Punjab-Haryana High Court
Sukhdev Singh And Another vs State Of Punjab on 12 January, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.224-DB of 2008 1
Criminal Appeal No.285-DB of 2008
Criminal Appeal No.299-DB of 2008
In the High Court of Punjab and Haryana at Chandigarh
Date of decision:January 12, 2012
Criminal Appeal No.224-DB of 2008
Sukhdev Singh and another ......Appellants
Versus
State of Punjab .......Respondent
Criminal Appeal No.285-DB of 2008
Baljit Kaur ......Appellant
Versus
State of Punjab .......Respondent
Criminal Appeal No.299-DB of 2008
Karam Singh and others ......Appellants
Versus
State of Punjab .......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr.R.S.Cheema, Sr.Advocate with
Mr. Arshdeep Singh Cheema, Advocate,
for the appellants in CRA No.244-DB and\
CRA No.299-DB of 2008.
Mr.Deepak Sabharwal, Advocate,
for the appellant in CRA No.285-DB of 2008.
Mr.P.C.Goyal, Addl.A.G. Punjab.
Mr.Ashok Singla, Advocate for the complainant.
****
Criminal Appeal No.224-DB of 2008 2
Criminal Appeal No.285-DB of 2008
Criminal Appeal No.299-DB of 2008
JUDGMENT
SABINA, J.
Vide this judgment, the above mentioned appeals will be disposed of as these have arisen out of a common incident/ judgment.
Prosecution case was set in motion on the basis of the statement of complainant Kirtan Singh, before Assistant Sub Inspector Darshan Singh, on 28.2.2006. The complainant stated in his statement that he was resident of village Karir Wali and was doing agricultural work. They were four brothers. Balbir Singh, Darshan Singh and Pritam Singh, his brothers, were elder to him. They had separate cultivation. His parents were residing with him. His elder brother Balbir Singh had been disinherited by his father as he wanted to forcibly and illegally take possession of their land. On 27.2.2006, he was present in their fields along with his brother Pritam Singh as it was their turn for water. They were preparing the water channel in the fields. At about 1 pm, Karam Singh armed with kapa, Swaran Singh armed with gandasa, Gurpreet Singh son of Balbir Singh armed with kirpan, Sukhdev Singh, Gurpreet Singh son of Sukhdev Singh, Balbir Singh and Baljit Kaur armed with sticks came there. Baljit Kaur raised a lalkara that Darshan Singh be taught a lesson for taking their share forcibly and they be not allowed to leave alive. Karam Singh gave a kapa blow with an intention to kill towards delicate parts of Darshan Singh. In order to defend himself, Darshan Singh brought his left leg ahead and suffered an injury with kapa on his left leg. Swaran Singh gave a gandasa blow on left leg of Criminal Appeal No.224-DB of 2008 3 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 Darshan Singh above the ankle. Karam Singh gave another kapa blow towards head of Darshan Singh. In order to defend himself, Darshan Singh raised his left arm and the kapa hit on his left arm above the elbow. Swaran Singh gave another gandasa blow with an intention to kill towards head of Darshan Singh. Darshan Singh, in order to save himself, raised his left arm and suffered a blow above the elbow on his left arm. Gurpreet Singh pushed Darshan Singh and as a result, he fell down. While Darshan Singh had fallen on the ground, all the accused gave beatings to him with their respective weapons. On an alarm raised by him and Pritam Singh, assailants fled away from the spot with their respective weapons. Motive behind the occurrence was that Balbir Singh and others nourished a grudge against Darshan Singh as they believed that at his instance Balbir Singh had been deprived of share in the land owned by their father. After arranging for a vehicle, injured was removed to the hospital for treatment.
On the basis of the statement of the complainant formal FIR No.42 was registered on 28.2.2006 at 2.15 a.m. at Police Station Jaitu under Sections 307, 324, 323, 148, 149 of the Indian Penal Code, 1860 (IPC for short). After the death of Darshan Singh on 28.2.2006 at about 2.55 a.m., offence under Section 302 IPC was added in the FIR.
