Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal not D-191-DB of 2009 (O&M) Date of Decision: August 22, 2013. Prince Pal Singh alias Vicky ...Appellant(s) Versus State of Punjab ...Respondent(s) Crl. Appeal not D-392-DB of 2009 (O&M) Date of Decision: August 22, 2013. Vijay Kumar alias Babbu ...Appellant(s) Versus State of Punjab ...Respondent(s) CORAM: HON'BLE MR. JUSTICE M.JEYAPAUL HON'BLE MS. JUSTICE ANITA CHAUDHRY 1 Whether Reporters of local papers may be allowed to see the judgment?. Yes/No 2. To be referred to the Reporters or not?. Yes/No 3. Whether the judgment should be reported in the digest?. No Present: Ms. G.K. Mann, Advocate for the appellants. Mr. B.S. Bhlalla, Addl. Advocate General, Punjab. ***** Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -2- ANITA CHAUDHRY, J.
1. This judgment shall dispose of Crl. Appeal not D- 191-DB of 2009 bearing title Prince Pal Singh @ Vicky Vs. State of Punjab and Criminal Appeal not D-392-DB of 2009 bearing title Vijay Kumar @ Babbu Vs. State of Punjab. Appellant Prince Pal Singh @ Vicky and Vijay @ Babbu had been convicted by the Sessions Judge, Amritsar vide judgment dated 08.01.2009. The FIR bearing no.56 was registered under Sections 302, 324, 120-B/34 IPC at Police Station B Division, Amritsar on 16.04.2007. There were four accused who faced trial. Out of them Mohinder Kaur @ Gainda and Mandeep Singh @ Dimpi were given the benefit of doubt and acquitted while the appellants were sentenced to undergo life imprisonment along with a fine of ` 5000/-. In default of payment of fine, they were to further undergo rigorous imprisonment for a period of six months for commission of offence under Section 302 IPC.
2. Narrating the sequence, the incident took place on 14.04.2007 at 8:00 P.M. Sarabjit @ Saba son of Gurcharan Singh was returning home and was in front of the house of Gajinder Singh PW12 when Vicky and Babbu came armed with “Daggers”. and attacked him. There was no exchange of words. Babbu inflicted two knife blows on the upper part of the abdomen. Vicky Kuba inflicted three knife blows. Out of which two injuries were caused below the chest. One at the Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -3- back. The complainant also noticed that there was one person standing behind. The complainant suspected that he had been attacked at the instance of Mohinder Kaur @ Gainda who was a resident of Gali no.2 as some time earlier the police had taken him to Gainda's house to recover gold which had been stolen from the Darbar Sahib. Gainda suspected his (complainant) role in the matter and she had threatened to teach him a lesson for getting her arrested. Sarabjit's statement Ex.PQQ also mentioned that his brother-in-law Gurcharan Singh PW11 had reached the spot on coming to knot about the incident. His brother Surinder Singh also reached the spot and both of them took him (the injured) to the hospital. This statement was made to the police on 16.04.2007 at about 2:00 P.M. Sarabjit died two hours later.
3. Sarabjit was firstly taken to a private hospital and was referred to Gurunanak Dev Hospital, Amritsar the same night. He was admitted in the hospital at about 9:00-10:00 P.M. and his treatment was started. Dr. Naresh Sharma had noted the injuries in Ex.PA. Sarabjit's statement was recorded when he was declared fit to make the statement. The FIR was initially registered under Section 324/120-B/34 IPC. Later on Section 302 IPC was added on 16.04.2007. The police completed the investigation and filed the challan against both the appellants, Mohinder Kaur @ Gainda and Mandeep Singh @ Dimpi. Charge was framed under Section Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -4- 302, 120-B/34 IPC to which the accused pleaded not guilty and claimed trial.
4. The prosecution examined Gurcharan Singh PW11, Jaswinder Singh PW16 and Gajinder Singh PW12 besides the Investigating Officers and Dr. Naresh Sharma PW1, it is in his hospital that Sarabjit was first taken.
5. PW1 had disclosed that referral slip was handed over to Mahinder Singh at 9:00-10:00 P.M. and only first-aid was given and the injured was referred to Guru Nanak Dev Hospital at Amritsar. Dr.Manish Garg PW2 had declared Sarabjit fit to make statement on 16.04.2007 and stated that the patient was conscious at 3:40 P.M. on 16.04.2007 and he was in a fit condition up to 3:40 P.M. but subsequently, his condition started deteriorating and he died at 4:00 P.M. on 16.04.2007.
