Judgment:
Criminal Appeal No.416-DB of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.
Criminal Appeal No.416-DB of 2007 Date of Decision: 12.2.2014 Bablu @ Badlu .Appellant versus State of Punjab ..Respondent CORAM: HON'BLE Mr.JUSTICE RAJIVE BHALLA HON'BLE Mr.JUSTICE JASPAL SINGH Present: Ms.Divya Sharma, Advocate, for the appellant.
Ms.Manjari Nehru Kaul, Advocate, for the respondent.
RAJIVE BHALLA, J.
(ORAL) The appellant Bablu @ Badlu son of Ram Partap, is before us, challenging his conviction under Section 302 of the Indian Penal Code and sentence to life imprisonment and to pay a fine of Rs.5000/-, in default, to undergo rigorous imprisonment for six months.
The appellant is the son of Ram Partap deceased whereas the complainant Kanta Devi is his brother's wife.
The incident that led to the death of Ram Partap, which we shall recount in detail a little later occurred at about 5.30 A.M on 8.9.2004 wherein the appellant is alleged to have inflicted two blows on the head of Ram Partap with a `faura'( an implement used for lifting Co.dung).The deceased was taken to Civil Hospital, Khamanon, whereafter he Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 2 was referred to PGI, Chandigarh, where he expired on 9.9.2004.
Kanta Devi, daughter-in-law of the deceased and wife of appellant's brother recorded her statement, Ex.PA on 10.9.2004 before the ASI Meet Singh (PW4).which led to registration of the FIR, the arrest of the appellant and his wife, the postmortem of the deceased and filing of a final report, against the appellant and his wife as accused.
The case was committed to the Court of Sessions which framed charges but as the appellant and his co-accused pleaded not guilty, the prosecution was directed to lead evidence.
After appraising the evidence adduced by the prosecution on record and considering arguments addressed, the trial court acquitted Sushila Devi @ Sheela Devi, but convicted the appellant for an offence under section 302 of the Indian Penal Code and sentenced him in terms recorded in the opening paragraph of this judgment.
Counsel for the appellant submits that the evidence on record, has been wrongly construed to hold the appellant guilty of the murder of his father.
The alleged incident is said to have taken place at 5.30 A.M on 8.9.2004 and intimation regarding the incident was received, by the police from Civil Hospital, Khamanon on 8.9.2004 itself, but the FIR was only lodged on 10.9.2004.
The prosecution has failed to explain this delay.
The explanation proferred by the Investigating Officer that he could not reach PGI, Chandigarh on 9.9.2004 for non-availability of conveyance, is a mere excuse that cannot be accepted as Khamanon is at a distance of about 48 Kms from PGI, Chandigarh.
It is further submitted that perusal of the Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 3 statement recorded by Kanta Devi, before the police, reveals that the implement used in the fatal assault is stated to be a “faura”., whereas during her deposition as PW1, she has deposed that the implement used was a `hathaura'.
A `faura' and a `hathaura' are two distinct implements and cannot possibly be confused for the other.
The deposition of PW1 Kanta Devi, being discrepant as to the weapon of offence, the deposition of PW1 Kanta Devi, should be rejected in its entirety.
It is further submitted that PW4 ASI Meet Singh and PW5 SI Prem Singh, police witnesses, have made contradictory statements as to the person who produced the accused before the police.
PW4 ASI Meet Singh has deposed that Zora Singh produced the accused whereas PW5 SI Prem Singh has deposed that Karamjit Singh produced the accused.
The contradiction has not been explained by the prosecution and even otherwise, as both Zora Singh and Karamjit Singh PWs were given up, the prosecution version, is not entitled to any credence, much less, should it have been accepted by the trial court.
It is also argued that as per the statement made by PW1 Kanta Devi before the police a lady came to the site and slapped the appellant, but this lady, later on, identified as Karamjit Kaur, was given up by the prosecution.
It is prayed that the appellant has been convicted merely on the ground that he is accused of the murder of his father by accepting the deposition of PW1 Kanta Devi, which suffers from inherent contradictions and should, therefore, have been discarded by the trial court.
It is further submitted that as co-accused Sushila Devi @ Sheela Devi has been acquitted, it raises a serious doubt as to the Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 4 deposition of PW1 Kanta Devi.
