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PETITIONER: MUKHTIAR SINGH & ORS.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT30/11/1995

BENCH: ANAND, A.S. (J) BENCH: ANAND, A.S. (J) VENKATASWAMI K. (J)

CITATION:  1996 AIR  836            1996 SCC  (7) 155  JT 1995 (9)   195        1995 SCALE  (6)727

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      The appellants  along with  Gurmukh  Singh  and  Sunder Singh were  sent up  for trial before the learned Additional Judge of  the Special  Court, Ferozepur  Zone, Faridkot  for various offences in connection with the death of Pritam Kaur wife of  Mukhtiar Singh  appellant. Gurmukh Singh and Sunder Singh were  acquitted of all the charges. Appellant Mukhtiar Singh was convicted for an offence under Section 302 IPC and sentenced to  suffer life  imprisonment and to pay a fine of Rs.500/- and  in default,  to undergo  six months  R.I.  The remaining appellants Kartar Singh, Ran Singh, Dhan Singh and Piara Singh were convicted for the offence under Section 201 IPC and  sentenced to two years RI each and to pay a fine of Rs.200/- each  and in default of payment of fine, to further undergo RI  for one  month each. They have filed this appeal under Section  14 of  the Terrorist  Affected Areas (Special Courts) Act, 1984 challenging their conviction and sentence.      The prosecution  case is  that Pritam Kaur deceased was married to  Mukhtiar Singh  appellant. She  was  the  cousin sister  of  Kartar  Singh  PW3  and  Badri  Singh  PW5.  The relationship between Mukhtiar Singh and Pritam Kaur-deceased were  said  to  be  strained  and  the  deceased  was  being maltreated in her matrimonial home. On 11.3.84, Kartar Singh PW3- a  cousin of  the deceased  and Sarpanch of the village was irrigating his field at about 5 p.m. when he heard noise from the side of the house of the appellants and went there. He found all the appellants present armed with dangs. In his presence, Kartar Singh appellant exhorted his sons to finish Pritam Kaur  deceased and  thereupon his  sons assaulted the deceased with  dangs on various parts of her body. Appellant Mukhtiar Singh dealt a dangs blow on the back of the neck of Pritam Kaur  as a  result of  which she  fell down and died. Kartar Singh  PW3 protested  but was  told to  mind his  own affairs by  the appellants.  He left  for the village and on the way,  met Bhag  Singh PW4 and narrated the occurrence to

