IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT

CHANDIGARH.

Criminal Appeal No……………………. -DB of 2016

Kuldeep Singh

(Presently Confined in Central Jail, Faridkot)

…..Appellant

Versus
State of Punjab.
…Respondent
Sr. Particular(s) Dated Page(s) Court fee
No.
1. Application under Section 482 of 01.09.2014 01 – 02 Nil
the Code or Criminal Procedure,
for staying the recovery of Fine
2. Grounds of Appeal. 01.09.2014 03 - 10 Nil
3. Memo of Parties 01.09.2014 11 Nil
4. Copy of Judgment passed by 21.07.2014 12 - 25 Nil
Sessions, Court Gurdaspur.
5 Power of Attorney. 01.09.2014 26 Nil
INDEX

CHANDIGARH: (ANKUR MITTAL) & (BHASKAR SHARMA)

DATED: 01.09.2014 ADVOCATES
COUNSEL FOR THE APPELLANT
Enrollment Nos. P/1296/01 & P/787/11
 IN THE HON’BLE HIGH COURT FOR THE STATES OF PUNJAB AND

HARYANA AT CHANDIGARH

Criminal Misc. No. ……………..of 2014

Criminal Appeal No……………………. –DB of 2014

Gurcharan Singh.

(Presently Confined in Central Jail, Gurdaspur)

…..Appellant

Versus
State of Haryana.
…Respondent

Application under Section 482 of the Code or Criminal Procedure, for

staying the recovery of fine during the pendency of the appeal, in the

interest of justice.

RESPECTFULLY SHOWETH:-

1. That the appellant has filed the above mentioned appeal against the

impugned order and judgment of conviction passed by the Ld. Sessions

Judge, Gurdaspur and the ground taken therein may kindly be read as

part and parcel of the instant application as the appellant is sanguine

about its acceptance by this Hon’ble Court.

2. That the appellant is sentenced to undergo imprisonment for life and to

pay a fine of Rs. 10,000/- and in default of payment of fine to further

undergo rigorous imprisonment for one year, under Section 302 of the

Indian Penal Code.

3. That the accused/appellant/appellant is a poor person and at this stage,

he is not in a position to pay the fine.

4. That it is most respectfully submitted that the

accused/appellant/appellant is a poor person and has one minor child.

Furthermore, he has not been involved in any other criminal case. The

accused/appellant/appellant is suffering the wrath for an offence which

has not been committed by him. Therefore, the

accused/appellant/appellant craves the kind indulgence of this Hon’ble

Court for taking the lenient view and for staying the recovery of fine

during the pendency of the present appeal.

5. That the accused/appellant/appellant has a case on merit which is most

likely to succeed in the present appeal.

Thus, the appellant craves the kind indulgence of this Hon’ble

Court for taking a lenient view and stay for recovery of fine during the

pendency of the present appeal.

NOTE: No affidavit is required as the applicant is in custody.

CHANDIGARH: (ANKUR MITTAL) & (BHASKAR SHARMA)

DATED: 01.09.2014 ADVOCATES
COUNSEL FOR THE APPELLANT
Enrollment Nos. P/1296/01 & P/787/11
 GROUNDS OF APPEAL

5. That while passing the impugned judgment of conviction and thereby

wrongly convicting the appellant the Ld. Judge has failed to appreciate

that the prosecution has failed to bring any evidence on file with regard

to the fact that the appellant has committed the offence. The statement

of the complainant who was examined as PW-1 itself suffers from

infirmity.

Firstly he has stated that he had got recorded his statement before

the police that due to the illicit relation of his son-in-law, he was not

treating his daughter well but the same has never been recorded and

thus, it can be seen that material improvements had been made in the

statement only to falsely establish the guilt of the appellant.

Secondly, the complainant has stated that there was a sharp injury

on the head of the deceased but the same has not been found on the post

mortem of the deceased. Rather, no injury other than a bruise measuring

25x4 cm on the anterior side of the neck which was extending laterally

to both the sides up the nape of the neck, have been found on the body

of the deceased which clearly prove that the present case is not of

homicide and is a suicide. Had the present case been of a homicide, then

there would have been injury marks around the neck or on the other

parts of the body.

The PW-2, mother of the deceased, has stated that the deceased

was given poison by her Jeth and Jethani in the year 2005 but in the

same breath she has also stated that it was the deceased Jeth and Jethani

who got her admitted at the Civil Hospital, Gurdaspur. It is unusual

 that someone who would give poison to somebody would later on get

her admitted to the hospital.