Counsel for the State of Punjab, on the other hand, submits that PW1 Kanta Devi is an illiterate lady, who might have confused the implement, but as injuries suffered by the deceased have been corroborated by the medical evidence and indicate that injury was by a heavy implement whether the implement is described as a `faura or a `hathaura', is irrelevant.
It is further submitted that as the deceased was taken to Civil Hospital, Khamanon and thereafter to PGI, Chandigarh, where he was declared unfit to make a statement, delay in lodging the FIR cannot be held against the prosecution.
Even otherwise, there was no reason for the complainant, who is an eye witness, and daughter-in-law of the deceased, to falsely implicate the appellant who is a son of the deceased.
It is argued that the delay, though a significant factor, is not by itself sufficient to cast a doubt on the prosecution version, particularly when it is not alleged and/or inferable from the evidence on record that between the occurrence and lodging of the FIR, the complainant-eye witness altered her version and/or added to the original version.
It is also contended that discrepancies in statements of PW4 ASI Meet Singh and PW5 SI Prem Singh are neither material nor sufficient to cast a doubt on the prosecution version as they relate to investigation and not to the incident, which has been proved by the clear and cogent deposition of PW1 Kanta Devi.
It is also contended that as the principle “falsus-in-uno and falsus-in-omnibus”.
does not apply to India, the trial court has rightly convicted the appellant on that part of PW1's deposition (Kanta Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 5 Devi).that appeared to be credible.
The acquittal of the appellant's co-accused, therefore, does not entitle the appellant to any benefit.
We have heard counsel for the parties and perused the impugned judgment and order and appraised the evidence on record with the able assistance of counsel for the parties.
ASI Meet Singh (PW4) received a wireless message Ex.PW4/A, that one Partap Singh @ Ram Partap son of Duli Singh has expired in PGI, Chandigarh, but as he could not arrange a vehicle, he reached PGI, Chandigarh on 10.9.2004, along with Constable Raj Pal Singh and collected an information chit from police post at PGI, Chandigarh.
ASI Meet Singh went to the mortuary, where he met Kanta Devi wife of Shiv Kumar (PW1) and recorded her statement, Ex.PA, which was duly thumb marked by Kanta Devi.
ASI Meet Singh made an endorsement, Ex.PA/1 and forwarded the statement through Constable Raj Pal Singh to Police Station, where FIR No.92 dated 10.9.2004, Ex.PA/2, was registered under section 302 read with Section 34 of the Indian Penal Code, by ASI Baljit Singh.
The statement by Kanta Devi is to the effect that her father- in-law, who previously resided with Bablu the appellant and his wife Sheela Devi, had begun residing with them.
Bablu and Sheela were unhappy, on this count.
On 8.9.2004 at about 5.30 A.M she and her father-in-law were lifting Co.dung from the house of Avtar Singh, whereas Bablu and Sheela Devi were lifting Co.dung from the house of Disha.
Bablu began abusing Ram Partap, whereafter Sheela Devi armed with a soti (stick) and Bablu armed with a `faura' (implement used for lifting Co.dung) attacked Ram Partap.
Sheela Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 6 Devi inflicted a `soti' blow on the leg of Ram Partap and Bablu inflicted two blows of the `faura' on the head of Ram Partap.
Kanta Devi rescued Ram Partap and raised alarm, which attracted wife of Pilla who slapped Sheela and Bablu.
Shiv Kumar, the husband of the complainant, arrived at the spot after the occurrence.
Ram Partap was removed to Civil Hospital, Khamanon, from where he was referred to PGI, Chandigarh where he passed away on 9.9.2004.
The prosecution, in order to prove its charge, has examined Kanta Devi as PW1, the only eye witness, who has, in essence, deposed in accordance with her statement made before the police, except that while deposing as to the weapon of offence, has stated that the appellant inflicted the fatal blows with a “hathaura”., though in her statement, made to the police, she had stated that blows were inflicted with a “faura”.PW2 Shiv Kumar, son of the deceased, has deposed that he had come from Bihar 12 years ago.
Ram Partap was earlier residing with Bablu, but Bablu was angered as Ram Partap had started residing with him for the last one year.
On 8.9.2004 he had gone to fetc.fodder from the village.
