Punjab-Haryana High Court
Lakhbir Singh vs State Of Punjab on 7 April, 2010
Criminal Appeal No.1147 SB of 2006 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.1147 SB of 2006 (O&M)
Date of decision: 7-4-2010
Lakhbir Singh ......... Appellant
Vs
State of Punjab .........Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present: Mr. P.S.Ahluwalia, Advocate, for the appellant
Mr. R.S.Rawat, Assistant Advocate General, Punjab
Mr. A.S.Gill, Advocate, for the complainant
HARBANS LAL, J.
This judgment shall dispose of Criminal Appeal No. 1147 SB of 2006 filed by Lakhbir Singh Criminal Appeal No. 1264 SB of 2006 moved by accused Inder Singh having arisen out of the judgment/order of sentence dated 29.5.2006 passed by the court of learned Additional Sessions Judge, Jalandhar whereby he convicted and sentenced the accused Lakhbir Singh to undergo rigorous imprisonment for 2 years and to pay a fine of Rs.2000/- under Section 307 read with Section 34 of IPC and in default of payment of fine to further undergo rigorous imprisonment for three months and also sentenced him to undergo rigorous imprisonment for 4 years and to pay a fine of Rs.5000/- under Section 325 of IPC and in default of payment of fine to further undergo rigorous imprisonment for 6 months and also convicted and sentenced the accused Inderjit Singh to undergo rigorous Criminal Appeal No.1147 SB of 2006 (O&M) 2 imprisonment for 7 years and to pay a fine of Rs.10,000/- under Section 307 of IPC and in default of payment of fine to further undergo rigorous imprisonment for one year and also sentenced him to undergo rigorous imprionsment for 2 years and to pay a fine of Rs.2000/- under Section 325 read with Section 34 of IPC and in default of payment of fine to further undergo rigorous imprisonment for 3 months and acquitted their co-accused Dalbir Singh, Rajwinder Singh and Danial alias Labha.
The factual score records that on 8.9.2000 at about 8.30 a.m. Iqbal Singh went near Gurdwara on the call of his paternal uncle Dilbagh Singh who had sold one Marla of land to Mohinderjit Kaur wife of Debi. They were laying foundations there. Narinder Pal son of Dilbagh Singh was also present there. Meanwhile, Inderjit Singh, Lakhbir Singh, Dilbagh Singh armed with gandasi each, Rajwinder Singh armed with dang alongwith three/four unknown persons who were armed with sticks came over there in Tata Sumo bearing registration No. HR-01-E-2010. Soon after descending from the vehicle, Inderjit Singh raised 'lalkara' that Iqbal Singh be taught a lesson for getting the land partitioned. Simultaneously, he delivered gandasi blow hitting Iqbal Singh on the left side of his head. Dalbir Singh wielded his gandasi from its reverse side. To ward off the blow, Iqbal Singh raised his left hand and the blow rested on the fingers of his left hand. Iqbal Singh fell down on the ground. Rajwinder Singh gave a dang blow on the person of Iqbal Singh. Lakhbir Singh delivered gandasi blows on the backside of the legs and arms of Iqbal Singh, when he lay fallen on the ground. The unknown persons also inflicted injuries with their respective weapons. In the meantime, Surinder Kaur wife of Iqbal Singh came at the spot. She physically intervened to save her husband. Lakhbir Criminal Appeal No.1147 SB of 2006 (O&M) 3 Singh dealt gandasi blow, which hit from its reverse side which fell on her right arm. Rajwinder Singh gave dang blow hitting her on her left wrist. The unknown persons too caused injuries on her person. On being raised alarm by Iqbal Singh injured, Narinderpal Singh was attracted to the place of occurrence. He rescued Iqbal Singh. Inderjit Singh and his son Dalbir Singh inflicted injuries with their gandasis from their reverse side on the person of Narinder Pal Singh. Surinder Kaur on receipt of injuries also fell on the ground. Dalbir Singh snatched her golden ear rings and golden chain. Thereafter, all the accused persons decamped from the spot with their respective weapons. On the basis of the statement of Iqbal Singh, the case was registered. The accused were arrested in due course. After completion of investigation, the charge-sheet was laid in the court of learned Additional Chief Judicial Magistrate, Jalandhar who committed the case to the court of Sessions for trial of the accused.
On commitment, the accused Inderjit Singh, Lakhbir Singh, , Dalbir Singh, Rajwinder Singh, Danial alias Labha were charged under Sections 307/325/323/506/148 read with Section 149 of IPC to which they did not plead guilty and claimed trial.
To bring home guilt against the accused, the prosecution examined Surinder Kaur(injured) PW-1, Narinder Pal Singh eye witness PW-2, ASI Niranjan Singh, Investigator PW-3, Dr. Baljit Singh PW-4, S.I. Amarjit Singh Investigator PW-5, ASI Kailash Chand PW-6, Dr. Vinay Gupta PW-7, Rajiv Ahir Senior Superintendent of Police Jagraon PW-8, Dr. Sudhir Mahajan PW-9, ASI Kailash Chander PW-10, Mehar Singh PW-11 and closed its evidence after tendering the report of the Forensic Science Laboratory.
