Punjab-Haryana High Court
Surain Singh And Others vs State Of Punjab on 2 September, 2008
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appea No.209-DB of 1998 1
IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH
Criminal Appeal No.209-DB of 1998
Date of Decision: September 02, 2008
Surain 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,Senior Advocate with
Mr.Pawan Girdhar Advocate and
Mr.P.S.Brar, Advocate for the appellants.
Mr.Rajesh Bhardwaj, Deputy Advocate General,Punjab
Mr.H.S.Gill, Senior Advocate with
Mr.R.K.Dhiman, Advocate
(In Criminal Revision No. 654 of 1998)
* * *
Sabina, J.
Vide this judgment Criminal appeal Nos. 209-DB, 568-DBA of 1998 and Criminal Revision No. 654 of 1998 would be disposed of as the same have arisen out of judgment dated 26.3.1998 passed by Additional Sessions Judge, Faridkot.
Prosecution case was set in motion on the basis of statement of complainant/injured Amrik Singh. About nine months prior to Criminal Appea No.209-DB of 1998 2 the occurrence, Sukhchain Singh, brother of complainant was given injuries by Surain Singh and his brother. A case was registered against them at Police Station Sadar Faridkot. Surain Singh, Darshan Singh, Jhanda Singh and Pala Singh were arrested and were sent up for trial. A month before the occurrence, complainant party and accused had received injuries in a quarrel and a case was registered against them at Police Station Sadar, Faridkot. All of them were arrested and sent up for trial. Apart from this, both the parties were also facing proceedings under Section 107/151 of the Code of Criminal Procedure,1973 in the Court of Executive Magistrate, Faridkot on 17.2.1995. Complainant along with his brothers Raj Singh, Harbans Singh, Sukchain Singh and father Mander Singh and cousin brother Gursewak Singh, maternal uncles-Santa Singh and Banta Singh and cousin brother Satnam Singh had come to attend the Court proceedings in a case under Sections 107/151 Cr.P.C. Bhajan Singh, relative of the complainant, had also come to the Court to meet them. Surain Singh, Jasmail Singh, Darshan Singh, Jhanda Singh, Pala Singh and Boota Singh had come to attend the Court proceedings from the opposite side. At about 11.00 a.m., both the parties were waiting for their case in the compound of the Court. Surain Singh asked Bhajan Singh as to what he was doing there and what was the purpose of his visit on the date of hearing. On this, both of them started exchanging hot words and abuses. Surain Singh, who was `amritdhari' Sikh, took out his sirisahib (small kirpan) which he was wearing around his neck and gave 3/4 blows on the person of Bhajan Singh which hit him below the left side of his chest. Complainant party came forward to separate them. Surain Singh gave a `kirpan' blow from the sharp side on Criminal Appea No.209-DB of 1998 3 the person of Mander Singh which hit him on his waist. Darshan Singh, who had concealed his `kirpan', took out the same and gave blows with it on the person of Santa Singh. Surain Singh gave a blow on the left shoulder of the complainant with his `kirpan' and complainant retreated. Surain Singh then gave two `kirpan' blows on the person of Sukhchain Singh which hit him on his right flank. Then, Surain Singh gave two `kirpan' blows on the right flank of Harbans Singh. Boota Singh kept on instigating his son that none of the complainant party should escape alive. Jasmail Singh held Raj Singh, whereas, Darshan Singh gave a `kirpan' blow on his right flank and right hip joint. Pal Singh and Jhanda Singh caught hold of Gursewak Singh and Darshan Singh gave a `kirpan' blow on his left flank. Jhanda Singh, Pal Singh and Jasmail Singh caught hold of Santa Singh and Harbans Singh from their long hair and supported them with their arms and helped Surain Singh and Darshan Singh in causing injuries to them. They raised alarm and all the accused fled away from the spot with their respective weapons after causing injuries to the complainant party with intention to kill them.
Injured were got admitted in Guru Gobind Singh Medical Hospital, Faridkot by Chanan Singh and others. Santa Singh and Harbans Singh succumbed to their injuries. The motive behind the occurrence was that about nine months before the occurrence, a dispute had arisen over the turn of water and, thereafter, due to injuries received by both the parties the enmity persisted. On the basis of the statement of the complainant, formal FIR No.14 dated 17.2.1995 was registered by the Police of Police Station City Faridkot.
