Mander Singh, Sandhura Singh and Avtar Singh @ Tari had  been illegally detained by the police of P.S. Raman and were  brutally tortured by the police on 6th December, 1989.  Ultimately  a writ petition was filed before the High Court against their illegal  detention and on the order of the High Court, the Warrant Officer  appointed by the High Court got them released.  It was, therefore,  submitted that far from being friendly towards the accused the  police was bent against them and illegally detained them in  custody continuously for several days till they were released from  their illegal detention by the Warrant Officer appointed by the  High Court.   

It is not necessary to refer to the statements of the other  accused recorded under Sections 313 of the Code of Criminal  Procedure because the facts we have noticed are sufficient to reach  the conclusion that there was intense enmity between the two  groups in village Kamalu and several murders had taken place  including the murders of two sons of appellant Jagdeep Singh by  the brothers of the informant PW-1 and others.  

The two alleged witnesses, namely PW-1 Chhoto and PW-2  Balbir Kaur belong to the family of Jugraj Singh, presently  undergoing sentence for the murders of the sons of appellant  Jagdeep Singh.  Unfortunately, the High Court has not critically  scrutinized the evidence on record and, therefore, with the  assistance of counsel appearing for the parties we have read the  entire evidence on record since the prosecution case rests on the  evidence of two alleged eye witnesses who are inimically disposed  towards the appellants.   This is pre-eminently a case in which the  rule of caution must strictly be applied.

It was submitted before us that the occurrence took place on  19th November, 1989 at about 7.00 a.m. but no report was made to  the police regarding the incident.  Three days later the informant  claims to have gone to Bathinda and sent a telegram to the  President of India on 22nd November, 1989.  Thereafter on 4th  December, 1989 she made a belated complaint to the Senior  Superintendent of Police, Bathinda on the basis of which the first  information report was registered at P.S. Raman.  On the other  hand PW-1 contends that she had in fact gone to the police station  alongwith Namberdar Gurnam Singh and the Chowkidar of the  village but the police, which was under the influence of the  accused, refused to record the statement of the informant and  register the case against the appellants.  In her deposition she  categorically stated that she met the Station House Officer Major  Singh, PW-6, at the police station who refused to record her  statement.  She thereafter returned to the village and waited for 2-3  days.  When she found that the police had not taken any action in  the matter, she sent a telegram to the President of India on 22nd

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November, 1989.  Later she made a complaint to the Senior  Superintendent of Police, Bathinda on 4th December, 1989.  She  has admitted in the course of her examination that apart from the  Namberdar and the Chowkidar of the village, she did not inform  any one after returning to the village soon after the incident.  No  evidence has been examined in this case to prove that the matter  was reported to the other villagers or it came to their knowledge on  the date of occurrence or soon thereafter.   

PW-6, Major Singh had been examined as a prosecution  witness.  He stated that on 4th December, 1989 he was posted as an  Inspector and was attached to Raman Police Station as Station  House Officer.  On receipt of the application Ext. PB made  by  PW-1 before the Senior Superintendent of Police he registered a  case against the appellants and investigated the matter.  He  narrated the steps which he took during the course of investigation  of the case.  He categorically asserted that he did not receive any  complaint prior to the registration of the case on 4th December,  1989.  Neither Chowkidar nor Gurnam Siugh, Namberdar met him  prior to 4th December, 1989.

From the facts noticed above it is apparent that no case was  registered at P.S. Raman on the date of occurrence, namely \026 19th  November, 1989.  PW-1 claims that she had gone to the police  station with Namberdar Gurnam Singh and Chowkidar of the  village but PW-6 refused to record her statement and take further  action.  On the other hand we have the evidence of PW-6 who  states that no report had been made to him of the instant incident  prior to the date of registration of the case on the basis of the  complaint made to the Senior Superintendent of Police i.e. till 4th  December, 1989.  There is, therefore, inconsistent evidence of two  prosecution witnesses and the benefit of this must ordinarily go to  the accused.  However, by way of abundant caution we have  further examined the evidence on record and we find that  Namberdar Gurnam Singh and the Chowkidar were not examined  by the prosecution to prove that PW-1 had reported the matter to  them and that PW-6 had refused to record the statement of PW-1.   It is not the case of the prosecution that these witnesses had been  won over by the accused.  In fact what appears from the record is  that Namberdar Gurnam Singh was a co-accused with the brothers  of PW-1 in the case of murder of Mohinder Singh.  If at all,  Namberdar Gurnam Singh appears to belong to the informant’s  group.  Their non-examination creates a serious doubt whether any  effort had been made by PW-1 on the date of occurrence to lodge  the report at the police station.  She admitted in the course of her  deposition that she did not narrate the incident to anyone else on  that date.