6. Dr. Puneet Arora PW4 had medico-legally examined Sarabjit Singh on 14.04.2007 and had found following injuries on his person:- 1. Incised punctured wound 2.8 x 0.8 cms present on the left side of the chest, 3 cms inside the left nipple. Fresh bleeding was present.
2. Incised punctured wound 3 x 1 cm. 9 cms below and lateral to left nipple. Fresh bleeding was present.
3. Incised punctured wound 3 x 1.3 cms, 4 cms lateral to umbilicus. Omentum coming out. FBP.
4. Three incised punctured wound size from 1 x 0.5 cms to 1.4 x 0.8 cms in an area of 5 x 5 cms just below and medial to right nipple FBP. Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -5- 5. Incised punctured wound 1.5 x 0.9 cms on right side of back in lumber region. FBP. All wounds were wedge shape PW3 Dr. Ashok Chanana, Assistant Professor GMC, Amritsar had conducted the postmortem examination on the dead body of Sarabjit Singh on 17.04.2007 and had noted the following injuries on the person of deceased:- 1. An oblique sutured wound with two stitches intact was present on the front and left side of chest, 3 cms medial to left nipple. It was 3 cms long.
2. An horizontal sutured wound, 3.5 cms in length with 3 stitches intat was present on the left lateral aspect of trunk in its center.
3. An oblique sutured wound 3.5 cms in length with two sutured intact was present on the front and left side of abdomen, four cms lateral to umbilicus.
4. Multiple (3) oblique sutured wounds varying in size from 1.2 cm to 1.8 cms in length were present on the front of right side of chest in the inframemory region.
5. An horizontal incised wound 1.8 cm long was present on the back and right side of abdomen. 2 cms lateral to mid vertebral area, over lumber region. On dissection, clotted blood of dark reddish brown colour was present at the sites, below sutures and dark brownish infiltration of blood was present around the tissues. The peritoneum contained two liters of foul smelling inflected blood. Injury No.3 communicated with the peritoneal cavity after injuring the intervening structures of abdomen i.e. Skin, muscles, peritoneum, omentum and mesentery. The membranes, brain, pleurae, larynx, traches, both Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -6- lungs stomach, small intestines, liver, spleen and kidneys were pale. On cut sections of the lungs, blood stained frothy fluid was found. The heard, stomach, small intestines and bladder were empty. Injuries were ante-mortem in origin. The cause of death in this case was shock, leading to peritonitis as a result of injury No.3, which was sufficient in ordinary course of nature to cause death.
7. Report of FSL Ex.PUU was tendered into evidence. In the statement of the accused recorded under Section 313 Cr.P.C., they denied the allegations of the prosecution and the accused pleaded innocence and false implication.
8. Accused Mohinder Kaur tendered documents Ex.DA to Ex.DH in her defence evidence. Other accused opted not to lead defence evidence.
9. The trial Court acquitted Mohinder Kaur and Mandeep Singh while the remaining two accused were convicted and sentenced to imprisonment mentioned herein before.
10. We have heard the submissions made on behalf of both the sides and have considered the record carefully.
11. It was contended on behalf of the appellants that the case of the prosecution is based only on the statement of Sarabjit Singh as all the remaining witnesses did not support the prosecution version and were turned hostile. It was contended that PW1 had deposed that Sarabjit's condition Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -7- was deteriorating and he was serious and he could not have made a statement two hours before his death. It was urged that the motive was with Mohinder Kaur who has been acquitted and the accused-appellants were innocent and it was a false case. It was also urged that the duration of injury was stated to be 06 hours whereas the prosecution has alleged that the incident took place at 8:00 P.M. and the injured was examined at about 10:30 P.M. and it could be that the injuries were suffered prior in point of time. It was urged that Sarabjit had not spoken about making any call to his brother-in-law and if the incident had been narrated to Gurcharan Singh then the FIR should have been lodged at the earliest and there is no explanation of delay. It was vehemently urged that the prosecution has to establish its case and here is a case where the prosecution has shown recovery even from Mandeep who was acquitted by the trial Court. It was urged that the police did not call the Illaqa Magistrate and the statement was recorded by the police official and a dying declaration made to the police officer should not be accepted without corroboration. In support of his arguments learned counsel for the appellants has placed reliance upon Uka Ram Vs. State of Rajasthan 2001(2) CLJ (Crl.) 95, Manphool (since deceased) and Jagan Vs. State of Haryana 2007(3) RCR (Criminal) 232, Paparambaka Rosamma Vs. State of Andhra Pradesh Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -8- 2000(1) All MR (Criminal) 116, Jai Karan Vs. State (N.C.T. Of Delhi) 2000(1) All MR (Criminal) 682 and Rasheed Beg and others Vs. State of Madhya Pradesh (1974) 4 Supreme Court Cases 264.