After completion of investigation and necessary formalities, challan was presented against accused Karam Singh and Swaran Singh. The other accused were found innocent during investigation and their names were kept in column No.2 at the time of Criminal Appeal No.224-DB of 2008 4 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 presentation of challan. During trial, after examination of the complainant, an application was moved by the prosecution under Section 319 of the Code of Criminal Procedure, 1973 (Cr.P.C. for short), seeking summoning of the remaining accused to face the trial. The said application was allowed vide order dated 4.9.2006 by the trial Court. Thereafter, charge was framed against all the accused under Section 148, 302 read with Section 149 IPC on 4.1.2007 by the trial Court.
Prosecution in order to prove its case examined 14 witnesses.
Appellants Karam Singh and Swaran Singh, when examined under Section 313 Cr.P.C. , after the close of prosecution evidence, pleaded as under:-
"I am innocent and falsely implicated in this case. Kirtan Singh Pritam Singh are made up witnesses. Darshan Singh was conscious and gave the statement that two unidentified persons caused injuries and after the death of Darshan Singh, police destroyed that statement. PWs and police in connivance with each other concocted and fabricated false story and all my family involved in this false case."
Appellant Gurpreet Singh son of Balbir Singh, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, pleaded as under:-
"I am innocent and falsely implicated in this case. On 27.2.2006 I was appeared in examination held from 9.00 Criminal Appeal No.224-DB of 2008 5 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 am to 12.00 am in school and thereafter, personally appeared before the SDM Jaitu in security proceedings under Section 107/ 151 of the Cr.P.C. and regular attending the proceedings in the Court of SDM, Jaitu and next date of hearing was 1.3.2006 and whole family involved in false case. PWs Kirtan Singh and Pritam Singh made up witnesses. Darshan Singh was conscious and gave the statement saying that two unidentified persons had caused the injuries and after his death the said statement was destroyed. Police and PWs in connivance with each other have concocted the false story. I was found innocent during the investigation held by SHO and DSP."
Appellants Sukhdev Singh and his son Gurpreet Singh, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, pleaded as under:-
"I am innocent and falsely implicated in this case. I Jat Sikh. I have no concern with family of Balbir Singh. They have belonged to Mistri family and due to party faction, I and my son involved in this false case. I found innocent during the investigation held by SHO and DSP. No agricultural land or house near the house of Balbir Singh."
Appellants Balbir Singh and his wife Baljit Kaur, when examined under Section 313 Cr.P.C., after the close of prosecution evidence, pleaded as under:-
"I am innocent and falsely implicated in this case. My Criminal Appeal No.224-DB of 2008 6 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 whole family has been involved in this false case. Kirtan Singh and Pritam Singh are made up witnesses. I am found innocent during investigation. No challan has been presented against me. Police discharged from through the Court."
The appellants examined three witnesses in their defence.
Medical evidence:
PW-5 Dr. Kamal Arora deposed that on 27.2.2006, patient Darshan Singh was admitted in emergency department of Guru Gobind Singh Medical College and Hospital, Faridkot.
PW-6, Dr.D.S.Bhullar deposed that on 27.2.2006 he had medico legally examined patient Darshan Singh at 5.05 pm. PW-9 Dr. Kuldip Kumar deposed that on 28.2.2006, he along with Dr.Manjit Singh and Dr.Satpal Singla conducted postmortem examination on the dead body of Darshan Singh and had found following injuries on his person:-
1. Reddish brown abrasion 2.1 x 1.1 cm was present just on the top of right shoulder joint.
2. Reddish brown abrasion 4 x 0.5 cm was present 2 cm below injujry No.1 on its back and was oblique.
3. Reddish brown abrasion 5 x 0.3 cm was present obliquely on the front of right arm 10.5 cm below top of right shoulder.
4. Reddish brown abrasion 1.2 x 1 cm was presenton the back of right arm 14 cm below top of right Criminal Appeal No.224-DB of 2008 7 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 shoulder.
5. Lacerated wound 2.5 x 0.5 cm was present on the back of right elbow. It was skin deep and vertically placed clotted blood was present.
6. Lacerated wound 1 x 0.3 cm was present on the back of right forearm. It was also skindeep. 9 CM below injury No. 4 and clotted blood was present.