7. That the Ld. Trial Court while passing the impugned judgment, vide

which he convicted the accused/appellant to undergo the maximum

sentence of Life Imprisonment, did not appreciate the evidence of the

case in hand in its right perspective. The ld. Judge has failed to

appreciate the statements of the defence witnesses in the right

perspective and has therefore wrongly convicted the appellant.

The DW-1 namely Lakhwinder Singh Sarpanch has deposed that

on 09.07.2010, one Malwinder Singh, first cousin of the appellant

informed him the deceased had committed suicide by hanging herself

with the ceiling of the fan and thereafter, he reached the spot and got

her down on the bed. The police was informed. He has also deposed

that she had earlier also tried to commit suicide. However, the Ld. Judge

has not taken into consideration the said statement and has wrongly

convicted the appellant for the homicide whereas the present case is the

one of suicide.

The DW-2 namely Jaskirat Singh, Superintendent of Police, has

proved his inquiry report whereby it has clearly come out after a

detailed inquiry that the deceased had committed suicide because of her

illicit relationship with some other person and the appellant had caught

her red handed. Thereafter, on the same, the opinion of DA, Legal, has

also been sought who has agreed with the said inquiry.

9. That the appellant is a poor person and he is facing false implication on

the offence which has not been committed by him. He has a minor son
 to take care of and his social life is at stake because of his false

implication in the present case. It is pertinent to mention here that the

accused/appellant is suffering wrath for an offence, which has not been

committed by him. The tell-tale circumstances, as narrated in the

preceding paragraphs makes it ample clear that the appellant has been

roped in a false and frivolous case after adding much colour to the story

of the prosecution and further clearly points out that the trial court has

followed a wrong path while convicting the accused/appellant and has

not at all appreciated the evidence brought on record, which speaks

loudly of the innocence of the accused/appellant. The

accused/appellant is behind the bars since the date of his arrest. Thus,

the impugned judgment and order of conviction dated 21.07.2014 are

liable to be set aside by this Hon’ble Court and the accused/appellant

deserves acquittal.

PRAYER

It is, therefore, respectfully prayed that on the strength of the

premises raised above and keeping in view the peculiar facts and

circumstances of the present case, the present appeal may kindly be

accepted and the impugned judgment and order of conviction dated

21.07.2014, passed by the Ld. Trial Court, Gurdaspur under section 302

of I.P.C, may kindly be set aside and the accused/appellant may kindly

be acquitted, in the interest of justice.

Note: No such or similar appeal has been filed by the

appellant/accused/appellant either in this Hon’ble Court or in the

Hon’ble Apex Court.

CHANDIGARH: (ANKUR MITTAL) & (BHASKAR SHARMA)
DATED: 01.09.2014 ADVOCATES
COUNSEL FOR THE APPELLANT
Enrollment Nos. P/1296/01 & P/787/11
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA AT

CHANDIGARH.

Criminal Appeal No……………………. -DB of 2014

Memo of Parties

Gurcharan Singh alias Channa, aged 40 years, son of Ajit Singh, caste Jat,

resident of Village Tung, P.S. Sadar Gurdaspur.

(Presently Confined in Central Jail, Gurdaspur)

…..Appellant

Versus

State of Punjab.

………..Respondent

CHANDIGARH: (ANKUR MITTAL) & (BHASKAR SHARMA)

DATED: 01.09.2014 ADVOCATES
COUNSEL FOR THE APPELLANT
Enrollment Nos. P/1296/01 & P/787/11
 In the Court of Shri S.K. Garg, Sessions Judge, Gurdaspur

Sessions Case No. 20 of 2010.

Date of Institution 04.11.2010.

R.B.T. No. 40 of 30.05.2014.

Date of Decision 21.07.2014

State

Versus

Gurcharan Singh alias Channa, aged 40 years, son of Ajit Singh, caste Jat,

resident of Village Tung, P.S. Sadar Gurdaspur.

…Accused/appellant

FIR No. 95 dated 09.07.2010

Under Section: 302 IPC

Police Station: Sadar Gurdaspur.

Case committed by the Court of Shri Rakesh Kumar, Addl. Chief

Judicial Magistrate Gurdaspur, vide order dated 21.10.2010.

Present:- Shri Jagdishwar K Chopra, Public Prosecutor for the State.

Shri S.S. Wahla, Advocate, counsel for the complainant.

Accused in custody with counsel Shri Harbhajan Singh, Advocate.

Judgment:-

1. The above named accused has been sent by the police of Police Station

Sadar Gurdaspur for facing trial under Section 302 IPC on the

allegations that on 08.07.2010 at about 8.30 a.m. in the area of Village

Tung, he committed the murder of his wife Harjinder Kaur.