When he returned at about 5.30 A.M., his wife informed him through their son Ranjan that his father, Ram Partap, has been murdered by Bablu and Sheela Devi.
He reached the spot and found his father lying in an injured condition and bleeding from injuries to his head.
He took his father to Civil Hospital, Khamanon, in a vehicle, but his father was referred to PGI, Chandigarh, where he passed away on 09.9.2004.
He has also deposed that his statement was recorded by the police on 10.9.2004, Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 7 inquest report Ex.PB was prepared, which was thumb marked by him and his wife.
He also deposed that after postmortem, the dead body was handed over to him.
PW3 Dr.
Charanjit Singh has deposed that on 8.9.2004 ASI Meet Singh filed an application Ex.PW3/A before him, inquiring about the fitness of Ram Partap.
PW3 also proved his endorsement Ex.PW3/B, intimation Ex.PW3/C sent to the police on 8.9.2004 at 9.20 A.M.and deposed that he had referred Ram Partap to PGI, Chandigarh.
ASI Meet Singh (PW4) has deposed that when he was posted at Police Station Khamanon, he received information on 10.9.2004 about the death of Ram Partap in the PGI, Chandigarh.
He left for Chandigarh, recorded the statement of Kanta Devi, Ex.PA, which led to registration of an FIR, he carved out inquest proceedings Ex.PB and deposed that the dead body was sent for post mortem examination and thereafter handed over to relatives of the deceased.
ASI Meet Singh (PW4) has also deposed that he had filed applications Ex.PW3/A on 8.9.2004, PW4/D, seeking opinion regarding the fitness of Ram Partap, to make a statement.
The doctor opined vide Ex.PW4/E that Ram Partap is not fit to make a statement.
Photographs of the dead body were also taken and the site of the incident was inspected, whereafter a site plan, Ex.PW4/G was prepared.
Bablu was produced by Zora Singh and was arrested on 12.9.2004.
Sheela Devi was arrested on 14.9.2004.
The accused were served with grounds of arrest.
Upon interrogation, Bablu appellant suffered a disclosure statement, Ex.PW4/M, that he had Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 8 concealed one `faura' towards village Dulwa near the metalled road and got the same recovered, Bablu led the police party to the place and got recovered a `faura', Ex.MO-1.
A sketc.of the `faura', Ex.PW4/N was prepared and taken into possession, vide memo Ex.PW4/0.
PW4/A Dr.Parminder Singh Bhatti opined that the cause of death in his opinion was oedema of the brain due to sub-dural haemorrhage, contusion of brain following head injuries, which were ante-mortem in nature.
The doctor also opined that the weapon used was blunt, time between injuries and death was about 1 to 2 days and between death and post mortem was 44 hours and 30 minutes.
Dr.
Parminder Singh Bhatti also proved the postmortem report, Ex.PW4/A.
PW5 SI Prem Singh corroborated the deposition of ASI Meet Singh (PW4) with regard to the arrest of Bablu, his disclosure statement and recovery of a `faura'.
This witness has also deposed about the arrest of Smt.
Sheela Devi and that the case property was deposited with the MHC, statements of witnesses were recorded and after completion of the investigation, a challan was presented by the SHO Ajay Pal Singh.
PW6 Dr.
Rakesh Ranjan has deposed that Ram Partap was admitted to PGI, Chandigarh on 8.9.2004 and passed away on 9.9.2004.
This witness has also proved a copy of the death summary, Ex.PW6/A.
Having referred to the prosecution evidence we would not deal with the arguments.
An argument that delay of almost two days Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 9 in recording the FIR is fatal to the prosecution version for lack of any explanation, proferred by the prosecution, in our considered opinion, cannot be accepted.
It is true that delay in lodging an FIR, is a significant factor as it may indicate that the complainant party used this time to tailor its version and to falsely implicate an accused.
The delay in lodging an FIR even if not explained, cannot be a ground for acquittal, particularly when the facts of a case do not point to false implication or an attempt to tailor facts.
A court would, at best, be put on guard and be required to appraise the evidence with a greater degree of care.
We have perused the evidence on record and though we record that the Investigating Officer was negligent in promptly proceeding to PGI, Chandigarh to record statements of the witnesses, find no reason to hold that this delay was used to falsely implicate the appellant.