7. Reddish brown abrasion 2.5 x 1 cm was present on the back of right forearm 3 cm above wrist.
8. 6 reddish brown abrasions were present on the back of right arm (palm) all were small in size.
9. Reddish brown abrasion 4.5 x 0.6 cm was present of the left shoulder.
10. Three reddish brown abrasions were present on and around left shoulder size verrying from 3 x 0.5 cm to 1.2 x 0.7 cms.
11. Stitched wound 4.2 x 0.2 cm was present on the lateral side of left shoulder 4 cm below injury No. 9 and 2 (two) intact stitches were present.
12. Three reddish brown abrasion parellel to each other were present on the lateral side of left upper arm in its middle and oblique in direction size verrying from 3.1 x 1.5 cm to 1.2 x 0.7 cms 6 cm below top of left shoulder.
13. Stitched wound 5 x 1 cm with three stitches intact was present on the outside of left arm 12 cms below top of Criminal Appeal No.224-DB of 2008 8 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 left shoulder.
14. Stitched wound 2 x 1 cm vertically placed 5 cm above olacranon process on the back of left arm with one intact stitch.
15. Three lacerated wound size 3 x 0.3 cm were present on the back of left forearm just above wrist with loose three stitches present each in first two injuries and one stitch in last injury.
16. Lacerated wound 6.5 x 0.3 cm was present on the back of chest on left side 8.5 cm below top of left shoulder obliquely placed and was skin deep. Clotted blood was present.
17. Lacerated wound 4 x 0.2 cm was present on the back of cheston left side. It was obliquely placed 3 cm below injury No. 16. It was skin deep and clotted blood was present.
18. Lacerated wound 11.8 x 0.2 was present on the back of chest on left side. It was horizontally placed 7.5 cm below top of left shoulder was skin deep and clotted blood was also present.
19. Reddish blue bruise 8.5 x 2.5 cm was obliquely placed on the left scapular region 2.5 cm below top of left shoulder.
20. Reddish blue bruise 7.5 x 4 cm was present obliquely on the back of left side of chest 7.5 cm below inferior angle of scapula.Criminal Appeal No.224-DB of 2008 9
Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008
21. Reddish blue bruise 8.5 x 4 cm was present on the lateral side of chest on its left 5.4 cm below axilla oblique.
22. Reddish blue bruise 5 x 2 cm was present on the lateral side of chest 12 cm below inferior angle of scapula and was oblique.
23. Lacerated wound 1 x 0.5 cm with one stitch intact was present on the back of left palm.
24. Lacerated wound 5 x 0.2 cm was present on the outer side of left hip, 7 cm below anterior superior illiac spine it was skin deep and obliquely placed. Clotted blood was present.
25. Lacerated wound 1.5 x 0.5 cm was present horizently on the front of left thigh 3.5 cm above knee with one stitch intact.
26. Seven reddish blue contusions present on the back left hip, 2 oblique, 2 vertical and three horizently placed 5.5 x 2.5x 2.1.4.5 x 2 cms, 4 x 2.1 cm, 3 x 1.5, 3 x 1 and 3.5 x 1 cms.
27. Reddish blue bruise 7.5 cm x 3 cm was obliquely placed on the front of left thigh 5.5 cm above knee.
28. Lacerated wound 3.2 x 0.2 cm with two intact stitches was present on the lateral side of left knee and it was obliquely placed.
29. RBA size 3 x 0.2 cm was vertically placed on the lower part of left knee.
Criminal Appeal No.224-DB of 2008 10Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008
30. RBA size x 3.5 x 0.2 cm was present on the outer part of left knee.
31. Stitched wound 2.5 x 0.5 with two intact stitches was present on the front of left leg 4 cm below tibial tubreosity.
32. Stitched wound 3 x 1 cm was obliquely present on the front of left leg with two intact stitches 6 cm below tibital tuberosity.
33. Stitched wound 5.4 x 1.2 cm with three intact stitches was present obliquely on the front of left leg 7 cms above medial malleolus.
