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SUCHA SINGH versus THE STATE OF HARYANA

High Court of Punjab and Haryana, Chandigarh

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SUCHA SINGH v. THE STATE OF HARYANA - CRA-294-db-2003 [2006] RD-P&H 2266 (3 April 2006)

CRIMINAL APEAL No. 294-DB OF 2003 /1/

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

CRIMINAL APEAL No. 294-DB OF 2003

DATE OF DECISION : APRIL 6, 2006

SUCHA SINGH ....... APPELLANT

VERSUS

THE STATE OF HARYANA ...... RESPONDENT

CORAM : HON'BLE MR.MEHTAB S. GILL
HON'BLE MR. JUSTICE AJAI LAMBA

PRESENT: Mr. PC Chaudhary, Advocate, for the appellant.

Mr. Ravi Dutt Sharma, DAG, Haryana.

CRIMINAL APEAL No. 294-DB OF 2003 /2/

JUDGMENT :

The appellant has preferred this appeal against the judgment of conviction dated 2.11.1999 whereby he has been convicted under Sections 302 and 394, Indian Penal Code, and order of sentence dated 4.11.1999 whereby the appellant has been sentenced to undergo life imprisonment and to pay a fine of Rs.2,000/- under Section 302, Indian Penal Code, in default of payment of fine, to further undergo rigorous imprisonment for six months. The appellant has further been sentenced to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs.1,000/- for commission of offence under Section 394, Indian Penal Code, in default of payment of fine, the appellant has been further ordered to undergo rigorous imprisonment for three months.

As per the prosecution case, dead body of a male, aged about 26/27 years, smeared with blood with injuries on the head and face, was found at 11.30 a.m. on 1.2.1997, in a pit below the level of the road towards the field of Hari Singh, by Rajinder Kumar, PW-1. The location of the dead CRIMINAL APEAL No. 294-DB OF 2003 /3/

body is stated to be in the area of Village Kichhana. The body was of an unknown person. The informant Rajinder Kumar lodged the report with ASI Balwan Singh of Police Station Rajound, at Kichhana Kooi at about 12.15 p.m. on 1.2.1997, which is Exh.PE and was sent through Constable Mohinder Singh for lodging of the FIR. The formal FIR, Exh.PE/2, bearing No.75 was lodged on 1.2.1997 at 12.40 p.m. in Police Station, Rajound.

So as to prove the case against appellant-Sucha Singh, the prosecution has led medico-legal evidence by way of statement of PW-6 Dr. R.S.Ahlawat, who conducted post-mortem examination on the body of the deceased at 5.00 p.m. on 1.2.1997. The other evidence led by the prosecution in Court is by way of statement of PW-1 Rajinder Kumar, the informant, PW-2 Faquir Singh son of Chand Singh, who is father of the deceased, PW-3 Kakka Singh, uncle of deceased, PW-5 Hardev Singh son of Jiwan Singh, PW-8 Sher Singh son of Asha Singh. The investigation witnesses examined by the prosecution are ASI Surta Ram, PW-4, Ram Pal, Patwari, PW-7, Mahabir Singh, Photographer, PW-9 and HC Bhavishan Singh, PW-10 and ASI Balwan Singh as PW-11.

The entire evidence was put to the accused, who pleaded CRIMINAL APEAL No. 294-DB OF 2003 /4/

innocence and claimed trial. No evidence in defence has been led.

The learned counsel for the appellant has contended that Sher Singh, PW-8, as a witness is not worthy of belief and, therefore, there is no last seen evidence. The last seen evidence assumes importance in the present case in view of the fact that the case is based on circumstantial evidence. In support of the contention, the learned counsel has further stated that Sher Singh is also a witness of extra judicial confession and without the evidence of extra judicial confession, the appeal must succeed.

We are not impressed by this argument for the simple reason that the sequence of facts of the case shows that PW-2 Faquir Singh i.e.

father of the deceased, and PW-3 Kakka Singh, were also the witness to the factum of the accused-appellant hiring the mule cart of deceased-Amrik Singh. Since these two witnesses, whose presence was natural, being the relatives of the deceased, also establishes the last seen evidence and, therefore, we find no infirmity in the evidence of last seen. Even otherwise, Faquir Singh, PW-2, father of the deceased, was present with the police party on 6.2.1997 along with Kakka Singh, PW-3, while they were looking for the accused when the accused was seen coming in the mule cart of the CRIMINAL APEAL No. 294-DB OF 2003 /5/

deceased. The mule cart along with the mare was identified by Faquir Singh.

The other argument raised on behalf of the appellant is that the recoveries at the instance of the accused after he suffered the disclosure statement, Exh. PN, are not worthy of belief for the reason that Kassi (Exh.

