Punjab-Haryana High Court
State Of Haryana vs Sukhwinder Singh & Anr on 7 January, 2025
Bench: Sureshwar Thakur, Sudeepti Sharma
Neutral Citation No:=2025:PHHC:001493-DB
CRA-D-124-DBA-2006 (O&M) -1-
CRA-D-318-DB-2005 (O&M)
In the High Court of Punjab and Haryana at Chandigarh
1. CRA-D-124-DBA-2006 (O&M)
Reserved on: 17.12.2024
Date of Decision: 07.1.2025
State of Haryana ......Appellant
Versus
Sukhwinder Singh @ Sukha and another ......Respondents
2. CRA-D-318-DB-2005 (O&M)
Sukhwinder Singh @Sukha ......Appellant
Versus
State of Haryana ......Respondent
CORAM: HON'BLE MR. JUSTICE SURESHWAR THAKUR
HON'BLE MRS. JUSTICE SUDEEPTI SHARMA
Present: Mr. Vinod Ghai, Senior Advocate with
Mr. Naresh Jain, Advocate and
Mr. Yadwinder Singh, Advocate
for the appellant(s).
Mr. Pardeep Prakash Chahar, Sr. DAG, Haryana.
Mr. K.S.Godara, Advocate
for respondent No. 1 (in CRA-D-124-DBA-2006).
Mr. K.B.Raheja, Advocate
for respondent No. 2 (in CRA-D-124-DBA-2006).
****
SURESHWAR THAKUR, J. (ORAL)
1. Since both the appeals (supra) arise from a common verdict,
made by the learned trial Judge concerned, upon Sessions case bearing No.
24 of 2003, hence both the appeals (supra) are amenable for a common
verdict being made thereons.
2. CRA-D-318-DB-2005 is directed against the impugned verdict,
as made on 7.2.2005, upon Sessions case bearing No. 24 of 2003, by the
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learned Sessions Judge, Sirsa, wherethrough, in respect of charges
respectively drawn against the accused qua offences punishable under
Sections 302, 201, 120-B, 34 IPC and under Section 27 of the Arms Act,
thus the learned trial Judge concerned, proceeded to record a finding of
conviction against the accused Constable Sukhwinder Singh and Gurvir
Singh @ Goga qua commission of offences punishable under Sections
302/34 and 201/34 IPC. However, the accused Rajdeep and Sukhwinder
Singh son of Jagdev Singh were acquitted of the charges framed against
them.
3. Moreover, through a separate sentencing order dated 14.2.2005,
the learned trial Judge concerned, sentenced both the convicts (supra) to
undergo rigorous imprisonment for life for an offence punishable under
Section 302/34 IPC, besides also imposed, upon the said convicts sentence
of fine, as comprised in a sum of Rs. 1,00,000/- each, besides in default of
payment of fine amount, he sentenced both the convicts to undergo rigorous
imprisonment for a period of five years. Furthermore, the learned trial Judge
concerned, also sentenced both the convicts (supra) to undergo rigorous
imprisonment for a period of seven years for an offence punishable under
Section 201/34 IPC. The learned trial Court also ordered that the fine
amount, if realised, be paid to the widow of the deceased in lieu of
compensation.
4. Both the above imposed sentences of imprisonment, were
ordered to run concurrently but the period of detention undergone by the
convicts, during the investigations, and, trial of the case, was, in terms of
Section 428 of the Cr.P.C., rather ordered to be set off from the above
imposed sentence(s) of imprisonment.
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5. The accused-appellant Sukhwinder Singh @ Sukha becomes
aggrieved from the above drawn verdict of conviction, besides also, become
aggrieved from the consequent thereto sentences of imprisonment, and, of
fine as became imposed, upon him, by the learned convicting Court
concerned, and, hence has chosen to institute thereagainst the criminal
appeal bearing No. CRA-D-318-DB-2005.
6. Convict Gurveer Singh alias Gora also became aggrieved from
the consequent thereto sentences of imprisonment, and, of fine as became
imposed, upon him, by the learned convicting Court concerned, and, hence
has also chosen to institute thereagainst the criminal appeal bearing No.
CRA-D-252-DB-2005. However, since the said convict expired, during the
pendency of the appeal (supra), therefore, vide order dated 17.12.2024, the
said appeal became to become abated and was disposed of as such.
7. The State of Haryana has also instituted criminal appeal bearing
No. CRA-D-124-DBA-2006 with a prayer that the impugned verdict (supra)
of the learned trial Court, wherebys the accused concerned become
acquitted, rather be modified, and, accused Sukhwinder Singh @ Sukha and
Rajdeep be also convicted and sentenced for the commission of an offence
punishable under Section 302 of the IPC.
Factual Background
8. The genesis of the prosecution case, becomes embodied in the
appeal FIR, to which Ex. PQ is assigned. As per the prosecution story, on
19.10.2002 SI Jaibir Singh, accompanied by other police officials reached
Bajekan-Kanganpur Road at about 6.00 A.M., in a police jeep in routine. At
Kanganpur-Bajekan road, he noticed an iron body of the gun and, therefore,
he got the jeep stopped and checked the iron body of the gun. On checking,
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it was found that on the iron body of the gun the number of the gun was
found engraved as “No. 1943-81 prisons, Pritam Singh and sons. An empty
cartridge of 12 bore gun was also lying at said place and in addition blood
stained earth, a wooden of gun fitted with a nut bolt and a piece of kikker
free smeared with blood and hair were also found lying at the said place.
9. SI Jaibir Singh also noticed some signs of struggle at the said
place as some prints of shoes were visible there. Accordingly SI Jaibir Singh
lifted the iron body of the gun Ex. P36, broken wooden piece of the gun with
nut-bolt Ex. P33, blood stained earth, empty cartridge of 12 bore gun Ex.
P34 and a piece of wood having blood stains and hair Ex. P35 on it and
except the iron body of the gun, the remaining articles were separately
sealed into separate parcels with the seal of JB and all the sealed parcels and
iron body of the gun were taken into possession vide recovery memo Ex. PR
which was attested by EHC Balraj and Constable Mahesh Kumar. The iron
body of the gun was kept open and was not sealed for identification purpose.
10. Since some prints of shoes were visible on the spot, SI Jaibir
Singh lifted two moulds of the left and right foot from the spot with the help
of Plaster of Paris and the same were signed by EHC Balraj Singh and SI
Jaibir Singh and those were sealed into two separate parcels with the same
seal. The parcels of the moulds were taken into possession vide recovery
memo Ex.PR/1. SI Jaibir Singh, then returned to Police Station Sadar Sirsa
and narrated all the facts before SI/SHO Shiv Kumar, who further informed
the Deputy Superintendent of Police and the Superintendent of Police and as
such, a report was incorporated in the Roznamcha of the Police Station at S.
No. 39 and a true copy of same is Ex. PS. The sealed parcels and the iron
body of gun were then deposited with the MHC by SI Jaibir Singh with seals
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intact.
11. On the same day i.e. on 19.10.2002, complainant Karan Singh
got recorded his statement to the police stating thereins, that they are three
brothers, and, out of them Sube Singh was the eldest, who was posted as
MTO in Police Line, Sirsa. He further stated thereins that on 19.10.2002,
they received a telephonic message that Sube Singh was absent from his
duty, whereupon he and his brother Devender Singh rushed to Police Line,
Sirsa and enquired about their brother. They also tried to search their
brother Sube Singh but in vain. The complainant further stated that on
22.10.2002, he was informed by some villagers of village Kanganpur that
during the intervening night of 18/19.10.2002, at about 11.30 P.M., one car
of red colour came from the side of Sirsa and went towards the side of
village Bajekan, and, after 20-25 minutes, the said car came back. The
villagers also tried to stop the said car but they failed to do so. The
complainant was further informed by the villagers that they heard the sounds
of gunshot and cry. The complainant also states thereins that he was of the
firm belief that the occupants of the said car had committed murder of his
brother and taken the dead body of his brother in the said car to dispose of
the same. On the basis of the statement (supra), the appeal FIR became
registered.