34. RBA size 5.4 x 03 cm was present on the outer side of left leg was obliquely placed 12 cm above lateral malleolus.
35. RBA 4 x 0.3 cm was present on the outer side of left leg 4.5 cm below knee and it was obliquely placed.
36. Stitched wound 1 x 0.5 cm was present on the outer side of left leg with one stitched 7 cm above lateral malleolus.
37. Reddish blue contusion 8.5 x 3 cm was present on the outer side of right thigh. It was obliquely placed 15 cms below right anterious superior iliac spine.
38. Lacerated wound 2 x 1.1 cm was present on the outer side of right knee. It was obliquely placed and mussle deep. Clotted blood was present.
39. Stitched wound 2 x 1.5 cm was present on the front of Criminal Appeal No.224-DB of 2008 11 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 right leg three cm below knee with one stitch and was vertically placed.
40. Stitched wound 4.5 x 1 cm was present on the front and outer side of right leg, horizontally placed 2.5 cm above lateral malleolus with two intact stitches.
41. Stitched wound 2 x 1 cm was present on the front of right dorsum of foot with one intact stitch 7.5 cm below medial malleolus.
42. Stitched wound 3.5 x 1.1 cm was present obliquely on the medial of right knee with three intact stitches.
43. Three RBAs present on the medial of right knee size varrying from 2.2 x 1.2 cm to 0.9 x 0.7 cm.
44. RBA size 1.5 x 0.5 cm was present below right knee.
On dissection of right forearm, fracture of right radius lower 1/3rd, gallaazi fracture was present with infiltration of blood, on dissection of chest fracture of second, third, fourth and sixth ribs was present on left side with infiltration of blood. Fracture of left scapulla acromino process was present alongwith infiltration of blood. On dissection of the left wrist, colle's was present of left radius bone with infiltration of blood. On dissection of right lower limb, near ankle fracture of tibial and fibula (pott's fracture) was seen with infiltration of blood. On dissection of left lower limb fracture of lower and of left fibula was seen with infiltration of blood was present.
On dissection of all the bruises infiltration of blood Criminal Appeal No.224-DB of 2008 12 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 was present.
Liver spleen and kidneys were pale in colour on dissection of lungs, two black coloured clots were present at the junction of bronchioles of right lung and its pulmonary vessels."
He further opined that all the injuries were ante mortem in nature. The cause of death was pulmonary thrombo- emdolism leading to acute respiratory failure.
Ocular version:
The complainant, while appearing in the witness box as PW-2, has deposed as per the contents of the FIR. He further deposed qua his participation during investigation and recoveries of weapons effected on the basis of disclosure statements suffered by appellants Swaran Singh and Karam Singh.
PW-3 Pritam Singh has corroborated the statement of PW-2 qua the manner of occurrence.
Motive:-
Complainant, while appearing in the witness box, has deposed qua the motive behind the occurrence. The said witness deposed that Balbir Singh suspected that he had been disinherited by his father at the instance of deceased Darshan Singh and due to this reason he nourished a grudge against him.
PW-7 Gurdev Singh deposed that appellant Balbir Singh was his son. Appellant Baljit Kaur was wife of his son Balbir Singh. Karam Singh, Gurpreet Singh and Swaran Singh were his grand sons. He proved his affidavit Ex.PB. In his cross-examination he Criminal Appeal No.224-DB of 2008 13 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 deposed that accused Swaran Singh had given a kirpan blow on his person. Proceedings under Section 107 and 151 Cr.P.C. were initiated at his instance against Balbir Singh, Karam Singh, Swaran Singh and Gurpreet Singh prior to the occurrence. Investigation:-
PW-11 Assistant Sub Inspector Darshan Singh deposed that on 28.2.2006 he received information qua admission of injured Darshan Singh in Guru Gobind Singh Medical College and Hospital, Faridkot. On reaching there, he obtained a copy of the medico legal report of the patient and submitted an application to the doctor qua fitness of the patient. The doctor declared the patient fit to make the statement. However, he found that Darshan Singh was unable to speak. He recorded the statement of Kirtan Singh, brother of Darshan Singh, who was sitting besides him (Darshan Singh). On the basis of the same, formal FIR was registered. On the same day at about 6.30 am, he received information that Darshan Singh had died. He prepared the inquest report qua the dead body of the deceased and sent the same for postmortem examination. Thereafter, he reached the spot and prepared rough site plan at the instance of PW Kirtan Singh. He lifted plain earth and blood stained earth from the spot. On 6.3.2006, accused Swaran Singh and Karam Singh were arrested. During interrogation, they suffered disclosure statements and got recovered gandasa and kapa respectively from the disclosed places.
