CRA No.698-DB of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Date of decision:01.08.2013 CRA No.698-DB of 2009 (O&M) Nahar Singh & another .... Appellants Versus State of Punjab .... Respondent CRA No.41-DB of 2010 (O&M) Basant Singh .... Appellant Versus State of Punjab .... Respondent CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL HON'BLE MRS. JUSTICE ANITA CHAUDHRY Present: Mr. A.P.S.Deol, Sr. Advocate with Mr. Vishal Rattan Lamba, Advocate for the appellants in CRA No.698-DB of 2009. Mr. N.S.Swaitch, Advocate for the appellant in CRA No.41-DB of 2010. Mr. B.S.Bhalla, Addl. AG, Punjab. ***** 1. Whether Reporters of local papers may be allowed to see the judgment?.
2. To be referred to the Reporters or not?.
3. Whether the judgment should be reported in the digest?. Anita Chaudhry, J.(Oral) This judgment shall dispose of two criminal appeals bearing not CRA-D-698-DB of 2009 and CRA-D-41-DB of 2010 as these arise out of the judgment of conviction and order of sentence dated 27.07.2009 passed by the Addl. Sessions Judge, Faridkot in FIR No.67 dated 07.05.2007 registered under Sections 302/34 IPC at Police Station Jaitu. All the appellants were convicted for the commission of Bura Sonia 2013.08.21 12:36 I attest to the accuracy and integrity of this document Chandigarh CRA No.698-DB of 2009 (O&M) -2- offence under Section 302 read with Section 34 IPC and sentenced to undergo rigorous imprisonment for life along with a fine of Rs.5,000/- each. In default of payment of fine, they were to undergo imprisonment for a period of two months. Before adverting to the merits of the appeal, it is necessary to advert to the basic facts, which led to the lodging of the FIR. Jeet Singh, aged 70 years left for his fields at 5.00 am on 07.05.2007. His son Baldev Singh followed him after some time. When Jeet Singh reached near the water course on the katcha passage near his fields, Basant Singh came armed with kahi, Boota Singh armed with dang came along with Nahar Singh. Nahar Singh raised a lalkara upon which Basant Singh gave a kahi blow from the reverse side on Jeet Singh's right upper arm. He gave another 'kahi' blow from the reverse side on the right arm on which Jeet Singh fell down. Basant Singh gave another 'kahi' blow from the reverse side on the left upper arm. Boota Singh gave a dang blow on the left arm of Jeet Singh. Basant Singh gave another 'kahi' blow from the sharp side on the right leg of Jeet Singh and another 'kahi' blow from the reverse side on his right thigh. Baldev Singh raised alarm which attracted Gurmit Singh. On seeing the people coming, the accused fled from the spot along with their respective weapons. The motive ascribed by the complainant was that Basant Singh after the demarcation wanted a passage from the fields of the complainant. The complainant and his father did not want to leave any passage. The story goes that the complainant went back to the village to arrange a vehicle to take his father to the hospital. Jeet Singh was brought dead to the hospital at Kotkapura at 8.30 am. The FIR was Bura Sonia 2013.08.21 12:36 I attest to the accuracy and integrity of this document Chandigarh CRA No.698-DB of 2009 (O&M) -3- lodged at 9.25 pm. The special report reached the Magistrate at 1.00 am. Accused Basant Singh was arrested and he got the 'kahi' recovered. The police filed the challan only against Basant Singh while the names of Boota Singh and Nahar Singh were shown in Column No.2. During the trial, an application under Section 319 Cr.PC was filed, which was allowed and Boota Singh and Nahar Singh were summoned by the trial court. All the accused were charged under Section 302 read with Section 34 IPC to which they pleaded not guilty and claimed trial. The prosecution examined Baldev Singh – PW-1- complainant, Kuldip Kaur – PW-2 (wife of Baldev Singh) besides the investigating Officers and Dr. Gaji Ujair – PW-6 and Dr. Gurmanjit Rai, Associate Professor, GGS Medical College, Faridkot-PW-3, who conducted the postmortem and found the following injuries on the dead body of Jeet Singh :
1. Lacerated wound 6 x 4.5 cm was present on outer aspect of right upper arm in its middle which was obliquely placed. Clotted blood was present.
2. Lacerated wound 4.5 x 3 cm was present on inner aspect of right upper arm in its middle clotted blood was present. On dissection of injuries No.1 and 2 right humerus bone was found fractured at two places. Clotted blood was present.
3. Lacerated wound 6 x 3 cm was present on front and outer aspect of left upper arm in its middle.
4. Reddish blue bruises 9 x 4 cm was present obliquely on Bura Sonia 2013.08.21 12:36 I attest to the accuracy and integrity of this document Chandigarh CRA No.698-DB of 2009 (O&M) -4- left upper arm on its outer aspect. On dissection of injuries No.3 and 4 left humerus was found fractured.
