Punjab-Haryana High Court
Phalgu Singh And Another vs State Of Haryana on 14 February, 2011
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. D-173-DB of 2007
Date of Decision : February 14, 2011
Phalgu Singh and another
....Appellants
Versus
State of Haryana
.....Respondent
CORAM : HON'BLE MR. JUSTICE M.M.KUMAR
HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Sameer Sachdeva, Advocate
for the appellants.
Mr. Sandeep Vermani, Addl. Advocate General, Hry.
Mr. Jagjit Gill, Advocate
for the complainant.
T.P.S. MANN, J.
1. In order to challenge their conviction and sentences awarded by the trial Court, the appellants filed the present appeal. Smt.Binder Kaur, wife of the deceased also filed Criminal Revision No. 1326 of 2007 for enhancement of the sentences of imprisonment and fine of the two convicts which revision was ordered to be listed for hearing alongwith the appeal. Accordingly, the appeal and the revision are being disposed of together by a common judgment.
2. According to the prosecution, appellant-Phalgu Singh Crl. Appeal No. D-173-DB of 2007 -2- son of Dhan Singh owed a sum of Rs.20,000/- to deceased Phalgu Singh son of Babu Singh, father of complainant Gursharan Singh. On 2.3.2005, deceased Phalgu Singh went to the Dhani (hamlet) of appellant Phalgu Singh for collecting the money. Appellant Phalgu Singh promised to make the payment on the next day. Deceased Phalgu Singh returned to his own Dhani and informed the complainant that he would be paid the money by appellant Phalgu Singh on the following day. On 3.3.2005 at about 6.30 p.m., appellant Phalgu Singh alongwith appellant Gurnam Singh, who used to reside near the Dhani of the former, came to the Dhani of deceased Phalgu Singh and asked him to accompany them. Accordingly, deceased Phalgu Singh accompanied the appellants to the Dhani of appellant Phalgu Singh. After about half an hour, the complainant heard the shrieks raised by his father from the Dhani of appellant Phalgu Singh that he was being assaulted. The complainant and his mother Binder Kaur rushed to the Dhani of appellant Phalgu Singh and saw that in the courtyard, appellant Phalgu Singh, armed with a kirpan and appellant Gurnam Singh, while armed with a kasia were causing injuries to deceased Phalgu Singh with the intention to kill him. Both the appellants inflicted injuries to deceased Phalgu Singh on his mouth and head. When the complainant and his mother raised an alarm, both the appellants ran away from the spot while carrying their respective weapons. Crl. Appeal No. D-173-DB of 2007 -3- The complainant then called his grand father Babu Singh. A conveyance was arranged for shifting the victim to Civil Hospital, Sirsa for treatment but on the way he succumbed to the injuries. The complainant and his grand father, thereafter, went to the city for making telephone calls to his relatives. In the meantime, a VT message was received in Police Station Baragudha from Police Station, City, Sirsa that deceased Phalgu Singh had been brought dead at General Hospital, Sirsa. Pursuant to the same, SI Daya Nand reached the hospital and met the complainant near the mortuary. He recorded his statement Ex. PH on 4.3.2005 at 9.30 a.m. and on its basis FIR Ex. PH/1 was registered at Police Station, Baragudha on the same day at 10.30 a.m. Special report was sent through Constable Pardeep Kumar, which was received by the Additional Chief Judicial Magistrate, Sirsa on 4.3.2005 at 12.35 p.m.
3. During the course of investigation conducted by SI Daya Nand, rough site plan was prepared. The dead body was subjected to post mortem. Statements of the witnesses were recorded. The appellants were arrested and weapons of offence recovered.
4. Upon completion of the investigation and presentation of the challan, followed by commitment of the case to the Court of Sessions, charges under Section 302 read with Section 34 IPC Crl. Appeal No. D-173-DB of 2007 -4- were framed against the appellants, to which they pleaded not guilty and claimed trial.
5. In support of its case, the prosecution had examined PW1 Dr.Viresh Bhushan, Medical Officer, General Hospital, Sirsa, who deposed regarding bringing of dead body of Phalgu Singh son of Babu Singh in the hospital on 3.3.2005 at 7.45 p.m. and his sending ruqa Ex.PA to SHO, Police Station, City, Sirsa. PW2 Dr. Ashok Kumar Gupta, Medical Officer, General Hospital, Sirsa deposed that on 4.3.2005 he, alongwith Dr. Gobind Gupta, conducted post mortem on the dead body of Phalgu Singh son of Babu Singh on police request Ex. PC and found the following injuries:-
"1. 2 x 0.5 cm. clean cut bone deep wound at the lateral of eye brow left. Subcutaneous infiltration of blood was present. Underlying muscles were cut. Clots were present in the wound.