2. Chanchal Singh son of Darshan Singh, father of the deceased, is the

complainant of this case. He in his statement Ex.PA recorded by SI

Balbir Singh on 09.07.2010 has stated that his daughter Harjinder Kaur

was married with Gurcharan Singh about 10 years back and out of this

marriage one son, namely, Baljinder Singh, aged 6 years, was born.

Accused is working as Store Keeper in the Army Depot at Jalandhar.

Accused is having illicit relation with his sister-in-law Sukhwinder Kaur

(wife of his brother Pritam Singh) for the last 5-6 years, due to which he

used to quarrel with his daughter. Pritam Singh has since expired about

two months ago. On 08.07.2010 he along with his wife Tasvir Kaur went

to meet their daughter Harjinder Kaur in village Tung where they met

their daughter and son-in-law Gurcharan Singh accused. In their

presence Gurcharan Singh started quarreling with his deceased

daughter and started threatening her that he will kill her on that night.

But he pacified them not to quarrel and then they came back to their

village. On the next day i.e. 09.07.2010 he was informed by some person

on telephone that Harjinder Kaur has died, whereupon he along with

Gurdial Singh, Pritam Singh went to village Tung and they found dead

body of Harjinder Kaur lying on a bed in bedroom. He also observed

marks of rope around the neck of her daughter. His daughter has been

done to death by the accused so that he may continue his illicit relations

with Sukhwinder Kaur.

3. Inspector Balbir Singh conducted the investigation of this case. After

recorded the above said statement Ex.PA of the complainant, he made

his endorsement Ex.PW9/A thereon, on the basis of which FIR of this

 case Ex.PW6/A was registered. He prepared the site plan Ex.PW9/B of

the place of occurrence and also prepared the inquest report Ex.PW2/A

of the dead body and thereafter dead body was sent for post mortem

examination. He also recoded statements of the witnesses. He took into

possession one turban from the ceiling fan of the bedroom of house of

accused Gurcharan Singh, after converting the same into parcel vide

memo. Ex.PW4/A. Clothes of the deceased were sealed into a parcel

and were taken into possession vide memo. Ex.PW1/A. Accused was

arrested on 16.07.2010 vide memo. Ex.PW4/B and his personal search

memo. Ex.PW1/B was also prepared. On 19.07.2010 he took into

possession photographs Ex.P1 to Ex.P9 and one CD Ex.P10 vide Memo.

Ex.PW4/C. After completion of the investigation, challan against the

accused was prepared and presented in the Court.

4. On presentation of the challan in the Court of learned Ilaqa Magistrate,

copies of documents as provided under Section 207 Cr.P.C. were

supplied to the accused free of costs. Finding the offence punishable

under Section 302 IPC exclusively triable by the Court of Sessions, the

learned Addl. Chief Judicial Magistrate, Gurdaspur, committed the case

to the Court of Sessions for facing trial vide order dated 21.10.2010.

5. After hearing the learned Public Prosecutor for the State and the learned

defence counsel and perusing the documents attached with the report

submitted under Section 173 Cr.P.C., sufficient grounds were made out

to presume that the accused has committed the offence punishable

under Section 302 IPC and accordingly charge was framed against him.

Accused pleaded not guilty and claimed trial.

6. In order to prove its case, the prosecution has examined PW-1 Chanchal

Singh, PW-2 Tasvir Kaur, PW-3 Dharminder Singh, PW-4 SI Gulzar

Singh, PW-5 ASI Ajwinder Singh, PW-6 ASI Kuldip Singh, PW-7 HC

Jagdish Singh, PW-8 PHC Prem Parkash, PW-9 Inspector (Retired)

Balbir Singh, PW-10 Pritam Singh, PW-11 Dr. Jaspreet Singh, PW-12

PHC Sukhjinder Singh and thereafter learned Public Prosecutor closed

the prosecution evidence.

7. PW-1 Chanchal Singh is the complainant of this case on whose

statement this case was registered. He has faithfully reiterated the

prosecution case and the broad features of his testimony have already

been stated in para 2 above.

8. PW-2 Tasvir Kaur is the mother of the complainant and she has

corroborated the statement of PW-1 Chanchal Singh on all material

particulars.

9. PW-3 Dharminder Singh has deposed that the deceased was his cousin

sister. On 09.07.2010 after coming to know about her death, he went to

her house in village Tung where her dead body was lying in a room. She

was having marks of injury around her neck. She has been done to

death because of the illicit relations of the accused with Sukhwinder

Kaur. He identified dead body of the deceased.

10. PW-4 SI Gulzar Singh has proved the recovery memos Ex.PW4/A and

Ex.PW1/A, vide which one turban and clothes of the deceased were

taken into possession, respectively. He has also proved the arrest and

personal search memo of the accused as Ex.PW4/B and Ex.PW1/B,

 respectively and the memo. Ex.PW4/C vide which photographs were

taken into possession.