Admittedly, the incident, that led to the demise of Ram Partap, took place at 5.30 A.M on 8.9.2004.
The deceased was immediately rushed to Civil Hospital, Khamanon, from where he was referred to PGI, Chandigarh.
ASI Meet Singh (PW4) visited the Civil Hospital at Khamanon, but was informed that Ram Partap has been removed to PGI, Chandigarh.
ASI Meet Singh (PW4).however, did not proceed to Chandigarh, whether on 8.9.2004 or 9.9.2004, for non-availability of conveyance and only reached Chandigarh on 10.9.2004 by which time Ram Partap had passed away and then proceeded to record the statement of PW1 Kanta Devi.
As is apparent from the above narrative, there is a delay of almost 2 days in recording the statement of Kanta Devi, but the delay does not cast a doubt on the statement made before the police Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 10 or her deposition in court.
The complainant and the appellant are poor migrant farm laboureRs.employed, probably by landlords, for collecting fodder, lifting Co.dung and other agricultural activities.
The appellant is the son of the deceased and brother-in-law (husband's brother) of Kanta Devi and though there is an allegation in the statement recorded by Kanta Devi that Bablu was angry with his father as he had begun living with Shiv Kumar and Kanta Devi, there is nothing on record to suggest that relationship between the two brothers was so strained as would encourage Kanta Devi and her husband, to falsely implicate the appellant.
A careful appraisal of the deposition of Kanta Devi, the fiRs.informant, and the eye witness, leaves no ambiguity as she has deposed truthfully without any embellishment or attempt to falsely implicate the appellant.
The delay in lodging the FIR was actually occasioned by an insensitive and inefficient officer, who was aware that Ram Partap had suffered head injuries and had been referred to PGI, Chandigarh, did not bother to cover a distance of 48 KMs.The Investigating Officer has, while deposing in court, trotted out a lame excuse that conveyance was not available.
The failure of ASI Meet Singh (PW4) to record the statement of Kanta Devi, soon after the alleged occurrence, is no reason to adversely comment upon the testimony of Kanta Devi.
An argument that Kanta Devi (PW1) in recording her statement before the police, has stated that the implement used for inflicting the fatal blows, on Ram Partap, was of a `faura', whereas during her deposition in court, she has stated that the implement is a Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 11 `hathaura' appears to be an inadvertent error on the part of an illiterate farm worker.
The weapon of offence taken into possession by the police pursuant to a disclosure statement suffered by the appellant, is a `faura' duly exhibited in court.
The contradictions in the statement of PW4 ASI Meet Singh and PW5 SI Prem Singh as to the identity of the persons who produced the accused, in our considered opinion, are not sufficient to cast a doubt on the deposition of the eye witness PW1 Kanta Devi.
Even otherwise, this discrepancy does not relate to the actual incident, but is part of the investigation, which we have already noticed was tardy with respect to lodging the FiRs.Information Report.
The fact that Zora Singh and Karamjit Singh PWs were given up by the prosecution, is irrelevant as far as the present controveRs.is concerned.
The argument that as co-accused Sushila Devi @ Sheela Devi has been acquitted by disbelieving the statement of PW1 Kanta Devi, her deposition should be discarded in its entirety, cannot be accepted.
The principle “falsus-in-uno and falsus-in-omnibus”.
does not apply to criminal proceedings in our country and, therefore, a Court may rely upon that part of the deposition that appears to be credible and discard that part of the deposition that appears to be doubtful.
The trial court, in its, wisdom, cast a doubt upon the involvement of Sushila Devi @ Sheela Devi as the medical evidence did not disclose any injury on the person of the deceased with a stick.
A due consideration of the evidence on record, in our considered opinion, leads us to a singular conclusion, namely, that the prosecution has been able to prove by clear and cogent evidence Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh Criminal Appeal No.416-DB of 2007 12 the guilt of the appellant and that he caused the death of his father Ram Partap.
In view of what has been recorded hereinabove, the appeal is dismissed.
( RAJIVE BHALLA ) JUDGE ( JASPAL SINGH ) 12.2.2014 JUDGE VK Varinder Kumar 2014.03.10 11:31 I attest to the accuracy and integrity of this document High Court Chandigarh