2. 2 x 1 cm. sharp clean cut marginated bone deep wound at the left mandible, 4 cm. lateral to chin. Subcutaneous infiltration of blood was present. Underlying muscles were cut.
3. Swelling deformity overlying brownish contusion present at the left mandible, size 8 x 8 cm. On dissection, subcutaneous infiltration of blood was seen. Clots were Crl. Appeal No. D-173-DB of 2007 -5- present in the region. Underlying bone (mandible) was fractured.
4. 1 x 1 cm. lacerated wound was seen at the back of right elbow.
5. 2 x 1 cm. spindaloid clean cut marginated wound was present in the inguinal region right. On further dissection the muscles were cut. Soft clots were present in the wound.
6. 10 x 0.5 cm. sharp clean cut marginated subcutaneous tissue deep wound was present at the lateral aspect of thigh right, 6 cm. above knee. On further dissection, subcutaneous infiltration of blood was present.
7. 10 x 0.5 cm. skin subcutaneous tissue deep obliquely placed sharp wound in the upper abdomen at the anterolateral aspect. On dissection, subcutaneous infiltration of blood was present.
8. Ill defined 12 x 8 cm. bogy swelling and reddish contusion present in right upper abdomen extending in the middle. On opening the abdomen, subcutaneous infiltration of blood was present. 12 x 4 cm. laceration was present in under surface of left lobe and 4 x 7 cm. lacerated wound was present in right lobe. Peritoneal cavity was full of blood.
9. Lacerated 4 x 1 cm. bone deep wound at the occipital. Subcutaneous blood was present.Crl. Appeal No. D-173-DB of 2007 -6-
Clot was present in wound.
10. Profuse blood from left ear visible."
As per the opinion of the doctor, the cause of death was haemorrhage and shock as a result of multiple injuries which were ante mortem and sufficient to cause death in the ordinary course of nature. He opined that probable time that elapsed between the injuries and the death was variable and probable time between death and post mortem was within 24 hours.
6. PW3 Head Constable Shiv Kumar and PW4 Constable Pardeep Kumar were the formal witnesses, who tendered their affidavits Exs. PE and PF, respectively. PW5 Rajpal, Patwari deposed about the preparation of scaled site plan Ex. PG of the place of occurrence on the demarcation of Balwinder Kaur with correct marginal notes on 15.3.2005. PW6 SI Rohtash Kumar deposed that on 4.3.2005 he recorded formal FIR Ex. PH/1 on receipt of ruqa Ex. PH after making his endorsement Ex. PH/2. PW7 Gursharan Singh was the complainant, who fully supported the prosecution case. PW8 Binder Kaur, wife of the deceased, also made similar statement as that of PW7 and supported the prosecution case. PW9 SI Daya Nand deposed about the various steps taken by him during the course of investigation.
7. When examined under Section 313 Cr.P.C. both the Crl. Appeal No. D-173-DB of 2007 -7- appellants denied the allegations of the prosecution and pleaded innocence. Their version was that the land of appellant Phalgu Singh and his brother Gurjant Singh, which was a joint holding, was situated near the land of the complainant party and both of them were unmarried. Gurjant Singh was made addict of choora post etc. by the brother of the deceased and others so as to grab their land. Gurjant Singh agreed to sell his share to the complainant party but appellant Phalgu Singh did not agree. The Dhani of appellant Gurnam Singh, who was also unmarried, was situated near the Dhani of appellant Phalgu Singh and he was also in possession of the land of some allottee for the last many years and the complainant party wanted to grab that land also. It was also the version of the appellants that the deceased and his family had enmity in the village and he was murdered by some unknown person and both of them (appellants Phalgu Singh and Gurnam Singh) had been falsely involved by the complainant party so as to grab their land. They alleged that no recovery was effected from them nor they made any disclosure statements. However, no evidence was led by them in their defence.
8. After hearing learned counsel for the parties and going through the evidence available on the file, learned Sessions Judge, Sirsa vide judgment and order dated 7/8.12.2006 convicted the appellants under Section 302 read with Section 34 Crl. Appeal No. D-173-DB of 2007 -8- IPC and sentenced them to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine, to further undergo rigorous imprisonment for one year. Hence, the appeal filed by the appellants against their conviction and sentences and the revision filed by Binder Kaur, wife of the deceased for enhancement of the sentences of the appellants and also for grant of compensation.
9. We have heard learned counsel for the parties and perused the evidence with their able assistance.
10. Learned counsel for the appellants has submitted that the presence of PW7 Gursharan Singh and PW8 Binder Kaur at the time of the occurrence has not been established by the prosecution. Their testimonies were not corroborated by the medical evidence. The delay in reporting the matter to the police goes a long way to show that both of them were not present at the time of occurrence and later on set up as eye witnesses after due deliberations and consultations. It is further submitted that no satisfactory evidence had been led by the prosecution to establish the motive which impelled the appellants to commit the crime. It has also been submitted that no reliance can be placed upon the evidence of the prosecution regarding the alleged recoveries of weapons as there was nothing to show that they have been used by the assailants in committing the crime. Crl. Appeal No. D-173-DB of 2007 -9-
11. On the other hand, learned counsel for the State as well as the learned counsel for the complainant have pleaded for upholding the conviction and sentences of the appellants as, according to them, the prosecution had led sufficient material to prove their guilt beyond reasonable doubt.