The Investigating Officer-Ranjit Singh, Sub Inspector recorded Criminal Appea No.209-DB of 1998 4 the statement of complainant after he was declared fit to make the statement by doctor at 11.45 a.m. He prepared the inquest report with regard to dead bodies of Santa Singh and Harbans Singh. He lifted blood stained earth from the spot . He also lifted chadras, seven turbans and two parnas from the spot. He prepared the site plan of the place of occurrence. Accused- Surain Singh, Jhanda Singh and Jasmail Singh were arrested and from the personal search of accused Surain Singh, one small `kirpan' stained with blood kept in a sheath which was also blood stained was recovered. On 18.2.1995, he recorded the statement of PWs Mander Singh, Raj Singh and Harbhajan Singh, after they were declared fit. He also recorded the statement of accused Pal Singh. Statement of Sukchain Singh PW was recorded on 21.2.1995 after he was declared fit to make the same. On . 1.3.1995, he arrested accused Boota Singh.
Ram Singh, ASI arrested accused Darshan Singh on 24.2.1995 after he surrendered in the Court at Muktsar. On the basis of his disclosure statement, during interrogation, one `kirpan' was recovered and was taken in possession. On 12.3.1995, he arrested accused Lachman Dass and, on his interrogation, application dated 16.2.1995 meant for 17.2.1995 and attendance register were recovered and were taken in possession.
Dr.Sarabjit Singh Sandhu had conducted the post mortem examination on the dead body of Santa Singh on 17.2.1995 at 4.25 p.m. and found following injuries on his person:-
"1. Transverse stab wound 3 x 0.5 cm was present on the anterior side of chest on the left side, 6 cms below and lateral to left nipple at 4.00 O clock position. C.B.P. was present. On dissection, it is going in words and medically through 6th inter costal space, Criminal Appea No.209-DB of 1998 5 Piercing the pericardium and left vertifcal. Persicardial sac contains about 200 C.C. Of fluid blood.
2. Transverse stab wound 3 x 0.5 cm on the lateral side of left side of chest 6 cms lateral to the injury no.1. It was bone deep C.B.P.
3. Transverse stab wound 2 x 0.5 cm was present at the back of the left side of abdomen 3 cms lateral to midline and 15 cm above the posterior superior lliac spine of left side on dissection, the peritonium large iniestia was cut. Peritonial cavasity contained about 500 C.C. Of fluid and clotted blood.
4. Transvese stab wound 2.5 x 0.5 cm was present on the back of the left side of abdoman, 6 cms lateral to the injury no.3 C.B.P. It was skin deep.
5. An oblique stain wound 1.5 x 25 cm on the back of left side of chest, 2 cms from the midline and 20 cms below the nape of neck, it was bone deep C.B.P.
6. A transverse stab wound 4 x 0.5 cms on the back of left side of chest, 5 cms from the midline and 12 cms below the nape of the neck. C.B.P. It was bone deep."
All the injuries were opined to be ante mortem in nature and cause of death was due to injury to heart (vital organ) and large intestine as a result of injuries no. 1 to 3 which were sufficient to cause death in the ordinary course of nature.
On the same day, he also conducted post mortem examination on the dead body of Harbans Singh at 4.50 p.m. and found the following injuries on his person:-
"1. An onlique stand wound 3 x 0.5 cm was present on Criminal Appea No.209-DB of 1998 6 the lateral side of right side of chest in mid Axillary line, 22 cms below the Axillary apax, C.B.P it was bone deep.
2. A transverse stab wound 2.0 5 cm was present on the right side of back of abdomen, 8 cms below and lateral of injury no.1 on exploring, it was going medially and in words cutting substanoaus tissue, muscles, right kidney, pertonium and large intestine. Pertonium cavity contained above 1000 C.C. of fluid and clotted blood. Stomach contained about 150 C.C. of semi digested flood. All other organs were healthy".
In his opinion, all the injuries were ante morten in nature and cause of death was due to injury No.2 i.e. Kidney (Hemorrhage and shock) and large intestine which were sufficient to cause death in the ordinary course of nature.
He examined Pal Singh, accused on 20.2.1995 at 3.30 p.m. and found following injuries on his person:-
"1. A linear stiched wound having 5 stiching intact 6.5 cms long was present on left side of head, 9 cms above the left ear, it was antero posteriorly placed. Margins were regular. The wound was covered by brownish scab over it. X-ray was advised.
2. A longitudinal contusion 8 x 1.5 cm was present on the to of the head, bluish blach in colour. It was 11.5 cms above the left ear. X-ray was advised.
3. An irregular bluish black contusion 2.5 x 1. cm Criminal Appea No.209-DB of 1998 7 on the posterior occipital Propubrance. Advoed x- ray. Nature of injuires: Injury No.1 to 3 were subjected to X-ray and Surgeon's opinion. Probabale duration of injuries was within 3 to 4 days. Weapon used for injuries No.1 was subjected to X-ray and Surgeon"s opinion and for injuries no. 2 and 3 was blunt. Ex.PW4/D-B is the photostat certified copy of the MLR, original of which I have brought today in the court."