11. PW-5 ASI Ajwinder Singh besides proving the memos Ex.PW4/A and

Ex.PW1/A, already proved by PW-4, has also proved application

Ex.PW5/A, which was regarding conducting of post mortem

examination of the dead body of the deceased.

12. PW-6 ASI Kuldip Singh has recorded the FIR and proved the same as

Ex.PW6/A.

13. PW-7 HC Jagdish Singh has filed his affidavit Ex.PW7/A to the effect

that on 09.07.2010 the case property of this case was deposited with him

in the Malkhana.

14. PW-8 PHC Prem Parkash has deposed that on 09.07.2010 he visited the

spot and clicked the photographs of the place of occurrence and of the

dead body Ex.P1 to Ex.P9 and also prepared its CD Ex.P10 and handed

over the same to the Investigation Officer, which were taken into

possession vide memo. Ex.PW4/C.

15. PW-9 Inspector (Retired) Balbir Singh in the Investigation Officer of this

case. He has deposed about the manner of the investigation conducted

by him and has also proved various memos prepared by him during

investigation.

16. PW-10 Pritam Singh has deposed that on 09.07.2010 after coming to

know about the death of Harjinder Kaur, he along with complainant

and others had gone to village Tung where he saw that there was a

ligature mark of rope around the neck of Harjinder Kaur. They had

come to know that accused had illicit relations with her brother’s wife
 and due to that reason he killed his wife Harjinder Kaur with the help of

rope.

17. PW-11 Dr. Jaspreet Singh has conducted the post mortem examination

of the dead body of Harjinder Kaur on 19.07.2010. According to him a

bruise measuring 25X4 cm was present on the anterior side of neck and

was extending latterly to both the sides up to the nape of the neck and

was sparing the back of the neck. He has proved the copy of the post

mortem report as Ex.PW11/A.

18. PW-12 PHC Sukhjinder Singh filed his affidavit Ex.PW12/A to the effect

that he delivered the special report of this case to the Ilaqa Magistrate

and other officers.

19. After close of the prosecution evidence, statement of the accused as

required under Section 313 Cr.P.C. was recorded and the circumstances

appearing in evidence against him were put to him. Accused has denied

the prosecution case and pleaded that he has been falsely implicated in

this case. In fact on the day of occurrence he was present at the house of

his brother, who died few days earlier. Deceased has tried to commit

suicide in the year 2005 and she had the suicidal tendency and on the

day of occurrence she herself committed suicide because of the tendency

and the village Panchayat was informed, who removed the dead body

of the deceased. He was not having any dispute with his wife. He has

examined Lakhwinder Singh Sarpanch as DW-1, who has deposed that

on 09.07.2010 Malwinder Singh first cousin of accused informed him

and then he came to the spot and found Harjinder Kaur has committed

suicide by handing with the ceiling fan. Some more persons were also

present there. He removed the dead body from the rope and laid her
 down on the bed. Seeing the hot temperature of the body, he advised

others to remove her to the hospital. He also informed the police on

telephone. Deceased was removed to Civil Hospital, Gurdaspur. Earlier

also he had taken some poison in order to commit suicide but she was

saved as she was removed to hospital in time. She had suicidal trend.

20. DW-2 Jaskirat Singh, Superintendent of Police, has deposed that in the

year 2010 he was posted as SP(D), Gurdaspur. Enquiry of the present

case was entrusted to him on the application Ex.PW2/A of Manjit Kaur.

He has proved his enquiry report as Ex.PW2/B and the opinion of the

District Attorney Ex.DW2/C. He came to the conclusion that Harjinder

Kaur deceased committed suicide because of her illicit relations with

some other person and her husband caught her read handed while

talking to that person on telephone.

21. I have heard the learned Public Prosecutor, Shri S.S. Wahla, Advocate,

counsel for the complainant and Shri Harbhajan Singh, Advocate,

counsel for the accused.

22. It has been submitted by the learned Public Prosecutor assisted by Shri

S.S. Wahla, Advocate, counsel for the complainant that from the

evidence on the file it stands proved beyond the shadow of reasonable

doubt that it is the accused, who has killed his wife Harjinder Kaur by

strangulation on the relevant date nad time in order to continue his

illicit relation with his sister-in-law (brother’s wife) Sukhwinder Kaur.