Investigation proceedings
12. During the course of investigations, the investigating officer
concerned, visited the place of occurrence in the area of village Kanganpur
but since it was night time he could not inspect the place of occurrence and,
therefore, he visited there again on 23.10.2002 and after inspection of the
spot prepared a rough site plan of the place of occurrence. He also recorded
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the statements of the witnesses under Section 161 Cr.P.C. The investigating
officer concerned, again visited the place of occurrence on 24.10.2002 and
got the scene of occurrence photographed. He also requisitioned the crime
team to inspect the spot and on that day he lifted an Identity card (Ex.PO/1)
and a driving licence (Ex. PU), both of accused Constable Sukhwinder
Singh. In addition a purse (Ex.P-42) containing Rs.5/- coin and Re.1/-
currency note, two passport size photographs of accused Constable
Sukhwinder Singh were also lifted from the spot and all the articles were
taken into possession vide recovery memo (Ex. PU). Rough site plan of
place of recovery was also prepared. On the same day, the investigating
officer concerned, visited Police Line, Sirsa and recorded the statements of
Constable Het Ram and Constable Raj Pal and searched for the accused and
deposited articles with the MHC with seals intact on the same day. On
27.10.2002, accused Sukhwinder Singh was arrested and got recorded his
disclosure statement, on the basis of which relevant recoveries became
effected. The said accused also identified the place of occurrence and also
identified the place where the dead body was thrown, through memos to
which respectively Ex. PKK and Ex. PLL became assigned. On 27.10.2002,
the investigating officer concerned, along with other police officials went
through the canal bank in the direction towards whih the water was flowing.
At Masitan Head, Devinder Singh (brother of the deceased) and one Satya
Nand Met the investigating officer concerned, and, informed him that the
dead body was found floating in the canal at Kannaur Head (Rajasthan), and,
that they have also identified the dead body and taken out the same. The
said dead body, which was without head, was photographed. Post-mortem
of the dead body was conducted. Accused Rajdeep and Gurvir @ Goga
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surrendered in Court and they were also joined in investigations. After
conclusion of investigations, the investigating officer concerned, proceeded
to institute a report under Section 173 of the Cr.P.C. before the learned
committal Court concerned.
Committal Proceedings
13. Since the offence under Section 302 of the IPC was exclusively
triable by the Court of Session, thus, the learned committal Court concerned,
through a committal order made on 28.1.2003, hence proceeded to commit
the accused to face trial before the Court of Session.
Trial Proceedings
14. The learned trial Judge concerned, after receiving the case for
trial, after its becoming committed to him, made an objective analysis of the
incriminatory material, adduced before him. Resultantly, he proceeded to
draw charges against the accused Sukhwinder Singh alias Sukha, Rajdeep
and Gurveer Singh alias Goga, for the offences punishable under Section
302 read with Section 34 IPC and under Section 201 read with Section 34
IPC. Moreover, the learned trial Judge concerned also drew charges against
accused Sukhvinder Singh alias Sukha son of Jagdev Singh qua the
commission of offence punishable under Section 302 read with Section 120-
B IPC. The afore drawn charges were put to the accused, to which they
pleaded not guilty, and, claimed trial.
15. In proof of its case, the prosecution examined 24 witnesses,
and, thereafter the learned Public Prosecutor concerned, closed the
prosecution evidence after tendering into evidence the reports of the FSL
concerned.
16. After the closure of prosecution evidence, the learned trial
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Judge concerned, drew proceedings, under Section 313 of the Cr.P.C., but
thereins, the accused pleaded innocence, and, claimed false implication. The
accused chose to lead evidence in their defence, and, led one witness into the
witness box.
Submissions of the learned senior counsel for the convict-appellant
17. The learned counsel for the aggrieved convict-appellant has
argued before this Court, that both the impugned verdict of conviction, and,
the consequent thereto order of sentence, thus require an interference. They
support the above submission on the ground, that they are based on a gross
misappreciation, and, non-appreciation of evidence germane to the charge.
They rest the above submission on the ground(s)-
(i) That there are major discrepancies in the prosecution
case.
(ii) That the present case is based on circumstantial evidence
and there is no direct evidence against the appellant to connect him with the
alleged occurrence.
(iii) That as per the prosecution story a .12 bore gun was used
in the crime event, whereas, the doctor concerned, found a bullet injury
wound on the dead body of the deceased. However, since a bullet is always
fired from a rifle and not from a gun. Consequently he has argued, that since
there are rife contradictions inter se the medical evidence, thus with the
recovery of the weapon of offence, as became effected through recovery
memo Ex. PJJ/1, therebys the accused-appellant is entitled for the verdict of
acquittal.
(iv) That there is a major discrepancy in the prosecution case,
inasmuch as, the height of deceased ASI Sube Singh, as per his service
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record, was 5′-7″, whereas, the height of the recovered head less dead body
was 5′-9″. Therefore, he argues that the charge(s) drawn against the
accused, are required to become declared to become foundered.
Submissions of the learned State counsel
18. The learned counsel for the appellant-State (in CRA-D-124-
DBA-2006) has made vehement submissions before this Court, that the
reasons assigned by the learned trial Judge concerned, for making an order
of acquittal, upon the accused concerned, are extremely frail, besides are not
based upon a sound appreciation of the evidence on record. Therefore, he
contends, that the impugned verdict of acquittal be quashed, and, set aside,
and, the accused-respondents be also convicted and sentenced for the
charged offences.
19. The learned State counsel rests the above argument, on the
ground that, when the theory of last seeing together of the deceased, and, the
accused, as credibly propagated by PW-19 and PW-20, has been cogently
established by the prosecution. Resultantly, when the potent incriminatory
link (supra) in the chain of circumstantial evidence, thus became completely,
and, unerringly established, as such, this Court is required to interfere with
the verdict of acquittal, as became pronounced by the learned trial Court
concerned.
Circumstantial evidence based case rested on the depositions of PW-19
and PW-20, who in their testification propagated a version qua his last
seen the accused and the deceased together.
20. PW-19 Constable Het Ram, in his examination in chief, has
made echoings, that on 18.10.2002, at about 8.30/9.00 P.M., he along with
MTO ASI Sube Singh, Constable Rajpal and EHC Jagdish had their dinner
together in M.T. Section. After dinner, EHC Jagdish went to the recreation
room in the Police Lines. At about 9.15 P.M., Constable Sukhvinder Singh
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came to M.T. Section. The witness further deposed that he knows accused
Sukhvinder Singh, as earlier he was posted in the M.T. Section, and, ASI
Sube Singh was posted as MTO at that time, and, he got transferred
Constable Sukhvinder Singh from the M.T.Section. He further deposed that
accused Gurveer Singh alias Goga was also with accused Sukhvinder Singh
when he came to M.T. Section. Accused Gurveer Singh alias Goga told ASI
Sube Singh that they had arranged a party to celebrate the birth of his newly
born son, and, requested him to attend the said party. The said witness
further testified that though ASI Sube Singh had initially shown his
unwillingness to attend the party, however, on the persuasions of both the
accused, ASI Sube Singh accompanied them and they went out of the mess,
through the back gate of the said mess. PW-19 further deposed that he and
Constable Rajpal also went with them through the same gate in order to take
milk. A red colour car was parked on the road, and at that time, accused
Rajdeep was sitting in the said car. Thereupon, ASI Sube Singh, accused
Constable Sukhvinder Singh, Gurveer Singh alias Goga and Rajdeep went in
the said car. However, the said witness failed to identify accused Rajdeep in
Court.
21. PW-19 has also identified accused Constable Sukhvinder Singh
and Gurveer Singh alias Goga in Court, and, the said identification then
made by the said witness of the accused in Court, rather remained unbelied.
As such therebys the factum of the accused being known to the witness
(supra) becomes cogently established, besides therebys, thus there was no
necessity qua prior thereto any valid test identification parade being
conducted, nor therebys the first time identification in Court of the supra
accused, thus by the witness (supra) suffers from any infirmity .
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22. Since neither any suggestions, became put to PW-19 during the
latter’s cross-examination, suggestive that his speakings (supra) in his
examination-in-chief qua his last seeing together the accused, and, the
deceased, rather at the apposite site, hence proximate to the crime site, thus
are uncreditworthy, nor when theretos any answers favourable to the
accused, thus emanated from PW-19. Thus, the effect of no suggestions
(supra) becoming meted to PW-19, during the latter’s cross-examination,
thus to bely the efficacy of the above candidly spoken facts, is that, it leads
to an inference that the defence concedes to PW-19 last seeing together the
deceased and the accused, thus in the vicinity of the crime site. The effect
thereof is but naturally, qua the apposite last seeing together theory, as
espoused by PW-19, thus acquiring the firmest evidentiary vigour.
