JOGINDER SINGH Vs. STATE OF PUNJAB

JUDGEMENT

(1.) THIS appeal filed by Joginder Singh and Balwinder Singh is directed against the judgment and order dated 10.10.1996 passed by the Court of Additional Sessions Judge, Amritsar who convicted the appellants under Section 304/34 IPC and sentenced each of them to undergo R.I. for ten years and a fine of Rs. 2,000/- each or in default to undergo further R.I. for six months each.

(2.) THE brief facts of the case are as follows :- Complainant Shri Mukhtiar Singh was owner of truck No. PCJ 9948. Balwinder Singh, accused was driver of this truck and Iqbal Masih deceased, sister's son of the complainant, was Cleaner. On 17.12.1995, the said truck was hired by Joginder Singh, appellant whose sugarcane was loaded in the truck from village Koka Kotli and it was taken to Sugar Mill situated at village Bhala Pind. After loading sugarcane both the accused and Iqbal Masih came to Ajnala and from there Iqbal Masih cleaner took the 'Sweater' and 'Loi' from the house of the complainant Shri Mukhtiar Singh and then all the three went to Sugar Mill Bhala Pind. On 18.12.1995 in the morning at about 4 A.M. Gopal Singh father of Driver Balwinder Singh, accused, Joginder Singh, accused and one Devinder Singh came to the house of complainant at Ajnala and told him that Iqbal Masih had died all of a sudden in the premises of sugar mills and his dead body is lying in the yard. Then the complainant alongwith his cousin brother, Tarlok Singh and uncle Darshan Singh and other members of his brotherhood accompanied aforesaid Joginder Singh, Gopal Singh and Devinder Singh to the yard of the sugar mills where the dead body of Iqbal Masih was lying at a distance of 2'/3' from truck No. PCJ 9948 and Balwinder Singh accused was sitting near the dead body. Many other tractor trolleys loaded with sugar cane were also standing there. Balwinder Singh, accused also told the complainant that Iqbal Masih has died all of a sudden. The complainant identified his dead body and then after informing the Deputy Officer they took the dead body to Ajnala in truck No. PUF 196. The relations of the complainant were called for the purpose of cremation. The complainant did not suspect anybody and did not find any visible mark of injury on the body of the deceased but he requested the police to get the post mortem examination done from a Doctor. The statement of the complainant was recorded by S.I. Gurbachan Singh who had completed the inquest report and then the dead body was forwarded to the Hospital for post mortem examination. The post mortem report disclosed that there were about 13 injuries on the body of the deceased and the doctor opined that all the injuries except injuries No. 1, 3 and 4 were ante mortem and were sufficient to cause death in the ordinary course of nature. Consequently, on the statement of the complainant a case under Section 304 IPC was registered against the accused appellants. During investigation the Investigating Officer recorded the statement of Mohinder Singh before whom the accused are alleged to have made extra judicial confession stating that while loading the sugarcane in the truck at Koka Kotli some sugar cane fell down and as a result of which an altercation took place between Joginder Singh accused and Iqbal Masih, deceased and that in the yard of the sugar mill they had killed the deceased. One Lal Masih was also examined who had stated that he had over-heard the accused talking to each other that they gave kick blows to the deceased as a result of which he suddenly died. The rod with which the injuries were alleged to have been given by the accused was also recovered from Joginder Singh, accused/appellant when both the accused were arrested in this case. Rough site plan of the place of occurrence was also prepared.

(3.) IN order to prove the charge, the prosecution examined PW-1 Mukhtiar Singh who is complainant in this case and as per his statement Iqbal Masih, the deceased was Mohinder Singh's sister's son and was working as a cleaner on the truck in question. He further deposed that on 17.12.1995 Driver Balwinder Singh and his sister's son Iqbal Masih went to village Rawopur Koka Kotli for loading the sugar cane of Joginder Singh. After loading sugar cane they went to Ajnala. After leaving Balwinder Singh, Driver in the truck, Iqbal Masih came to his house at about 5.00 p.m. and took sweater and a loi from his house and then Iqbal Masih and Balwinder Singh took the loaded truck to sugar mill at village Bhala Pind. Further it has been stated by this witness that on 18.12.1995 at about 4.00 a.m. Gopal Singh, father of Balwinder Singh driver and Joginder Singh, accused and Devinder Singh, Driver of truck No. 4377 came to his house and told him that his sister's son Iqbal Masih has died all of a sudden and his dead body is lying at village Bhala Pind in the court-yard of the sugar mill. This statement of Mukhtiar Singh does not lead us anywhere to the fact that deceased was last seen by him in the company of Shri Joginder Singh and Balwinder Singh. Shri Mohinder Singh, PW is the principal witness of the prosecution on whose testimony the conviction has been relied upon. He is a witness of extra-judicial confession. As per his statement on 21.12.1995, when he was present at his house, both the accused came to him and told him that on 17.12.1995 they loaded truck of Joginder Singh from village Koka Kotli and while loading the sugar cane in the truck some sugar cane fell, as a result of which there was altercation between Joginder Singh, accused and Iqbal Masih, Cleaner of the truck. Thereafter they took the truck to Ajnala after loading the same with sugar cane and that both the accused remained present in the truck while Iqbal Masih went to the house of his maternal uncle from where he had brought a loi and one sweater. Iqbal Masih had some altercation with the accused. Balwinder Singh accused told that he gave a kick blow on the testicles of Iqbal Masih whereupon Iqbal Masih became unconscious and accused Joginder Singh took out an iron rod from the truck and gave rod blows on various parts of the body of Iqbal Masih and that Iqbal Masih died at the spot. Further it has been allegedly confessed by both the appellants that they have no previous enmity with Iqbal Masih and also requested him to produce them before Rajasansi Police. PW-3 is Lal Masih. His testimony is to the effect that on 21.12.1995 when he was going from Amritsar to village Bhala Pind in a bus, he dropped at village Bhala Pind. He was taking tea at tea stall where both the accused were taking tea and they were inter se talking with each other saying that they had no ill will against Iqbal Masih but all of a sudden they gave him kick blow as a result of which he died. It was also stated that he over-heard that accused had no ill will against Iqbal Masih but all of a sudden they gave him kick blows and Joginder Singh took out the rod from the truck and gave rod blows to Iqbal Masih as a result of which he died. PW-4 is Rishi Ram, Draftsman who simply prepared rough site plan Ex. PF. Constable Manjit Singh is PW-5 and his statement is of formal nature as he arranged post mortem examination on the body of Iqbal Masih. He produced the clothes which were handed over to him by the Doctor after post mortem examination. PW-6 is Iqbal Singh who is an employee of the Ajnala Cooperative Sugar Mills, Bhala Pind and as per his statement on 17.12.1995 the truck No. PCJ 9948 entered in the mill loaded with sugar cane and token No. 1442 was issued regarding the entry of this truck in the mill. Dr. A.S. Thind, PW-7, conducted post mortem examination on the body of Iqbal Masih and found as many as 13 injuries on his person which are detailed below :-