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him. On  12.3.84,  Badri  Singh  PW5  had  gone  to  village Mansinghwala to  have a  round of  his land  which was under cultivation of his brother, Kartar Singh PW3. After having a round of  the fields,  he went  to the  house of his cousin, Pritam Kaur  deceased and  on reaching there, found the dead body of  his cousin  Pritam Kaur  lying near the door of the residential room. It was covered with a chaddar. Badri Singh PW removed  the cheddar  from the  face of  the deceased and noticed some  stiffness at  the back  of the neck. He became suspicious and  immediately left  for village  Sandahwan  to inform Harnam Singh - father of the deceased. Accompanied by Harnam Singh,  Bhagwan Singh, Balwant Singh, Wazir Singh and some others  he came  back to  village Mansinghwala  and  on reaching there,  learnt that  the dead body had already been removed for  cremation. They  all then went to the cremation ground, reaching  there at about 2 p.m. The dead body was on the funeral  pyre. Gurmukh Singh, Piara Singh, Sunder Singh, Kartar Singh,  Dhan  Singh  and  Ran  Singh  (accused)  were feeding fire  to the  pyre. On  seeing Badri  Singh, Balwant Singh PWs  and others,  they all  ran away  leaving the dead body on  the pyre  and a tractor trolly nearby. The fire was extinguished and  the half  burnt dead body was removed from the pyre.  Leaving Balwant  Singh, Wazir  Singh  and  Harnam Singh to  take care  of the  dead  body,  Badri  Singh  PW5, accompanied by  Sunder Singh  PW went to report the incident to the  police. When  they both  reached near  Sadiq  Chowk, Harbhagwan Singh  SHO, Police Station, Sadiq met them. Badri Singh made  a statement  before him EX.P5, which was sent by the SHO  to the  Police Station  and on  the basis thereof a formal FIR  EX.P5/B was  registered. SI Harbhagwan Singh PW9 thereupon took  up the  investigation in  hand and rushed to the cremation  ground. He  took possession  of the dead body and after  preparing an  inquest report  Ex.P3 sent the dead body to Faridkot for post mortem examination. The autopsy on the dead  body was  conducted by  a panel  of three doctors, under the  supervision of  Dr.J.S.Dalal,  PW1.  The  medical board, after  post mortem examination, gave the opinion that the cause  of death  was coma  as a result of dislocation of the 2nd  and 3rd  cervical vertebras  and that  the injuries were ante  mortem in nature and sufficient to cause death in the  ordinary   course  of  nature.  On  completion  of  the investigation, the  appellants were  sent up for trial. Mst. Lachmi, wife  of Kartar  Singh was discharged at the initial stages itself by the trial court.      The prosecution,  with a view to connect the appellants with the crime, relied upon: (i) Motive; (ii) Direct evidence of assault on the deceased; (iii) Extra Judicial Confession; (iv) Medical evidence; (v) Conduct of the appellants Kartar Singh  appellant in  his statement  under Section 313 Cr.P.C. which  was also  adopted by  Mukhtiar Singh  and his other sons  denied the  prosecution allegations and gave the defence version  to the effect that the deceased had slipped from the  last step  of the bamboo stair-case while climbing on to  the roof  of  the  house  and  had  fallen  down  and instantaneously died.  His sons  Mukhtiar Singh  and  others were at that time not at the house and were irrigating their fields. He  sent information  to them  about  the  death  of Pritam Kaur  on receipt  of which,  they all returned to the house. He  went on  to say that he had informed Kartar Singh PW3- sarpanch  of the  village, who  was  a  cousin  of  the deceased and  requested him  to inform  the parents  of  the deceased and after waiting till about 2 p.m. on the next day

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i.e. for  about 20  hours,  they  took  the  dead  body  for cremation and  that while  the dead body was being cremated, the appellants  arrived there  along with  some relations of the deceased  and the  police and after taking the dead body into custody  the police  arrested them.  He denied that the relations between  Mukhtiar  Singh  and  the  deceased  were strained. Mukhtiar  Singh  appellant  also  gave  a  similar version in  his statement  under  Section  313  Cr.P.C.  and asserted that the deceased was never maltreated.      (i) Motive  According  to  the  prosecution  case,  the relationship between  the deceased  and her husband Mukhtiar Singh appellant  were strained and the deceased had told her brother Balwant  Singh that  she was being maltreated by her husband, father-in-law  and other members of the family. The evidence to  prove motive  is rather  scanty. Mukhtiar Singh and the  deceased were  married for  more than 9 years. They had two sons and a daughter. Except for Balwant Singh PW, no one else, not even Kartar Singh PW3, Sarpanch of the village and cousin of the deceased has spoken about any maltreatment of the  deceased. Even  Balwant Singh  PW had  to admit: "My sister was  never given  any beating in my presence. She had informed me  about the  beating when she came to our village prior to  her death.  We had  not taken  any panchayat  when Pritam Kaur  came to  the village  after the  beating. I had informed my  father what  my sister  had told  me about  the maltreatment but  no body  had gone  to Mansinghwala to meet accused Kartar Singh and his sons to advise them against the maltreatment." No  neighbour has  come  forward  to  support Balwant Singh  either. According  to Balwant  Singh PW,  the only incident  upon which  the allegations  of the  deceased being maltreated  were based  was allegeably a slap given to the deceased  about fifteen days prior to the occurrence. If in 9 years of married life, this was the only incident which could  be   recounted,  we  are  of  the  opinion  that  the allegations regarding  maltreatment of  the deceased  by the appellants have  not been  proved. The prosecution has, thus failed to  prove  that  Mukhtiar  Singh  appellant  had  any motive, let  alone a ‘strong motive’ to commit the murder of the deceased. The finding of the trial court to the contrary is not based on any evidence and is a conjectural finding.      (ii)Direct evidence  - The  prosecution examined PW3 as the sole  eye-witness of  the occurrence.  According to  his testimony, it  was in  his presence  that the  deceased  was given dang  blows by  Mukhtiar Singh and his brothers on the exhortation of  Kartar Singh,  father of  Mukhtiar Singh. He gave in graphic details the manner in which various injuries had been  caused to  the deceased. The trial court found him to be  an unreliable  witness and  rightly so.  His  conduct belies his testimony. Though closely related to the deceased he did  not inform  about what  he had seen to anyone at all except to  Bhag Singh  PW4 who  has in his deposition belied the statement  of Kartar  Singh PW3  and stated that PW3 had not told  him as  to how the deceased had died. According to Kartar Singh  PW3, he  did not raise any alarm when injuries were being  caused to  the deceased  and though  the  police station Sadiq  is at  a distance  of 5 kms. from the village and he  besides being  relative of  the deceased is also the sarpanch of  the village, he did not go to lodge any report. He admitted  that he  had not  inform any  lambardar or  any other person  in the  village about the incident. During the cross-examination, he  also admitted  that he  had not  even informed the  parents of Pritam Kaur about her death and did not even  disclose what  he had  seen at the house of Kartar Singh, to  his wife.  Not only did he keep quiet about it on the date  of the  occurrence but on his own showing, even on