5. Diffused swelling was present on right forearm. On dissection both radius and ulna bones of right side was found fractured in their lower 1/3rd. Clotted blood was present.
6. Incised wound 7 x 5 cm with brushing of margins was present on front of right leg in its lower half. Both tibia and fibula bones of right side were found fractured on dissection.
7. Lacerated wound 7 x 5.5 cm was present obliquely on front of right thigh which was muscle deep and clotted blood was present.
8. Reddish brown abrasion 3 x 1 cm was present on front side of right side of chest 9 cm below nipple. The Medical Officer had noted that all the injuries were ante mortem in nature and death was on account of shock and heamorrhage as a result of multiple fractures of long bone, which was sufficient to cause death in the ordinary course of nature. After conclusion of the prosecution evidence, in the statement recorded under Section 313 Cr.PC, all the accused pleaded false implication. Additionally, Basant Singh in his statement had stated that the deceased had enmity in the village and he had been named on account of suspicion and Jeet Singh was killed by some unknown persons and he was named after due deliberation and consultation. The accused had examined seven witnesses to show that Bura Sonia 2013.08.21 12:36 I attest to the accuracy and integrity of this document Chandigarh CRA No.698-DB of 2009 (O&M) -5- Boota Singh and Nahar Singh were present in their village as it was their turn to water their fields. They had summoned the record from Nehri Patwari, who proved the warabandi of outlet No.54525(1) Doda Rajwaha. They had also summoned the record from the office of DSP, Kotakapura to show that the police had not challaned Boota Singh and Nahar Singh as several witnesses had vouched in their favour that they were in the fields in their village. We have heard both the sides and perused the record with their assistance. The foremost contention made on behalf of the appellants was that the conviction has been recorded only on the solitary statement of Baldev Singh, who is not an agriculturist and he was a peon in a government department and there was no reason for him to go to the fields and his presence is chance presence. It was urged that his conduct during the occurrence shows that he was not present as he did not participate and did not step in to save the life of his father. It was vehemently urged that the complainant left his father and came home to bring a tractor and took the father to the hospital at 8.30 am but there is no explanation as to why he made the statement to the police at 5.30 pm. It was also urged that the intervening time has been used to concoct a story and the FIR is the result of consultation and deliberation. It was further urged that he had named three accused but the police had found him to be partly reliable and had not challaned Boota Singh and Nahar Singh and such a witness cannot be believed. It was urged that the statement could be corroborated but the independent witnesses did not support the prosecution version and were given up. It was contended that there Bura Sonia 2013.08.21 12:36 I attest to the accuracy and integrity of this document Chandigarh CRA No.698-DB of 2009 (O&M) -6- was no motive for the accused to kill Jeet Singh and the complainant has implicated relatives of Basant Singh who are residents of different village and it goes to show the extent to which the complainant could go and it totally discredits his testimony. It was urged that the case would not fall under Section 302 IPC even otherwise as no injury was caused on the vital part of the body. It was contended that other accused had no reason to join hands with Basant Singh not they were to get any share in the property and there was no motive. Learned counsel for the State supported the judgment passed by trial court and urged that the number of injuries inflicted upon Jeet Singh, who was an old man of 70 years goes to show that it could not be the work of one person and the old man had been butchered and both his arms and legs were broken and there were multiple fractures on long bone and the case would fall under Section 302 IPC. The main thrust of the argument of the appellant was regarding the delay. The incident took place at 5.00 am. The injured was brought dead to the hospital at 8.30 am. The statement was given by Baldev Singh to the police at 5.30 pm the same evening and the FIR was lodged at 9.25 pm the special report reached the Magistrate at 1.00 am the following day. The argument of the appellant was that if Baldev Singh was in the hospital in the morning then there was no reason for not making the statement to the police as the investigating officer had reached the hospital at 9.00 am. A perusal of the statement of SI Gursher Singh – PW-9 shows that when the police officials reached the hospital, only Kuldip Kaur was there. Baldev Singh had come back and on his return, the Bura Sonia 2013.08.21 12:36 I attest to the accuracy and integrity of this document Chandigarh CRA No.698-DB of 2009 (O&M) -7- police official met Baldev Singh at 4.00 pm. The incident took place in village Kothe Mahla Singh while the Civil Hospital is at Kotkapura. The complainant first went to Jaitu where no doctor was present then he proceeded to Civil Hospital, Kotkapura. The Faridkot Court is at a distance of 25 kms from Jaitu. The explanation given by the complainant was that he had gone back to inform the relatives. He returned and then made the statement. The important question is whether the delay in giving FIR by itself is good ground to reject the prosecution case. Knowing the indian conditions, one cannot expect the villagers to rush to the police immediately after the occurrence. Human nature as it is, the kith and kin who had witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. It is natural for them to first go to the hospital. The family members cannot be expected to rush to