On 18.2.1995 at 5.45 p.m. , he examined Surain Singh, accused under the order of the Chief Judicial Magistrate Faridkot and found following injuries on his person:-
"1. Right eye was raddish with blackening below it lower the lids.
2. Four small abrasions with raddish scab, on the left side of forehead measuring 9.25 to 0.5 cms in length, hair line in breadth."
On the same day at 5.55 p.m., he also examined accused Jhanda Singh under the orders of the Chief Judicial Magistrate Faridkot and found following injuries on his person:-
"1. Irregular raddish scabbed abrasion 3 x 2.5 cms on the from of left knee joint.
2. Superficial reddish brown 2.5 x 1 cm at the back of right elbow joint."
On the same day, he examined accused Jasmail Singh at 6.10 p.m. and found the following injury on his person:-
Criminal Appea No.209-DB of 1998 8
" Patient complains of pain in the back of chest but no external injury"
Dr.Manjit Singh, examined Sukchain Singh on 17.2.1995 at 11.35 a.m. and found following injuries on his person:-
" 1. 1. 0 cm x 0.25 cm incised wound on the meddle of forehead. X-ray advised.
2. 2 cm x 1 cm inclised wound on right side of chest 17 cms from Yiphisternum. Profuse bleeding was present. X- ray advised.
3. 3 x 2 cms incised wound on right lumber region-10 cms below injury no.2. Surgical opinion and x-ray advised"
Injury No.2 was declared dangerous to life as per Surgeon's opinion, whereas, injuries no 1 and 3 were declared simple.
On the same day at 11.40 a.m., he examined Bhajan Singh and found the following injuries on his person:-
"1. 2.3 cms x 1 cm inciseed wound on left side of medical edge was 10 cms below and literally to left memory gland. Surgical opinion and x-ray of chest advised.
2. 2 x 3 cm incised wound, 1 cm below the injury No.1 Medial and was 0.4 cm away from each other on left side of chest. Labterally 2.5 cms away from each other. Surgicial opinion and x-ray chest advised.
3. 1.8 cm x 1 incised wound-29.5 cm below the left post axillary fold. 6.5 cms below lateral to injury no.2. Surgical Emphsam present. Sugical opinion and X-ray advised."
All the injuries on the person of Bhajan Singh were declared simple in Criminal Appea No.209-DB of 1998 9 nature and were result of a sharped edged weapon.
On the same day at 11.45 a.m., he examined Mander Singh and found following injuries on his person:-
"1.2 cm x 0.5 on incised wound on right side of back-15 cms medially and superiorly to right post. Illia spine. 2 ½ cms right lateral to spine. X-ray of spine advised."
The said injury was declared simple, after x-ray report and was a result of sharp weapon.
On the same day at 11.55 am, he examined Gursewak Singh and found the following injuries on his person:-
" 1.8 cm x 0.3 cm incised wound on back left side of chest 30 cm below the left shoulder. X-ray of chest was advised. Injury was kept under observation and weapon used was sharp and duration was within 6 hours. Ex.PL is the correct carbon copy of the MLR of Gursewak Singh which is correct and signed by me and was prepared in the same process which is the original.
The said injury was declared simple in nature and was a result of sharp weapon.
On the same day at 12.05 pm, he examined Raj Singh and found following injuries:-
"1. 1.9 cm x 1 cm incised wound in right Gluteal region-6 ½ cms below the right. Anterior superior iliac spine. X-ray advised.
2. 2 cms x 1 cm inciseed wound on right lower chest. Bonedeep 22 cms below the right anterior, Axillary Criminal Appea No.209-DB of 1998 10 fold-17 cms below and slightly lateral to right memory gland. Surgical opinion was advised."
Injuries were declared simple in nature and were result of a sharp weapon.
On the same day at 12.15 p.m., he examined Amrik Singh and found the following injuries on his person:-
"2.4 cm x1 cm incised wound-10.5 cms below and posterior to left shoulder joint. X-ray of left shoulder joint advised.
Injury was kept under observation and duration was within 6 hours weapon used was sharp weapon"
Injuries were declared simple in nature as per x-ray report and was result of a sharp weapon.
After completion of investigation and necessary formalities, accused were sent up for trial under Sections 302/148,307,324/149,218,201 IPC against the accused-Surain Singh, Darshan Singh, Pal Singh, Jhanda Singh, Jasmail Singh and Boota Singh. So fas as accused Lachman Dass is concerned, charge was framed against him under Section 218, 201 IPC. The prosecution, in order to prove its case, examined,as many as, eighteen witnesses.