Due to their illicit relations, relation between deceased and the accused

were not cordial as deceased used to stop him from continuing his

relation with his sister-in-law Even a day before the occurrence accused

has threatened to kill her in the night time in the presence of her
 parents, who happens to had gone to their house to met them. More

over, accused had also doubted that the deceased had relation with one

Jagdish Kumar, so he had a motive to kill the deceased. Ld. Counsel

further submitted that, according to the accused, it is a case of suicide by

hanging but he had miserably failed to prove the same. Had it been so,

then accused himself must have informed the police about the

occurrence but in this case after the occurrence he has run away and was

arrested after seven days. From the medical evidence on the file it stands

proved that deceased died due to strangulation. All the PWs supported

each other on all material particulars. Therefore, it has been prayed that

accused be convicted and sentenced as per law.

23. On the other hand, it has been submitted by Shri Harbhajan Singh,

Advocate, that the prosecution has miserably failed to prove its case

beyond the shadow of reasonable doubt. According to the learned

counsel present in a case of suicide by hanging and do not involve

homicide by strangulation as is evident from the post mortem report as

well as from the statement of Dr. Jaspreet Singh PW-11. It is in his

evidence that there was no injury on any part of the body of the

deceased. There was only a bruise measuring 25x4 cm on the anterior

side of the neck and was extending laterally to both the sides up to the

nape of the neck and was sparing the back of the neck. Thus, it is

evident that there was no injury on the back of the neck of the deceased,

so it cannot be termed as a case of strangulation. If it was a case of

strangulation, then injuries would have been all around the neck of the

deceased. Injury on the neck of the deceased as disclosed by the doctor

leads to only one conclusion that it is a case of death by hanging. Ld.

 Counsel further submitted that there is no eye witness to the occurrence

and the medical evidence also do not suggest it to be a case of homicide.

Moreover, deceased had suicidal tendency. Earlier also in the year 2005,

she has tried to commit suicide but she was timely saved and as such

she committed suicide because of this tendency. Ld. Counsel further

submitted that it is the accused, who informed the village Panchayat,

who removed the dead body of the deceased. Therefore, it has been

prayed that accused be acquitted.

24. I have considered the rival contentions of the parties and have perused

the record. The Hon’ble Supreme Court in Ravirala Laxmaiah Vs. State

of A.P. 2013 (3) R.C.R. (Criminal) 341 has given the difference between

hanging and strangulation, which is as under:-

Hanging Strangulation

Ligature Mark-Oblique, non- Ligature mark horizontal or

continuous placed high up in the transverse continuous, round the

neck between the chin and the neck, low down in the neck below

larynx, the base of the groove of the thyroid, the base of the groove

furrow being hard, yellow and or furrow being soft and reddish.

parchment like. Scratches, abrasions and bruises

Scratches, abrasions and bruises on and the fact, neck and other parts

the face, neck and other parts of of the body – Usually not present.

the body-usually not present.

25. In this case also as per evidence of Dr. Jaspreet Singh PW-11, bruise

measuring 25x4 cm was present on the anterior side of the neck,

extending laterally to both the sides up to the nape of the neck and was

sparing the back of the neck. It is further in his evidence that thyroid

cartilage of the deceased was fractured. This evidence shows that

ligature mark on the neck of the deceased was horizontal going towards

back of the neck whereas had it been case of hanging them ligature

mark would have gone upward obliquely and moreover fracture of

thyroid cartilage is very-vary rate in the case of hanging whereas it is

very common in the case of strangulation. So, it cannot be said to be a

case of death by hanging. Moreover, had it been a case of death by

hanging, then accused would have been the first person to inform the

police about the occurrence but in this case police to inform the police

about the occurrence but in this case police came to know about the

occurrence from a third person whereas he himself appears to hand run

away from the spot because he was not seen by anybody at the spot on

09.07.2010 when the dead body of Harjinder Kaur was found in her

house. From the arrest memo. Ex.PW4/B it is evident that accused was

arrested on 16.07.2010. Absconding of the accused from his village for

seven days also suggested that he is guilty of the offence. Accused has

taken the defence that the deceased had the suicidal tendencies and due

to that she committed suicide. In this regard, ld. Counsel for the accused

has referred to an accident that took place in the year 2005. According to

the ld. Defence counsel, in 2005 deceased has tried to commit suicide but

she was saved by providing timely medical aid. However, no evidence

to prove this fact has been led on the file by the accused. Even no

suggestion has been given in this regard to PWs. The only suggestion

given to PW-2 Tasvir Kaur is that her daughter Harjinder Kaur was
 given poison by her Jeth and Jethain in March 2005 and this suggestion

has been admitted to be correct by the witness. From this suggestion it

cannot be said that deceased had tried to commit suicide in the year

2005. Moreover, even if for the sake of arguments it is presumed that she

has tried to commit suicide in 2005, even then it cannot be said that she

developed suicidal tendency so as to commit suicide five years later i.e.

on 09.07.2010. Had she been having such tendency, then she would have

tried to commit suicide much earlier. Moreover, even no cross

examination has been done to Pw-1 Chanchal Singh regarding this fact.