P-22), Chaddar (Exh.P-23) and Khes (Exh.P-24), were recovered from a place that was a thoroughfare. It has further been submitted that PW-3 Kakka Singh, who is the witness to the disclosure statement and the recovery memo, Exh.PO, has not said a word about the disclosure statement and the recovery memo.

This argument must be dispelled for the reason that PW-3 Kakka Singh in his examination in chief has stated that "On the next day the accused got recovered a Kassi, one Khes and a Chadar". In the same context, reference may be made to the statement of HC Bhavishan, PW-10, who is the other signatory to the disclosure statement and the recovery memo i.e. Exh.PN and Exh.PO, respectively. He has proved the recovery of Kassi (Exh.P22), Chaddar (Exh.P23) and Khes (Exh.P24) while saying "The disclosure statement reduced in to writing which is Ex.PN signed by me and CRIMINAL APEAL No. 294-DB OF 2003 /6/

Kaka Singh put his thumb mark, accused also thumb marked on the same.

Then the accused met police party and got recovered the above said articles from the pointed place which were taken into possession vide recovery memo Ex.PO attested by myself and Kaka Singh and they were made into parcel and sealed with the seal of BSK ......." Thus, it is not the statement of PW-3 Kakka Singh alone with regard to the disclosure statement and recovery of the articles smeared with blood, but it finds support from the statement of HC Bhavishan, PW-10. It would not be out of place to refer to the statement of ASI Balwan Singh, PW-11 also, who has testified with regard to the disclosure statement (Exh.PN) and consequent recovery of Kassi (Exh.P22), Chaddar (Exh.P23) and Khes (Exh.P24), after digging the earth from near the culvert under recovery/possession memo, Exh.PO. It is facile to say that the official witnesses cannot be disbelieved as there is not even a suggestion that there was any animus or malafide intention of the police so as to falsely implicate the accused.

With regard to the argument that the recoveries were from a thoroughfare, the same also holds no water for the reason that in the disclosure statement itself, the accused disclosed to the effect "All of three CRIMINAL APEAL No. 294-DB OF 2003 /7/

are lying under the road syphened Pulia, where the water is collecting and at the distance of 2 K.M. towards Rajound where I removed earth by kassi and concealed Khes, Kassi and chaddar after digging a pit and no body knows except me". In the same sequence, the recovery memo, Ex.PO, also reflects that firstly the earth was removed so as to recover the said articles.

Thus, the argument that it was a thoroughfare is of no consequence in view of the fact that the articles were concealed under the earth and had to be dug out.

While challenging the recoveries of the three incriminating articles, the learned counsel for the appellant has further stated that Faquir Singh, PW-2, was also present and available with the police, therefore, he should also have been a witness to the disclosure statement and the recovery memo.

We are not impressed by the argument. Once two witnesses have witnessed the disclosure statement and the recovery memo, actually leading to recovery of blood smeared articles, there was no necessity for the prosecution to involve another witness. It is settled law that the quality of evidence is required to be seen and not the quantity of the evidence.

CRIMINAL APEAL No. 294-DB OF 2003 /8/

The next argument raised on behalf of the appellant is to the effect that the accused was taken in custody earlier and, therefore, the recoveries be disbelieved. In this context, reference has been made to the statement of Kakka Singh, PW-3. Reference has been made to the following deposition in cross-examination of the witness :- "I used to ply mule carts on 31.1.1997 and 1.2.1997 and on 1.2.1997 I did not go any where. I am illiterate so I can not tell the date when we proceeded for Rajound. However, we had started at about 8.00/9.00 p.m. The bus takes two hours to reach from Patiala to Rajound. First of all we met the S.H.O.

of the police station. When I reached the police station, Sucha Singh was sitting on the ground".

From the above reproduced excerpt, the learned counsel wants us to deduce that the accused was in custody with effect from 1.2.1997 when the witness Kakka Singh, PW-3, visited the police station on that day i.e. 1.2.1997. The said context cannot be attached to the statement as the witness has clarified that "on 1.2.1997 I did not go any where". Further, Kakka Singh, PW-3, was statedly an illiterate person, which fact is not disputed. The evidence of the witness was recorded after one year of the incident. The statement has to be read collectively. In the examination-in-chief, the witness (Kakka CRIMINAL APEAL No. 294-DB OF 2003 /9/

Singh PW-3) has clarified that Sucha Singh, accused, was seen plying the mule cart belonging to Amrik Singh, deceased, when the police arrested him and took into possession the mule cart, vide memo, Exh. PF. A reference to memo, Exh.PF, shows that the memo of identification and recovery of mule rehri was effected on 6.2.1997 and Faquir Singh, PW-2, Kakka Singh, PW- 3, ASI Balwan Singh, PW-11, and Sher Singh, PW-8, were present on the said date. In the cross-examination, we find there is no challenge to the execution of memo, Exh.PF.