PW-14 SI Surinderpal Singh corroborated the statement of PW-11 qua arrest and disclosure statements suffered by Criminal Appeal No.224-DB of 2008 14 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 appellants Karam Singh and Swaran Singh on 6.3.2006. He further deposed that on 7.3.2006, he arrested Baljit Kaur and Balbir Singh. After completion of necessary formalities, challan was presented by him against the accused.
Defence evidence:-
DW-1 Jasprit Kaur proved the voter list. DW-2 Kaur Singh, steno to Sub Divisional Magistrate, Jaitu, deposed that Gurprit Singh son of Balbir Singh had appeared on 27.2.2006 in case bearing file No.208 of 12.11.2005.
DW-3 Baljit Kaur deposed that on 27.2.2006, appellant had appeared in 'Lathe and its operations' examination at Roll No.1425. The time of examination was 10.00 a.m. to 1.00 p.m. He proved the attendance register Ex.D-3 and examination attendance sheet Ex.D-4.
Submissions:-
Learned senior counsel appearing on behalf of the appellants has submitted that the prosecution had miserably failed to prove its case. Injured was declared fit to make the statement by the doctor but his statement was not recorded by the Investigating officer. The complainant and PW-3 had been introduced as witnesses at a later stage to falsely involve the appellants in this case although they had not witnessed the occurrence. In fact, initially as per Ex.DC, at the time of admission of injured Darshan Singh, it was recorded that he had been attacked by some unknown persons due to which he had sustained injuries. Appellant Gurpreet Singh, son of Balbir Singh, was not present at the spot as he had appeared for his Criminal Appeal No.224-DB of 2008 15 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 examination in the morning and had thereafter appeared before the Magistrate qua proceedings under Section 107/ 151 Cr.P.C. Appellants Sukhdev Singh and his son Gurpreet Singh had no connection with the family of appellant Balbir Singh and had been falsely involved in this case. Appellants Baljit Kaur and Balbir Singh had appeared in the police station at the time of the alleged occurrence and had, thus, been falsely involved in this case. Appellants Sukhdev Singh and his son Gurpreet Singh, Baljit Kaur, Balbir Singh and his son Gurpreet Singh had been found innocent during investigation. It was further submitted that assuming that the appellants had caused injuries on the person of the deceased, then it could not be said to be a case of falling under Section 302 IPC. A perusal of the seat of injuries on the person of the deceased lead to the inference that the assailants had no intention to commit his murder. At the most, the case would fall under Section 304 (I) or part (II) IPC.
Learned State counsel, who is assisted by learned counsel for the complainant, on the other hand, has submitted that all the appellants had come to the spot armed with weapons and had inflicted numerous injuries on the person of the deceased. It was evident that all the appellants had the intention to commit the murder of the deceased. Balbir Singh had a grudge against the deceased suspecting that he was responsible qua his disinheritance by his father. The statements of the eye witnesses were liable to be believed as they had deposed in a most natural manner. Discussion/ conclusion:
Criminal Appeal No.224-DB of 2008 16
Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 The present case rests on eye witness account. PW-2 and PW-3 have deposed qua the manner of occurrence. PW-2 is resident of Karir Wali and his presence at the spot cannot be doubted. PW-3 Pritam Singh though resident of village Lopo, had come to visit his parents on the day of occurrence. Pritam Singh is the real brother of the complainant and the deceased as well as appellant Balbir Singh. His presence at the spot cannot be doubted as in natural course of events, he could have visited his parents and brothers residing in village Karir Wali. Both the said witnesses have withstood the lengthy test of cross- examination and hence, there presence at the spot cannot be doubted.