Criminal Appeal No.1147 SB of 2006 (O&M) 4
When examined under Section 313 Cr.P.C., all the accused denied the incriminating circumstances appearing in the prosecution evidence against them and pleaded innocence as well as false implication. The accused Inderjit Singh came up with the following plea:-
"Surinder Kaur and her husband were aggrieved against me as my father Didar Singh had given General Power of Attorney of his land in my favour and I transferred half of the land to my wife Gurdev Kaur and and my son Dalbir Singh and daughter Davinder Kaur and the remaining half was agreed to transfer to Kulbir Kaur wife of Lakhbir Singh, Rajwinder Singh son of Lakhbir Singh and Pardeep Kaur w/o Lakhbir Singh. Surinder Kaur and Iqbal Singh were aggrieved because of this as they were deprived of the land. Both of them attacked me and caused injuries to me. People collected there and caused injuries to them in my self defence. None of the other accused was present there at the time of the incident."
The accused Lakhbir Singh has put forth as under:-
"I was Agriculture Development Officer at the time of incident. I was present at Raipur alongwith Baldev Singh Patwari on official duty and was not present at the time of occurrence. I and my son Rajwinder Singh were falsely implicated as Inderjit Singh had agreed to transfer half of the land of my father in favour of my son Rajwinder Singh and wife Kulbir Kaur and daughter Pradip Kaur."
In their defence, they examined DW-1 D.S.Uppal, DSP, Kapurthala, DW-2 Rattan Singh, DW-3 Harmit Singh, DW-4 Baldev Singh and DW-5 Dr. Criminal Appeal No.1147 SB of 2006 (O&M) 5 Sarveshwar Chander Sood.
After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused Inderjit Singh and Lakhbir Singh though acquitted rest of the accused as noticed at the outset. Feeling aggrieved with their conviction and sentence, they have preferred these appeals.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
On behalf of Lakhbir Singh appellant, it has been argued that he was posted as Agriculture Development Officer at the time of incident and was present at Raipur alongwith Baldev Singh Patwari being on official duty at the time of occurrence. Baldev Singh Patwari as DW-4 has supported the plea of alibi of this appellant. The prosecution case rests upon the testimonies of Surinder Kaur PW-1 and Narinder Pal Singh PW-2. Their statements are bristle with contradictions, discrepancies and improvements. As regards Narinder Pal Singh PW-2, as alleged he has suffered as many as seven injuries, but none-the-less, he was not subjected to medico legal examination which go a long way in proving that he was not present at the spot and that being so, his evidence ought to be excluded from consideration. In so far as Surinder Kaur PW is concerned she being an inimical witness, her evidence too is to be taken into consideration with a pinch of salt. As alleged, she has sustained an injury on her right arm, but only tenderness was found on the said part of her body as appears in the testimony of Dr. Baljit Singh PW-4 Such tenderness does not fall within the definition of a wound. During investigation the police came to the Criminal Appeal No.1147 SB of 2006 (O&M) 6 conclusion that Lakhbir Singh was present on duty at the time of occurrence and this fact has also been stated by DW-1 DSP D.S.Uppal as well as Rajiv Ahir PW-8 in his cross-examination.
Statedly, the occurrence took place on 8.9.2000 at 11.30 a.m. and allegedly the F.I.R. was recorded on the same day at 6.30 P.M., but the Special Report had reached the Ilaqa Magistrate at 9.55 A.M. on the next day. Thus the occurrence saw light of the day after 22 hours, which gives an inkling that the F.I.R. has been ante-timed.
It has been further argued that the complainant party had a strong motive to attack co-accused Inderjit Singh and falsely implicate both the appellants. Surinder Kaur PW-1 has admitted in her cross-examination that Didar Singh was her father-in-law and he owned about 25 acres of land which according to the defence is worth Rs.2 crores. He has executed power of attorney in favour of Inderjit Singh accused, who on its basis had transferred half of this land in favour of his wife and children and other half in favour of children and wife of his brother Lakhbir Singh. Thus, it is obvious that Inderjit Singh accused incurred the wrath of Iqbal Singh and his family as they were deprived of their shares, rather he has benefitted his brother Lakhbir Singh. As such, appellants had no reason to attack Iqbal Singh or his wife Surinder Kaur who in fact had a motive to implicate them falsely in this case.
To controvert these submissions, the learned State counsel being assisted by the learned counsel for the complainant maintained that the evidence trickled from the respective mouths of Surinder Kaur as well as Narinder Pal Singh PWs adequately establishes the participation of appellants in the occurrence. It has no where been provided that an injury Criminal Appeal No.1147 SB of 2006 (O&M) 7 without radiological examination cannot be declared as grievous. As for delay in receipt of Special Report by the Ilaqa Magistrate, the same is rendered inconsequential in view of the fact that the occurrence has been admitted by the appellants. On the given evidence, it stands abundantly demonstrated that indeed the appellants had a strong motive to cause injuries to Iqbal Singh (since deceased) as well as his wife Surinder Kaur PW.