After the closure of prosecution evidence, accused Darshan Singh when examined under Section 313 Cr.P.C. prayed that he was innocent and has been falsely involved in this case. He was a Government employee and was working as a Senior Laboratory Assistant in Senior Higher Secondary School, Janerian. On 17.2.1995, he had attended the School in the first half and had marked his presence at 9.00 a.m. He had left the School at 12.30 p.m. after getting leave for the second half. Application Criminal Appea No.209-DB of 1998 11 Ex.PW1/1 was got fabricated by the Police from him under pressure and duress after his arrest and endorsement of the Headmaster was also got fabricated by pressuring him. He had sent applications Exhibits.DJ and DG. He had surrendered before the Magistrate Muktsar on 22.2.1995.
Surain Singh, accused when examined under Section 313 Cr.P.C. prayed that the occurrence had taken place suddenly. He had asked Bhajan Singh not to meddle in their affairs, to which he retorted and attacked him and caused injuries on his person. Harbans Singh and Santa Singh attacked Jhanda Singh and Pal Singh. Harbans Singh had thrown Jhanda Singh on the ground and had tried to strangulate him and, as such, he caused injuries on the person of Harbans Singh with his `kirpan'. Santa Singh caused a blow with his `sota' on the head of Pal Singh and, as such, he caused injuries to Santa Singh to save Pal Singh. He had acted in private defence, The other injured had also suffered injuries while they were trying to catch him. Darshan Singh was not there. His father and other brothers had not participated in the attack. They had reported the matter to the police and the injured were removed to the hospital. Pal Singh was admitted in the hospital but his name was scored off at the instance of the police from the register. They were not medico legally examined by the doctor except Pal Singh. They were removed to the Police Station and their formal arrest were shown in the record. He was innocent. He had caused injuries to the complainant party in self defence.
Accused Jhanda Singh, when examined under Section 313 Cr.P.C. prayed that he had been forcibly thrown on the ground by Harbans Singh and he tried to strangulate him. On hearing his alarm, Surain Singh, in order to save him, gave `kirpan' blows on the person of Harbans Singh. Criminal Appea No.209-DB of 1998 12 Santa Singh gave `sota' blow on the head of Pal Singh and, in order to save Pal Singh, he inflicted injuries on Santa Singh in private defence. They were saved by Surain Singh from the attack of complainant party. Their turbans and Chadras had fallen at the place of occurrence. They reported the matter to the police. He was innocent.
Accused Jasmail Singh, Pal Singh and Boota Singh when examined under Section 313 Cr.P.C. prayed that they were innocent.
Lachman Dass, accused when examined under Section 313 Cr.PC prayed that he was innocent and had been falsely involved in the case. Darshan Singh had applied for leave on 16.2.1995 for 17.2.1995 but he attended the School at 9.00 a.m. and later on, left before noon after applying for leave for the second half. ASI Ajaib Singh took the attendance register along with leave applications of Darshan Singh on 22.2.1995 under the order of District Education Officer,(for short `DEO') Faridkot without giving any receipt to him. He informed DEO Faridkot in this regard on 23.2.1995. He was kept in illegal custody and was harassed by Police of Kotwali, Faridkot. He wrote a letter to Secretary Education on 4.3.1995 for saving him from unnecessary harassment. He was illegally arrested in bailable offence and his arrest was,however, shown on 12.3.1995 and he was produced before the Magistrate on 13.3.1995 and was released on bail.
The accused examined eight witnesses in their defence. Learned Additional Sessions Judge, Faridkot, vide its impugned judgment dated 26.3.1998. convicted and sentenced accused Surain Singh under Sections 302,307,324 IPC and accused Jhanda Singh, Jasmail Singh and Pal Singh under Sections 302,307,302/34 IPC. So far as accused Darshan Singh, Lachman Singh and Jasmail Singh are Criminal Appea No.209-DB of 1998 13 concerned, they were acquitted vide the impugned judgment. Hence , present appeals and revision petition.
So far as the State appeal, challenging the acquittal of accused Darshan Singh, Lachman Dass and Boota Singh is concerned, leave to appeal qua Darshan Singh only was granted and leave to appeal qua remaining two accused Boota Singh and Lachman Dass was declined.