12. From the evidence brought on record by the prosecution, it is apparent that PW7 Gursharan Singh, a young boy of the age of 16 years at the time of occurrence and PW8 Binder Kaur, a woman, had categorically deposed that on the day of the occurrence, i.e. 3.3.2005 at about 6.30 p.m. both the appellants came to their Dhani and asked deceased Phalgu Singh to accompany them to their Dhani so that they could make payment of the money to him. The deceased accompanied the appellants to their Dhani, which was situated at a distance of about 80/85 karams from the Dhani of the complainant. After about half an hour, both PW7 Gursharan Singh and PW8 Binder Kaur heard the noise emanating from the Dhani of the appellants to the effect that the deceased was being assaulted. Both Gursharan Singh and Binder Kaur rushed to the Dhani of appellant-Phalgu Singh and saw the appellants causing injuries to deceased Phalgu Singh with a kirpan and a kasia. Appellant Phalgu Singh was 35 years of age while appellant Gurnam Singh was 50 years of age. On the other hand, as PW7 Gursharan Crl. Appeal No. D-173-DB of 2007 -10- Singh was a young lad of 16 years and PW8 Binder Kaur being a woman, who was used to running household, none of them was expected or could be courageous to intervene in the assault launched by the appellants upon their nearest relative, i.e. father of Gursharan Singh and husband of Binder Kaur. They could only watch the assault by standing at a safe distance from the appellants. At the same time, they could raise an alarm but could not intervene to save the deceased from the attack. Once the appellants fled from the spot with their respective weapons and when in pursuance of the alarm raised by them, which attracted Babu Singh, father of the deceased to the spot that both PW7 Gursharan Singh and PW8 Binder Kaur could take courage to go near the victim. The victim was then lifted from the spot and taken to the road from where he was taken to General Hospital, Sirsa. However, on way to the hospital, the victim breathed his last.
13. Though the Dhani of appellant Phalgu Singh was situated at a distance of 80/85 karams from the Dhani of the deceased yet that is not sufficient to hold that PW7 Gursharan Singh and PW8 Binder Kaur could not have heard the noise raised by deceased Phalgu Singh that he was being assaulted. From such a distance, the witnesses could have easily heard the noise of the deceased and, accordingly, rushed to the Dhani of Crl. Appeal No. D-173-DB of 2007 -11- appellant Phalgu Singh. Even if the Sun had set on the day of the occurrence at 6.20 p.m., it does not mean that by 7.00 p.m. it would have grown pitch dark and none of the two eye witnesses could have seen the infliction of injuries. Similarly, the absence of trail of blood from the Dhani of appellant Phalgu Singh upto the road does not cast any doubt regarding the presence of the two witnesses, who had removed the victim to the roadside after the occurrence as they had held his legs and hands besides putting him on the shoulder.
14. It is true that PW8 Binder Kaur admitted in her cross- examination that there were some other Dhanis situated at a distance of about 3/4 killas and according to the defence, none of the residents of those Dhanis was attracted to the place of occurrence. The fact remains that those Dhanis were situated at a comparatively longer distance from the place of the occurrence than the Dhani of the complainant from where Gursharan Singh and Binder Kaur were attracted to the place of occurrence on hearing the shrieks raised by deceased Phalgu Singh at the time of the assault launched upon him by the appellants. Under these circumstances, even if both PW7 Gursharan Singh and PW8 Binder Kaur were closely related to the deceased, it cannot be said that the prosecution had not examined any independent witness in order to prove the actual occurrence. Crl. Appeal No. D-173-DB of 2007 -12-
15. As is apparent from the testimony of PW2 Dr.Ashok Kumar Gupta, as many as ten injuries were found on the dead body at the time of post-mortem. Out of them, injuries No. 3, 4, 8 and 9 could be possible by blunt weapon. The fact remains that after seeing kirpan Ex. P1 and kasia Ex.P2, PW2 Dr. Ashok Kumar Gupta testified that the injuries on the person of the deceased could have been caused with those weapons. In cross-examination, he deposed that the injuries could have been sustained by one weapon like gandasa fitted on lathi from its sharp as well as its blunt side. Even otherwise no benefit can be extended to the appellants on account of minor contradictions between the ocular and the medical evidence.