12. The counsel representing the State vehemently urged that the trial Court was justified in relying upon the statement made by Sarabjit Singh which was a dying declaration and the police official before recording the statement had taken the opinion of the doctor. It was urged that Gurcharan Singh had deposed that he had received telephone call from Sarabjit and Gajinder Singh PW12 has admitted that an incident had taken place and two boys were involved and Sarabjit had given a telephone call to his brother-in-law but he failed to identify the assailants in the Court but his statement lends support to the statement given by Sarabjit and Gurcharan Singh PW11. It was urged that the case of the prosecution stands proved and the judgment should be confirmed.
13. There is no dispute that the prosecution is under a legal obligation to prove its case beyond all reasonable doubt. The admissibility of dying declaration rests upon the principle that a sense of impending death produces in a man's mind the same feeling as that of a conscientious and virtuous man under oath and such statements are admitted as and when the maker is at the point of death and when every hope Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -9- is gone, when every motive to falsehood is silenced and the mind induced by the most powerful consideration in the mind is to speak the truth.
14. It has always to be kept in mind that a dying declaration is entitled to great weight and it is essential for the Court to insist that the dying declaration should be natural and should inspire full confidence and the statement should not be the result of tutors or vindictive. Before relying upon the dying declaration, the Court should be satisfied that the deceased was in a fit state of mind to make the statement.
15. The incident had occurred on 14.04.2007 at 8:00 P.M. and the injured was first taken to Civil Hospital, Amritsar from where he was referred to Gurunanak Dev Hospital. The Investigating Officer had approached the Medical Officer and when the patient was declared fit, his statement was recorded. Sarabjit had given a detailed account of the incident. He had even given his address. He had specifically named the two persons and had given their addresses also. He suspected that he had been attacked at the instance of Mohinder Kaur @ Gainda. His statement gets support from medical evidence. Though, Gajinder Singh PW12 had turned hostile but he speaks about the occurrence and had stated that two persons had come and had caused injuries to Sarabjit. He had also stated Sarabjit had called his brother- Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -10- in-law. The incident had occurred in front of his house. There could be several reasons why he chose not to identify the assailants. The reason is obvious, but the Court can make use of that part of the statement which is reliable, trustworthy and supports the prosecution.
16. The assailants were named by Sarabjit and there was no dispute regarding their identity. Gurcharan Singh PW11 had stated that Sarabjit had called him immediately after the incident. The statement of Gurcharan Singh is admissible in evidence. The victim had spoken to Gurcharan Singh immediately after the incident and portion of that statement is admissible.
17. The prosecution case cannot be thrown out because the police did not call the Illaqa Magistrate to record the statement of victim Sarabjit Singh. The maker of the dying declaration was in a fit state of mind and he had made the statement on the basis of personal knowledge without being influenced by any other source. The dying declaration is independent piece of evidence. The deceased had made the statement giving the detailed account of the incident. He had the opportunity to observe the identity of the assailants. He had also made a call to Gurcharan Singh and had supplied the names of the assailants. The dying declaration is a strong piece of evidence which judged in the light of the surrounding circumstances, we feel, it completely nails the appellants and Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document Criminal Appeal not D-191-DB of 2009 (O&M) with Criminal Appeal not D-392-DB of 2009 (O&M) -11- was rightly made basis for the conviction. There is no infirmity in the judgment and the same is affirmed. Both the appeals are dismissed. Lower Court record be sent back. (M.JEYAPAUL) (ANITA CHAUDHRY) JUDGE JUDGE August 22, 2013 sunil Sunil 2013.09.02 10:15 I attest to the accuracy and integrity of this document