Further more, accused in this case has the motive to kill the deceased.

First of all he suspects her having relation with one Jagdish Kumar at

Jalandhar, although no cogent evidence to prove this fact but mere

suggestions have been given to PW-1 in this regard. Those suggestions

do not lead us any where and the accused has failed to establish that the

deceased had any relation with one Jagdish Kumr. On the other hand, it

is the case of prosecution that the accused had illicit relations with his

sister-in-law Sukhwinder Kaur. It is so deposed by PW-1 Chanchal

Singh and PW-2 Tasvir Kaur. Both these witnesses have deposed that

accused/appellant have illicit relation with Sukhwinder Kaur wife of

Pritam Singh for the last 5-6 years and the accused and the deceased

used to quarrel with each other on this account.

26. Admittedly, death of Harjinder Kaur has taken place in the house of the

accused. As stated above, it is the case of the accused that she has

committed suicide by hanging but when the police and the parents of

the deceased reached at the place of occurrence then her dead body was

found lying on the bed in the bedroom of the accused. Accused has not
explained anywhere, who removed the dead body from the ceiling fan.

In his statement under Section 313 Cr.P.C. accused has pleaded that

village Panchayat was informed, who removed the dead body of the

deceased. In this regard he has also examined DW-1 Lakhwinder Singh

Sarpanch, who has deposed that on 09.07.2010 Malwinder Singh cousin

of the accused informed him about the accused where upon he came

there and removed the dead body from the rope and laid her down on

the bead and that he informed the police on telephone and also on his

advise Harjinder Kaur was removed to Civil Hospital, Gurdaspur,

Evidence of this witness is not believable because a turban and not the

rope was found hanving with the ceiling fan and then his presence at

the spot has not been proved by any witness. PW-4 Su Gulzar Singh has

deposed that during his stay at the spot Sarpanch Lakha Singh and

others came there but they left after some time. Then PW-9 Balbir Singh,

Investigating Officer, has deposed in his cross-examination that when

the police visited the spot Sarpanch Lakha Singh of village Tung was

not there. No suggestion with regard to his presence at the spot has been

given to any other witness. From the evidence of PW-4 and PW-9, it is

evident that Sarpanch Lakhwinder Singh DW-1 has not come to the

place of occurrence on 09.07.2010 and if he had come there, then he

came there after the arrival of the police. Then as stated above, he has

also wrongly deposed that rope because no such rope has been taken

into possession by the police from the spot. Therefore, it appears that he

is a made up witness. Thus, accused has failed to disclosed, who has

removed the dead body from the ceiling fan. It appears that after killing
 the deceased on the bed by strangulation, accused tied the turban with

the ceiling fan just to give it colour of death by hanging.

27. In view of my above discussion, it is held prosecution has been able to

prove beyond shadow of reasonable doubt that on 09.07.2010 in the area

of village Tung, accused Gurcharan Singh committed the murder of his

wife Harjinder Kaur by strangulation. Therefore, accused is held guilty

under Section 302 IPC and is convicted accordingly. Let he be heard on

the quantum of sentence.

Sd/-

Pronounced in open Court. (S.K. Garg)

Dated 21.07.2014 Session Judge, Gurdaspur

Present:- Shri Jagdishwar K Chopra, Public Prosecutor for the State.

Shri S.S. Wahla, Advocate, counsel for the complainant.

Convict in custody with counsel Shri Harbhajan Singh, Advocate.

Copy of Order of sentence

1. I have heard the convict on the question of sentence. He has stated that

he is poor person and has a minor son to look after, so lenient view be

taken.

2. I have considered the request of the convict. Keeping in view the facts

and circumstances of the case and the fact that he has murdered his own

wife by strangulation, convict Gurcharan Singh is sentenced to undergo

imprisonment for life and to pay a fine of Rs. 10,000/- and in default of

payment of fine to further undergo rigorous imprisonment for one year,

under Section 302 of the Indian Penal Code.

3. However, he shall entitle to set off for the period he remained in custody

during the trial or investigation of this case, from the period of sentence

awarded to him today. Case property be disposed of as per rules. File be

consigned to the Record. Room

Sd/-

Pronounced in open Court. (S.K. Garg)

Dated 21.07.2014 Session Judge, Gurdaspur

True Copy

Advocate
 Annexure A-1

CUSTODY CERTIFICATE

1. Name of the convict : Gurcharan Singh @ Channa

2. Father’s Name : Ajit Singh

3. Address : R/o Tung P/S Sadar

Gurdaspur Distt.Gurdaspur

4. FIR No. & Date : FIR No. 95 dated 0.07.2010

For U/s 302 IPC

Police Station P/S Sadar Gurdaspur.