PW-2 and PW-3 have attributed specific injuries to appellants Karam Singh and Swaran Singh. As per the eye witness account, Karam Singh had given two kapa blows on the person of Darshan Singh which hit him on his left leg and left arm. Swarn Singh gave two gandasa blows on the person of Darshan Singh which hit him on his left leg and left arm. As per the said witnesses, Karam Singh and Swaran Singh had inflicted the said injuries after appellant Baljit Kaur had raised a lalkara that a lesson be taught to Darshan Singh for taking their shares. Thereafter, Gurpreet Singh son of Balbir Singh gave a push to Darshan Singh and he fell on the ground and all the accused inflicted injuries on the person of Darshan Singh with their respective weapons. As per the medical evidence, there were large number of injuries on the person of the deceased at the hands of the assailants.Criminal Appeal No.224-DB of 2008 17
Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 Thus, the prosecution has been successful in establishing that Darshan Singh had suffered injuries in the occurrence which had taken place on 27.2.2006 at about 1.00 p.m. witnessed by PW-2 Kirtan Singh and PW-3 Pritam Singh. However, it would be necessary to examine the evidence on record further to come to conclusion qua involvement of each appellant.
So far as appellant Sukhdev Singh and his son Gurpreet Singh are concerned, they were allegedly armed with sticks at the time of occurrence. The said appellants are not related to Balbir Singh and had, thus, no motive to join hands with Balbir Singh and commit the murder of his brother Darshan Singh. Apparently, due to this reason the said appellants were found innocent during investigation. No specific role has been attributed to the said appellants during the occurrence. In these circumstances, appellants Sukhdev Singh and his son Gurpreet Singh are liable to be acquitted.
So far as appellant Baljit kaur is concerned, she is alleged to have raised a lalkara at the time of the occurrence. She was armed with a dang. The possibility that Baljit Kaur had been falsely involved in this case being wife of Balbir Singh cannot be ruled out. There was no occasion for Baljit Kaur to have accompanied the male members at the spot. The said appellant was found innocent during investigation. In these circumstances, appellant Baljit Kaur is liable to be acquitted.
So far as appellant Gurpreet Singh son of Balbir Singh is concerned, it is not possible that the appellant, who was a young boy, could have taken the examination and then reached the place of Criminal Appeal No.224-DB of 2008 18 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 occurrence and then appeared in the court of Sub Divisional Magistrate. The possibility that he has been falsely involved in this case cannot be ruled out. The said appellant has taken up the plea of alibi.
The Apex Court in Binay Kumar Singh vs. State of Bihar, 1997 AIR(SC) 322, regarding the plea of alibi held as under:-
"We must bear in mind that alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in S.11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (A) given under the provision is worth reproducing in this context:
`The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."
The Latin word alibi means "elsewhere" and that word is used for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be Criminal Appeal No.224-DB of 2008 19 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandet v. State of Uttar Pradesh, (1981) 2 SCC 166: AIR 1981 SC 911; State of Mahrashtra v. Narsingrao Gangaram Pimple, AIR Criminal Appeal No.224-DB of 2008 20 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 1984 SC 63) DW-3 Baljit Kaur has deposed that on 27.2.2006, Gurpreet Singh had appeared in 'Lathe and its operations' examination. His roll No. was 1425. Presence of Gurpreet Singh was marked in the attendance register. The time of examination was from 10.00 am to 1.00 pm. DW-2 Kaur Singh deposed that on 27.2.2006, Gurpreet Singh had appeared in case titled State vs. Gurpreet Singh and the case was adjourned to 1.3.2006.
From a combined reading of the statements of the said witnesses, it is evident that appellant Gurpreet Singh, after taking the examination, had appeared in the Court of Sub Divisional Magistrate, Jaito. Hence, his presence at the spot is doubtful. Apparently, due to this reason, the investigating officer declared the said appellant innocent during investigation. Hence, appellant Gurpreet Singh son of Balbir Singh is liable to be acquitted.
So far as appellants Karam Singh, Swaran Singh and Balbir Singh are concerned, the prosecution has been successful in proving its case against them beyond the shadow of reasonable doubt. Balbir Singh had a grudge against Darshan Singh as he suspected that his brother was responsible qua his disinheritance. PW-7 Gurdev Singh, father of Balbir Singh, has proved his affidavit Ex.PB wherein he had stated that he had deprived his son Balbir Singh and his family members from his movable and immovable property. Balbir Singh and his family members were not under his control. Due to this grudge, Balbir Singh along with his two sons Criminal Appeal No.224-DB of 2008 21 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 Karam Singh and Swaran Singh reached the spot and inflicted injuries on the person of Darshan Singh. The investigating officer, PW-11 Darshan Singh, deposed in his cross-examination that on 27.2.2006, Balbir Singh and his wife Baljit Kaur had been summoned in the police station qua proceedings under Section 107/ 151 Cr.P.C.