23. The statement of the prosecution witness (supra) does acquire
the fullest corroboration from the testification made by PW-20 Constable
Rajpal, who alike PW-19 efficaciously propagated the theory of last seeing
together of the accused and the deceased. Fortifying vigour to the above, is
firmly secured, thus from both the witnesses (supra), during theirs
respectively becoming subjected to cross-examination, rather remaining
unscathed in the said ordeal.
Signatured disclosure statement of convict-appellant
Constable Sukhwinder Singh alias Sukha son of Jarnail Singh Ex. PJJ
24. During the course of investigations, being made into the appeal
FIR, convict-appellant Sukhwinder Singh alias Sukha, thus made his
signatured disclosure statement, to which Ex. PJJ becomes assigned. The
relevant portion of the signatured disclosure statement, as made by the
accused is ad verbatim extracted hereinafter.
"x x x x
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Sube Singh ASI-M.TO was nursing a grudge against me and he
also got me transferred from M.T.branch about one year ago and
since then I had determined to teach a lesson to Sube Singh. On
18-10-2002, I told this matter to my friends Rajdeep son of
Harbhagwan, caste Kamboj, resident of Begu Road, Sirsa and
Gurveer Singh alias Goga son of Kamaljeet Singh ASI, Jat Sikh,
resident of M.C.Colony, Sirsa on the same day at about 7.00/8.00
Ρ.Μ. We all three then by sharing a common intention got fetched
the licenced gun of his father Kamaljeet Singh through Goga
alias Gurbeer Singh and we all three made full preparation to
end the life of Sube Singh and at about 9.00 P.M. (night), we all
the three occupied Car No, DBD-6607 of red colour belonging to
my brother from my house and I was on the steering wheel of the
Car and parked the Car on HUDA road where a temporary gate
has been made through the wall behind the Mess of Police Lines,
Sirsa and after leaving Rajdeep near the Car, I and Goga alias
Gurbeer brought near the Car Sube Singh ASI/M.T.O. from
M.T.branch, Police Lines who was in asleep, after waking him
up, with the pretext of giving him a party because on the same
day, the child of Goga was taken to home from the hospital after
recovery. Sube Singh ASI was made to sit in Maruti Car
No.DBD-6607 and with the intention to commit his murder,
brought him to a place of unknown destination at a distance of
one kilometer from Bajekan road via Kanganpur, After stopping
the Car, I and Rajdeep took out Sube Singh from the Car by
dragging him and exhorted that he be taught a lesson for getting
me transferred from M. T. Staff and then Goga who was carrying
a 12 bore gun fired a shot directly at Sube Singh on my asking
which hit him on the right side of his chest. Sube Singh tried to
run away but he was caught by Rajdeep. I then took the gun from
Goga and gave a gun blow on the head of Sube Singh as a result
of which he fell on the ground. Rajdeep advised for not leaving
any evidence, and he demanded the gun. After taking gun from
me, Rajdeep gave a number of gun butt blows on the head of Sube
Singh and fractured the head and in that process, the gun was
broken and fallen down there. We all the three put the dead body
of Sube Singh in the car and having lifted the butt of the gun and
its barrel from the spot, we left for throwing the dead body in the
Canal. Rajdeep was on the steering of the car. We all three
alongwith the dead body of Sube Singh reached near the bridge
of Railway of Rajasthan Canal in the area of Talwara Jheel
(Raj.) where on both sides of the tow-path of the canal there were
pieces of metalled road. After crossing the Railway line through
the metalled road, the car was stopped and the dead body of Sube
Singh ASI was taken down and was placed on the road near the
tow-path and then Goga took out a Kappa from the car and gave
three blows from the sharp side on the neck of Sube Singh ASI
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and then all the wearing apparels of Sube Singh ASI were
removed from his body and I and Rajdeep set the same ablaze
and threw the ash in the canal water and then we all the three
held the dead body of Sube Singh and threw it in Rajasthan Canal
towards the flow of water from the bridge made on the Railway
line and then we all reversed the car and reached at my house at
Sirsa via Talwara Jheel, Ellenabad. I had kept concealed the
barrel and butt of the broken gun after wrapping the same in a
plastic bag in bad in my residential house about which no other
person has the knowledge except me. The iron body of the gun
after breaking had fallen down on the spot in the area of
Kanganpur and because of hurry and nervousness the same
remained there. Goga and Rajdeep went away in my Car No.
DBD-6607 alongwith the Kappa. I can get the butt and the barrel
of the gun after making identification (Nishandehi) and I can get
also make identification (Nishandehi) of the place of occurrence
situated in the area of Kanganpur and Rajasthan Canal where
the dead body of Sube Singh was thrown.”
25. Pursuant to the above made signatured disclosure statement, the
convict-appellant Sukhwinder Singh alias Sukha ensured the recovery of an
iron barrel of .12 bore gun having a band on which 1943-81 Pritam Singh
and sons became scribed, and, one butt of gun in whichi one iron nut was
fitted, and, on which 1943-81 became scribed, which were taken into police
possession through a recovery memo, to which Ex. PJJ/1 becomes assigned.
26. The disclosure statement (supra), carries thereons the signature,
of the convict-appellant. In his signatured disclosure statement (supra), the
convict, confessed his guilt in inflicting injuries on the person of the
deceased, hence with the recovered weapon. The further speaking therein is
qua his keeping, and, concealing the incriminatory weapon of offence.
Moreover, the said signatured disclosure statement, does also make
speakings about his alone being aware about the location of his hiding and
keeping the same, and, also revealed his willingness to cause the recovery of
the incriminatory weapon, to the investigating officer concerned, from the
place of his hiding, and, keeping the same.
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27. Significantly, since the appellant has not been able to either
ably deny his signatures as occurs on the exhibit (supra) nor when he has
been able to prove the apposite denial. Moreover, since they he has also not
been able to bring forth tangible evidence but suggestive that the
recovery(ies) is/are either contrived or invented. Therefore, the exhibit(supra)
is prima facie concluded to be holding the utmost evidentiary tenacity .
28. Moreover also since post the making of the said signatured
disclosure statement, thus by the convict to the investigating officer
concerned, he through the recovery memo (Ex. PJJ/1), thus caused the
recovery of the weapon of offence to the investigating officer concerned.
Consequently, when the said made recovery(ies) is/are also not suggested by
any cogent evidence to be planted recovery(ies). Resultantly, the effect
thereof, is that, valid recovery(ies) was/were made vis-a-vis the
incriminatory weapon of offence by the convict, to the investigating officer
concerned. In sequel, the making of the valid signatured disclosure
statement, by the convict besides the pursuant thereto effectuation of valid
recovery(ies) of the incriminatory weapon of offence, thus by the convict to
the investigating officer concerned, but naturally prima facie corroborates
and supports the case of the prosecution.
29. However, yet for assessing the vigor of the said made disclosure
statement and consequent thereto made recovery, it is apt to refer to the
principles governing the assigning of creditworthiness to the said made
disclosure statement and to the consequent thereto made recovery. The
principles governing the facet (supra), become embodied in paragraphs Nos.
23 to 27 of a judgment rendered by the Hon’ble Apex Court in Criminal
Appeal Nos.1030 of 2023, titled as “Manoj Kumar Soni V. State of
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Madhya Pradesh”, decided on 11.8.2023, relevant paragraphs whereof
become extracted hereinafter.
23. The law on the evidentiary value of disclosure statements under
Section 27, Evidence Act made by the accused himself seems to be
well established. The decision of the Privy Council in Pulukuri
Kotayya and others vs. King-Emperor holds the field even today
wherein it was held that the provided information must be directly
relevant to the discovered fact, including details about the physical
object, its place of origin, and the accused person’s awareness of
these aspects. The Privy Council observed:
The difficulty, however great, of proving that a fact
discovered on information supplied by the accused is a
relevant fact can afford no justification for reading into s. 27
something which is not there, and admitting in evidence a
confession barred by s. 26. Except in cases in which the
possession, or concealment, of an object constitutes the gist of
the offence charged, it can seldom happen that information
relating to the discovery of a fact forms the foundation of the
prosecution case. It is only one link in the chain of proof, and
the other links must be forged in manner allowed by law.