I have given a deep and thoughtful consideration to the rival contentions.
PW-7 Rajiv Ahir, Senior Superintendent of Police, Jagraon has solemnly affirmed that "on 23.4.01 accused Lakhbir Singh was questioned and he suffered a statement that gandasi used by him for causing injuries to the wife of the complainant has been kept concealed by him in the wheat husk in his ancestral house in the village and the same can be got recovered by him. The statement of the accused was recorded by him, which is Ex.PW-7/A which was signed by the accused and attested by Amar Singh and Joginder Singh. In pursuance of his disclosure statement, the accused got recovered a gandasi from the disclosed place and the same was taken into possession vide memo Ex.PW-7/B attested by the witnesses. The sketch of the gandasi was prepared which is ExPW.7/C. The site plan of place of recovery was prepared, which is Ex.PW-7/D. Of course, in his cross- examination he has stated that "it is correct that from the perusal of the file it was revealed that accused Lakhbir Singh was found innocent by DSP Dharam Singh Uppal. I do not remember if Shri Dharam Singh filed a reply in the Hon'ble High Court in a writ petition filed by Surinder Kaur. It is correct that accused Lakhbir Singh was arrested by me. He had stated that Criminal Appeal No.1147 SB of 2006 (O&M) 8 on the day of occurrence he was present on duty and even he produced document in the course of investigation." At this juncture, necessity has arisen to make reference to the statement of DW-1 D.S.Uppal, who has testified that "as per my findings one of the accused namely Lakhbir Singh was found innocent." though in his cross-examination he stated that "I have not recorded statements u/s 161 Cr.P.C. in the inquiry. I recorded statements of the witnesses at the spot." It further surfaces in his cross-examination that " I have not seen report today in the court which I sent to SSP, Jalandhar." It is clear and unambiguous that the inquiry report vide which Lakhbir Singh was declared innocent by him was not shown to him on the day he was examined. His ipse dixit would not be enough to hold that Lakhbir Singh appellant was innocent. Needless to say Rajiv Ahir PW-8 was posted as Senior Superintendent of Police, Jalandhar at the time when he arrested this appellant and he got recovered the gandasi which was used by this appellant for causing injury to Surinder Kaur wife of Iqbal Singh. This officer being of the rank of Senior Superintendent of Police at the material time cannot be expected to tell a lie particularly when the record shows that he was not inimically disposed of towards the appellant Lakhbir Singh. Thus, on pitching his evidence against the evidence tendered by DSP D.S.Uppal DW- 1 who was junior in rank to the former, it transpires that the inquiry report does not depict the true picture. Thus, it cannot be deemed to be conclusive proof of innocence of Lakhbir Singh appellant.
In Dalip Singh Vs. State of Punjab 1997(4) Recent Criminal Reports(Criminal) 58 SC it has been held that the conclusion arrived at by the Investigating Officer that the accused were innocent is not legally admissible in evidence. The court cannot base its verdict on the basis of Criminal Appeal No.1147 SB of 2006 (O&M) 9 such conclusions. The trial Court is required to base its conclusions solely on evidence adduced during the trial. Coming to the evidence tendered by Surinder Kaur PW-1 she has stated as under:-
"Amarjit Singh son of Gurcharan Singh is the nephew of my husband Iqbal Singh and he is residing with us. Inderjit Singh and Lakhbir Singh both accused present in the court are the brothers of my husband Iqbal Singh. A land dispute regarding the partition of the land was pending in the courts between Inderjit Singh etc. and my husband. On 8.9.2000 at about 11.30 a.m. my husband was called by Dilbagh Singh through Narinder Pal. As Mohinderjit Kaur had purchased 1 Marla land and that land was being four-walled at that time. At that time, Narinder Pal Singh, Dilbagh Singh were also present at the spot. On the arrival of my husband at the spot, accused Inderjit Singh, Lakhbir Singh, Rajwinder Singh and Dalbir Singh alongwith Danial and 2/3 other persons came on Summo bearing No. HR 01 F 2010. I identify the above mentioned accused who are present in the court today. Inderjit Singh was armed with gandasi. Lakhbir Singh also armed with Gandasi, Rajwinder Singh with dang and Dalbir Singh was armed with gandasi. Danial was armed with hockey. Inderjit Singh accused raised lalkara that Iqbal Singh should not be spared today. He should be taught a lesson of causing dispute regarding partition of the land. Inderjit Singh accused gave a gandasi blow on the person of Iqbal Singh which hit on the left side of his head. Dalbir Singh caused a gandasi blow on the person of Iqbal Criminal Appeal No.1147 SB of 2006 (O&M) 10 Singh, which hit on his left arm when he raised his arm to save himself and it sustained injury on the left hand fingers. My husband fell down on the ground after sustaining the above said injuries. Thereafter Lakhbir Singh, Rajwinder Singh gave injuries with the blunt side of their weapons on the person of Iqbal Singh which hit on his arms and back. I came forward to save my husband from the accused party. Accused Lakhbir Singh gave a gandasi blow from reverse side on my right arm. Rajwinder Singh gave a gandasi blow which hit on my left arm from its reverse side. Accused Danial and his associates unknown persons also gave injuries on my back and leg. This occurrence was also witnessed by Narinder Pal Singh who also came forward to save us from the accused party. When he was saving us from the accused he also sustained injuries from the hands of the accused. Due to the above injuries, I became semi conscious and fell down on the ground. During this incident, the accused took away a gold chain and ear rings which I had been wearing at that time. The accused present in the court alongwith unknown persons who had also caused injuries on my person absconded from the spot on the same vehicle."
