Sardar Singh And Anr. vs State
1989 Latest Caselaw 179 Del

JUDGMENT

Malik Sharief-ud-din, J.

(1) The learned Additional Sessions Judge by his order dated 29th of November 1985 convicted the appellants under section 302/201/34 Indian Penal Code . and by his subsequent order dated 3rd of December 1985 each one of the appellants was sentenced to undergo imprisonment for life under sections 302/34 IPC. The appellants were also sentenced to undergo rigorous imprisonment for 5 years under section 201/34 Indian Penal Code .It is these orders which arc being impugned by the appellants in this appeal.

(2) To begin with, it is necessary to notice the facts. Briefly staling one Tara Chand and appellant Sardar Singh are real brothers. Both of them reside in village Jhatikara. The deceased Charanjit had developed illicit relations with one Savitri wife of Tara Chand and also with appellant No. 2 Smt. Saraswati, wife of appellant Sardar Singh. Smt. Savitri wife of Tara Chand who had also been charged for the aforesaid offences has since been acquitted and we are not conceived with her. Tara Chand and appellant Sardar Singh used to live in a common premises, in the sense that their houses were separate though adjoining to each other and their courtyards were demarcated by 3 feet high partition wall. The house of she deceased Charanjit is adjacent to their houses. The deceased Charanjit's wife had died about 10 years ago and he was residing all alone in this house. His two brothers Lakhmi Chand and Bhuri Singh were residing in their houses situated at a distance of 200 yards.

(3) The prosecution case is that the deceased Charanjit was carrying on with both Smt. Saraswati appellant and Savitri wife of Tara Chand and used to visit them during night for the last so many years. According to the prosecution on 31st March 1983 the deceased had gone to sleep in his house in the evening but he disappeared on the same night. The dead body of the deceased Charanjit was subsequently recovered from the house of appellants. On the morning of 1st of April 1983 when the deceased was not seen in the village his two brothers did not care much thinking he might have gone somewhere, hut on 2nd of April 198.1 the brothers of the deceased became anxious and they started making enquiries. On 3rd of April 1983 Lakhmi Chand, brother of the deceased, lodged a report marked Ex. Public Witness 3/A regarding the fact that Charanjit deceased was missing. On 4th of April 1983 in the morning hours Lakbrni Chand again lodged another report Ex. Public Witness IO/A expressing suspicion against the appellants on the basis of which an F.I.R. under section 365 Indian Penal Code was registered. Tara Chand brother of appellant Sardar Singli as also his wife Savitri were also shown to be the suspects.

(4) Pursuant to the report dated 4th of April 1983 the police came to the village and interrogated Sardar Singh appellant. Sardar Singh appellant is alleged to have made a disclosure statement marked Ex. Public Witness 5/A and consequent to this disclosure statement appellant Sardar Singh led the police party to his sitting room where he pointed out a spot covered by a cot. Sardar Singh appellant thereafter dug out the floor and the dead body of the deceased was recovered from a 5 feet deep grave. Thereafter, the police at the pointing out of the appellant Sardar Singh also seized a dao and knife contained in a canvas bag hanging in the adj 9 cent room. The dead body was found wearing only one underwear, it was wrapped in three gunny bags and tied with a rope. The dead body was also found tied with a rope.

(5) We may at the very outset state that the entire case of the prosecution hinges on circumstantial evidence. The recovered knife had no blood stains while the doe seized at the instance of appellant Sardar Singh was found stained with blood. On an examination by the Serologist the doe Ex. P-l was found to contain blood stains of human origin of '0' group, the same as that of the deceased.

(6) There is hardly any need for us to make any reference to the evidence of the autopsy surgeon Dr. Bharat Singh (P.W.I). This is because neither the injuries nor the cause of death is in dispute. The post-mortem itself was conducted on 5th of April 1983. According to the autopsy surgeon, death was due to haemorrhage and shock resulting from injuries and time since death was about 5 days. The autopsy surgeon also opined that the injuries were possible with the dao Ex. P-l and knife Ex. P-2, which had been shown to him by the investigating officer.

(7) The circumstantial evidence on which the prosecution is relying are as follows:

(I)That the deceased had illicit relations with appellant Saraswati and with Smt. Savitri wife of Tara Chand, brother of the first appellant Sardar Singh;

(II)That the deceased was last seen on the night ef 31st March 1983 when he went to sleep in his house and thereafter his dead boy was found buried in the appellants' house.

(III)That on a suspicion being expressed by Lakhmi Chand, brother of the deceased, Sardar Singh appellant was interrogated and he made a disclosure statement Ex. Public Witness 5/A leading to the recovery of the dead body from a 5 feet deep grave like pit from the sitting room of the appellants,

(IV)Recovery of doe Ex. P-l from the possession of the appellant which was found to bear the same human blood group as that of the deceased.

