Punjab-Haryana High Court
Nirmal Singh And Another vs State Of Punjab on 23 September, 2013
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
Criminal Appeal No. D-831-DB of 2009 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Criminal Appeal No. D-831-DB of 2009
Date of decision: September 23, 2013
Nirmal Singh and another
....Appellants
Versus
State of Punjab
....Respondent
Coram: Hon'ble Mr. Justice Hemant Gupta
Hon'ble Mr. Justice Fateh Deep Singh
1. Whether the 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: Mr. R.K.Handa, Advocate for the appellants
Mr. Pavit Mattewal, Additional Advocate General, Punjab
Fateh Deep Singh, J.
Initially challan in this case was presented only against accused Nirmal Singh alias Nimma and it is subsequent thereto exercising powers under section 319 of the Code of Criminal Procedure, the learned trial court vide orders dated 5.6.2006 summoned his brother Sukhpal Singh alias Sukha as additional accused as well. Thus that is how these two accused faced the trial before the learned trial court and vide judgment order dated 26.8.2009, Tiwana Dalbir Singh 2014.01.17 11:15 I attest to the accuracy and integrity of this document. High Court, Chandigarh Criminal Appeal No. D-831-DB of 2009 2 the court of learned Sessions Judge, Mansa held accused Nirmal Singh alias Nimma guilty for the commission of offence under section 302 IPC and his co-accused Sukhpal Singh alias Sukha under section 302 read with section 34 IPC and were sentenced as follows:-
"Nirmal Singh To undergo imprisonment for life and to pay U/s 302 IPC fine of Rs 5000/-. In default of payment of fine to further undergo RI for six months. Sukhpal Singh To undergo imprisonment for life and to pay U/s 302/34 IPC fine of Rs 3000/-. In default of payment of fine to further undergo RI for four months."
The same has been challenged before this Court in this appeal on the strength of the grounds canvassed therein.
The law was set into motion when on 13.11.2005 a MLR Ex. PL with pictorial diagram Ex. PL/1 of injured Maghar Singh (now deceased) was received from Civil Hospital, Mansa in Police Station Sadar Mansa acting on which SI Harvinder Singh reached the hospital and moved application Ex. PM to enable him to record statement of the injured and vide endorsement Ex. PM/1 it was intimated that injured has since been referred to Dayanand Medical College and Hospital, Ludhiana (in short, DMC). Thereafter ASI Pritpal Singh PW6 reached the said hospital and moved applications Ex. PR and Ex. PS seeking legal opinion if the injured was fit to make the statement as well as demanding CT scan and X-ray report of the injuries.
During the course of events, the injured was referred to Government Medical College and Hospital, Chandigarh where he was admitted on 9.1.2006 and died during treatment on 1.2.2006 regarding which message Tiwana Dalbir Singh 2014.01.17 11:15 I attest to the accuracy and integrity of this document. High Court, Chandigarh Criminal Appeal No. D-831-DB of 2009 3 Ex.PT was received by the police station and the Investigating Officer took into police possession the medico legal case summary Ex. PO/PQ/PE and thereafter ASI Pritpal Singh on 2.2.2006 moved application Ex. PJ/PB for getting post mortem examination of the dead body conducted which was duly endorsed by orders Exs. PB/1, PB/2 and PJ/1. On 16.2.2006, police moved application Ex. PN to know as to the cause of death and vide medical opinion Ex. PN/1, it was opined that the patient died of injury no. 1 and another application Ex. PX was moved on 3.2.2006 by ASI Pritpal Singh to Medical Officer, Civil Hospital, Mansa and on the basis of which vide request Ex. PX/1, the medical record was placed on the file regarding treatment of the injured.
