IN THE SUPREME COURT OF INDIA

(CRIMINAL APPELLATE JURISDICTION)

SPECIAL LEAVE PETITION (CRIMINAL) NO. ________OF 2011.

IN THE MATTER OF :

Shalinder Singh .... Petitioner

Versus

State of Punjab ….Respondent

THE COUNTER AFFIDAVIT ON BEHALF

OF RESPONDENT NO. 2

I, Rajwant Singh, R/o Village Baam, Tehsil Malout, P.S. Sadar

Malout, District Muktsar, Punjab father of respondent No. 2 at
present at New Delhi, do hereby solemnly affirm and declare as
under: -

1. That I am being father of respondent No. 2 in the above-

mentioned case and conversant with the facts and
circumstances of the case and competent to swear this
affidavit.

2. That the answering respondent after gone through the

each and every averments made in the Synopsis, List of

Dates and Special Leave to Appeal and is denying each

and every submissions and contents therein of the Special

Leave to Appeal unless and otherwise specifically admitted

in this counter affidavit.

3. That the present Special Leave to Appeal preferred by the

petitioner/complainant is liable to be dismissed with

exemplary cost on sole ground that he has not approached

 this Hon’ble Court with clean hands and suppressed and

concealed the material facts and evidence relating to and

interested only to harass the respondent no. 2 who has

been sentenced for life, not less than 25 years of actual

imprisonment, by the high Court.

4. That It is most respectfully submitted that even the Courts

below have failed to appreciate the cardinal principle of

Criminal Law Jurisprudence which emphasizes that the

onus lies upon the prosecution to prove its entire case

beyond shadow of doubt. But non-application of this

principle has seriously prejudiced the case of the

respondent no. 2 as his conviction is recorded only on the

basis of hypothesis, probabilities and the evidence

contrary to the record. Further more the prosecution story

is most unnatural, improbable and incredible. The

evidence has been mis-interpreted and mis-appreciated by

the Courts below, which has seriously prejudiced the case

of the respondent no. 2. Even inadmissible evidence has

been taken into consideration and admissiable evidences

have ignored.

PRELIMINARY SUBMISSION:

1. That it is admitted position that the respondent no. 2 is

the only son of his father owing 30 Acres of fertile and

commercial land. More-over the alleged motive attributed

 to the respondent no. 2 for committing alleged crime does

not appeal to reason and logic. As per prosecution version

the respondent no. 2 demanded more dowry and share in

property of his in-laws which cannot be imagine by any

product person. The alleged occurrence took place on

14.6.2007. The marriage between the respondent no. 2

with PW-13 Shaminder Kaur was solemnized on

08.03.1998 and a son namely Babbar was born from this

wed-lock who was 5/6 years old at the time of alleged

occurrence.

2. That no complaint in of demand dowry/share in property

respect was ever lodged by PW-13 or by her parents prior

to this alleged occurrence. It is wholly unbelievable that a

person will demand dowry or share in the property in such

a manner as has been propounded by the prosecution,

that to after such a long period and especially when the

respondent no. 2 is the only son of his parents and owns

about 30 acres of land and having sufficient means of

livelihood.

3. That the Ld. Trial Court erroneously held guilt of the

respondent no. 2 after conclusion of trial on basis of

sweeping assumption and presumption and mis-

appreciation of evidence on record which is as under :

a) The Ld. Trial Court awarded the death sentence to

the respondent no. 2 on four count for the offences

U/s 302, 498-A of IPC and 25 & 27 of 2 Arms Act

and acquitted the co-accused (father of respondent

no. 2) from the same allegation. It is admitted

position that the marriage of the respondent no. 2

with Shaminder Kaur was performed in year 1999

and she also gave a birth of a child namely Babbal

Singh who is living with the father of respondent no.

2. There is no allegation of dowry before the alleged

occurrence i.e. on 14.06.2007 and allegation of

dowry was made subsequent to the alleged

occurrence by way of filing a false complaint before

the Judicial Magistrate who vide order dated

02.12.2008 summoned the accused persons and

lateron both the case were clubbed together for trial.