24. The law on the evidentiary value of disclosure statements of
co-accused too is settled; the courts have hesitated to place
reliance solely on disclosure statements of co-accused and used
them merely to support the conviction or, as Sir Lawrence
Jenkins observed in Emperor vs. Lalit Mohan Chuckerburty,
to “lend assurance to other evidence against a co-accused”. In
Haricharan Kurmi vs. State of Bihar, this Court, speaking
through the Constitution Bench, elaborated upon the approach
to be adopted by courts when dealing with disclosure
statements:
13. …In dealing with a criminal case where the prosecution
relies upon the confession of one accused person against
another accused person, the proper approach to adopt is to
consider the other evidence against such an accused person,
and if the said evidence appears to be satisfactory and the
court is inclined to hold that the said evidence may sustain
the charge framed against the said accused person, the court
turns to the confession with a view to assure itself that the
conclusion which it is inclined to draw from the other
evidence is right.
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25. In yet another case of discrediting a flawed conviction
under Section 411, IPC, this Court, in Shiv Kumar vs. State of
Madhya Pradesh overturned the conviction under Section 411,
declined to place undue reliance solely on the disclosure
statements of the co-accused, and held:
24. …, the disclosure statement of one accused cannot be
accepted as a proof of the appellant having knowledge of
utensils being stolen goods. The prosecution has also failed to
establish any basis for the appellant to believe that the
utensils seized from him were stolen articles. The factum of
selling utensils at a lower price cannot, by itself, lead to the
conclusion that the appellant was aware of the theft of those
articles. The essential ingredient of mens rea is clearly not
established for the charge under Section 411 IPC. The
prosecution’s evidence on this aspect, as they would speak of
the character Gratiano in Merchant of Venice, can be
appropriately described as, “you speak an infinite deal of
nothing.” [William Shakespeare, Merchant of Venice, Act 1
Scene 1.]
26. Coming to the case at hand, there is not a single iota of
evidence except the disclosure statements of Manoj and the co-
accused, which supposedly led the I.O. to the recovery of the
stolen articles from Manoj and Rs.3,000.00 from Kallu. At this
stage, we must hold that admissibility and credibility are two
distinct aspects and the latter is really a matter of evaluation of
other available evidence. The statements of police witnesses
would have been acceptable, had they supported the
prosecution case, and if any other credible evidence were
brought on record. While the recoveries made by the I.O. under
Section 27, Evidence Act upon the disclosure statements by
Manoj, Kallu and the other co-accused could be held to have
led to discovery of facts and may be admissible, the same
cannot be held to be credible in view of the other evidence
available on record.
27. While property seizure memos could have been a reliable
piece of evidence in support of Manoj’s conviction, what has
transpired is that the seizure witnesses turned hostile right from
the word ‘go’. The common version of all the seizure witnesses,
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i.e., PWs 5, 6, 11 and 16, was that they were made to sign the
seizure memos on the insistence of the ‘daroga’ and that too,
two of them had signed at the police station. There is, thus, no
scope to rely on a part of the depositions of the said PWs 5, 6,
11 and 16. Viewed thus, the seizure loses credibility.
30. Furthermore, in a judgment rendered by the Hon’ble Apex
Court in Criminal Appeal No.2438 of 2010, titled as “Bijender @ Mandar
V. State of Haryana”, decided on 08.11.2021, the relevant principles
governing the apposite assigning of creditworthiness become set forth in
paragraph 16 thereof, paragraph whereof becomes extracted hereinafter.
16. We have implored ourselves with abounding
pronouncements of this Court on this point. It may be true that
at times the Court can convict an accused exclusively on the
basis of his disclosure statement and the resultant recovery of
inculpatory material. However, in order to sustain the guilt of
such accused, the recovery should be unimpeachable and not
be shrouded with elements of doubt. We may hasten to add that
circumstances such as (i) the period of interval between the
malfeasance and the disclosure; (ii) commonality of the
recovered object and its availability in the market; (iii) nature
of the object and its relevance to the crime; (iv) ease of
transferability of the object; (v) the testimony and
trustworthiness of the attesting witness before the Court and/or
other like factors, are weighty consideraions that aid in
gauging the intrinsic evidentiary value and credibility of the
recovery. (See: Tulsiram Kanu vs. The State; Pancho vs. State
of Haryana; State of Rajasthan vs. Talevar & Anr and
Bharama Parasram Kudhachkar vs. State of Karnataka).
31. Furthermore, in another judgment rendered by the Hon’ble
Apex Court in Special Leave Petition (Criminal) No.863 of 2019, titled as
“Perumal Raja @ Perumal V. State, Rep. By Inspector of Police”, decided
on 03.01.2024, the relevant principles governing the assigning of
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creditworthiness become set forth in paragraphs 22 to 25 thereof, paragraphs
whereof become extracted hereinafter.
22. However, we must clarify that Section 27 of the Evidence
Act, as held in these judgments, does not lay down the principle
that discovery of a fact is to be equated to the object produced
or found. The discovery of the fact resulting in recovery of a
physical object exhibits knowledge or mental awareness of the
person accused of the offence as to the existence of the physical
object at the particular place. Accordingly, discovery of a fact
includes the object found, the place from which it was produced
and the knowledge of the accused as to its existence. To this
extent, therefore, factum of discovery combines both the
physical object as well as the mental consciousness of the
informant accused in relation thereto. In Mohmed Inayatullah
v. State of Maharashtra12, elucidating on Section 27 of the
Evidence Act, it has been held that the first condition imposed
and necessary for bringing the section into operation is the
discovery of a fact which should be a relevant fact in
consequence of information received from a person accused of
an offence. The second is that the discovery of such a fact must
be deposed to. A fact already known to the police will fall foul
and not meet this condition. The third is that at the time of
receipt of the information, the accused must be in police
custody. Lastly, it is only so much of information which relates
distinctly to the fact thereby discovered resulting in recovery of
a physical object which is admissible. Rest of the information is
to be excluded. The word ‘distinctly’ is used to limit and define
the scope of the information and means ‘directly’,
‘indubitably’, ‘strictly’ or ‘unmistakably’. Only that part of the
information which is clear, immediate and a proximate cause of
discovery is admissible.
23. The facts proved by the prosecution, particularly the
admissible portion of the statement of the accused, would give
rise to two alternative hypotheses, namely, (i) that the accused
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had himself deposited the physical items which were recovered;
or (ii) only the accused knew that the physical items were lying
at that place. The second hypothesis is wholly compatible with
the innocence of the accused, whereas the first would be a
factor to show involvement of the accused in the offence. The
court has to analyse which of the hypotheses should be
accepted in a particular case.
24. Section 27 of the Evidence Act is frequently used by the
police, and the courts must be vigilant about its application to
ensure credibility of evidence, as the provision is vulnerable to
abuse. However, this does not mean that in every case
invocation of Section 27 of the Evidence Act must be seen with
suspicion and is to be discarded as perfunctory and unworthy
of credence.
25. The pre-requisite of police custody, within the meaning of
Section 27 of the Evidence Act, ought to be read pragmatically
and not formalistically or euphemistically. In the present case,
the disclosure statement (Exhibit P-37) was made by the
appellant – Perumal Raja @ Perumal on 25.04.2008, when he
was detained in another case, namely, FIR No. 204/2008,
registered at PS Grand Bazar, Puducherry, relating to the
murder of Rajaram. He was subsequently arrested in this case,
that is FIR. No.80/2008, which was registered at PS
Odiansalai, Puducherry. The expression “custody” under
Section 27 of the Evidence Act does not mean formal custody. It
includes any kind of restriction, restraint or even surveillance
by the police. Even if the accused was not formally arrested at
the time of giving information, the accused ought to be deemed,
for all practical purposes, in the custody of the police.
32. Now the principles set forth thereins are that the defence, is
required to be proving;
i) That the disclosure statement and the consequent thereto
recovery being forged or fabricated through the defence proving
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that the discovery of fact, as made in pursuance to a signatured
disclosure statement made by the accused to the investigating
officer, during the term of his custodial interrogation, rather not
leading to the discovery of the incriminatory fact;
ii) That the fact discovered was planted;
iii) It was easily available in the market;
iv) It not being made from a secluded place thus exclusively
within the knowledge of the accused.
v) The recovery thereof made through the recovery memo in
pursuance to the making of a disclosure statement, rather not
being enclosed in a sealed cloth parcel nor the incriminatory
item enclosed therein becoming sent, if required, for analyses to
the FSL concerned, nor the same becoming shown to the doctor
concerned, who steps into the witness box for proving that with
the user of the relevant recovery, thus resulted in the causings of
the fatal ante mortem injuries or in the causing of the relevant
life endangering injuries, as the case may be, upon the
concerned.
vi) That the defence is also required to be impeaching the
credit of the marginal witnesses, both to the disclosure
statement and to the recovery memo by ensuring that the said
marginal witnesses, do make speakings, that the recoveries were
not made in their presence and by making further speakings that
they are compelled, tutored or coerced by the investigating
officer concerned, to sign the apposite memos. Conspicuously,
despite the fact that the said recovery memos were not made in
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pursuance to the accused leading the investigating officer to the
site of recovery. Contrarily the recovery memo(s) becoming
prepared in the police station concerned.
vii) The defence adducing evidence to the extent that with
there being an immense gap inter se the making of the
signatured disclosure statement and the consequent thereto
recovery being made, that therebys the recovered items or the
discovered fact, rather becoming planted onto the relevant site,
through a stratagem employed by the investigating officer.