A careful delving into her cross-examination would reveal that she could not be shattered or shaken in any manner. She stood like a rock. If she had not witnessed the occurrence, in all probabilities, she would have fumbled here or there while under cross-examination. Dr. Baljit Singh Johal (PW-4) has stated as under:-
"On 8.9.2000 Surinder Kaur was also brought with following Criminal Appeal No.1147 SB of 2006 (O&M) 11 injuries:-
1. Haemotoma on the right forearm, clinically both the bones were fractured. Patient felt pain. Crepitus was present. No wound at the tie of injuries.
2. Tenderness over the left elbow joint.
3. Tenderness at the left anatomical snuff box.
4. Tenderness at the left knee joint.
5. Pain and tenderness at the left shoulder joint.
Injury No.1 was declared grievous and weapon used is blunt. Injury No.2 to 5 were kept for X-rays. Ex.PG is the original injury report which bears my signatures. After X-ray report injuries No.2 to 5 were declared simple vide my report Ex.PG/1."
The learned counsel for the appellants had been emphatic in the course of arguments that injury No.1 on the body of Surinder Kaur injured having not been subjected to X-ray examination could not be deemed to be grievous. This contention does not find favour with me. Of course, in his cross-examination Dr. Baljit Singh Johal PW-4 has deposed that injury No.4 on the person of Surinder Kaur was not X-rayed, but he has no where stated that this injury could not be declared as grievous without radiological examination. The learned counsel for the appellants did not refer to any law laying down that injury without such examination cannot be declared as grievous. Jaising P. Modi an authority on Medical Jurisprudence in his Book "Medical Jurisprudence & Toxicology Twenty-Second Edition" at page 362 has described the mode of determining nature of injury in the following terms:-
Criminal Appeal No.1147 SB of 2006 (O&M) 12
"While describing the injuries in column 1,2 and 3 of the form, he should carefully note their nature and number, the character of their edges, their size as regards length, breadth, and depth, the line of direction and their situation. The presence of any extraneous material in the wound should be carefully noted and carefully preserved, to be handed over to police later. If necessary, he should use a magnifying lens. The other factors, which have a varying effect on the nature of injury, are the movement and position of the assailant and the victim and these should be carefully studied. All the injuries should be measured and the exact measurements in centimeters must be given; they should never be guessed. While mentioning the exact situation, a reference to some bony prominences or anatomical landmarks should be made, as for example, so many centimeters above or below the front of back of the left or right wrist, elbow, etc. In describing these points, technical terms should be avoided, as far as possible.
Wounds of chest or abdomen ought not to be probed, lest they be converted into penetrating wounds."
The above method evidently no where contemplates X-Ray examination for adjudging the nature of injury. According to Doctor Baljit Singh Johal, PW-4 as many as five injuries were found on Surinder Kaur's person. In view of above mentioned Book, tenderness does not fall within the definition of wound. But she being a stamped witness and her presence being natural at the spot, her evidence in no manner can be discredited, discarded or brushed aside.
Criminal Appeal No.1147 SB of 2006 (O&M) 13
It was punctuated during the arguments on behalf of the appellants that admittedly Narinder Pal Singh PW-2 so called eye witness was not subjected to medico legal examination. If he had verily witnessed the occurrence and sustained the injuries on his body, he might have been medico legally examined. I regret my inability to be one with the learned counsel for the appellants. True that as surfaced in his cross-examination Narinder Pal Singh(sic) did not go in for his medico legal examination, but this laxity or omission ipso facto is not enough to say that he had not seen the occurrence. Scant cross-examination directed against him would reveal that he has stood this test successfully. He has solemnly affirmed that "On 8.9.2000 at about 11.30 A.M. I alongwith my father Dilbagh Singh, Iqbal Singh, Mohinder Kaur were present in a plot of one Marla which my father sold to Mohinder Kaur and were filling the foundation. Meanwhile the accused came over there." This evidence probabilizes the reason for his being present at the spot. If it is assumed for a little while that he was not present at the spot, despite that the causing of the injuries by the appellants on the respective bodies of Iqbal Singh since deceased and his wife Surinder Kaur is established by the latter being a stamped witness. Narinder Pal Singh has given a graphic description of the entire occurrence. That being so, his evidence qua the appellants cannot be looked upon with any sort of suspicion.