5. Convicted by the court : Sh. S.K.Garg, Sessions Judge

Gurdaspur

U/S 302 IPC RI for Life and

Fine of Rs. 10,000/- I/D RI

One year

6. CUSTODY CERTIFICATE Year Month Day

CUSTODY AS UNDER TRIAL From 19.07.2010 to 04 00 01
20.07.2014
CUSTODY AFTER CONVICTION From 21.07.2014 to 00 00 23
13.08.2014
Total PERIOD UNDERGONE 04 00 24
(-) less parole period 00 00 00
Total Actual PERIOD UNDERGONE 04 00 24

Actual period of Sentence :

undergone upto

(13.08.2014 (In words) : Four years and twenty four days

7. Earned Remission : 00 years 00 month and 00 days

Total custody including : 04 years 00 months and 24 days

Remission

If the convict has misused : ---------------------No.--------------

Bail/parole etc.

Any other pending cases/any

Other information with FIR/ : ---------------------No.---------------------

Offences against the petitioner

Sd/-

Superintendent

Central Jail Gurdaspur

13.8.14

True Copy

Advocate

Grounds of Appeal
1. The present appeal has been filed against the Judgment of conviction and

order of sentence dated 17.09.2016 passed by the Ld. Court of

Sh.Kishore Kumar, Session Judge, Shri Mukatsar Sahib whereby the

Ld.Sessions Court has recorded the Judgment of conviction in respect of

all the accused persons including the present appellant for the offences

punishable under Sections 302 read with Section 34 of the Indian Penal

Code (IPC) and further sentenced the present appellant under Section 27

of Arms Act and proceeded to sentence each of the accused under

Section 302 read with Section 34 of IPC and imposed rigorous

imprisonment for life and a fine of Rs.10000/- or in default of payment

of fine Rigorous Imprisonment for 06 months and further sentenced the

present appellant along with separate sentence for the offence under

Section 27 of Arms Act and imposed Rigorous Imprisonment for 3 years

and a fine of Rs.5000/- or in default of payment of fine Rigorous

Imprisonment for 03 months with the stipulation that all the sentences

would be concurrent. The Ld. Trial court while convicting the

accused/appellant/appellant has totally misread the facts established on

record and has passed the judgment on whimsical and fanciful grounds.

The judgment passed by the Ld. Trial Court cannot stand the test of legal

scrutiny as the same is based on conjectures and surmises. It is pertinent to

mention here that the Ld. Judge though considered all the relevant points

in the case in hand, but did not appreciate the same in its right perspective.

All the issues raised by the accused/appellant/appellant were clearly

substantiated with the statements of the witnesses as well as the law laid

down by the Hon’ble Courts, but still the ld. Judge failed to give any
 benefit to the accused/appellant/appellant and convicted him. Thus the

impugned judgment and order of conviction warrant kind interference

from this Hon’ble Court and are liable to be set aside as the same is based

on conjectures and surmises.

That it is well to remember that in case where the evidence is of a

circumstantial nature, the circumstances from which the conclusion of

guilt is to be drawn should in the first instance be fully established, and

all the facts so established should be consistent only with the hypothesis

of the guilt of the accused/appellant. Again, the circumstances should

be of a conclusive nature and tendency and they should be such as to

exclude every hypothesis but the one proposed to be proved. In other

words, there must be a chain of evidence so far complete as not to leave

any reasonable ground for a conclusion consistent with the innocence of

the accused/appellant and it must be such as to show that within all

human probability the act must have been done by the

accused/appellant. The circumstances, from which the inference of guilt

is to be drawn, have to be fully established by unimpeachable evidence

beyond shadow of doubt. The circumstances are of determinate

tendency unerringly pointing towards the guilt of the

accused/appellant. The circumstances taken collectively are incapable

of explanation on any reasonable hypothesis save that of the guilt

sought to be proved against the accused/appellant. The circumstances

concerned `Must or should’ and not may be, established. There is not

only a grammatical but a legal distinction between ‘May be proved’ and

‘must be or should be proved’. The facts established should be

consistent only with the hypothesis of the guilt of the

 accused/appellant. The circumstances so leading to the commission of

crime should be of a conclusive nature and tendency. The Ld. Trial court

has failed to keep the above stated question in mind while convicting

the accused/appellant/appellant only on the basis of the statements of

PW1 Balkaran Singh and PW2 Hardeep Singh who happens to be the

relative and friend of the deceased and are interested witnesses and

there is no independent witness to the occurrence despite the fact that it

has been admitted by both PW1 and PW@ in their cross examination

that there are shops, aheta, liquor vend and other houses near by that

place.