33. Therefore, unless the said defence(s) are well raised and are
also ably proven, thereupon the making of a disclosure statement by the
accused and the consequent thereto recovery, but are to be assigned
credence. Conspicuously, when the said incriminatory link in the chain of
incriminatory evidence rather is also the pivotal corroborative link, thus even
in a case based upon eye witness account.
34. Be that as it may, if upon a prosecution case rested upon eye
witness account, the eye witness concerned, resiles therefrom his previously
made statement. Moreover, also upon his becoming cross-examined by the
learned Public Prosecutor concerned, thus the judicial conscience of the
Court become completely satisfied that the investigating officer concerned,
did record, thus a fabricated apposite previously made statement in writing,
therebys the Courts would be led to declare that the said made apposite
resilings are well made resilings by the eye witness concerned, thus from his
previously made statement in writing.
35. Moreover, in case the Court, in the above manner, becomes
satisfied about the well made resilings by the eye witness concerned, to the
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crime event, thereupon the Court may consequently draw a conclusion, that
the recoveries made in pursuance to the disclosure statement made by the
accused, even if they do become ably proven, yet therebys may be the said
disclosure statement, and, the consequent thereto made recoveries also
loosing their evidentiary tenacity. The said rule is not a straitjacket principle,
but it has to be carefully applied depending upon the facts, circumstances
and evidence in each case. Tritely put in the said event, upon comparative
weighings being made of the well made resilings, thus by the eye witness
concerned, from his previously made statement in writing, and, of the well
proven recoveries made in pursuance to the efficaciously proven disclosure
statement rendered by the accused, the Court is required to be drawing a
conclusion, as to whether evidentiary tenacity has to be yet assigned to the
disclosure statement and the pursuant thereto recovery memo, especially
when they become ably proven and also do not fall foul from the above
stated principles, and/or to the well made resiling by the eye witness
concerned, from his previously recorded statement in writing. Emphatically,
the said exercise requires an insightful apposite comparative analyses being
made.
36. To a limited extent also if there is clear cogent medical account,
which alike, a frailly rendered eye witness account to the extent (supra), vis-a-
vis the prosecution case based upon eye witness account rather unfolds qua the
ante mortem injuries or other injuries as became entailed on the apposite
regions of the body(ies) concerned, thus not being a sequel of users thereovers
of the recovered weapon of offence. Resultantly therebys too, the apposite
signatured disclosure statement and the consequent thereto recovery, when may
be is of corroborative evidentiary vigor, but when other adduced prosecution
evidence, but also likewise fails to connect the recoveries with the medical
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account. In sequel, thus therebys the said signatured disclosure statement and
the consequent thereto recovery, thus may also loose their evidentiary vigor.
Even the said rule has to be carefully applied depending upon the facts,
circumstances, and, the adduced evidence in every case.
37. However, in a case based upon circumstantial evidence when
the appositely made signatured disclosure statement by the accused and the
consequent thereto prepared recovery memos, do not fall foul, of the above
stated principles, therebys they acquire grave evidentiary vigor, especially
when in pursuance thereto able recoveries are made.
38. The makings of signatured disclosure statement and the
consequent thereto recoveries, upon able proof becoming rendered qua both,
thus form firm incriminatory links in a case rested upon circumstantial
evidence. In the above genre of cases, the prosecution apart from proving the
above genre of charges, thus also become encumbered with the duty to
discharge the apposite onus, through also cogently proving other
incriminatory links, if they are so adduced in evidence, rather for sustaining
the charge drawn against the accused.
39. Consequently, since the statutory provisions enclosed in Section
25 of the Indian Evidence Act, provisions whereof becomes extracted
hereinafter, do not assign statutory admissibility to a simpliciter/bald
confession made by an accused, thus before the police officer, rather during
the term of his suffering custodial interrogation, but when the exception
thereto, becomes engrafted in Section 27 of the Indian Evidence Act,
provisions whereof becomes extracted hereinafter. Therefore, therebys when
there is a statutory recognition of admissibility to a confession, as, made by
an accused before a police officer, but only when the confession, as made by
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the accused, before the police officer concerned, but becomes made during
the term of his spending police custody, whereafters the said incriminatory
confession, rather also evidently leads the accused, to lead the investigating
officer to the place of discovery, place whereof, is exclusively within the
domain of his exclusive knowledge.
“25. Confession to police-officer not to be proved.–No confession made
to a police-officer, shall be proved as against a person accused of any
offence.
x x x x x
27. How much of information received from accused may be proved.–
Provided that, when any fact is deposed to as discovered in consequence
of information received from a person accused of any offence, in the
custody of a police-officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to the fact thereby
discovered, may be proved.”
40. Significantly, it would not be insagacious to straightaway oust
the said made signatured disclosure statement or the consequent thereto
recovery, unless both fall foul of the above principles, besides unless the
said principles become proven by the defence. Contrarily, in case the
disclosure statement and the consequent thereto recovery enclosed in the
respective memos, do not fall foul of the above principles rather when they
become cogently established to link the accused with the relevant charge.
Resultantly, if the said comprises but a pivotal incriminatory link for proving
the charge drawn against the accused, therebys the snatching of the above
incriminatory link from the prosecution, through straightaway rejecting the
same, but would result in perpetration of injustice to the victim or to the
family members of the deceased, as the case may be.
41. Now coming to the facts at hand, since the disclosure statement
and the consequent thereto recovery do become efficaciously proven by the
prosecution. Moreover, when none of the marginal witnesses, to the said
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memos become adequately impeached rather for belying the validity of
drawings of the memos nor also when it has been proven that the said
memos are fabricated or engineered, besides when it is also not proven that
the disclosure (supra) did not lead to the discovery of the apposite fact from
the relevant place of hiding, thus only within the exclusive knowledge of the
accused.
42. Conspicuously also, when the said disclosure statement is but
not a bald or simpliciter disclosure statement, but evidently did lead to the
making of efficacious recovery(ies), at the instance of the accused, to the
police officer concerned.
43. Consequently, when therebys the above evident facts rather do
not fall foul of the above stated/underlined principles in the verdicts (supra).
Consequently, both the disclosure statement, and, the consequent thereto
recovery, when do become efficaciously proven, therebys theretos immense
evidentiary tenacity is to be assigned. Preeminently also when thus, they do
corroborate the rendition of a credible account vis-a-vis the theory of last
seeing together of the accused and the deceased, as becomes propagated
through the prosecution witnesses (supra). Moreover, when the memos
(supra) also lend corroboration to the medical account, besides when in
pursuance to his above made disclosure statement, the accused also led the
police party to the crime site in respect whereof memo Ex. PKK became
prepared. In addition, when the accused (supra) also led the police party to
the place where the dead body of ASI Sube Singh was thrown, whereupons
memo Ex. PLL became prepared, therebys through all the links (supra), the
charge drawn against the accused becomes proven to the hilt.
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Post-mortem report
44. The post-mortem report, to which Ex. PSS is assigned, became
proven by PW-23 Dr. Bharat Bhushan. PW-23 in his examination-in-chief,
has deposed that on an autopsy being conducted on the body of deceased
Sube Singh, thus his noticing thereons the hereinafter ante mortem injuries-
“1. A 3×2 cms. round bullet entry wound on the right shoulder
was present. The underlying right clavicle was fractured. The
exit point was in the right axilla just at the anterior axillary fold.
2. 1 recovered broken pieces of the skull bone namely pieces
of spinoid and temporal bone which showed infiltration of the
blood and their broken edges.
3. The 10 pieces of sticks recovered from the anus were
inserted deep inside to lacerate the internal organs namely small
and the large intestines, liver, diaphragm and right lung base. ”
45. Furthermore, PW-23 also made a speaking in his examination-
in-chief, that the cause of demise of the deceased was owing to the
occurrence of injury No. 2, hence on the head of the deceased.