However, there is nothing on record to suggest that at the time of occurrence, Balbir Singh was present in the police station. Although Balbir Singh was declared innocent during investigation but his presence at the spot cannot be doubted as he was the person, who had a grudge against his brother. Thus, at his instigation, his sons along with him inflicted injuries on the person of deceased Darshan Singh. Specific four injuries have been attributed to appellants Swaran Singh and Karam Singh by the eye witnesses on the person of the deceased. Thereafter, the other remaining injuries were inflicted on the person of the deceased by Karam Singh, Balbir Singh and Swaran Singh with their respective weapons. As per the opinion of doctor (PW-6), the kind of weapon used for injuries No. 4, 5, 28 and 29 was sharp, whereas, qua other injuries, it was blunt. Thus, the medical evidence duly corroborates the eye witness account so far as involvement of appellants Karam Singh, Balbir Singh and Swaran Singh in the crime is concerned.
The fact that the investigating officer had not recorded the statement of injured Darshan Singh cannot be said to be fatal to the prosecution case. The injured was medico legally examined at 5.05 pm by PW-6 Dr.D.S.Bhullar. Thereafter, the injured was given treatment by PW-5 Dr.Kamal Arora. The investigating officer has Criminal Appeal No.224-DB of 2008 22 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 explained that although the doctor had declared the patient fit to make the statement but the patient was unable to make the statement. Even otherwise, the statements of the eye witnesses qua the manner of occurrence inspire confidence and merely because some lapse was committed by the investigating officer by not recording the statement of the injured, who had later died, is not fatal to the prosecution case.
PW-5 Dr.Kamal Arora, in his cross-examination, deposed that the history was told by the patient that he had been attacked by some unknown persons. Reliance has been placed on Ex.DC, the medical record, wherein, it had been recorded that the patient had been allegedly attacked by some unknown persons. However, the said fact in itself cannot be said to be fatal to the prosecution case. The eye witnesses examined by the prosecution have deposed qua the manner of occurrence in a most natural manner and their statements are trustworthy qua involvement of appellants Karam Singh, Swaran Singh and Balbir Singh in the crime.
We do not find any force in the argument raised by the learned senior counsel that in this case, there was no intention on the part of the assailants to commit murder of the deceased. From the statements of the eye witnesses, it is evident that the assailants had every intention of committing the murder of deceased Darshan Singh. Appellants Karam Singh and Swaran Singh wanted to inflict injuries on head and testicles of the deceased. The deceased by putting forward his leg and arms had saved himself from being inflicting injuries thereon. The deceased had suffered numerous Criminal Appeal No.224-DB of 2008 23 Criminal Appeal No.285-DB of 2008 Criminal Appeal No.299-DB of 2008 injuries. As per medico legal report, the deceased had suffered 32 injuries. The said injuries had been given in detail in the postmortem examination and come to 44 in number. In the facts and circumstances of the present case, it is evident that appellants Karam Singh, Swaran Singh and Balbir Singh had inflicted injuries on the person of deceased Darshan Singh with an intention to commit his murder.
Accordingly, Criminal Appeal Nos. 224-DB of 2008 and 285-DB of 2008 are allowed. Appellants Sukhdev Singh, Gurpreet Singh son of Sukhdev Singh and Baljit Kaur are acquitted of the charges framed against them. The said appellants, who are in custody, be set at liberty forthwith, if they are not required in any other case.
Criminal Appeal No.299-DB of 2008 is partly allowed. Appellant Gurpreet Singh son of Balbir Singh is acquitted of the charge framed against him. The said appellant, who is in custody, be set at liberty forthwith, if he is not required in any other case. However, the said appeal qua appellants Karam Singh, Swaran Singh and Balbir Singh is dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
January 12, 2012
anita