In appeal, it has been submitted by Sh.R.S.Cheema, learned Senior counsel for the accused that all the accused were unarmed and as such, there was no premeditation and it was a case of sudden fight. Both the parties were present at the spot in connection with security proceedings except accused Darshan Singh. The investigation in this case had not been conducted in a fair manner. There was a delay in lodging the FIR. The FIR had been lodged after the injuries on the person of deceased and injured had been examined, and that is why the exact seat of injuries had been given by the complainant in his statement before the police although it was not possible for him to have known the exact seat of injuries which had resulted in an occurrence of 4-5 minutes duration. Independent witnesses had not been associated by the Investigating Officer to get the real picture of the occurrence. Bhajan Singh, who was a relative of the deceased, has been given up as won over. Initially, the doctor prepared the medico legal report of Pal Singh but the same was scored off at the intervention of the Investigating Officer and thereafter, he was again re-examined. Surain Singh had inflicted injuries on the injured in self defence. Some of the accused had also suffered injuries but they were not got medically examined by the Investigating Officer. From the statements of the eye witnesses, it was evident that the appellants Jasmail Singh, Pal Singh and Jhanda Singh Criminal Appea No.209-DB of 1998 14 had been falsely involved in the case although they had not participated in the occurrence as suggested by the complainant.
Mr.R.S.Cheema, learned Senior counsel has further submitted that so far as accused Darshan Singh was concerned, his acquittal was liable to be maintained . If two views were possible then one in favour of accused was liable to be preferred. Darshan Singh had worked in the School for the first half and was on leave for the second half and, as such, his presence at the spot was not established. Since there was no allegation that he was `amritdhari sikh', then , there was no occasion for him to carry `sirisahib' School Register was taken in possession on 22.2.1995.
Learned State counsel, on the other hand, has argued that both the parties were at logger heads and were involved in criminal cases. All the accused were present at the spot. Presence of Darshan Singh at the spot could not be doubted as he was legally bound to appear in the security proceedings and his personal appearance had not been exempted. The occurrence had lasted for about 4-5 minutes and two persons had died,whereas, six persons had suffered injuries. The injuries could not have been inflicted on so many persons by a single man. Both Surain Singh and Darshan Singh with the help of other co-accused had inflicted injuries on the complainant party. The plea of alibi taken by the accused Darshan Singh was an after thought and was liable to discarded.
Complainant, while appearing in the witness box as PW1, has deposed as per contents of FIR.
PW2, Sukchain Singh and PW3 Raj Singh have corroborated their statements with regard to the manner of occurrence.
This is a case where the parties have a history of criminal cases Criminal Appea No.209-DB of 1998 15 against each other. Even on the day of occurrence, parties had come to the Court to attend proceedings under Section 107/151 Cr.PC. Parties were waiting in the Court compound when the occurrence took place resulting in two murders, attempt to murder and injuries to, as many as, six persons from the complainant side. Injuries were also suffered by some of the accused.
As per the prosecution case, about nine months prior to the occurrence in question, Sukchain Singh, brother of the complainant was inflicted injuries by Surain Singh and his brothers. Surain Singh, Banta Singh, Darshan Singh and Pal Singh were arrested and were sent up for trial in FIR No, 36 dated 23.5.1994 registered at Police Station Sadar under Sections 324 IPC. Thereafter, a month later, both the parties again suffered injuries in a fight and a case was registered against Santa Singh, Banta Singh complainant party beaing FIR No. 52 dated 27.6.1994 under Sections 326,325,324,323,148,149 IPC and they were arrested and were sent up for trial. Parties were also facing proceedings under Section 107/151 Cr.PC. As per DW4, Pawan Kumar, both the parties were convicted in the FIRs registered against them in hurt cases and appeals were pending. Hence, the parties were already involved in criminal cases against each other. On the day of occurrence in question, Surain Singh, accused has taken up the plea of self-defence whereas Darshan Singh accused took up the plea of alibi. In fact,presence of all the accused is admitted at the spot except accused Darshan Singh.
First of all, let us examine whether the plea of alibi taken by Darshan Singh is made out from evidence on recordor not. The Apex Court in Binay Kumar Singh vs. State of Bihar, 1997 AIR(SC) 322, regarding the plea of alibi held as under:-
Criminal Appea No.209-DB of 1998 16
"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 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, Criminal Appea No.209-DB of 1998 17 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 1984 SC 63)."
Darshan Singh, accused has taken the plea that although he had taken a casual leave for 17.2.1995 from his School on 16.2.1995, yet he attended the school for the first half i.e. upto 12.30 p.m. on 17.2.1995 and applied for leave for the second half. He has alleged that he has marked his presence at 9.00 a.m. on 17.2.1995 in the School register. In this regard, Criminal Appea No.209-DB of 1998 18 learned counsel for the accused has drawn our attention to various letters and ocular evidence on record.
PW 11, Pirthi Pal Singh deposed that on 17.2.1995, Darshan Singh, accused had marked his presence in the register and put his initials. Lachman Dass headmaster had also initialed the column in the register sanctioning half day leave of Darshan Singh. Leave of Darshan Singh was also sanctioned on 16.2.1995 by Headmaster Lachman Dass for 17.2.1995 and the same was Ex.PW/1.