46. The above made echoings by PW-23, in his examination-in-
chief, became never challenged through any efficacious cross-examination,
being made upon him, by the learned defence counsel. Therefore, the
opinion, as made by PW-23 qua the demise of the deceased, thus acquires
formidable force. Consequently, the above echoings, as made by PW-23, in
his examination-in-chief, do relate, the fatal ante-mortem injuries to the time
of the crime event hence taking place at the crime site.
47. At this stage, the learned senior counsel for the appellant has
argued, that the effectuation of recovery .12 bore gun, thus at the instance of
accused-appellant Sukhwinder Singh, rather is on a plain reading of the ante
mortem injury No. 1, as disclosed in post-mortem report (supra), but not
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related to the firings therefroms of 3×2 cms round bullet. He further
submits, that the said bullet as entered into the body of the deceased, thus
could have entered thereins, only it became fired from a firearm, whereins,
rather lead pellets could be loaded, and, could not be fired from a firearm, as
is the instant firearm, thus whereins evidently became enclosed cartridges,
wherebys there was but spreading of the incendiary granules inside the fired
cartridges, which however has not occurred in the instant case.
48. The above argument not only appears to ill-negate the
evidentiary worth of recovery of .12 bore firearm as became effected
through recovery memo Ex. PJJ/1, at the instance of convict-appellant
Sukhwinder Singh, but also appears to ill-negate the evidentiary worth of the
opinion of the ballistic expert (Ex PTT), whereto the supra firearm became
sent for examinations, whereins rather in the hereinafter extracted underlined
results, there are graphic echoings, that 12 bore cartridge cases marked C/1,
thus becoming fired from 12 bore broken SBBL gun W/1, and, not from any
other firearm, rather even of the same make. Therefore, the said opinion of
the ballistic expert when is the best forensic scientific opinion, therebys
unless its efficacy became eroded through adduction of cogent evidence,
which however, has not been done, but necessarily holds the firmest
inculpatory vigour, wherebys the supra argument looses its vigour.
49. Furthermore, the cause of demise of the deceased is spelt in the
post-mortem report (Ex. PSS), to arise from fatal ante mortem injury No. 2,
inasmuch as, broken pieces of skull bone, namely pieces of spinoid and
temporal bone, showed infiltration of blood and their broken edges.
Therefore, if in the post mortem report (Ex. PSS) the same is stated to be the
reason for the demise of the deceased, therebys the prosecution has been
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able to connect the user of the recovered butt of the gun, as made through
recovery memo Ex. PJJ/1, thus with the entailment of the said fatal injury.
Moreover, when the effectuation of recovery of the said butt, thus was made
through recovery memo Ex. PJJ/1, rather in pursuance to the makings of
confession, by convict-appellant Sukhwinder Singh, confession whereof
becomes enclosed in his signatured disclosure statement (Ex. PJJ).
Resultantly therebys the entailment of the said injury which led to demise of
the deceased, becomes obviously proven through the making of efficacious
recovery of the butt of the gun.
50. Resultantly therebys even if assumingly from the recovered
firearm lead pellets entered into the body of the deceased, whereas,
assuming they were not releaseable from the said recovered firearm.
However, the effect thereof becomes completely paled, through the
unrebutted cause of demise of the deceased rather becoming stated in the
post-mortem report (Ex. PSS), thus to arise from entailment of ante mortem
injury No. 2 on the person of the deceased, entailment whereof, is a sequel
of user of the butt of the gun, which became efficaciously recovered through
recovery memo Ex. PJJ/1, than the entry into body of the deceased of
pellets, as became fired from the recovered firearm.
Report of the FSL concerned, to which Ex. PTT becomes assigned
51. Through RC Nos. 425, 427 and 453 dated 27.10.2002,
30.10.2002 and 25.11.2002, 19 sealed and 2 unsealed parcels became sent,
through EHC Ram Murti 691-C, Dalbir Singh 534 and Mahesh Kumar 972
to the FSL concerned. The FSL concerned, thus upon making examinations
of all the incriminatory items, as became sent to it, in sealed cloth parcels,
hence made thereons an opinion, opinion whereof, becomes ad verbatim
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extracted hereinafter.
“x x x x
Description of parcel(s) and condition of seal(s)
The seal on the parcels were found intact and tallied with
the specimen seals as per forwarding authority.
Description of article (s) contained in parcel(s)
Parcel No. and seal Description of parcel(s)
No. impression
I. 2 seals of JB Stated to contain blood stained earth lifted from
the place of occurrence (Sent to Serology
Division).
II. 2 seals of JB Contained one wooden piece with a nut and bolt
stated to be piece of butt of gun.
III. 2 seals of JB Contained 12 bore fired cartridge case.
IV. 2 seals of JB Stated to contain blood stained wooden piece (Sent
to Serology Division)
V. Unsealed Contained metallic body of SBBL gun bearing Sr.
No. 1943-81. (Marked W/1 by me).
VI. 4 seals of SK Contained one bent barrel of 12 bore SBBL gun
bearing Sr. No. 1943-81 stated to have been
recovered from accused Sukhvinder Singh.
(Marked B/1 by me).
VII. 4 of SK Contained broken wooden butt stated to be stained
with blood. (Marked BT/1 by me) (First examined
in Ballistics Division then sent to Serology
Division).
VIII. 4 seals of SK Contained one fore-end of SBBL gun bearing Sr.
No. 1943-81 (Marked F/1 by me).
IX. 4 seals of SK Stated to contain blood stained earth, hair and
skin piece. (Sent to Biology Division).
X. 4 seals of SK Stated to contain mould of right foot (Sent to
General Section).
XI. 4 seals of SK Stated to contain mould of left foot (Sent to
General Section).
XII. 5 seals of SK Stated to contain blood stained Kappa recovered
from Gurbir Singh (Sent to Serology Division).
XIII. Unsealed One red coloured Maruti-800 Car bearing Reg.
No. DBD-6607 of accused Rajdeep. (Got
examined on 26.11.02 and returned on the same
day).
XIV. 4 seals of SK Stated to contain foot mould of right foot of
accused Rajdeep (Sent to General Section).
XV. 5 seals of SK Stated to contain foot mould of left foot of accused
Rajdeep (Sent to General Section).
XVI. 5 seals of SK Stated to contain shoe mould of right foot of
accused Gurbir (Sent to General Section).
XVII. 5 seals of SK Stated to contain shoe mould of left foot of accused
Gurbir (Sent to General Section).
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XVIII. 5 seals of SK Stated to contain partially burnt shirt of accused
Rajdeep (Sent to Serology Division).
XIX. 5 seals of SK Stated to contain two blood stained rubber mats
(Sent to Serology Division).
XX. 5 seals of KS Stated to contain blood stained clothes of accused
Gurbir Singh (Sent to Serology Division).
XXI. 5 seals of KS Stated to contain blood stained clothes of accused
Rajdeep. (Sent to Serology Division).
Laboratory Examination
Wooden piece with a nut and bolt contained in parcel no.
II, wooden piece contain in parcel No. IV, metallic body
bearing Sr.No.1943-81 contained in parcel No.V, bent barrel
bearing Sr. No. 1943-81 contained in parcel No. VI, broken
butt contained in parcel No. VII, fore-end bearing Sr. No.
1943-81 contained in parcel No. VIII were physically examined
and fitted in the laboratory.
Products of combustion of smokeless powder were
detected from the barrel of 12 bore SBBL gun marked B/1.
Test firings were done in the laboratory from the body and
barrel of 12 bore SBBL gun marked W/1 and B/1 respectively.
The class as well as individual characteristic marks
present on 12 bore fired cartridge case C/1 and those on test
cartridges fired from body and barrel of 12 bore DBBL gun
have been examined and compared under Stereo and
Comparison Microscope.
Based on the examination carried out in the laboratory,
the result of the analysis is as under:-
Result
1. The wooden piece contained parcel No. II, metallic body
contained in parcel No. V, bent barrel contained in parcel No. VI,
wooden butt contained in parcel No. VII and fore-end contained
in parcel No. VIII could form part of 12 bore SBBL gun W/1
bearing Sr No. 1943-81 of PRISONS Pritam Singh and Sons.