A telegram to the President of India was sent on 22nd  November, 1989 i.e. three days after the occurrence.  The  explanation of PW-1 is that she waited for 2-3 days and when   police took no action, she sent a telegram to the President of India.   The explanation offered by PW-1 is not convincing.  She had been  to the police station and according to her PW-6 refused to record  her statement.  If her statement itself was not recorded, it was  really futile for her to expect any action in the next 2-3 days.  In  fact in normal circumstances one would have expected her to  report the matter to other villagers and to higher authorities for  appropriate action because she apprehended that her brother who  had been adducted may be killed. .  This does not appear to have  been done.  Having sent the telegram, she waited for almost 12  days before she went and complained about the matter to the  Senior Superintendent of Police, Bathinda.  All these facts create a  very serious doubt as to whether any occurrence took place as  alleged by PWs. 1 and 2 and whether any attempt was made by

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PW-1 to lodge a report at the police station about the incident on  the date of occurrence.  This has encouraged the defence to submit  that no such occurrence took place and the dis-appearance of the  brother of the informant, PW-1, gave an opportunity to PW-1 to  implicate all the members of the rival group on a charge of  abduction and murder of her brother Shivraj Singh.  Reliance is  placed on the evidence to show that there was serious enmity  between the two groups and, therefore, PW-1 took advantage of  the dis-appearance of her brother and lodged a false case against  the members of the rival group.

The High Court has noticed the statements of the accused  recorded under Section 313 of the Criminal Procedure Code and  held that there was bad blood between the two groups in the village  who were inimically disposed towards each other.  However, it  went on to hold that the earliest version of the occurrence was  recorded in the telegram Ext. PA which was sent to the President  of India on November 22, 1989.  Later, a detailed petition was  made to the Senior Superintendent of Police on December 4, 1989  complaining that the police was not taking any action in the matter.   In the light of these two reports the High Court concluded that the  basic details of the entire occurrence stood crystalised in the  complaint forwarded by PW-1 in the form of a telegram Ext. PA.   The grouse of the appellants to the effect that they were implicated  in the case by PW-1 and PW-2 on account of animosity which  exhibited between the two parties could not be accepted as the  defence had not brought on record any evidence to prove that the  mental state of Shivraj Singh was such that he may have left his  house for an unknown destination in such state of mind.  The High  Court then proceeded to scrutinize the evidence of PWs.1 and 2  and held that since their evidence was to the effect that Shivraj  Singh had been abducted by the appellants, it was for the defence  to explain what had happened after he was abducted by them.  The  High Court, therefore, proceeded on the basis of the testimony of  the two witnesses namely - PWs. 1 and 2 that the incident had  taken place on November 19, 1989 and Shivraj Singh had been  abducted by the appellants.  It went on to observe that in case none  of the appellants had anything to do with the incident, there was no  earthly reason why the aforesaid witnesses would have named  them as persons responsible for the abduction of Shivraj Singh.   Since the appellants had failed to explain what happened to Shivraj  Singh after his abduction, the presumption under Section 114 of  the Evidence Act was available to the prosecution that the  appellants alone were responsible for the death of Shivraj Singh.

       It will thus appear that though the High Court noticed the  enmity between the two groups, it accepted the evidence of PWs.1  and 2 and held that an occurrence did take place on November 19,  1989 and there was no reason why these two witnesses would  implicate the appellants if they had no role to play.                  It is no doubt true that if the evidence of PWs.1 and 2 is  accepted as it is, the prosecution must be held to have proved its  case against the appellants. The question is whether PWs.1 and 2  can be relied upon, particularly in the background of the bad blood  and intense enmity which existed between the two groups which in  the past had led to several murders.  The High Court has not really  examined the evidence of PWs.1 and 2 critically as it ought to have  done.                  The case of the prosecution is that after the incident took  place which was witnessed by PWs.1 and 2, the witnesses went  back to the village and reported the matter to Namberdar and  Chowkidar of the village namely \026 Tohla.  Thereafter, PW.1  accompanied by the Namberdar and the Chowkidar went to the

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Police Station but PW.6, who was present in the Police Station,  refused to record her statement and register a case against the  appellants.  This was because the police was favouring the  appellants on political considerations.

       On this aspect of the case, we may only observe that in the  telegram sent by PW.1 to the President of India as also in the first  information report there is no mention of the Namberdar or the  Chowkidar accompanying PW.1 to the Police Station.  It was only  in the course of her deposition that PW.1 named these two persons.   Neither the Namberdar nor the Chowkidar was examined to prove  that PW.1 had gone to the Police Station to lodge a report.   According to PW.1, she had not reported the matter to anyone else  in the village which by itself appears to be rather unnatural.  We  have also the evidence of PW.6, Station House Officer of P.S.  Raman, who has categorically deposed that no report regarding the  incident had been made to him by anyone before December 4,  1989 when the complaint submitted by PW.1 to Senior  Superintendent of Police, Bathinda was sent to him, on the basis of  which he registered a case against the appellants.  The High Court  has completely ignored the evidence on record which belies the  prosecution assertion that PW.1 went to the Police Station  alongwith the Namberdar and the Chowkidar to lodge a report but  the police took no action.  It is not even the case of the prosecution  that Namberdar Gurnam Singh was not willing to depose for any  reason.  What appears on the record is that the aforesaid  Namberdar, Gurnam Singh was himself a co-accused with the  brothers of PW.1 in the case of murder of Mohinder Singh.  Obviously Namberdar Gurnam Singh supported the group of  which the brothers of PW.1 were members.   