DW1 Satnam Kaur deposed that on 22.2.1995, Police of Kotwali had come to their School in connection with investigation of this case and she handed over attendance register and casual leave application of Darshan Singh to ASI Ajaib Singh. On 23.2.1995, Headmaster wrote a letter to the DEO Faridkot in this regard.
Exhibit D1 is the copy of the letter dated 22.2.1995 written by Sub inspector Police Station Faridkot to DEO Faridkot for handing over record in connection with this case and the same was forwarded to the Headmaster, Government Higher Secondary School, Janerian by Deputy District Education Officer, Faridkot on the same day. Exhibit D2 is the letter written by Headmaster, Government Higher Secondary School, Janerian on 23.2.1995 to District Education Officer, Faridkot for permission for starting a new attendance register as earlier register had been handed over to ASI Ajaib Singh in compliance of Ex.D1.
We are,however, unable to agree with Sh.R.S.Cheema, learned Senior Advocte as all the materials on record fail to justify the absence of the accused Darshan Singh at the spot. The said accused admittedly had to appear before the Court of the District Magistrate, Faridkot in connection Criminal Appea No.209-DB of 1998 19 with proceedings under Section 107/151 Cr.PC. His presence had not been exempted by the Court for the said date. Mere filing of an application for exemption, if any, as pleaded by Darshan Singh was not sufficient. However, no such application has been proved on record. Darshan Singh accused has been taking different stands to suit himself. On the one hand, he has taken the plea that he had got his leave sanctioned for 17.2.1995 on 16.2.1995. This appears to be probable as he had to attend the Court proceedings on 17.2.1995. The other plea taken by him is that he attended School for the first half on 17.2.1995, despite taking leave and applied for second half day leave. It is not understandable as to why he applied for leave for the second half when he had to attend the Court proceedings in the morning. In case Darshan Singh had moved an application for exemption of his personal appearance in the Court, then there was no occasion for him to apply for leave for the second half. It is not the case of accused Darshan Singh that the Court was to be held after lunch.
Although, in the attendance register, accused Darshan Singh had affixed his initial to record his presence in the morning, yet none of the witnesses in this regard have deposed that they had seen Darshan Singh, accused in the School premises upto 12.30 p.m. when he availed leave for the second half. Rather, Headmaster Lachman Dass, co-accused when examined under Section 313 Cr.PC stated that Darshan Singh left the School before noon after applying for the leave for the second half. All the accused were present in the Court premises to attend the proceedings. It appears that Darshan Singh, in order to save himself, has been taking different stand to suit himself and moved application after application before Magistrate on one pretext or the other to strengthen his plea for alibi. Criminal Appea No.209-DB of 1998 20 The plea of alibi set forth by the accused Darshan Singh is not made out from the record. It is doubtful whether the letter, allegedly,written by Headmaster to DEO on 23.2.1995 reached the said Office or not. All the eye witnesses have deposed with regard to the role played by accused Darshan Singh at the time of occurrence. From their statements, the presence of accused stands established on record. Merely because there is no evidence on record regarding injury, if any, suffered by Darshan Singh does not lead to an inference that he was not present at the spot. Darshan Singh did not choose to get himself medically examined immediately after the occurrence. Rather he sought medical examination at the time of his surrender vide Ex. DF on the ground that he may be tortured. The same was declined on 24.2.1995. A perusal of the attendance register shows that he has not attended the School after the occurrence. Hence, the plea of accused Darshan Singh that he was not present at the spot cannot be accepted merely because he did not suffer any injury. Accused Darshan Singh was formally arrested on 24.2.1995 after he surrendered before the Magistrate at Muktsar. The possibility that he created evidence i.e. of leave application for second half and marking his presence in the register on 17.2.1995, in the morning, to take up the plea of alibi cannot be ruled out as the register was not taken in possession immediately after the occurrence. The said evidence is to be tested on the principle of touch stone whereas accused Darshan Singh has failed to prove the same to establish his plea of alibi. The learned trial Judge has erred in believing the plea of alibi taken by accused Darshan Singh although the same is not established on record. The learned trial Judge, hence, erred in acquitting accused Darshan Singh on the basis of plea on alibi.
Criminal Appea No.209-DB of 1998 21
We are conscious of the fact that in a case where two views are possible, the one which favours the accused has to be adopted by the Court. Merely where the appellate Court was inclined to take a different view cannot be a reason calling for interference in appeal against the judgment of acquittal.
However, in the present case, the trial Judge has misread the evidence on record. None of the witnesses, examined to prove the plea of alibi, have deposed to the effect that Darshan Singh, accused had remained present in the School up to 12.30 p.m and thereafter, proceeded on leave. Rather Headmaster has deposed that accused Darshan Singh had left before noon. In these circumstances, the finding of the learned trial Court that accused Darshan Singh was not present at the spot is perverse and is liable to be interfered with.