2. 12 bore fired cartridge case marked C/1 has been fired
from 12 bore broken SBBL gun W/1 with Sr. No. 1943-81 and not
from any other firearm even of the same make and bore because
every firearm has got its own individual characteristic marks.
3. Report in original from Serology, General, Biology
Divisions are enclosed herewith.”
52. A reading of the above underlined extracted portion of the
results of the FSL concerned, tellingly speaks qua therebys the prosecution
invincibly proving the user of the recovered barrel of gun, recovery whereof
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became effected through Ex. PJJ/1, and, wherefrom the cartridges became
fired at the body of the deceased. The supra opinion as made by the FSL
concerned, when remains uneroded through any cogent rebuttal evidence
becoming adduced, therebys it acquires the utmost pursuasive evidentiary
worth.
Report of the FSL Ex. PUU
53. The FSL concerned, thus upon making examinations of all the
incriminatory items, as became sent to it in six sealed cloth parcels and one
unsealed parcel, hence made thereons an opinion, opinion whereof, becomes
ad verbatim extracted hereinafter.
“x x x x
Description of parcel(s) and condition of seal(s)
Received six sealed parcel(s) through Ballistic Division
on 12.3.03 and one unsealed car on 26.11.02. The seals were
intact and tallied with the specimen seals as per forwarding
authority’s letter.
Description of article (s) contained in parcel(s)
Parcel No. and seal Description of parcel(s)
No. impression
VII. 3-DD/Balli It contained exhibit-7.
Exhibit-7. One Gun Butt (approx .32 cms) stained
with dark brown stains.
XII. 5-KS It contained exhibit-12.
Exhibit-12. One Drant Gun Butt (approx .44 cms)
having rusty metallic blade and wooden handle.
XIII Back seat grey brown in colour of red coloured
Maruti car bearing No. BDB-6607.
XVIII. 5-SK It contained exhibit-18.
Exhibit-18. Burnt clothes stained with dark brown
stains.
XIX. 4-SK It contained exhibit-19.
Exhibit-19. Two black rubber mats with dark
brown stains.
XX. 5-KS It contained exhibit-20.
Exhibit-20a. One red cotton T-Shirt.
Exhibit-20b. One brownish Knickers.
XXI. 5-KS It contained exhibit-21.
Exhibit-21a. One blue jeans pant.
Exhibit-21b. One checked shirt
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Laboratory Examination
Laboratory examinations were carried out to detect the
presence of blood on the exhibits. Blood thus detected was
subjected to serological tests to determine its species of origin.
Based upon these examinations the results obtained are given
below:-
1. Blood was detected on exhibit-7 (Gun butt) and on exhibit
13 (back seat of car).
2. Traces of blood too small for serological tests were
detected on exhibit-12 (Drant).
3. Exhibit-18 (Clothes) and exhibit-19 (Mat) were stained
with blood.
4. Blood could not be detected on exhibit-20a (T-shirt);
exhibit 20-b (Knickers); exhibit-21a (Pant) and exhibit-21b
(Shirt).”
Results of serological analysis of blood
Exbt. No. Name of Exhibit Origin
7. Gun butt Human
13. Back seat Material Disintegrated
18. Clothes Material Disintegrated
19. Mat Material Disintegrated
Report of the FSL Ex. PVV
54. The FSL concerned, thus upon making examinations of all the
incriminatory items, as became sent to it in three sealed cloth parcels, hence
made thereons an opinion, opinion whereof, becomes ad verbatim extracted
hereinafter.
“x x x x
Description of article (s) contained in parcel(s)
Parcel No. and seal Description of parcel(s)
No. impression
I. 2-JB Sealed cloth parcel containing exhibit-1.
Exhibit-1. Small lumps of earth and loose earth
(approx. 20 gms) described as Blood stained
Earth.
IV. 2-JB Sealed cloth parcel containing exhibit-4.
Exhibit-4. One broken piece of wooden stick
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(approx. 16 cms). A few grey and dark brown hair
were found adhering to the exhibit.
IX. 4-SK Sealed cloth parcel containing exhibit-1.
Exhibit-1. Small lumps of earth and loose earth
(approx. 20 gms) described as Blood stained
Earth.
Laboratory Examination
Laboratory examinations were carried out to detect the
presence of blood on the exhibits. Blood thus detected was
subjected to serological tests to determine its species of origin.
Hair recovered from exhibit-4 (Wooden stick) and exhibit-9
(Blood stained earth) were exained morphologically and
microscopically. Based upon these examinations the results
obtained are given below:-
1. Blood was detected in exhibit-1 (Blood Stained
Earth); exhibit-4 (Wooden Stick) and exhibit-9 (Blood
Stained Earth).
2. Hair recovered from exhibit-4 (Wooden stick) and
exhibit-9 (Blood stained earth) were identified to be
human in origin. No opinion regarding matching of hair
could be given as material for comparison was
insufficient in exhibit-9 (Blood Stained Earth).
Results of serological analysis of blood
Exbt. No. Name of Exhibit Origin
1. Blood stained earth Human
4. Wooden stick Human
9. Blood stained earth Material Disintegrated
55. Though, a reading of the opinions, as made on the examined
items reveals, that no conclusive opinions were made by the Serologist
concerned, to the effect, that blood stains occurring on the incriminatory
items being compatible with the blood stains of the deceased. However, the
said inconclusivity is also of no worth, nor therebys the prime unblemished
ocular account rendered vis-a-vis the crime event by prosecution witnesses
(supra), rather looses its evidentiary vigour.
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56. The reason for so stating arises from the factum, that unless the
blood group of the deceased, as detailed in the FTM card, appertaining to the
deceased, thus became supplied by the family members of the deceased to
the investigating officer concerned, whereafters upon the latter sending the
said supplied FTM card to the Serologist concerned, thus resulted in
therebys the Serologist concerned, becoming facilitated to make able inter se
matchings.
57. Therefore, in the above event, if there was but a facilitation to
the Serologist concerned, to either (a) declare that there were wants of
apposite compatible matchings or (b) he may have been led to declare that
there were apposite compatible matchings.
58. However, in the wake of the Serologist concerned, rather not
being purveyed the supra FTM card, thus he became precluded to make any
effective apposite compatibilities, whereupons the apposite inconclusivity of
opinion, rather cannot be construed to be a conclusive exculpatory opinion.
On the contrary, if the supra facilitations became purveyed to the Serologist
concerned, whereupon his becoming led to make a worthy exculpatory
opinion, thereupon only the effects of supra adduced credible account, rather
may become construed to be unworthwhile.
59. Reiteratedly since there is no evidence on record, thus detailing
that the family members of the deceased, supplied to the investigating
officer concerned, the FTM card of the deceased, for therebys the Serologist
concerned, becoming well facilitated to make the apposite matchings.
Resultantly, the effect thereof, is none other than, that there was lack of
complete matchable material available with the Serologist concerned.
Moreover, reiteratedly the further effect thereof, is that, the lack of
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conclusivity of opinion by the Serologist concerned, about the blood stains
occurring on the incriminatory items either belonging or not belonging to the
deceased, but is of no firm exculpatory significance, nor therebys the
rendition of an unblemished credible account vis-a-vis the crime event by
PWs (supra) rather looses its evidentiary tenacity.
Collection of shoe moulds and report of the FSL concerned, to which
Ex. PXX becomes assigned
60. During the course of investigations being made into the appeal
FIR, the investigating officer concerned, through memo Ex. PR/1, hence
collected the foot track moulds of the right and left foot shoe, thus from the
crime site. The investigating officer also respectively through Ex. PC, Ex.
PD and Ex. PE, thus collected the respective foot track moulds, rather
respectively of accused Sukhvinder Singh, Gurvir Singh and Rajdeep Singh.
61. Through R.C. No. 426 of 27.10.02 eight sealed cloth parcels,
became sent, through EHC Ram Murti 691 to the FSL concerned. The FSL
concerned, thus upon making examinations of all the incriminatory items, as
became sent to it in sealed cloth parcels, hence made thereons an opinion,
opinion whereof, becomes ad verbatim extracted hereinafter.
“Description of parcel(s)
Parcel No. & Seal Description of parcel(s)
No. impression
Crime Exhibits (received in FSL on 28.10.02)
1. 5-JB One plaster cast of right foot wear
impression. It was marked here as C/1 R.
2. 5-JB One plaster cast of left foot wear impression.
It was marked here as C/2 L.
