Punjab-Haryana High Court
Jaswant Singh & Another vs State Of Punjab on 24 October, 2013
Author: Hemant Gupta
Bench: Hemant Gupta, Fateh Deep Singh
CRA No.561-DB of 2009
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Date of Decision: 24.10.2013
CRA No.561-DB of 2009
Jaswant Singh & another ...Appellants
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1. Whether Reporters of local papers may be allowed to see the judgment?
2. To be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?
Present : Mrs. Baljit Mann, Advocate, for the appellants.
Mr. Pavit Mattewal, Addl. AG, Punjab, for the respondent.
HEMANT GUPTA, J.
Challenge in the present appeal filed by Jaswant Singh son of Amrik Singh and Kala @ Beer Singh son of Piara Singh is to the judgment of conviction and order of sentence passed by the learned Sessions Judge, Amritsar on 30.05.2009, whereby both the appellants were convicted for an offence punishable under Section 302 read with Section 34 IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.5000/- each. In default of payment of fine, the appellants were directed to undergo further rigorous imprisonment for a period of six months.
The prosecution case was set in motion on the statement of PW-4 Gurnam Singh son of Hazara Singh, brother of the deceased Baldev Singh @ Billu, made to PW-8 SI/SHO Naurang Singh, P.S.Ajnala on 19.03.2008 at about 11.00 AM. In his statement (Ex.PE), Gurnam Singh stated that his brother Baldev Singh @ Billu was married to Gurmit Kaur @ Pammi daughter Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh 2 CRA No.561-DB of 2009 of Kishan Singh about 15/16 years ago and had three children. Last year in the month of June, Jaswant Singh @ Sant resident of his village had committed rape with his sister-in-law Pammi and on her statement, a case of rape was registered against Jaswant Singh. Subsequently, his sister-in-law made a statement in the Court in favour of Jaswant Singh and thereafter started living with Jaswant Singh as his wife. However, the children of his brother were living with them. He stated that they requested Jaswant Singh and his brother Kala Singh to return the wife of his brother, as the children are in pitiable condition, but the demand was not acceded to as a result of which there became many grievances between his brother and Jaswant Singh etc. Yesterday i.e. 18.03.2008 at about 8.00 PM, when he alongwith his brother Baldev Singh and mother Sawinder Kaur were talking with each other in the house, Kala Singh came to their house and called Baldev Singh to come out on the pretext that they will return his wife, as she has also created trouble in their house. Baldev Singh followed Kala Singh. Kala Singh took his brother towards drain (Nala). He and his mother also followed them. On the bank of drain, Jaswant Singh and his sister-in-law Gurmit Kaur @ Pammi were already present. On the exhortation of Gurmit Kaur that today is the time to finish Baldev Singh, Sant Singh and Kala Singh gave pushes to Baldev Singh and threw him in the water of drain. All the three drowned his brother in the water blowing in the drain. He and his mother raised alarm, but all the three ran away from the spot. On hearing alarm, many people of the village came there. Thereafter, they took out his brother from the water, but noticed that he had died. Since there was no arrangement of the vehicle and it was night time as well as due to fear off the accused, they did not report the matter to the police. Next day during day time, when he alongwith Darbir Singh, Ex-Sarpanch was going to police station, his Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh 3 CRA No.561-DB of 2009 statement was got recorded. On the basis of such statement, ruqa (Ex.PE/1) was sent to the Police Station for registration of an FIR. On receipt of ruqa, FIR (Ex.PE/2) was recorded at about 12.30 PM.
Thereafter, SI Naurang Singh alongwith other police officials, visited the spot and prepared rough site plan (Ex.PH). After completing the inquest proceedings, he sent the dead body of Baldev Singh for post mortem examination through HC Surjit Singh and HC Sukhdev Singh. The post- mortem examination on the dead body of Baldev Singh was conducted by PW- 2 Dr. Sukhraj Singh at about 3.45 PM on the same day. He found an abrasion of 4 cms x 1 cm blackish in colour on the lateral aspect of left leg 5 cms below the left knee; bruise over left thigh in its middle 1/3rd and that froth was coming out of right nostril and lungs were found to be congested filled with water. He deposed that stomach was full with partially digested food particles and liquid material. In his opinion, the cause of death was ante-mortem drowning, which was sufficient to cause death in ordinary course of nature.