Thus, it is clear that subsequent complaint was filed

with ulterior motive to generate evidence against the

respondent no. 2 and the prosecution story

demolished from its very being.

b) That the Ld. Trial Court has placed sole reliance

upon the bald statement of complainant that the

respondent no. 2 demanded share from the property

of complainant and that is the only motive behind

 the occurrence. It is humbly submitted that the

respondent no. 2 has already enormous property and

having more than 30 acres of ancestral land, and not

a single instance came on record to prove that the

respondent no. 2 ever demanded any dowry except

the complaint case filed subsequent to the alleged

occurrence thus the Ld. Trial Court totally mislead

on the motive part and wrongly awarded the death

punishment to the respondent no. 2.

c) That the Ld. Trial Court misconceived while ignoring

the material evidence of PW5 SI Rajan Parminder

Singh who admitted that he reached on the spot of

occurrence at 12’O clock and found that the joints of

dead bodies were stiffs as such no occurrence took

place between 9 A.M. to 10 A.M. and alleged

occurrence took place much prior to 9 AM because

stiff in the dead body was no to be never present at

12 noon. Thus, the prosecution has post clocked the

alleged occurrence to bring home the guilt of

respondent no. 2.

d) That no person has seen the occurrence as no

evidence on record to show that what was the

position of deceased as well as the so called eye

witnesses. That even the interested eye witnesses

 have been failed to show their presence at the place

of occurrence. That the Ld. Trial Court found from

medical evidence and mentioned at para 19 of its

judgment that there was semi digested food in the

stomach of deceased as found by PW2 Dr. Deepika

Bansal. There is rigor mortis also found in autopsy

performed by her. Thus, it is enough evidence to

show that the alleged occurrence projected post

clocked by the prosecution.

e) The Ld. Trial Court in para 20 of its judgment

held that :

“….So when there is only general statement of

PW3 Gurpal Singh over this matter and there is

no specific and concrete evidence as to what

time each of the deceased took meal on that

day, therefore, not much benefit can be derived

by the defence on this point.”

It is humbly submitted that in one side the Ld.

Trial Court accepted the statement of Gurpal Singh

(complainant) as general statement and on another

side placed reliance on his sole statement while

punishing the respondent no. 2. More so, it is an

established law that benefit of doubt is always given

to accused person and court cannot fill up the

lacuna in Criminal cases thus, the punishment of

 respondent no. 2 in the instant case is wholly illegal

and unjust.

f) The Ld. Trial Court in para 21 of its judgment

mentioned that no bodies knows the depth of

intention of the person who is going to commit crime.

It can be gathered from the outward circumstances

only. He might be thinking in different manner to

achieve his purpose. It is humbly submitted that the

Ld. Trial Court has himself presumed intention qua

the respondent no. 2 as well as manner of assault

while holding the respondent no. 2 guilty. Infact,

there is neither intention nor motive proved by the

prosecution, and thus, conviction U/s 302 IPC is

illegal. The Ld. Trial Court committed grave error in

para 28 of its judgment also.

g) That Ld. Trial Court, a part from above vital point,

mis-appreciated the entire evidence against the

respondent no. 2 and wrongly & illegally held the

respondent no. 2 guilty of such crime which is never

committed by him nor proved on record by the

prosecution.

h) That Ld. Trial Court also misled and misinterpreted

the delay in lodging FIR. The alleged occurrence took

place at 9 A.M. and admittedly police reached at the

 spot at 11 A.M. but FIR lodged only at 1.30 P.M.

therefore, after thought in lodging FIR cannot be

ruled out.

4. That the Hon’ble High Court vide impugned judgment

and final order dated 6.5.2011 was pleased to reduce the

death sentence of respondent no. 2 as awarded ld. by

Sessions Judge into life sentence alongwith direction to

undergo 25 years of actual imprisonment without any

short of remission. The respondent no. 2 humbly

submitted that the respondent no. 2 has been falsely

implicated in the present case. The impugned order

has been passed by the High Court even without

appreciating the true fact, otherwise, the evidences on

record are sufficient for acquittal of the respondent

herein which is mentioned below:

a) That this Hon’ble Court be pleased to appreciate that

in all the Inquest Reports, Paramjit Singh alias

Pammi and Sukhpal Singh Ex-Sarpanch have been

shown to be present but none of these have been

examined by the prosecution, which has deprived the

respondent no. 2 of extracting truth. Adverse

inference ought to have been drawn against the

prosecution on this count.

b) That this Hon’ble Court be pleased to appreciate that

the presence of Rigor Mortis and post-mortem

staining in all the dead bodies at the time of post-

mortem contradicts the time and manner of alleged

occurrence. In addition, in the post-mortem reports

of Surinder Kaur and Harman Kaur, name of Gurpal

Singh has been added subsequently by adding

words, “alias Gurpal Singh”. This also creates doubt

about the presence of Gurpal Singh at the time of

alleged occurrence as alleged by him.