Specimen Exhibits (Exbt. 10 & 11 were received
in FSL on 31.10.02 and Exbt. 14 t0 17 on 25.11.02)
10. 4-SK One plaster cast of right foot wear
impression of Sukhvinder. It was marked
here as S/10 R.
11. 4-SK One plaster cast of left foot wear impression
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CRA-D-318-DB-2005 (O&M)of Sukhvinder. It was marked here as S/11 L.
14. 5-SK One plaster cast of right foot wear
impression of Rajdeep. It was marked here
as S/14 R. The exhibit was broken into
pieces.
15. 5-SK One plaster cast of left foot wear impression
of Rajdeep. It was marked here as S/15 L.
The exhibit was broken into pieces.
16. 5-SK One plaster cast of right foot wear
impression of Gurvir. It was marked here as
S/16 R.
17. 5-SK One plaster cast of left foot wear impression
of Gurvir. It was marked here as S/17 L.Laboratory Examination
The crime impressions were compared with the specimen
impression in respect of shape, contour, design/pattern physical
of tread and wear and tear characteristics. The observations are
as under:-
Observations:-
The crime impression C/1R was in agreement with
specimen impression S/10 R in respect of shape, size, contour and
design/pattern of tread surface.
The shape, size, contour and design/pattern of tread
surface of crime impression C/2 L were not clear and
comparable.
Conclusion:-
(1) The crime impression C/1 R and specimen impression S/10
R could have been caused by the same footwear.
(2) No opinion could be given about crime impression C/2 L
due to lack of compared characteristics.”
62. The results of the examinations, as made over the footprints
existing at the crime site with the footwears of the accused, discloses that
there is apposite inter se compatibility but only qua co-convict Sukhwinder
Singh. The convict (supra) could yet make an attempt to repel the effect of
the said evidence but only when he was able to make such suggestions to the
prosecution witness concerned, thus suggestive that the footprints left over
at the crime site were a sequel of some person other than the accused
trudging over the crime site. However, the said evidence became
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unadduced. Moreover, when the crime site is a desolate place, therebys
when no person other than the accused could have trudged over the crime
site, therebys the convict becomes proven to be the only person who trudged
over the crime site. Even otherwise no evidence becomes adduced by the
defence that the footprints existing over the crime site were the result(s) of
manipulations and deployments of stratagems by the investigating officer
concerned. Consequently, therebys the supra inculpatory opinion made vis-
a-vis accused-appellant Sukhwinder Singh rather acquires immense
evidentiary worth. Resulantly since the said opinion of the FSL concerned,
is also a potent incriminatory link in the chain of incriminatory
circumstances, therebys also the charge drawn against accused-appellant
Sukhwinder Singh, thus becomes proven to the hilt.
63. The learned senior counsel for the appellant has argued, that the
charge drawn against the accused-appellant is required to be faulted, on the
ground, that since the service records of the deceased, as became tendered
by DW-1, thus revealed qua his height being 5-7″, whereas, in the inquest
report, the height of the deceased was shown to be 5′-¼ “, therebys the
prosecution has been unable to prove that the accused had murdered the
deceased, namely ASI Sube Singh.
64. The said argument is also unworthy of acceptance, as in the
inquest report there is merely a perfunctory finding that the height of the
deceased was 5-¼ “. Contrarily, when the doctor, who conducted post-
mortem examination on the body of the deceased, has made the hereinafter
extracted unrebutted echoings in his examination-in-chief, wherefrom thus
an inevitable inference becomes marshalled, that there is but an inter se
compatibility inter se the height of the deceased, which is reflected in his
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service record, thus with the one, as became measured by the doctor who
conducted an autopsy on the body of the deceased. Therefore, therebys the
argument (supra) addressed before this Court, is unmeritworthy, and, is
rejected.
“x x x x
I measured the length of the body from shoulder to heel as
available body parts and calculated the total length of the body to
be approximately 170 cms.
x x x x”
65. Even otherwise, the said argument is required to be rejected on
the ground, that unless it is so rejected, it would bring the ill-consequences
of this Court negating the inculpatory effect of recovery memo Ex. PJJ/1,
wherethrough weapon of offence became recovered, besides also would ill-
negate the inculaptory results (supra) as made by the ballistic expert
concerned. Therefore, to ensure that the above ill-consequences rather do not
arise, therebys this Court accepts that the above extracted portion of the
examination-in-chief, thus making clear expressions that the body of the
deceased namely ASI Sube Singh, did become put to autopsy, wherebys the
charges against the accused concerned, are to be declared to become proven.
Resultantly, the appeal filed by the convict-appellant Sukhwinder Singh
bearing number CRA-D-318-DB-2005 is dismissed.
Reasons for upholding the verdict of acquittal and dismissing the
appeal filed by the State
66. Though the prosecution witnesses concerned, have stated, that
they have last seen together the accused and the deceased, inclusive of the
acquitted accused namely Rajdeep and Sukhwinder Singh alias Sukha son of
Jagdev Singh. However, the prosecution witnesses concerned, irrefutably
identified in Court only accused-convicts Constable Sukhwinder Singh and
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Gurveer alias Goga. However, they did not irrefutably identify accused
Rajdeep and Sukhwinder Singh son of Jagdev Singh. Moreover also when
PW-20 had mis-identified accused Sukhwinder Singh son of Jagdev Singh
as accused Rajdeep. The effect of the failure of the prosecution witnesses
(supra) to unerringly identify in Court, accused Rajdeep and accused
Sukhwinder Singh son of Jagdev Singh, is that, the said witnesses were
unfamiliar qua the identity of the accused (supra), wherebys a necessity
became cast upon the said witnesses to, in their previously recorded
statement in writing, thus detail the key characteristic features of the accused
(supra), so that, during the course of investigations, a test identification
parade becomes conducted, whereins, the prosecution witnesses could
identify both the accused (supra). Consequently therebys the identification
made in Court, of the accused (supra) thus by the PWs concerned, rather
would hold some evidentiary value. However, when the omission (supra)
did occur, and, moreover when the witnesses (supra) failed to unerringly
identify the accused (supra) in Court, therebys the previously made
statements by the prosecution witnesses (supra), whereins, they stated that
they had last seen together accused Rajdeep with the deceased, rather is not
to be assigned any credence. As such, the incriminatory role assigned to
accused Rajdeep becomes weakened.
67. In addition, when none of the prosecution witnesses identified
co-accused Sukhwinder Singh son of Jagdev Singh in Court, therebys the
incriminatory role assigned by the prosecution witnesses (supra) to the supra
accused, thus banked upon theirs recording in their previously made
statements in writing to the police, that he was last seen together with the
deceased, but naturally falters.
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68. Moreover what further prompts this Court to affirm the finding
of acquittal recorded vis-a-vis accused Rajdeep and Sukhwinder Singh son
of Jagdev Singh, becomes borrowed from the factum, that the recovery of
the clothes, as became effected at the instance of accused Rajdeep, through
recovery memo Ex. PEE/1, rather became effected from an open place.
Moreover when no recovery became effected from accused Sukhwinder
Singh son of Jagdev Singh, besides also when the footwear moulds of both
the accused (supra) become declared by the FSL concerned, to be not
matching with the foot moulds, which were collected from the crime site.
Resultantly the effect thereof, is that, therebys too, the criminal appeal filed
by the State bearing number CRA-D-124-DBA-2006, is required to be
dismissed.
Final Order
69. The result of the above discussion, is that, this Court does not
find any merit in the both the appeals, and, is constrained to dismiss them.
Consequently, both the appeals are dismissed. The impugned verdict of
conviction, as becomes recorded upon the convict-appellant Sukhwinder
Singh, by the learned convicting Court, is maintained, and, affirmed.
Moreover, the consequent thereto order of sentence is also affirmed. If the
convict is on bail, thereupon, the sentence as imposed upon him, be ensured
to be forthwith executed by the learned trial Judge concerned, through his
forthwith drawing committal warrants.
70. The impugned verdict of acquittal, as made by the learned trial
Court, upon accused Rajdeep and Sukhwinder Singh son of Jagdeep Singh,
is also maintained, and, affirmed.
71. The case property be dealt with, in accordance with law, but
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after the expiry of the period of limitation for the filing of an appeal.
72. Records be sent down forthwith.
73. The miscellaneous application(s), if any, is/are also disposed of.
(SURESHWAR THAKUR)
JUDGE
(SUDEEPTI SHARMA)
JUDGE
January 07, 2025
Gurpreet
Whether speaking/reasoned : Yes/No
Whether reportable : Yes/No
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