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the next  day he  did not  convey the  information to anyone till his  statement came  to be  recorded during the inquest proceedings  at  the  cremation  ground.  The  trial  court, rightly  commented  upon  the  unnatural  behaviour  of  the witness and  held that  he had  no occasion  to witness  the incident and his evidence was not at all reliable. We agree, evidence of  Kartar Singh  PW3 does  not at  all inspire any confidence and  we have  no hesitation  to rule  the  ocular testimony as provided by him out of consideration. (iii)     Extra judicial  confession -  Chirag Singh PW7 has been examined  by the  prosecution to  support  its  version regarding the alleged extra judicial confession made by some of the  appellants to  him and  his producing the appellants before the police. After considering his evidence in detail, the trial court opined:      "It is  also thus  not possible to place      any reliance  on the  evidence of Chirag      Singh PW  that accused  Kartar Singh and      his sons  Mukhtiar Singh,  Ran Singh and      Dhan Singh  had made  any extra judicial      confession before him." We are  in complete  agreement with the above finding of the trial court  which is  based on  proper appreciation  of the evidence on  the record.  In our  opinion the  investigating agency falsely  introduced this  witness to  lend support to another false  witness, Kartar Singh PW3 and thereby exposed the tainted nature of investigation. (iv) Medical evidence  - According  to PW1,  Dr. Dalal,  the cause of  death was  coma as  a  result  of  dislocation  of 2nd/3rd cervical  vertibra which  was ante  mortem in nature and sufficient  to cause  death in  the ordinary  course  of nature. The  doctor  then  opined  the  possibility  of  the dislocation of second and third vertibares due to lathi blow cannot ruled  out,  but  since  the  body  was  in  a  burnt condition it  was not  possible to specify the exact type of the weapon  with which  the injury  may  have  been  caused. During the  cross-examination, PW1  admitted the possibility of injuries  No.1, 2  and 3  on the dead body of Pritam Kaur having been suffered in a fall from a height cannot be ruled out. At the places where injuries No.1 and 2 were located no bony injury  was found.  Thus,  we  find  that  the  medical evidence is  neither deceissive  nor conclusive and it fails to connect  the appellants  with the  crime and  does not go against the  defence version  of the  deceased  having  died instantaneously as  a result of the fall. The absence of any bony injury is more consistent with the defence version than the prosecution case. (v)  Conduct  of   the  appellants   -  According   to   the prosecution, the  conduct of the appellants in (i) cremating the body in ‘hot haste’ without waiting for the relations of the deceased and (ii) running away from the cremation ground at the  arrival of Balwant Singh PW5 and others, establishes their guilty  conscience and  positively connects  them with the crime.      The  conduct  of  one  accused  is  indeed  a  relevant consideration to  be taken  note  of  by  the  courts  while considering the  correctness or otherwise of the prosecution version but  in this case evidence led by the prosecution to demonstrate the  guilty  conscience  of  the  appellants  is wholly unsatisfactory.      The deceased  had died  at about  5  p.m.  on  11.3.84. According to  the accused,  they had  requested Kartar Singh PW3 to  inform the parents of the deceased. Kartar Singh PW3 has of  course denied that he was told to inform the parents of the  deceased. Even  if we believe PW3 in that behalf, it