It was also asserted during the arguments that the Special Report had reached the Ilaqa Magistrate at 9.55 A.M. on the next day though the F.I.R. was allegedly lodged at 6.30 P.M. which indicates that the F.I.R. has been ante-timed. This contention is absolutely baseless and fallicious for the simple and obvious reason that the appellants have come Criminal Appeal No.1147 SB of 2006 (O&M) 14 up with the plea of right of private defence. Such plea is always taken by admitting the date, time and place of occurrence. Thus, this contention pales into insignificance. The matter does not end here. In Bodh Raj alias Bodha and Others Vs. State of Jammu & Kashmir 2003 Supreme Court Cases (Criminal) 201, the incident occurred on 3.8.1994. The F.I.R. reached the Magistrate on 5.8.1994. It was held by the Supreme Court that in view of the proper explanation offered for the delay, the plea of delayed dispatch of F.I.R. did not have any substance. Further in case of Shaikh Ayub Vs. State of Maharashtra 1998 Supreme Court Cases Criminal 1055, it has been held that merely because the F.I.R. reached the Magistrate after 3 days, its genuineness cannot be doubted. In Ravi Kumar Vs. State of Punjab 2005(2) Recent Criminal Reports(Criminal) 213, it has been ruled by the Apex Court that "Section 157 of Cr.P.C. is the only external check on the working of the police agency, imposed by law which is required to be strictly followed. The delay in sending the F.I.R. may by itself not render the whole case of the prosecution as doubtful but shall put the court on guard to find out as to whether the version as stated in the Court was the same version as earlier reported in the F.I.R. or was the result of deliberations involving some other persons who were actually not involved in the commission of crime." At the cost of repetition, it deserves to be pointed out here that the occurrence herein having been admitted, the delay if any in dispatch of the Special Report to the Ilaqa Magistrate loses its significance. The evidence of DW-5 Sarveshwar Chander Sood reads as under:-
"On 8.9.2000 at 8.15 p.m.(3.15 p.m.) I medically examined Criminal Appeal No.1147 SB of 2006 (O&M) 15 Inderjit Singh aged 45 yrs, son of Didar Singh caste Jat resident of village Kukkar Pind, P.S. Sadar, Jalandhar. He was accompanied by his nephew Rajwinder and found the following injuries on his person:-
1. Patient was fully conscious. Blood pressure and PR was normal 1 ½ X ¼ incised wound on left arm posterior aspect on (superficial to) triceps muscles skin deep superficial wound not bleeding at the time of examination.
2. 1"X1/4 incised wound in line with the first wound, but on posterior surface of left shoulder. Skin deep not bleeding at the time of examination.
3. 2 ½" x ¼" incised wound superficial skin deep. Not bleeding at the time of examination. Obliquely placed on left thigh above keen on anti-lateral aspect.
4. 1"X1/2" swelling on the left frontal bone on hair line.
Nature of injuries was simple. Kind of weapon used was sharp for injuries No. 1 to 3 but blunt for injury No.4. Duration of injuries was between six to twelve hours approximately. Inderjit Singh examined by me is present in court as accused. Photo copy of the MLR is Ex.DW5/A. It is correct that injury No.4 is on vital part of the body.
XXXXXX All the injuries No.1 to 4 as per the MLR are superficial and injuries No.1 to 3 are on non-vital part of the body. The possibility cannot be ruled out that injuries could be self suffered or self inflicted."
Criminal Appeal No.1147 SB of 2006 (O&M) 16It follows from this evidence that the above mentioned injuries were superficial and on non-vital parts of the body. The possibility of their having been self suffered or self inflicted cannot be ruled out. These were simple in nature. Startlingly enough that injuries No.1 to 3 inspite of being incised in nature were not bleeding. As regards injury No.4 it was a mere swelling which as per J.P.Modi's Medical Jurisprudence is not covered by the definition of wound. The fact that these injuries were superficial on non-vital parts of the body, simple in nature and were not bleeding cumulatively suggest that these were hardly received during the occurrence. As such it was not incumbent upon the complainant party to explain the same. In Jalaram Vs. State of Rajasthan 2006(1) Recent Criminal Reports(Criminal) 395, it has been held by the Supreme Court that "simple injuries are to be explained by prosecution when accused claimed right of private defence and it would show that accused were not aggressors. In all situations, the injuries received by the accused persons need not be explained, but different situations may arise when a right of private defence is claimed." Adverting to the present one, undoubtedly the right of private defence has been claimed by the appellants, but the number and nature of injuries sustained by Iqbal Singh since deceased as well as his wife Surinder Kaur go a long in proving that the appellants, were the aggressors. So, in view of the Jalaram's case(supra) the prosecution was not obligated to explain the injuries on the person of Inderjit Singh appellant.