c) That this Hon’ble Court may please appreciate that

the non-recovery of empty cartridges either in the

room where dead bodies of Sadhu Singh and

Jaswinder Kaur were lying or near the dead bodies of

Surinder Kaur and Harman Kaur is also a

circumstance which creates reasonable doubt about

the prosecution version. Furthermore, a careful

perusal of Rough Site Plan, Scaled Plan and

Photographs reveals that occurrence cannot take

place in the manner in which it has been asserted by

the prosecution witnesses. This will be further

demonstrated during the course of arguments. It is

not feasible to shoot persons who are sitting inside

the room from a distance of 16 feet especially when

 those persons are not visible and there are

obstructions due to an existing wall of considerable

height.

d) That this Hon’ble Court may please appreciate that

the entire investigation appears unfair, partial and

tainted one. The investigation Agency has

manipulated and cooked up certain things so as to

appear a case of circumstantial evidence in many

respects and with this oblique motive, PW-15 Baljit

Singh and PW-16 Jaswinder Singh and PW-18

Harjinder Singh have been introduced with the

assistance of some expert legal brain behind the

curtain. Their presence is not only doubtful, but

their entire act and conduct appears to be most

unnatural and their testimonies are to be scrutinized

with great degree of care and caution. These

witnesses have also made numerous improvements

and they were confronted with their previous

statements. Still, chain is missing in that respect.

According to S.I. Rajan Parminder Singh, certain

documents/ statements were prepared under his

dictation, but he has not disclosed the name of

scribe of those documents/ statements nor the

original scribe has been examined to rule out any

 addition or omission therein. It appears that PW-5

S.I. Rajan Parminder Singh, PW-7 H.C. Pritam Singh

have played havoc in this case against the

respondent no. 2 by giving twists.

e) That this Hon’ble Court may please appreciate that

all the alleged incriminating material was not put to

the respondent no. 2, while recording his statement

under Section 313 Cr. P.C. which has resulted into

complete failure of justice.

f) That punishment awarded to the respondent no. 2 is

excessive one. The Courts below fell in error in

holding that this was a case falling the category of

gravest of the grave cases which has fallen in the

ambit fast of the rare case inviting the extreme

penalty of death in this case. The respondent no. 2 is

a victim of circumstances. With due respect, it is

submitted that this case cannot be termed brutal,

grotesque, diabolical, revolting or dastardly manner

so as to arouse intense and extreme indignation of

the community. It appears that the Ld. Courts below

were influenced by the number of deceased, while

awarding sentence upon the convict-respondent no.

2. The Hon’ble Supreme Court in a case, titled as

Des Raj Versus State of Punjab reported in 2007(4)

 RCR (Crml) at page 133 has held that counting the

casualties is not the main criterion for sentencing to

death nor recklessness in the act of murder. The Ld.

Trial Court has failed to take note that alleged acts of

commission of the convict-respondent no. 2 did not

cause any mental or physical pain to the victims.

g) That the convict-respondent no. 2 has no criminal

antecedents and alleged occurrence took place barely

within 10-15 minutes, but these alleged murders

cannot be termed as diabolic by any stretch of

imagination and bodies were not disfigured. Reliance

is placed upon a case, titled as Dilip Premnarayan

Tiwari & Anr. Versus State of Maharashtra reported

in 2010(1) Criminal Court Cases at page 366.

The conviction is recorded on the basis of wrong

inferences that there is no hard and fast rule to

consider the vital evidence as the Investigating officer

PW-5 recorded rigor mortis, joint stiff present in the

dead body at 12.00 noon in the inquest report and

same is dully founded in postmortem report

conducted by Dr. Deepika Bansal at 3.30 P.M. which

clearly establishes that how the prosecution has put

forth post clock story as per their convenience. More

so, semi digested food recorded in the postmortem

 report also shows that alleged incidence is post clock

and the story is afterthought to implicate the

respondent no. 2.

h) The entire act and conduct of PW-13 Shaminder

Kaur remained most unnatural. A critical analysis of

her statement makes even her presence doubtful at

the time of alleged occurrence. She made numerous

improvements in her statement in trial Court. She

was duly confronted with her statement which was

recorded under Section 161 Cr. P.C. she has

exaggerated each and every fact in her statement. So

much so, even her statement was not correctly

recorded, while recording her statement under

Section 161 Cr. P.C.