(8) The first in the series of the circumstances is the motive for the commission of the crime. The court is told by the prosecution that the deceased whose wile had died about 10 years back had illicit relations with the appellant Saraswati and Smt. Savitri, acquitted accused. The only witness who has deposed about this fact is Lakhmi Chand (P.W. 10), brother of the deceased. Public Witness . Ii Bhuri Singh another brother of the deceased has deposed that the deceased was on visiting terms with Sardar Siagh and had some money dealings also with the appellant Sardar Singh. No other wit- ness has directly spoken about this illicit relationship. We may notice that though the evidence on this point is scant, it seems to be true and credit worthy. It is actually the awareness of Public Witness . 10 Lakhmi Chand about this fact which led him to suspect the appellants The murders, in our view, are not committed for the fun of it. There is always some background to the commission of crime of such a heinous nature. We would, however, leave it there as no culprit can be punished simply for the presence of motive nor can a criminal go free for want of motive if there otherwise is credible and satisfactory evidence pointing out towards his involvement in the commission of a crime. The presence of evidence regarding motive can only additionally strengthen the belief of the court about the criminality of an offender.

(9) Next circumstance is that the deceased was last seen by his brother P.W. 10 Lakhmi Chand and Public Witness . Ii Bhuri Singh on 31st of March 1983 and his dead body was thereafter recovered at the instance of Sardar Singh appellant from his house after he dug out a pit in which the dead body had been lodged. Both these Public Witness s have testified that on 31st March 1983 the deceased was with them and in the evening the deceased went to .sleep in bids house. But they did not find the deceased on 1st of April 1983. According to them, they took it easy as they felt that he might have gone somewhere but having failed to see him again on 2.4.1983 both these brothers became apprehensive. On 3rd of April 1983 in the morning Public Witness . 10 Lakhmi Chand made a missing report to the police. Thereafter, both the brothers went in search of the deceased. Public Witness . 10 Lakhmi Chand even went to the house of one Balbir Singh (P.W. 5) at Wazirabad as he was on friendly terms with them. The efforts of Public Witness . 10 and 11 to trace the deceased did not bear any fruit. When Public Witness . 10 Lakhmi Chand had visited Balbir Singh he could not meet him and Balbir Singh (P.W. 5) on bearing the same came to the village of Lakhmi Chand (P.W. 10) to find out what the matter was. It was on 4th of April 1983 that Lakhmi Chand expressed his fear that the deceased might have been killed by the appellants as he was having illicit relations with appellant No. 2 and Smt. Savitri wife of Tara Chand. We find no scope for disbelieving the testimony of Public Witness s 10 and Ii in respect of the circumstances that the deceased was with them till the evening of 31st March 1983 and was not seen thereafter and that on 4th April 1983 the dead body of the deceased was finally recovered at the instance of Sardar Singh appellant from his house.

(10) Now this raises a question as to what happened to the deceased after he was seen going to sleep on the night of 31st March 1983. The answer to this question is provided by the events that surfaced after the second report on the morning of 4th April 1983 was lodged by Public Witness . 10 LakhmiChand, brother of the deceased. Having directly expressed' a suspicion against the appellants, the investigating officer for the first time was possessed of a clue. It was thus natural for him to act upon it. It was this report on the basis of which Public Witness . 15 A.S.I, ShivCharan who was handed over the case for investigation came to the village and interrogated Sardar Singh appellant. After sometime Sardar Singh appellant is stated to have made a disclosure statement Ex. Public Witness 5/A in the presence of Public Witness . 10 Lakhmi Chand, Public Witness . Ii Bhuri Singh, Public Witness . 5 Balbir Singh and Public Witness . 6 Daya Nand which was to the effect that he (Sardar Singh appellant) had hidden the dead body of the deceased in the sitting room of his house in grave. After recording the disclosure statement he led the police and the witnesses to his house and dug out the dead body of the deceased from a 5 feet deep grave. There is no need for us to refer to the condition of the dead body at the time of the recovery as that is not in dispute. The fact of the matter is that on the disclosure and recovery aspect of the dead body there is no discrepancy between the testimony of Public Witness s. 10, Ii, 5, 6 and 15. Public Witness . 14 Shri R.S. Malik, S.H.O. who was also called to the scene before Saidar Singh appellant dug out the dead body has also corroborated this fact. In our view, therefore there is ample and trustworthy evidence to the effect that the .dead body of the deceased was recovered from the house of the appellant Sardar Singh pursuant to the disclosure statement made by him which is marked Ex. Pjw 5/A. How and under what circumstances the dead body of the deceased came to be buried in the house of appellant Sardar Singh is a fact within the exclusive knowledge of the appellants. The court in the absence of any explanation by the appellants is left guessing, though it is permissible to the court to draw just and reasonable inferences from this circumstance.

(11) Now apart from this it is established by the same set of witnesses that a dao and a knife Ex, P-l and Ex. P-2 respectively were recovered from an adjacent room of the same house at the instance of the appellant Sardar Singh. The doe Ex. P-l was found to be blood stained. There is clear evidence that after these were seized the investigating officer secured and sealed them in the presence of same set of witnesses. All these witnesses have identified these weapons. The only exception being Public Witness . 6 Daya Nand who has refused to identify the doe Ex. P-l while making a statement in the court. Even he has admitted that the sketch of the doe Ex. PW5/D pre- pared at the time of the recovery is the same.