On 22.03.2008, SI Naurang Singh arrested Beer Singh @ Kala by conducting raid in his house. On his transfer on 21.05.2008, the investigation was entrusted to PW-7 SI Kabal Singh. Thereafter, on the information of Gurnam Singh, SI Kabal Singh raided the house of Jaswant Singh and arrested him on 11.08.2008. After the arrest of Jaswant Singh and Beer Singh and on completion of necessary formalities, report under Section 173 Cr.P.C. was filed against the appellants.
It may be noticed that on 15.09.2008, PW-7 SI Kabal Singh also obtained warrant of arrest in respect of Gurmit Kaur @ Pammi, but she could not be arrested and later on declared as proclaimed offender. Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh 4 CRA No.561-DB of 2009 To prove its case, apart from examining PW-2 Dr. Sukhraj Singh, PW-7 SI Kabal Singh and PW-8 SI Naurang Singh, who deposed with regard to the investigation carried out by them as well as other witnesses of formal nature, the prosecution examined PW-4 Gurnam Singh, brother of the deceased; PW-5 Sawinder Kaur, mother of the deceased and PW-6 Joginder Singh.
While appearing as PW-4, Gurnam Singh reiterated his earlier version i.e. basis of FIR. However, in his cross-examination, he stated that the houses of both the accused are at a distance of about 3/4 killas from his house and that his house and the house of his deceased brother are separate and distance between both the houses is about 1 killa. He further stated that his mother lives with him. The place of occurrence is at a distance of 1-1½ killas from the house of the deceased. He further stated that on the day of occurrence, he alongwith his mother had gone to the house of the deceased at about 7.30 PM and apart from them other family members of the deceased were also present there. He denied the suggestion in respect of filing of a divorce petition and an application for maintenance under Section 125 Cr.P.C. by Gurmit Kaur against the deceased Baldev Singh. He stated that at the time of occurrence, they were just at a distance of 10 karams from the place where the occurrence took place. In his further cross-examination conducted on 13.02.2009, he admitted that near the house of Baldev Singh, there are houses of Kala Singh and Partap Singh sons of Udham Singh as well as of Pritam Singh and Partap Singh sons of Bhola Singh and that house and haveli of Hazar Singh son of Lachhaman Singh is on the opposite side of the house of Baldev Singh by the side of drain. He stated that it took about 10/15 minutes for taking place the occurrence and that he alongwith his mother retrieved the Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh 5 CRA No.561-DB of 2009 deceased from the drain. He stated that there was about four feet height of the water in the drain. He stated that during night, after the occurrence, he along with his mother did not go to inform the police nor then sent anyone to inform the police. Neither he nor his mother went to talk about this occurrence with any respectable of the village. He stated that on the next morning, he along with Ex. Sarpanch Dalbir Singh of their village, whose house is at a distance of 1 killa from the place of occurrence, went to inform the police. He further stated that nor he and his mother neither his brother have made any grievance against the accused regarding living with the wife of the deceased. He denied the suggestion that on the date of occurrence, he was away to the village of his in-laws or that he was not present at the time of occurrence in the village. He denied the suggestion that the deceased was coming on bicycle or that when he was crossing the temporary bridge of cement poles over the drain, he fell down alongwith bicycle in the drain and that during night his mother took Baldev Singh to hospital at Ajnala on the truck of Baldev Singh, Ex. Sarpanch, where he was declared brought dead. He also denied the suggestion that false story has been concocted or that the accused have been falsely involved in this case.
While stepping into witness-box as PW-5, Sawinder Kaur, mother of the deceased, also supported the statement of PW-4. In her cross- examination, she admitted that the drain where the occurrence took place is at a distance of 1-1½ killa from the house of the deceased and that when the deceased went towards drain, they followed him. The whole occurrence has taken half an hour. She stated that when the deceased fell in the drain, she alongwith his son abruptly went into the drain, but by that time, the foam was coming out of his house. She stated that after the occurrence during night time, they did not talk with anyone in the village and that they did not go to Ajnala to Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh 6 CRA No.561-DB of 2009 inform the police. She denied the suggestion that no occurrence has taken place in her presence.
PW-6 Joginder Singh is the Nambardar of the village, who identified the dead body of Baldev Singh. In his cross-examination, he stated that throughout the night dead body of Baldev Singh remained at the place of occurrence and that they did not go to police station for lodging the report.