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does not  stand to  reason that  PW3, a  first cousin of the deceased and  sarpanch of  the village,  would not have sent any information  to the  parents of  the deceased  about her death. That  apart, admittedly the dead body was not removed to the  cremation ground  till 2  p.m. on  12.3.84 i.e. till nearby twenty  hourse after the death, we fail to appreciate how then  could the  trial court hold that the cremation was conducted in  ‘hot haste’. The accused had apparently waited for sufficient  time after  the death  to cremate  the  dead body. Had  the accused  any intention  to cremate  the  body "secretly" or  in "hot  haste", as found by the trial court, nothing prevented  them from  disposing the dead body during the night  intervening 11th  and 12th  March 1984. We are of the considered  opinion that  the finding of the trial court is based on surmises and conjectures and is unsustainable.      In so far as the allegation that the appellants had run away from  the cremation  ground on  the arrival of PW5, PW6 and others, it also has not been established.      Evidence of  Badri Singh  PW5 and Balwant Singh PW6 was pressed into  aid to  show the  conduct of the appellants at the time  of cremation after the arrival of the relations of the deceased.  Both  these  witnesses  stated  that  on  the arrival of  the  relations  at  the  cremation  ground,  the appellants ran  away leaving the tractor trolly and the dead body burning  on the  pyre unattended. However, Kartar Singh Sarpanch PW3, who was also present at the time of cremation, stated that  he was  present  at  the  cremation  ground  on 12.3.84 and  had found the appellants and many other persons present there  at that  time. He  did  not  state  that  the appellants had  run away from the place of occurrence and on the other  hand deposed  that the  accused were  taken  into custody by the police from the cremation ground itself.      Of course,  PW9 Harbhagwan  Singh SI  in his  statement deposed that  Piara Singh  had been  arrested on 15.3.84 and the other appellants on 18.3.84 but conceded in the light of the statement given by Kartar Singh PW3 that the accused had been taken  away by  the police  from the  cremation  ground itself completely  belies the assertion of the investigating officer PW9  as well  as the  statements of PW5 and PW6. The prosecution has  miserably  failed  to  establish  that  the appellants had  run away  from the  cremation ground  at the arrival of  the relations of the deceased on the contrary it appears, as  stated by  the appellants  themselves in  their statements recorded  under Section 313 Cr.P.C. that they had been arrested  from the  cremation ground  itself and  taken into custody  by the  investigating officer. The prosecution has thus  failed to  establish any  incriminating conduct on the part of the appellants.      In view  of the  above discussion,  we  find  that  the investigating agency  not only  attempted to introduce false eye-witness but  also made  crude attempts to press into aid alleged extra  judicial confession made by the appellants to PW7 besides putting forward the objectionable conduct of the appellants. The  investigation, in the case, in our opinion, has been tainted and that taint detracts materially from the reliability of the prosecution case as a whole.      The  prosecution  evidence  on  the  record  is  wholly insufficient touring home the charge against the appellants. The trial  court fell  in  error  even  after  noticing  the serious infirmities  in the  prosecution evidence,  to  have convicted the  appellants.  Their  conviction  and  sentence cannot be  sustained. This  appeal succeeds  and is allowed. The conviction  and sentence of the appellants is set aside. The appellants  are on  bail. Their  bail bonds  shall stand discharged.

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