(12) The fact of the recovery of these weapons by itself is of little significance unless these are connected with the commission of this crime. To fill in this gap the prosecution had sent these weapons to the autopsy surgeon who has opined that the injuries found on the person of the deceased could be inflicted with these weapons. That apart, the Serologist has reported that the doe Ex. P-l was found stained with human blood of '0' group. It is the same group which is that of the deceased, according to the report of the Serologist. This piece of evidence clearly goes to show that the weapon of offence was also recovered at the instance of appellant Sardar Singh. In the circumstances of this case, therefore, the defense of appellant Sardar Singh that he had no knowledge and is innocent does not improve the case against him. The testimony of the only defense witness Khazan Singh is neither here nor there. Even he has admitted that the deceased was a man of bad character.

(13) The aforesaid circumstances which have been satisfactorily and conclusively proved by a set of trustworthy witnesses, in our view, should leave no one in any manner of doubt as to how the deceased came to be murdered and by whom this crime was perpetrated. After the commission of crime the inmates of the house, that is the appellants, have also tried to cause disappearance of evidence regarding the murder of deceased Charanjit. The aforesaid circumstances, in our view, do form a chain so complete by itself as to leave us in no manner of doubt that the appellants alone are connected with the commission of this crime. That is an inevitable conclusion. Darlings as the criminals are of our criminal jurisprudence, they are privileged to remain tight lipped even on matters within their exclusive knowledge. The court under these circumstances can only draw just and reasonable inferences from such proved circumstances and, in our view, the circumstances proved in this case inevitably lead to the only conclusion that the appellants alone are involved in the commission of this crime.

(14) Now before parting with this case we must in all fairness take notice of the contentions of Mr. Bawa Gurcharan Singh, learned counsel for the appellants. Mr. Bawa has invited our attention to some of the observations of the autopsy surgeon Dr. Bharat Singh, Public Witness . 1. According to Dr. Bharat Singh he noticed the following at the time of the examination of the dead body: (1)Decomposed fluid on the clothes; (2) Peeling of cuticles all over the body; (3) Skull hair falling; (4) Soft tissues of lips decomposed; (5) Tongue protruding out; (6) Nails loose from roots; (7) Skin of hands and feet falling like gloves; (8) Scrotum and penis swollen; (9) Ractum protruding; (10) Eye balls softened.

(15) Based on these observations of the autopsy surgeon Mr. Bawa urged that the death of the deceased has taken place more than 10 days ago. He has invited our attention to the opinion of Modi in Modi's Medical Jurisprudence and Toxicology (21st Edn.) at pages 176, 179 and 181. Modi is of the view that in the presence of such symptoms the death must be deemed to have occurred more than 10 days ago. We are not in agreement with Mr. Bawa Gurcharan Singh for the simple reason that death in the present case has undeniably occurred. When exactly it occurred is not material, but who committed the crime is the question under consideration. Moreover, Modi in his book has only expressed an opinion. This opinion has not been put to Public Witness . I Dr. Bharat Singh so as to allow him an opportunity to explain how he has determined the duration of death. In our view. ' that alone would have enabled court to examine the respective merits of the two opinions. Assuming, though not granting, that the contention of Mr. Bawa Gurcharan Singh was to prevail that would not, on the facts and circumstances of this case, desist us from concluding that the appellants alone are involved in the commission of this crime.

(16) Mr. Bawa Gurcharan Singh has further invited our attention to Eradu and others v. State of Hyderabad, and Bakshish Singh v. The State of Punjab, , to press his point that on the facts and circumstances of this case it cannot be concluded that the appellants are guilty of the commission or murder. In our view, the reliance on the cases (supra) is misplaced. In none of the aforesaid cases the dead body of the deceased was recovered from the house in the exclusive occupation of the accused. These cases, in our view, are distinguishable. In fact. to our mind, in a criminal case there can be no precedent on facts and each " * one of the criminal cases are to be decided on their own individual merits.

(17) Before we part with this order, there is one more fact which needs our consideration. In this case, the disclosure that led to the recovery of the dead body has been made by Sardar Singh appellant. There is no evidence direct or indirect to connect the appellant Saraswati with the commission of murder, though it can safely be said that she being the inmate of the house was in know of the fact that the dead body was buried in the house with a view to cause the disappearance of evidence. In our view, the process of digging a grave of 5 feet deep and of the size of the deceased in length, the filling of the grave and then erasing the traces of the same is a long process and she must have been necessarily involved in the same. Since, in our view, there is no evidence to connect her with the commission of murder we acquit the appellant Saraswati of the charge under section 302/34 Ipc but maintain her conviction and sentence under section 201/34 IPC. We confirm the order under appeal passed against Sardar Singh appellant and his sentence on both the charges is maintained. The appeal for the aforesaid reasons is dismissed. Appellant Saraswati who is on bail shall surrender to the Superintendent Jail.