The complainant as well as the accused party had come to the spot to attend the Court proceedings. Apparently, none of the parties had come to the spot with an intention to cause injuries to each other. Despite their hostility, generally, no party would risk a fight in the Court premises where they are already facing criminal proceedings. It appears from the ocular version that accused Surain Singh picked up a verbal quarrel with Bhajan Singh and, thereafter, in a sudden quarrel, Surain Singh and Darshan Singh inflicted injuries on the complainant party. Both the said accused attacked complainant party with their respective small `kirpan'. Surain Singh gave three `kirpan' blows on the persons of Bhajan Singh; one `kirpan' blow on the person of Mander Singh; one `kirpan' blow on left shoulder of Amrik Singh; two kirpan blows on the right flank of Sukchain Singh and two `kirpan' blows on the person of Harbans Singh. Darshan Criminal Appea No.209-DB of 1998 22 Singh, who was also having a small kirpan, gave six blows on the person of Santa Singh and two kirpan blows on the person of Raj Singh and one `kirpan' blow on the person of Gursewak Singh. In this process, some of the accused i.e. Pal Singh, Jhanda Singh and Jasmail Singh also must have suffered injuries while trying to stop the attack. Accused Surain Singh also might have suffered injuries on account of the resistance offered by the injured. The injuries on the person of accused were declared simple in nature except Pal Singh whose x-ray examination report was not received by doctor. In these circumstances, non-explanation of injuries on the person of accused is not fatal to the prosecution case.
From the facts of this case, it is evident that there is enmity between the parties and criminal cases are pending between them. As such, the statements of the eye witnesses need to be examined with care and caution because in such like cases, the possibility that some innocent persons are also named in the FIR cannot be ruled out. It become the duty of the Court to sift chaff from the grain.
We have carefully examined the statements of the eye witnesses and have come to the conclusion that possibility that the appellants Jhanda Singh, Jasmail Singh and Pal Singh have been falsely roped in this case, cannot be ruled out. The said appellants had,allegedly, caught hold of Santa Singh and Harbans Singh from their long hair while they were inflicted injuries by accused Darshan Singh and Surain Singh and had, allegedly, caught hold of Raj Singh, Gursewak Singh while they were inflicted injuries by Darshan Singh. However, the fact that deceased Santa Singh and Harbans Singh had been pulled from their long hair is not borne out from the medical evidence. Doctor who conducted the post mortem Criminal Appea No.209-DB of 1998 23 examination on the dead bodies of deceased deposed that there was no mention of long hair of either of the deceased having been pulled in the post mortem. If the long hair had been pulled out, the same would have been mentioned in the post mortem report. This shows that Jasmail Singh, Jhanda Singh and Pal Singh had been attributed the role of catching hold of Santa Singh, Gursewak Singh and Raj Singh, Harbans Singh with a view to rope them falsely in this case. Hence, the appellants Jasmail Singh, Jhanda Singh and Pal Singh are liable to be acquitted of the charge framed against them by giving them benefit of doubt.
Accused Surain Singh has taken up the plea of self defence. It has been held by the Apex Court in Deo Narain v. The State of U.P. 1973 CAR 72 (SC) as under:-
" The right of private defence of the body commences as soon as a reasonable apprehension of danger to the body arises from an attempt or threat to commit the offence, though the offence may not have been committed, and such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to the present and imminent, and not remote or distant, danger. This right rests on the general principle that where a crime is endeavoured to be committed by force, it is lawful to repel that force in self defence. "To say that the appellant could only claim the right to use force after he had sustained a serious injury by an aggressive wrongful assault is a complete misunderstanding of the law embodied in the above section. The right of private defence is available for protection against apprehended Criminal Appea No.209-DB of 1998 24 unlawful aggression and not for punishing the aggressor for the offence committed by him. It is a preventive and not punitive right."
"But while dealing with the appellant's case curiously enough the High Court has denied him the right of private defence on the sole ground that he had given a dangerous blow with considerable force with a spear on the chest of the deceased though he himself had only received a superficial lathi blow on his head. This view of the High Court is not only unrealistic and unpractical but also contrary to law and indeed even in conflict with its own observation that in such cases the matter cannot be weighed in scales of gold."