All the incriminating circumstances appearing in the prosecution evidence were put to the accused in their statements recorded under Section 313 Cr.P.C. In their statements, both the accused pleaded false implication and stated that false case has been registered against them due to political pressure. In defence, they also examined DW-1 Amrik Singh and DW-2 Balwant Singh.
After considering the entire evidence on record, the learned trial Court convicted and sentenced the appellants, as mentioned above.
Before this Court, learned counsel for the appellants has vehemently argued that the prosecution has miserably failed to prove the charges against the appellants and they have been falsely implicated due to enmity for the reason that the wife of the deceased has started living with Jaswant Singh, whereas Kala @ Beer Singh is his brother i.e. from the same mother, but different fathers. It is contended that the eye-witnesses introduced by the prosecution were not present at the spot, as it is unbelievable that mother and brother of the deceased will keep quite throughout the night and reported the matter to the Police only at 11.00 AM on the next day i.e. after 15 hours of the occurrence. Even the said lodging of report is anti-time inasmuch as the special report was delivered to the Magistrate at about 7.45 PM on 19.03.2008 i.e. almost after 24 hours after the occurrence. Still further, it is impossible that mother and brother of the deceased would not react to the act of alleged Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh 7 CRA No.561-DB of 2009 drowning by the appellants, when they were following him and were at a distance of 10 karams. Such a distance was sufficient to save the deceased from drowning, when the flow of the water is not more than 2 feet as per site plan Ex.PH and 4 feet as per PW-4 Gurnam Singh and PW-5 Sawinder Kaur. The height of the deceased was 5-9/10" as per post-mortem report Ex.PC and, thus, could not drown by the appellants in the presence of his brother and mother.
Having heard learned counsel for the parties and going through the record of the case with their assistance, we are of the opinion that the prosecution has miserably failed to prove the charges of culpable homicide against the appellants. It is the prosecution case itself that the wife of the deceased was living with appellant Jaswant Singh. Though PW-4 Gurnam Singh, brother of the deceased, has denied the filing of a divorce petition and an application for maintenance by her, but the fact remains that wife of the deceased was not living with the deceased at the time of occurrence and that there were discord between them. In view of the differences and the possible grievances, the evidence of so-called eye-witnesses i.e. PW-4 Gurnam Singh and PW-5 Sawinder Kaur, brother and mother of the deceased respectively, has to be examined with great caution. As per PW-4 Gurnam Singh and PW-5 Sawinder Kaur, they followed the deceased when Kala, one of the appellants, called him to come out of the house. There is no reason for the said witnesses to follow the deceased, even if, such stand is to be believed that Kala called Baldev Singh for restitution of his wife. Still further, both the witnesses were said to be at a distance of 10 karams from the deceased. If the deceased was pushed into the water, which was not more than four feet, as per the prosecution story itself, the witnesses could have helped the deceased. Even if Kumar Vimal 2013.11.07 13:22 I attest to the accuracy and integrity of this document Chandigarh 8 CRA No.561-DB of 2009 the witnesses were unable to help the deceased from drowning, the fact remains that first statement i.e. Ex.PE was made at about 11.00 AM on the next day. The witnesses have kept quite throughout the night even though within a short distance many persons were living. The conduct of both the witnesses in not reporting the incident soon after the so-called act of drowning had taken place shows that they were not present at the time of occurrence. Had such occurrence taken place in the manner deposed by the prosecution witnesses, there is no reason not to have taken any active step for setting the law enforcement machinery in motion. There is no other evidence to corroborate the prosecution story in respect of act of drowning or that the deceased was even lastly seen in the company of the appellants.
In view of the above, we find that eye-witness account rendered by PW-4 Gurnam Singh and PW-5 Sawinder Singh is not of a reliable and trustworthy witness, which can be relied upon for conviction of the appellants. There is no other evidence to support the prosecution case that it is the appellants, who have taken life of Baldev Singh. The prosecution evidence lacks credibility, therefore, we have no hesitation to return a finding that the prosecution has failed to prove the charges against the present appellants.
Consequently, by granting benefit of doubt, we acquit the present appellants of the charges framed against them. They shall be set at liberty forthwith, if not required in any other case.
(HEMANT GUPTA)
JUDGE
24.10.2013 (FATEH DEEP SINGH)
Vimal JUDGE
Kumar Vimal
2013.11.07 13:22
I attest to the accuracy and
integrity of this document
Chandigarh