It is further humbly submitted that cardinal

principle of Criminal Jurisprudence that the accused

is entitled to each and every benefit of doubt and

that prosecution must stand or fall on its own legs

and it cannot derive any strength from the weakness

or false plea of defence of the accused. Reliance is

placed upon a case Nanhar and Ors. Versus State of

Haryana decided by the Hon’ble Supreme Court

reported in 2010(3) Criminal Court Cases at page

654. Further, presence of Rigor Mortis and post-

 mortem staining in all the dead bodies at the time of

post-mortem contradicts the time and manner of

alleged occurrence. In addition, in the post-mortem

reports of Surinder Kaur and Harman Kaur, name of

Gurpal Singh has been added subsequently by

adding words, “alias Gurpal Singh”. This also creates

doubt about the presence of Gurpal Singh at the time

of alleged occurrence as alleged by him.

i) That It is needless to say that the entire investigation

appears to be unfair, partial and tainted one. The

investigation Agency has manipulated and cooked up

certain things to make it appear as a case of

circumstantial evidence in many respects. PW-15

Baljit Singh and PW-16 Jaswinder Singh and PW-18

Harjinder Singh have been introduced with the

assistance of some expert legal brain behind the

curtain. Their presence is not only doubtful, but

their entire act and conduct appears to be most

unnatural and their testimonies are to be scrutinized

with great degree of care and caution. These

witnesses have also made numerous improvements

and have confronted with their previous statements.

Still, chain is missing in that respect. According to

S.I. Rajan Parminder Singh, certain documents/

 statements were prepared under his dictation, but he

has not disclosed the name of scribe of those

documents/ statements nor the original scribe has

been examined to rule out any addition or omission

therein. It appears that PW-5 S.I. Rajan Parminder

Singh, PW-7 H.C. Pritam Singh have played havoc in

this case against the respondent no. 2 by giving

twists.

j) That It will not out of place to mention here that on

the contrary, the plea that the respondent no. 2 and

his wife PW-13 Shaminder Kaur has strained

relations and the respondent no. 2 and DW-3

Jaspinder Kaur (sister of Shaminder Kaur) had love

affair, due to which Shaminder Kaur and her parents

were annoyed with the respondent no. 2 and felt

offended and humiliated, due to this the respondent

no. 2 has been falsely roped in this case. The Courts

below have failed to appreciate this aspect of the case

in a right perspective.

k) That no doubt, evidence of close witnesses is not to

be discarded merely on the basis of their close

relationship, but greater degree of care and caution

is required in such cases and their testimonies are to

be analysed critically and testimonies of close

 relations are not to be accepted as gospel truth. The

Courts below have failed to analyse their testimonies

with due care and caution which has resulted into

miscarriage of justice.

l) That these witnesses have made numerous

improvements in their statements made during trial

and has confronted with their previous statements.

Their act and conduct did not remain above the

board. That as per site plan Ex. PW-5/G, alleged eye

witnesses Gurpal Singh and Mithu Singh had seen

the occurrence from different places, whereas as per

statements made by them in court, place of standing

and seeing occurrence by these witnesses are

different places. In other words, there are lot of

variance in the places of presence of these witnesses

which goes to the root of the case and which further

belies and creates doubts about the visibility of

occurrence from their place of presence. Keeping in

view peculiar circumstances of this case, false

implication of the respondent no. 2 cannot be ruled

out.

m) That it is important to note here that as per

statements of alleged eye witnesses, the respondent

no. 2 is alleged to have fired shots from a distance of

 about 16 feet but a perusal of post-mortem reports

reveals that such injuries could only be possible from

a close range. The Ld. Courts below have failed to

properly appreciate this aspect of the case. More-

over there are material discrepancies in the

statements of alleged eye witnesses which have not

been properly appreciated by the Trial Court. These

discrepancies make a dent in the prosecution

version.

n) PW-13 Shaminder Kaur has stated that the persons

were taking tea whereas Mithu Singh has stated that

his daughter (deceased Surnder kaur) was kneading

the flour but the particulars regarding flour on hand

has been neither recorded in the inquest report nor

mentioned in the post mortem report.

o) That it has come on record that the respondent no. 2

owned and possessed Arms Licenses and there was

no necessity for him to borrow Fire-Arm of his father

for committing this alleged offence. This also castes

doubts about the prosecution version. False

implication of Rajwant Singh and his acquittal by the

Trial Court goes to the root of the case. From these

facts, the only inference which is deducible is that

possibility of false implication of the respondent no. 2

 cannot be ruled out and prosecution has miserably

failed to prove his case beyond reasonable doubt.

p) That the mode of surrender as put forward by the

prosecution is entirely cooked up version. As per

prosecution version, one Harbir Singh is alleged to be

instrumental in surrendering the respondent no. 2

before the I.O. PW-5 Rajan Parminder Singh. Said

Harbir Singh has not been examined by the

prosecution. There is neither any relationship nor

friendship between the respondent no. 2 and said

Harbir Singh which may be considered sufficient to

justify such a surrender with his involvement.