In Daleep Singh Vs. State of U.P. 1997 Supreme Court Cases(Cri) 231 it has been ruled by the Supreme Court that enmity is a double edged weapon as it may provide a motive for the crime as also for Criminal Appeal No.1147 SB of 2006 (O&M) 17 false implication. Reverting back to the instant one, it is in the evidence of Surinder Kaur PW that the dispute regarding partition of land was pending in the court between Inderjit Singh etc. and her husband. It is apt to be borne in mind that the deceased Iqbal Singh and the appellants are inter related being brothers. She has stated in categoric terms that Inderjit Singh accused raised lalkara that Iqbal Singh should not be spared today and be taught a lesson for causing dispute regarding the partition of the land. So, there may be every possibility that the proceedings regarding partition of land launched by Iqbal Singh had been sore in the eyes of the appellants and being fed up therewith had opened this attack. If it is assumed that there was long standing enmity between the parties despite that this fact in itself is not enough to reject the testimony of the prosecution witnesses for the reason that no other circumstance exists rendering their evidence unworthy of credit. Enmity is a double edged weapon. It no doubt often provides motive for false implication, but it also more often than not provides motive and incentive for making an attack. So that, merely because there subsisted enmity between the witnesses, on the one hand, and the accused on the other, is not sufficient to throw overboard the testimony of witnesses unless there is further material on which the testimony can be doubted. When there is enmity between the prosecution witnesses and the accused, the evidence has to be scrutinized with great care, which means that the evidence has to be tested more carefully in the crucible of all probabilities. In the present one, on scrutinizing the evidence of Surinder Kaur PW with due care and caution, it transpires that the occurrence had taken place in her presence as she had also sustained injuries therein. Thus, there is nothing on the record to show that the appellants have been falsely roped in. Criminal Appeal No.1147 SB of 2006 (O&M) 18
As ruled in Mani Kumar Thappa Vs. State of Sikkim 2002 (3) Recent Criminal Reports(Criminal) 795, proof of motive is not necessary if prosecution is able to prove offence of murder against the accused beyond reasonable doubt. In Harijana Narayana and Others Vs. State of Andhra Pradesh 2003(4) Recent Criminal Reports(Criminal) 479, it has been held by the Supreme Court that evidence of interested witnesses cannot be rejected merely because witness was related or interested in the parties on either side. If the presence of such a witness at the time of occurrence is proved, his evidence can provide a sound base for conviction of accused. The court has a duty to scrutinize their evidence with great care, caution and circumspection. In Balachandran Vs. State of Kerala 2001(1) Recent Criminal Reports(Criminal) 578, it has been held that while appreciating the evidence of injured witness, the court must not attach undue importance to minor discrepancies, but must consider broad spectrum of the prosecution version. As held by the Supreme Court in Mohar Vs. State of U.P. 2002(4) Recent Criminal Reports(Criminal) 182, testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of the occurrence and had seen the occurrence by himself. In the instant one, Surinder Kaur herself having sustained injuries on her body would show that she was present at the place of the occurrence and the same was seen by her.
In consequence of his death, Iqbal Singh could not be examined in this case. As per the medical evidence tendered by Dr. Baljit Singh Johal PW-4 injury No.1 on the body of Iqbal Singh was declared Criminal Appeal No.1147 SB of 2006 (O&M) 19 dangerous to his life. As per this injury, the left temporal area underlying skull got fractured. Dr. Viney Gupta PW-7 has solemnly affirmed that "on that day(referring to 9.9.2000) I scanned Iqbal Singh and found that there was evidence of fracture through left fronto temporal region and my report is Ex.PO." This medical evidence coupled with ocular account given by Surinder Kaur as well as Narinder Pal Singh PW establishes the commission of offence under Section 307 of IPC. In Nanak Chand Vs. State of Haryana 1994(1) Recent Criminal Reports(Criminal)342, the injury was caused with sharp edged weapon. The opinion of the Doctor was that the injury could prove dangerous to life if injured was not hospitalized in time. There was land dispute between the parties. It was held that the offence under Section 307 of IPC is prima facie made out. In State of Haryana Vs. Babu Singh 1987(1)Recent Criminal Reports(Criminal) 117, it has been held by the Division Bench of this Court that intention to cause dangerous injury is to be inferred from the circumstances of each case.