Apart from the vague allegation that the police was  supporting the appellants there was no evidence to substantiate the  allegations.  On the other hand, it appears that some of the  appellants were illegally arrested by the police and were kept in  unlawful detention.  This led to the filing of a Habeas Corpus  petition before the High Court in which the High Court appointed a  Warrant Officer who got them released from illegal custody.  This  completely demolishes the prosecution allegation that the police  was favouring the appellants.                     We, therefore, entertain a serious doubt as to whether PWs.1  and 2 had at all witnessed the occurrence and made an attempt to  lodge a report with the police.  Their conduct in not informing  anyone in the village apart from Namberdar and Chowkidar, which  also appears to be doubtful, is rather unnatural.  Moreover, if the  police refused to register a case against the appellants, having  regard to the fact that her brother had been abducted and it was  apprehended that he may be killed, PW.1 would not have waited  for 3 or 4 days for the police to take action.  In fact, there was no  question of the police taking any action since they had even  refused to record the information which PW.1 wanted to give.  The  telegram was sent three days after the occurrence and the  complaint to the Senior Superintendent of Police was made about  12 days thereafter.  The belated complaint made by PW.1, in the  background of the enmity that existed between the two groups,  leads us to suspect the authenticity of the statements made in those  reports.  The High Court was clearly in error in rejecting the  submission urged on behalf of the appellants that on account of  enmity they have been falsely implicated.  The defence of the  appellants was that Shivraj Singh was a mentally handicapped  person and he may have left on his own for some unknown  destination in view of his mental state.  Taking advantage of his  disappearance a false case was concocted against the appellants  which included all persons against whom PW.1 had a grouse.  The

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High Court rejected the submission observing that the defence had  failed to prove that Shivraj Singh was mentally handicapped and  that he had left the village on his own and disappeared.  It may be  that the defence has not proved these facts but that cannot be used  against the appellants because the burden always lies on the  prosecution to prove its case.  The observation of the High Court  that there was no earthly reason why the appellants should be  falsely implicated is answered by its own finding with regard to the  existence of bad blood between the two groups resulting in several  murders.

       One of the submissions urged on behalf of the appellants  was that in the FIR itself there was a statement that the appellants  had plucked cotton from 14 killas of land and kinnus from 2 killas  of land.  This would have taken considerable time and would have  attracted the notice of others.  We find no merit in this submission  because it appears from a reading of the FIR that the plucking of  cotton and kinnus from the lands of PW.1 related to another  incident in which a report had been lodged but the police had taken  no action.  This statement appears to have been made in the report  of PW.1 only to support her allegation that the police was  favourably inclined towards the appellants.                  This is a case in which enmity and bad blood between the  rival groups is established beyond doubt.  We have only the  evidence of two interested witnesses namely \026 PWs.1 and 2.  No  immediate report was lodged to the police regarding the  occurrence.  We have scrutinized the evidence on record and come  to the conclusion that the story about making an effort to lodge a  report earlier does not appear to be true.  The Namberdar and the  Chowkidar who were alleged to have accompanied PW.1 to the  Police Station have not been examined as witnesses.  On the other  hand, there is a categoric denial by PW.6, the Station House  Officer that anyone reported the incident to him before December  4, 1989.  Unfortunately, the High Court has not even noticed these  facts.  Even the allegation that the police was favourably disposed  towards the appellants is belied by the fact that some of the  appellants were illegally detained by the police who were  ultimately released by the Warrant Officer appointed by the High  Court in the Habeas Corpus petition.  We, therefore, entertain a  serious doubt about the truthfulness of the prosecution case.  The  facts and circumstances of the case no doubt establish that Shivraj  Singh had dis-appeared on November 19, 1989 but the  circumstances of the case indicate that PWs.1 and 2 may not have  seen the occurrence in which Shivraj Singh had been either  abducted or killed, and taking advantage of his disapperance a  false case was belatedly concocted against the appellants.  Since  we entertain a serious doubt about the truthfulness of the two eye- witnesses examined by the prosecution, we hold that the appellants  are entitled to the benefit of doubt.

       Accordingly, these appeals are allowed and the appellants  are acquitted of all the charges levelled against them.  The  judgment and order of the High Court is set aside.  The appellants  are directed to be released forthwith unless required in connection  with any other case.