It has been argued by the counsel for the appellant that the evidence with regard to the date and time of hiring of mule cart by the accused is discrepant in the statements of the alleged witnesses i.e. PW-2 Faquir Singh, PW-3 Kakka Singh and PW-5 Hardev Singh, an independent witness, and, therefore, the witnesses should be disbelieved.

We have gone through the statements of the witnesses and we find that the discrepancies are of minor nature and do not materially alter the facts of the case. The testimony has to be considered keeping in mind that the witnesses were illiterate and were examined after one year of the incident. No motive to falsely implicate the accused has been attributed to CRIMINAL APEAL No. 294-DB OF 2003 /10/

the three witnesses.

The counsel appearing for the State, on the other hand, has pointed out that the FSL reports, Exh. PH and Exh.PH/1, are the clinchers of this case. Exh.1a, 1d and 1f were the shirt, Jersey and kachha, respectively, which were taken off from the body of the deceased by Dr. R.S.Ahlawat PW-6, and converted into a parcel. On 1.2.1997, ASI Balwan Singh, PW- 11, took into possession sealed parcel of clothes with the sample of seal.

The said parcel was sent to the FSL, Madhuban for examination.

After arrest of the accused, as a consequence of the disclosure statement suffered by the accused, being Exh.PN, leading to the recovery of Kassi (Exh.P22), Chaddar (Exh.P23) and Khes (Exh.P24), respectively, the same were also converted into a sealed parcel and were also sent to the FSL for examination. The said articles/parcels were in the custody of HC Ranbir Singh, MHC of Police Station, Rajound, who has sworn his affidavit, Exh.PB. A reference to the affidavit Exh.PB also shows that the sealed clothes along with other articles were sent on 10.2.1997 with seals intact through Constable Ram Chander for depositing the same with the Director, Forensic Science Laboratory. On 12.2.1997, the blood stained Kassi, Khes CRIMINAL APEAL No. 294-DB OF 2003 /11/

and Chaddar were also sent in duly sealed parcels through Constable Ram Mehar Singh for depositing the same with the Director, Forensic Science Laboratory. Constable Ram Chander has sworn affidavit, Exh. PC, with regard to handing over of the parcels in the office of the Director, Forensic Science Laboratory, Madhuban, for analysis on 10.2.1997 and further it has been verified in the said affidavit that while the parcels were in the custody of Constable Ram Chander, they were not tampered with. Similarly, affidavit of Constable Ram Mehar Singh, Exh.PA, mentions that the parcels (containing Kassi, etc.), after taking the same out of the Malkhana, were taken for depositing in the office of the Director, Forensic Science Laboratory, Madhuban for analysis and they remained in the same condition without any tampering. The learned counsel for the State has further pointed out with regard to the serological analysis of blood on the said articles, i.e. Shirt (Exh.1a), Jersey (Exh.1d) and Kachha (Exh.1f), which were found to contain blood of human origin with 'O' blood group. These are the articles taken off the body of the deceased on 1.2.1997. As against this, the articles taken in custody on 8.2.1997, being Kassi and Chaddar, were also found to contain human blood with 'O' group. The said articles CRIMINAL APEAL No. 294-DB OF 2003 /12/

i.e. Kassi and Chaddar were recovered at the instance of the accused. Thus, the accused stands connected through irrefutable evidence with the deceased as the Chaddar which was blood stained was found to contain the same blood group 'O' of human origin as was found on the clothes taken off the body of the deceased by Dr. R.S.Ahlawat (PW-6) who conducted the post-mortem examination on 1.2.1997. This leaves no measure of doubt in our mind that the accused-appellant was the person who committed the offence.

The learned counsel for the appellant has also cited the judgments in Bhalinder Singh alias Raju v. State of Punjab, (1994) 1 Supreme Court Cases 726, Anil Kumar Singh v. State of Bihar, (2003) 9 Supreme court Cases 67 and Vithal Tukaram More and others v. State of Maharashtra, (2002) 7 Supreme Court Cases 20. The judgments relate to the essential ingredients to prove the guilt of the accused by circumstantial evidence. The judgments have been considered by us and we find that they have no application to the facts of the present case, in view of the facts and circumstances which have emerged on consideration of the evidence in the present case.

CRIMINAL APEAL No. 294-DB OF 2003 /13/

In the result, the appeal fails and the same is hereby dismissed.

The judgment of conviction dated 2.11.1999 and order of sentence dated 4.11.1999 are hereby upheld.

( AJAILAMBA )

JUDGE

April 6, 2006 ( MEHTAB S. GILL )

Kang JUDGEGE


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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