Furthermore, there are material discrepancies

between the statements of I.O. PW-5 Rajan

Parminder Singh and PW-7 H.C. Pritam Singh about

mode of surrender of the respondent no. 2. Further

the alleged disclosure statement made by the

respondent no. 2 and the alleged recovery of weapon

of offence is nothing but a bundle of lies. It is

judicially noticeable fact that the police is in the

habit of converting recoveries into discoveries.

Furthermore, the house from where the alleged

weapon of offence was allegedly recovered was not in

exclusive possession of the respondent no. 2. No

 independent witness was joined either at the time of

alleged disclosure statement or at the time of alleged

recovery of weapon of offence. In addition, the alleged

disclosure statement cannot be termed as a

disclosure statement. This statement is inadmissible

in evidence and the same cannot legally be taken

into consideration. The respondent no. 2 and his

parents were residing in the same house under one

roof.

q) That the statement of Jaswinder Singh PW-16/17 is

facsiculous of fibs. A minute perusal of his entire act

and conduct, prior and subsequent to the alleged

occurrence appears to be shaky and statement of

such a person is not worth acceptance. It is wholly

unbelievable that such a discussion/ conspiracy will

be made in a public place and that too, where large

number of persons are sitting nearby. It has come on

record that this witness is friend of Harjinder Singh

who is nephew (Bhanja) of deceased Sadhu Singh.

Furthermore, according to this witness, he did not

consume liquor on Tuesday and it was Tuesday,

when the alleged discussion/ conspiracy was

allegedly overheard by this witness.

r) That it is humbly submitted that the link evidence is

missing and this aspect of the case has not been

properly taken into consideration. There are material

discrepancies about landing of case property

/parcels in the statements of PWS who handled case

property /parcels at certain stages. In short, the

prosecution has failed to prove that at no point of

time, case property /parcels were neither tampered

by the person handling them nor any one was

allowed to temper with the same.

s) That the extent of falsehood of DW-3 Jaspinder Kaur

can well be imagined that she even denied letters

written by her to the respondent no. 2 and the

respondent no. 2 had to crave indulgence of the Trial

Court to get her standard writings and signatures be

sent to Forensic Science Laboratory, Punjab,

Chandigarh for comparison purposes. It is

worthwhile to mention here that in her Report, Dr.

Seema Sharda, Assistant Director, Forensic Science

Laboratory, Punjab, Chandigarh has opined that

writings and signatures marked Q1 to Q10 are found

similarly exemplified at one or the other place in the

standard writings and I do not find any characteristic

difference between them. The similarities found

between the questioned and standard are significant

 and sufficient and when considered collectively lead

us to the opinion of their common authorship. This

also corroborates the plea of the respondent no. 2.

The defence version of the respondent no. 2 is not

unfounded. These aspects of the case have not been

properly appreciated by the Ld. Courts below which

requires needful consideration of this Hon’ble Court.

5. In the aforesaid facts and circumstances the present

Special Leave Petition preferred by the petitioner/

complainant deserve only to dismiss with exemplary

cost as unnecessarily the petitioner has consumed

the prestigious time of this Hon’ble Court without

any reason and occasion and only due to his

mischievous act and omission the answering

respondent is being harassed and sentenced for life

imprisonment.

6. That the no facts that should not be pleaded before

the Hon’ble Courts below has been pleaded in this

Counter Affidavit.

PRAYER:

It is, therefore, most respectfully prayed that

Your Lordships may graciously be pleased to: -

a) Dismissed the present Special Leave to Appeal

preferred against the sound and reasoned judgment

and final order dated 6.5.2011 passed in Murder

Reference No. 7 of 2010 by the Hon’ble High Court of

Punjab & Haryana at Chandigarh with cost.

b) Pass such other order/orders as Your Lordships may

deem fit and proper under the facts and

circumstances of the present case.

VERIFICATION: -

I, the above named deponent, do hereby verify that the

contents of this counter affidavit are true and correct on the

basis of knowledge and belief and record of the case and

nothing false has been stated herein or concealed there from.

Verified on this day of February 2014.

DEPONENT

Filed by

(S.K. SABHARWAL) Advocate for the petitioner

111 lawyers Chamber,Supreme Court of India New Delhi 1.