To substantiate his plea of alibi, Lakhbir Singh has examined D.S.P. D.S.Uppal, DW-1, Rattan Singh DW-2, Harmit Singh DW-3 and Baldev Singh DW-4. As regards D.S.Uppal, his evidence has already been discussed. Rattan Singh DW-2 has solemnly affirmed that the other accused present in the court were not present there. This piece of evidence can be construed to mean that except Inderjit Singh appellant none else was present at the place of the occurrence. It is in his cross-examination that "I know the accused since my childhood. They are not related to me. But they are my friends being my neighbourers." This witness being neighbour of Lakhbir Singh appellant, it was not difficult for the latter to procure his services to Criminal Appeal No.1147 SB of 2006 (O&M) 20 depose in his favour. The ocular account coupled with the medical evidence evaluated hereinbefore, nullifies the words trickled from the mouth of Rattan Singh DW-2 to the effect that Lakhbir Singh appellant was not present at the spot. Harmit Singh DW-3 has stated as under:-
"Lakhbir Singh accused is working as Agricultural Development Officer in department. Now he is retired. He was a gazetted Officer. On 8.9.2k I was posted at Jalandhar as Agriculture Development Officer. Lakhbir Singh was posted at Raipur Frara as Development Officer. In our Deptt. The Agriculture Officer inspects the crops and certain field were year marked by the superior officers with a view to judge the yield per acre. The work is done with the aid of patwari. Lakhbir Singh was doing this duty with the aid of Patwari Baldev Singh who was Halqa patwari. I am not summoned witness. I have brought the report made by Sh. Davinder Singh, Chief Agriculture Officer. I identify his signatures on the report. As I am conversant with his handwriting and had seen him writing and signing Sh. Davinder Singh Randhawa has since retired. I have brought the original and Ex.DB which is the photocopy of original brought by me today in the court. I have also brought the original report of Sh. Baldev Singh Kahlon and I identify his signature on the original reports. I am familiar with his handwriting as I have seen him writing and signing. Ex.DC is the correct copy of the report of Mr. Kahlon. I have also brought the land inspection report of Baldev Singh Patwari and Lakhbir Singh accused. This joint report is signed Criminal Appeal No.1147 SB of 2006 (O&M) 21 by Lakhbir Singh and Baldev Singh Patwari and I can identify their signatures as I am familiar with their handwriting and have seen them writing and signing. Ex.DD is the joint inspection report. I have also brought the report by Sh. Baldev Singh Patwari. The report was sent to Tehsildar. The report of Patwari is Ex.DE."
Baldev Singh DW-4 has stated as under:-
"I know accused Lakhbir Singh who was working in the office of Agricultural Development Officer. In Sept.2k I was working as Patwari Circle Raipur. Lakhbir Singh accused was Agricultural Development Officer, Raipur. Agricultural Development Officer earmark the crops to test the yield. On 8.9.2k accused Lakhbir Singh was with me at the time of inspection of crop. Lakhbir Singh earmarked certain crops for inspection. Accused Lakhbir Singh was with me from 9.15 a.m. to 12 noon. Ex.DD is my joint report in this regard. It bears my signature as well as signature of accused Lakhbir Singh. Village Kukkar is at a distance of about 4 km from the place where the crops were earmarked by us. I have brought the roznamcha in which an entry has been made with regard to assessment of crop on page no.1 dt. 8.9.2k. The photocopy of this entry is Ex.DF. I learnt about the involvement of accused Lakhbir Singh in this case on 9.9.2k as per my knowledge the said occurrence has been stated to have occurred at 11.30 a.m. I appeared before the police officer in connection with inquiry. My statement was recorded during those inquiry proceedings. I Criminal Appeal No.1147 SB of 2006 (O&M) 22 made a report to my Deptt. As desired by Tehsildar. I have seen the report Ex.DE which was made by me."
Palpably Harmit Singh (sic) has deposed that the original of Ex.DD the joint report is signed by Lakhbir Singh appellant and Baldev Singh Patwari. When the entire evidence of Harmit Singh as well as Baldev Singh Dws referred to hereinbefore is looked in the backdrop of the evidence of PW-8 Rajiv Ahir, S.S.P.Jagraon, it pales into insignificance for the reason that as discussed earlier, the appellant Lakhbir Singh on 25.4.2001 had stated before Rajiv Ahir(sic) that gandasi used by him for causing injuries to the wife of the complainant Iqbal Singh had been kept concealed by him in the wheat husk in his ancestral house and the same could be got recovered by him. Pursuant to such statement he got recovered the gandasi. However, in view of the provisions of Section 27 of the Evidence Act, the words "the gandasi used by him for causing injuries to the wife of the complainant Iqbal Singh" are not admissible in evidence, but the recovery of gandasi at his instance coupled with the statement of Surinder Kaur PW sufficiently establishes that he did participate in the occurrence. It was not difficult for Lakhbir Singh appellant to fabricate or procure the aforementioned joint report or other documentary evidence to prove his plea of alibi. Under the stress of cross-examination, Harmit Singh DW-3 has deposed that "it is correct that in document Ex.DD the columns with regard to despatch number are lying blank. Same is my reply with regard to Ex.DC." If these documents had been prepared on the dates stated therein, the despatch number in the relevant columns might have been filled up. The reason for leaving these columns blank has not been disclosed in the evidence. This witness has also stated that "it is correct that all the documents produced by Criminal Appeal No.1147 SB of 2006 (O&M) 23 me today in the court were neither prepared in my presence nor dealt in by me in my official duty. The patwari Baldev Singh has never worked with me nor I have ever seen him signing during my