the police. This is not a case where there was acute party faction which could have led to implicate wrong people. In order to avert the danger of convicting the innocent, the Court would be conscious to scrutinize the evidence with greater care and caution where it is found that there is delay, it can separate the grain from the chaff after subjecting the evidence to a closer scrutiny. However, unless there are indications of fabrications, the Court cannot reject the prosecution version as given in the FIR and later substantiated by evidence. It is a matter of appreciation and it will all depend on the facts and circumstances of each case. In Zahoor and others vs. State of UP, AIR 199.SC 4.it was held that mere delay by itself is not enough to reject the prosecution case unless there are clear indications of fabrication. This Bura Sonia 2013.08.21 12:36 I attest to the accuracy and integrity of this document Chandigarh CRA No.698-DB of 2009 (O&M) -8- was reiterated in Jamna & Ors. v. State of Uttar Pradesh, AIR 199.SC 7.that delay by itself is not a circumstance to doubt the prosecution case. The facts of the case have been considered. Though there is no direct evidence to explain the delay but we find that some time was consumed in taking the injured to the hospital for medical aid and therefore, the complainant had no time to lodge the report promptly. The victim and the members of his family belong to a strata of society that every person may not be even aware of his right to report the matter to the police immediately. The son after leaving Kuldip Kaur had gone to inform the other family members. The delay has been explained and it is not fatal to the case of the prosecution. The delay has been considered in the background of the facts and circumstances. not it has to be seen whether the statement of the complainant can be wholly accepted or whether there is part of his statement, which is not true. The complainant had named Basant Singh along with Boota Singh and Nahar Singh. The investigating officer had examined several persons from the village and Boota Singh and Nahar Singh were not challaned by the police even no recovery was effected as they were not joined in the investigation. The only statement regarding the involvement of these two persons is that of Baldev Singh. The role attributed to Nahar Singh is that he had raised lalkara. All the injuries have been attributed to Basant Singh. According to Baldev Singh, Boota Singh had given only a dang blow on the left arm of his father. The medical officer had found one lacerated wound on front and outer aspect of left upper arm in the middle. This is the injury, which the Bura Sonia 2013.08.21 12:36 I attest to the accuracy and integrity of this document Chandigarh CRA No.698-DB of 2009 (O&M) -9- complainant attributes to Boota singh. Had Boota Singh and Nahar Singh been present on the spot, they would have caused more injuries and would not have just stood watching the incident without making any contribution. Both Boota Singh and Nahar Singh had no hostility towards Jeet Singh. It was Basant Singh, who had a motive. Jeet Singh had raised objection and Basant Singh wanted to silence the objection. It appears that the injured had named Boota Singh and Nahar Singh since they were related to Basant Singh. Both Boota Singh and Nahar Singh are resident of different village. It appears that the complainant out of vengeance had named them. It has been seen that many a time the complainant names the family and the relatives, as he has lost his dear one and it is out of anger the witnesses name other members of the family but it is the duty of the Court to find out, which part of the statement is reliable and can be acted upon. The entire statement of the witness cannot be rejected. That part of the statement, which is convincing, can be accepted. We find that Boota Singh and Nahar Singh were not involved in the incident. Had they been present, they would have played a bigger role they would not have stood as mute spectators. They had no motive to cause injuries to Jeet Singh. The evidence led by the prosecution as against these two accused is concerned, it is not convincing. They did not participate in the occurrence, though they were armed with deadly weapons. Repetition In our view, their involvement in the occurrence has not proved. The complainant has indulged in exaggerations and his statement so far as the involvement of Boota Singh and Nahar Singh is Bura Sonia 2013.08.21 12:36 I attest to the accuracy and integrity of this document Chandigarh CRA No.698-DB of 2009 (O&M) -10- concerned is not convincing and it has to be rejected. It does not mean that the entire statement is to be rejected. The statement of the complainant so far as the involvement of Basant Singh is concerned is convincing and reliable and can be acted upon. The medical evidence supports the testimony of Baldev Singh. Deceased – Jeet Singh was inflicted as many as 8 injuries on the arms and legs, brute force was used and Jeet Singh, who was 70 years old, could not have survived the assault. The argument that there was no intention to kill cannot be accepted. There were multiple fractures on the long bone and Basant Singh had inflicted grevious injuries, which resulted in the death of Jeet Singh. The presence of Baldev Singh cannot be doubted. He was the son of Jeet Singh and it was natural for the son to follow his father, who had gone to the fields. His statement is reliable and thus, accepted. For the foregoing reasons and discussion, we confirm the judgment of the trial Court so far as Basant Singh is concerned. The judgment of conviction passed by the trial court stands reversed and the appeal qua Boota Singh and Nahar Singh are allowed. The appeal filed by Basant Singh is dismissed. (M.Jeyapaul) (Anita Chaudhry) Judge Judge 01.08.2013 sonia Bura Sonia 2013.08.21 12:36 I attest to the accuracy and integrity of this document Chandigarh