16. While making statement Ex. PH, PW7 Gursharan Singh had stated that when the victim was being removed to General Hospital, Sirsa, he succumbed to the injuries on the way. He alongwith his grand-father, thereafter, went to the city for making telephone calls to his relatives. It is true that neither Gursharan Singh nor his grand-father Babu Singh went to the Police Station immediately, thereafter, for lodging a report. According to PW1 Dr.Viresh Bhushan, the dead body of Phalgu Singh was brought in the General Hospital, Sirsa on 3.3.2005 at 7.45 p.m. by Gursharan Singh and he sent ruqa Ex. PA to SHO, Police Station, City, Sirsa. That explains as to why Gursharan Crl. Appeal No. D-173-DB of 2007 -13- Singh did not go to the Police Station for lodging the report. Pursuant to the receipt of ruqa Ex. PA in Police Station, City, Sirsa, a VT message was sent to Police Station, Baragudha as the place of occurrence fell within the jurisdiction of said Police Station. On receipt of VT message, PW9 SI Daya Nand went to General Hospital, Sirsa and came across Gursharan Singh, who after considerable time was found present near the mortuary. His statement Ex. PH, accordingly, came to be recorded by SI Daya Nand on 4.3.2005 at 9.30 a.m. Within an hour, thereafter, FIR Ex. PH/1 was lodged at Police Station Baragudha and in another two hours' time, the special report was received by the Additional Chief Judicial Magistrate, Sirsa. Therefore, there was no inordinate delay in the conveying of the information to the police regarding the occurrence. Whatever delay occurred had been satisfactorily explained.
17. According to the prosecution, appellant Phalgu Singh owed Rs.20,000/- to deceased Phalgu Singh and it was on the pretext of paying him the money that appellant Phalgu Singh alongwith appellant Gurnam Singh took deceased Phalgu Singh to his Dhani. Mere fact that there was no writing between the parties regarding the payment of money is not sufficient to conclude that the appellants had no motive to commit the crime. There is clear and convincing evidence in the shape of the Crl. Appeal No. D-173-DB of 2007 -14- testimonies of PW7 Gursharan Singh and PW8 Binder Kaur that appellant Phalgu Singh owed Rs.20,000/- to deceased Phalgu Singh and after making a false promise of paying the said amount that the appellants took deceased Phalgu Singh to their place where instead of returning the money, the appellants launched the assault by inflicting numerous injuries to him which ultimately led to his death.
18. From the report Ex. PK of the Forensic Science Laboratory, it is decipherable that blood stains were detected on kirpan Ex. P1 and kasia Ex. P2, which were used in the commission of crime and got recovered by appellants Phalgu Singh and Gurnam Singh, respectively. Merely because during Serological analysis, the origin of blood on the kirpan and kasia could not be found does not mean that these weapons were not used in inflicting injuries upon the deceased. Infact, according to report Ex. PK/1, the material found on the kirpan and the kasia was disintegrated and for that reason the origin of the blood as to whether it was of human or not could not be established. In his statement before the Court, PW9 SI Daya Nand had deposed that kirpan Ex. P1 was got recovered by appellant Phalgu Singh after removing the earth from his wheat field while appellant Gurnam Singh got kasia recovered after removing the Toori lying in his kotha. When the weapons of offence had come in contact with Crl. Appeal No. D-173-DB of 2007 -15- the earth or the Toori, the material, i.e. the blood would have got disintegrated and, therefore, its Serological analysis would not have disclosed its human origin.
19. In view of the above, it cannot be said that the prosecution has not been able to establish its case against the appellants beyond reasonable doubt.
20. We have also gone through the judgment of conviction passed by the trial Court which on proper appreciation of the evidence led by the prosecution had concluded that it were the appellants, who had committed the crime and, accordingly, convicted them for the offence under Section 302 read with Section 34 IPC. No ground is made out for taking a view other than the one taken by the trial Court while convicting the appellants.
21. The trial Court after convicting the appellants had sentenced them to undergo life imprisonment and to pay a fine of Rs.10,000/- each. Taking into consideration the facts and circumstances of the case, we do not find that any case is made out for enhancement of the sentences of imprisonment and fine. However, at the same time, we find that the entire amount of fine imposed upon the appellants, upon its recovery can be ordered to be paid to Binder Kaur, wife of deceased Phalgu Singh as compensation.
Crl. Appeal No. D-173-DB of 2007 -16-
22. Resultantly, the conviction of the appellants under Section 302 read with Section 34 IPC and their sentences of imprisonment and fine alongwith their default clauses are upheld. However, it is directed that on the recovery of the fine imposed upon the appellants, the same be paid to Binder Kaur wife of the deceased, as compensation.
23. The appeal filed by the appellants is dismissed whereas the revision filed by Binder Kaur is disposed of by directing the payment of compensation to her.
( M.M.KUMAR ) ( T.P.S. MANN )
JUDGE JUDGE
February 14, 2011
ajay-1