The Apex Court in the case of Gottipulla Venkata Siva Subbrayanam & Ors. v. The State of Andhra Pradesh & Anr. 1970 CAR 105 (SC) has held that right of private defence of a person and property is recognized in all free, civilized, democratic societies within certain reasonable limits. Those limits are dictated by two consideration:
(1) that the same right was claimed by all other members of the society and (2) that it was the State which generally undertakes the responsibility for the maintenance of law and order. The citizens, as a general rule, are neither expected to run away for safety when faced with graver imminent danger to their person or property as a result of unlawful aggression, nor were they expected, by use of force, to right the wrongs done to them or to punish the wrongdoer for commission of offences. The right of private defence serves a social purpose and there was nothing more degrading to the human spirit then to run away in face of peril. This right was basically preventive and Criminal Appea No.209-DB of 1998 25 not punitive.
However, after examination of the evidence on record, we are of the opinion that the plea of self defence taken by accused Surain singh is not made out from the record. The complainant party had come to the spot to attend the Court proceedings and were unarmed. As such, there was no occasion for Surain Singh, accused to have acted in self defence.
When examined under this prospective, it is noticed that in the present case it was accused Surain Singh, who took up a verbal quarrel with Bhajan Singh and, thereafter, inflicted injuries on the complainant party with his small kirpan. The other accused were unarmed and he had no apprehension of danger. Rather, he has caused number of injuries to many persons of the complainant party out of which Harbans Singh died and Sukchain Singh suffered injury dangerous to life.
After going through the evidence on record, an inescapable conclusion that can be drawn is that it was a case of sudden fight where the attack was without a pre-mediation. However, offenders took undue advantage and acted in a cruel manner which resulted in two deaths and injuries to six persons. Both the offenders i.e. Surain Singh and Darshan Singh had no meetings of mind and are, therefore, responsible for their own acts. From the statements of the eye witnesses, it cannot be deciphered that any common intention had developed between two accused Surain Singh and Darshan Singh at the spot.
In cross-examination PW5, deposed that on 17.2.1995 at 12.25 p.m., he had medically examined Pal Singh, accused and had found the following injuries on his person:-
"8 cms x-1 cms incised wounds 8 cms above the left pinna going Criminal Appea No.209-DB of 1998 26 posteriorly and medially. Anterior end is 9 cm behind the meddle of left eye brow. X-ray of skull advised."
The Investigating Officer, in the present case, was not justified in stopping the medical examination of Pal Singh, appellant No.4 but this lapse committed by the Investigating Officer cannot be said to be fatal to the prosecution case which is otherwise duly established from the ocular as well as medical evidence on record. The ocular version given by the PWs is duly corroborated by the medical evidence. The eye witnesses have given the manner of occurrence and have spelt out injuries inflicted to the complainant party which is duly corroborated by the medical evidence.
There is no unexplained delay in lodging the FIR. The occurrence had taken place at 11.00 a.m. in the Court premises. Injured were shifted to the hospital for treatment and thereafter FIR was recorded on the basis of the statement of injured Amrik Singh. Merely because some independent witnesses from the Court premises were not joined during investigation is not a ground to disbelieve the ocular version because the injured witnesses are the best witnesses. Although, they may be termed as interested witnesses but they have withstood the test of cross-examination.
DW6 Mukhtiar Singh fails to rebut the testimony of eye witnesses with regard to the occurrence. His presence at the spot is doubtful. He was not having any case fixed in the Court on that day.
Non-examination of PW Bhajan Singh is also not fatal to prosecution case as it has been duly established by the injured witnesses. Presence of Bhajan Singh is admitted by accused Surain Singh in his statement under Section 313 Cr.P.C.
In view of the above discussion, appeal filed by accused Surain Criminal Appea No.209-DB of 1998 27 Singh and others is partly allowed. Appellants-Jhanda Singh, Jasmail Singh and Pal Singh are acquitted of the charge framed against them. Conviction and sentence of Surain Singh with regard to murder of Harbans Singh under Section 302 IPC and infliction of injury to Sukchain Singh under Section 307 IPC and infliction of injuries on the person of Bhajan Singh and Mander Singh under Section 324 IPC are upheld whereas he is acquitted of charge framed against him under Section 302 IPC with regard to commission of murder of Santa Singh.
Appeal filed by the State qua accused-Darshan Singh is allowed. No leave to appeal qua remaining accused was granted at the time of admission of the State appeal. Accused-Darshan Singh is held guilty of offence under Section 302 IPC for committing murder of Santa Singh and is sentenced to undergo imprisonment for life and fine of Rs.5000/- in default of which he shall further undergo rigorous imprisonment for six months. Darshan Singh is held guilty of causing injury on the persons of Gursewak Singh and Raj Singh and is convicted under Section 324 IPC and is sentenced to undergo rigorous imprisonment for one year and fine of Rs.1000/- in default of which he shall further undergo rigorous imprisonment for two months. Both the sentences shall run concurrently.
( Sabina )
Judge
(Jasbir Singh)
Judge
September 02, 2008
arya
Criminal Appea No.209-DB of 1998 28