HARBIR SINGH Vs. STATE

JUDGEMENT

(1.) The appellant, Harbir Singh, was one of the accused in case AIR No. 25/78 police station Vasant Vihar under Section 302 read with Section 34 of Indian Penal Code (in short 'IPC'). The person murdered in this case was Kishan Pal s/o Gabdu of village Jalalabad (hereinafter referred to as the 'deceased'). The dead body with multiple injuries was found at the back of the Jawahar Lal Nehru University ('JNU' for short) on the road leading from Vasant Vihar bus stop to the JNU near the rain water drainage Nala on the morning of 20.7.1978. The dead body was spotted by Rajinder Singh of village Munirka and a DD entry in this respect was recorded at police station Vasant Vihar. As per the police version Rajinder Singh led SI Surat Singh to the spot on whose statement the FIR was registered. In view of the marks of violence on the body the case was registered under Section 302 IPC. In the pocket of the kurta worn by the deceased, there were three applications purported to have been made for issue of cement which were proved in evidence as Exhs. PB, PC and PD. Three bus tickets of UP Roadways were also there which were proved in evidence as Exhs. PX/1,2 and 3. Notable amongst other things found at the spot was the iron rod. The three applications recovered from the pocket of the kurta of the deceased led the police to village Jalalabad and eventually the identity of the dead body was established as that of Kishan Pal s/o Gabdu. As per the prosecution version Gabdu expressed suspicion on Harbir, the present appellant, as his sister Anoop Kaur had been married in village Ber Sarai, close to the spot where the dead body was discovered, and the deceased used to keep frequent company with the appellant. Immediately after the identification of the dead body post-mortem examination of the dead body was made. The dead body was handed over to Gabdu on 21.7.1978. The same was brought to Jalalabad on the morning of 22.7.1978.

(2.) The investigation that followed allegedly revealed that the deceased had left the village on 19.7.1978 and had been seen in the company of the appellant as well as Om Pal s/o Rishal Singh of the same village and had been seen with the two on their way to Delhi firstly at Murad Nagar by Jagdish (PW-7), a tea vendor near Murad Nagar, at Ghaziabad bus stand by Chaman Singh (PW-6) of village Jalalabad and then at the ISBT, Delhi by Harpal Singh (PW-10) and one Ompal Singh (PW-11). Harpal Singh and Ompal Singh also claimed that the three had disclosed that they were proceeding to the house of Harbir's sister. Search for the appellant allegedly continued as he was on the run and was eventually arrested on 29.7.1978 at about 6.10 p.m. from near Sangam cinema. On disclosure statement of the appellant, the investigation could discover that the rod which was lying near the dead body and was apparently the weapon of offence had been taken out from the gate of the boundary wall of JNU. Om Pal, the other accused, could not be traced and was eventually declared to be a proclaimed offender. The appellant was challaned and was charged with the offence under Section 302, IPC. On trial he was found guilty by the Additional Sessions Judge vide the impugned judgment dated 14.11.1979. He was sentenced to imprisonment for life vide a subsequent order dated 27.11.1979. Om Pal was arrested thereafter and was convicted but in Crl. Appeal No. 226/83 titled Ompal Singh v. State, 33 (1987) DLT 176 (DB) he was acquitted vide a judgment of Division Bench dated 2.9.1987.

(3.) The Amicus Curiae, Shri Sunil Sethi, AdVocate, appearing for the appellant and the Advocate appearing for the State, Shri Ravinder Chadha, has taken us through the Trial Court record as well as through the impugned judgment. The conviction by the Trial Court is based primarily on the evidence of the deceased and the appellant being last seen together. The other circumstances taken into account by the Trial Court were discovery, at the instance of the accused, of the gate from which the rod lying near the dead body had been removed, absconsion of the co- accused Om Pal, marks of abrasion on the body of the appellant who was arrested on 29.7.1978, refusal by the appellant to give sample of his hair which could be used for matching with the hair found in the fist of the dead body and the alleged motives, namely, a grievance against Gabdu who had got the sister-in-law of Harbir, with stained relations with her husband to settle with Gabdu's nephew and another dispute over buffalo of Ompal in which Gabdu had intervened. The learned Amiens Curiae has challenged each and every aspect of the factors on which the conviction is based.