official duty. I cannot tell the name of Tehsildar to whom this letter was sent by patwari." Thus authenticity of the documents exhibited in the statement of this witness is rendered doubtful. Baldev Singh DW-4 under the stress of cross- examination has testified that "Ex.DE is in my hand. Ex.DD is not in my handwriting, but it bears my signatures. It is correct that in the report Ex.DD and Ex.DE, I have not mentioned as to which time accused Lakhbir Singh was with me. Ex.DD has been prepared by accused Lakhbir Singh." Firstly, Ex.DD and Ex.DE are silent about the time at which the appellant Lakhbir Singh was in the company of Baldev Singh (sic). In the absence of time, it is very difficult to say that at the time of occurrence, the appellant Lakhbir Singh was with this witness. The occurrence is stated to have taken place at 11.30 a.m. Secondly, Ex.DD itself has been prepared by Lakhbir Singh (appellant). To save himself from the clutches of prosecution, he might have prepared this document. As surfaces in the cross-examination of Baldev Singh (sic) "No time has been mentioned in the entry of roznamcha showing my being with Lakhbir Singh. It is correct that I prepared report Ex.DE on the basis of entry in the roznamcha. I have never done duty with accused Lakhbir Singh except on the occasion stated above. I have not brought the record vide which I was deputed to do duty on 8.9.2k(referring to the date of occurrence). I do not know by which officer Lakhbir Singh was deputed to do duty in the field on 8.9.2k. It is correct that report Ex.DE is dated 5.8.03. No body asked me about the duty of Lakhbir singh till August, 2003." It is axiomatic that time has not been mentioned in the entry of Criminal Appeal No.1147 SB of 2006 (O&M) 24 roznamcha. As per rules time with regard to any activity has to be mentioned in the roznamcha. This witness has not given any reason for not making mention of the time in the relevant entry. Thus, it cannot be said with absolute certitude that entry in the roznamcha was made at the time of occurrence. Admittedly, Ex.DE is based on the entry is the roznamcha. If the base of the entry is undermined Ex.DE cannot be relied upon safely. A fortiori, this report was not produced before any police officer during investigation. The order vide which this defence witness was deputed on duty on 8.9.2000 has also not been produced. To crown it all, the report Ex.PE is dated 5.8.2003 whereas the occurrence had taken place on 8.9.2000. During this long drawn interval of about three years, it was not difficult to forge entry in the Roznamcha or to prepare such record. Thus to say the least of it, Ex. DE is a document of doubtful authenticity. On perusal of the entire evidence adduced by Lakhbir Singh appellant to prove his plea of alibi, it emerges out that the same fails to inspire confidence. Sequelly, it is rejected.
As a result of the above discussion, the conviction recorded by the learned trial Court qua both the appellants is upheld.
By placing reliance upon Gurdip Singh and others Vs. State of Punjab 2004(4) Recent Criminal Reports(Criminal) 514,Tota Singh and others Versus State of Punjab 2003(3) All India Criminal Law Reporters 400, Jaspal Singh Vs. State of Haryana 2007(3) Recent Criminal Reports(Criminal) 16, Dharambir Vs. The State of Haryana 2008(2) Recent Criminal Repors(Criminal) 310, Joginder Singh and others Vs. State of Haryana 2009(3) Recent Criminal Reports Criminal Appeal No.1147 SB of 2006 (O&M) 25 (Criminal) 274 the learned counsel for the appellants maintained that the senence may be slashed to the already undergone.
I have given a deep and thoughtful consideration to this submission.
As per the custody certificates taken on record, Inderjit Singh appellant has undergone 1 year, 3 months and 13 days whereas Lakhbir Singh appellant has undergone 2 months and 17 days of the actual sentence. In Tota Singh and others' case (supra), the appellants had already undergone 5½ months imprisonment inter alia under Section 307 of IPC and their sentence was reduced to the already undergone. In Jaspal Singh's case (supra) the sentence under Section 307 of IPC was reduced to already undergone(some period during trial). In Joginder Singh and others' case (supra) the sentence was reduced to the already undergone (9 months, 18 days). The injuries attributed to Lakhbir Singh appellant falls under Section 325 and 323 of IPC. The injury falling under Section 307 of IPC has been attributed to Inderjit Singh appellant. The appellants have been facing the agony of trial since 2000. Thus this incident is more than 9 years old. There is nothing on the record to show that the appellants while on bail during the pendency of this appeal made misuse of this opportunity. It is worth pointing out here that the appellants and the injured Iqbal Singh are inter- related being real brothers. The dispute had arisen because of the fact that Iqbal Singh had lodged the proceedings regarding partition of joint land. If the appellants are sent to jail once again after the lapse of so many years, it would create bad blood and that will reopen the wound, which might have healed up by now. Ostensibly, the appellant Inderjit Singh has undergone Criminal Appeal No.1147 SB of 2006 (O&M) 26 the sentence for a sufficient period, whereas the appellant Lakhbir Singh has served imprisonment for a very short term. It is note worthy that Iqbal Singh having passed away, the appellants could not get the opportunity to cross- examine him. Thus taking into consideration the cumulative facts and circumstances of the case, the sentence of both the appellants is reduced to the already undergone, while maintaining the sentence of fine inflicted by the learned trial Court alongwith the default clause. With this modification in the order of sentence, this appeal fails and is dismissed.
Since the appeal has been decided, all pending Criminal Miscellaneous,if any, also stand disposed of.
(HARBANS LAL) JUDGE April 7, 2010 RSK NOTE: Whether to be referred to the Reporter or not? Yes/No