2. It is worth pointing out there that while passing the impugned judgment

and order of conviction the Ld. Judge failed to consider the fact that in

order to connect the accused/appellant with the crime, it is incumbent

upon the prosecution to establish the case beyond reasonable doubt, but in

the instant case the appellant has been convicted in a whimsical manner

without appreciating the evidence brought on record. The benefit of doubt

should have been given to the appellant and he is liable to be acquitted.

Thus, the appellant craves the kind indulgence of this Hon’ble Court for

setting aside the impugned order dated 17.09.2016.

3. The facts which are essential to be exposited for the proper adjudication

of this appeal are as detailed herein below:

(a) The facts of the prosecution story are that on 30.08.2014, a

telephone call was received at P.S. Kotbhai from MHC P.S. Sadar,

Sri Mukatsar Sahib, to the effect that Dilbag Singh son of

Rajinder Singh resident of village Giljewala had died due to fire

shot injury and a ruqa from doctor of Adesh Hospital, Sri

 Mukatsar Sahib. On receipt of this information, SI/SHO

Bilramjit Singh alongwith ASI Bagga Singh and other police

officials reached at P.S. Sadar, Sri Mukatsar Sahib and collected

the ruqa from the MHC and then reached at Adesh Hospital, Sri

Mukatsar Sahib and obtained MLR No.36/2014 from the doctor

pertaining to Dilbag Singh son of Rajinder Singh resident of

village Giljewala.

(b) Balkaran Singh son of Harnek Singh, uncle of Dilbag Singh, who

was present near the dead body, met the police party and made

his statement before SI/SHO Bikramjit Singh. The complainant

stated that on 29.08.2014, at about 09. P.M., he alongwith his

nephew Dilbag Singh were returning to their Dhani on their

motor-cycle make Hero Honda after delivering milk on the

Dairy at village Giljewala. The motorcycle was being driven by

him and his nephew was pillion rider thereon. When they

reached on the bus stand of village Giljewala, then, on front

side, Swaran Singh son of Surjit Singh and Jagm,eet Singh ,so,n

of Nachhatar Singh, who was having a cartridges belt slung on

his shoulder and Kuldeep Singh armed with .12 bore DBBL gun

with Small barrel were standing there, who were identified in

the light of the motor-cycle.

(c) Swaran Singh signaled them to stop and he (complainant)

stopped the motor-cycle. The complainant further stated that

he asked Swaran Singh the reason for stopping them, upon

which he caught hold of him from his arm and Jagmeet Singh
 proclaimed that they have to talk with his nephew. They

alighted from the motor-cycle and Swaran Singh and Jagmeet

Singh caught hold the complainant in the Jaffa and Kuldeep

Singh fired a shot in the air and also fired another shot which

hit in the right side of lower abdomen (flank) of nephew of

complainant, who fell down.

(d) Complainant raised alarm of marta marta, upon which Hardeep

Singh son of Charanjit Singh came at the spot alongwith weapon

of offence. In the meantime, Siwal Singh also came at the spot

and then they took Dilbag Singh to Adesh Hospital, Sri Mukatsar

Sahib, where he succumbed to his injury. The complainant has

further stated that the motive behind the occurrence is that

Kuldeep Singh accused had borrowed an amount of

Rs.2,00,000/- from his nephew Dilbag Singh and his father

Rajinder Singh had demanded back the money many times

from Kuldeep Singh accused, but instead of returning the

amount to Dilbag Singh, on 29.08.2014 while he was going to

College, Jagmeet Singh, Kuldeep Singh and Swaran Singh had

quarreled with Dilbag Singh and on that account, they in

furtherance of their common intention have caused the murder

of Dilbag Singh. On the basis of these allegations, the

complainant prayed for initiating action in the matter.

sThat it is pertinent to mention that in order to prove its case, the prosecution

has examined as many as twelve witnesses PW-1 Chanchal Singh

complainant, PW-2 Tasvir Kaur, PW-3 Dharminder Singh, PW-4 SI Gulzar

Singh, PW-5 ASI Ajwinder Singh, PW-6 ASI Kuldeep Singh, PW-7 SC Jagdish

Singh, PW-8 PHC Prem Prakash, PW-9 Inspector (Retd.) Balbir Singh, PW-10

Pritam Singh, PW-11 Dr. Jaspreet Singh and PW-12 PHC Sukhjinder Singh and

the two witnesses DW-1 Lakhwinder Singh Sarpanch and DW-2 Jaskirat Singh

Superintendent of Police have been examined as defence witnesses.