The prosecution allegations that has been reduced into writing by way of statement of Thandu Singh Ex. PA made before SI/SHO Harvinder Singh were to the effect that Maghar Singh was married to Amarjit Kaur sister of the complainant and that Jaggar Singh father of Maghar Singh and Chand Singh were real brothers and Chand Singh out of his wedlock with Kartar Kaur did not have any progeny. It is over dispute between Chand Singh who wanted to keep Maghar Singh with him and Kartar Kaur wife of Chand Singh who did not like it and as a sequel to it Chand Singh expired about 7/8 years prior to this occurrence and thereafter Kartar Kaur brought her nephew Nirmal Singh and Sukhpal Singh present appellants. A dispute ensued between Maghar Singh and Kartar Kaur in which the accused were helping their aunt Kartar Kaur. It is alleged that on 13.11.2005 complainant along with Maghar Singh deceased were loading cotton sticks on the bullock cart Tiwana Dalbir Singh 2014.01.17 11:15 I attest to the accuracy and integrity of this document. High Court, Chandigarh Criminal Appeal No. D-831-DB of 2009 4 when around 3 PM, accused Nirmal Singh armed with Kasia accompanied by his brother Sukhpal Singh empty handed came and on the exhortation of Sukhpal Singh that Maghar Singh be taught a lesson for litigating, accused Nirmal Singh gave a kasia blow on the head of Maghar Singh from the reverse side and second blow on the left arm of Maghar Singh who fell down. On raising raula, the accused ran away with the weapon. On the basis of endorsement Ex. PA/1 led to the recording of the FIR Ex. PA/2 by ASI Gurdev Singh. The Investigating Officer lifted from the place of occurrence samples of blood stained and plain earth through memo Ex. PE, prepared rough site plan Ex. PBB and on 26.11.2005 had recorded statement of Maghar Singh. Accused Nirmal Singh was arrested vide memo Ex. PC, PD and while in police custody was interrogated who suffered disclosure statement Ex. PE that he has kept concealed the kasia and on the basis of his disclosure statement got recovered the weapon from his conscious exclusive possession, whose rough sketch Ex. PF was prepared and after duly sealing it was taken into police possession vide memo Ex. PG and rough site plan of it Ex. PG/1 was also prepared. It is through DDR Ex. PCC offence under section 302 IPC was recorded and through memo Ex. PDD documents of litigation of the parties were taken into police possession along with post mortem report Ex. PH as well as inquest report Ex. PK/PU. During the course of investigation, statements of the witnesses were recorded, scaled site plan Ex. PY was prepared. On receipt of report of Forensic Science Laboratory, Ex. PKK and taking into police possession patient admission record Ex. PHH, PJJ and CT scan Ex. PGG challan was presented in court. Tiwana Dalbir Singh 2014.01.17 11:15 I attest to the accuracy and integrity of this document. High Court, Chandigarh Criminal Appeal No. D-831-DB of 2009 5
The accused when put to trial denied the charges in which the prosecution examined 14 witnesses.
The accused in their stand taken under section 313 Cr.P.C. denied the allegations taking the plea of innocence and false implication and in their defence examined six witnesses and tendered documents Ex. D1 to D4 leading to their conviction.
After going through the arguments of Shri R.K. Handa, learned counsel representing the appellants as well as Shri Pavit Mattewal, learned Additional Advocate General, Punjab representing respondent-State, it is irrefutably established that Maghar Singh deceased died as a consequence of ante-mortem homicidal injuries. PW4 Dr. Nishan Singh has brought on the record the medico legal injuries on the person of Maghar Singh and on the basis of his testimony through documents Exs. PL, PL/1, PM, PM/1, PN, PN/1 has clearly opined presence of lacerated wound one on the frontal region of head and other on the outer aspect of the left arm. Thus, it has been rightly contended on behalf of the State that the ocular version spelled out by complainant Thandu Singh PW1 corroborates this aspect of the matter. The patient record of treatment at Government Medical College and Hospital, Chandigarh has been proved through PW2 Dr. Seema Sharma, who has proved the medico legal summary by way of Exs. PO, PQ and has brought about the fact that three surgeries were performed at DMC, Ludhiana for depressed fracture frontal bone of skull and has given the date of death as 1.2.2006 and through Dr. Sarbjit Kaur, PW13, the prosecution has brought about the fact that there was comminuted fracture of left frontal Tiwana Dalbir Singh 2014.01.17 11:15 I attest to the accuracy and integrity of this document. High Court, Chandigarh Criminal Appeal No. D-831-DB of 2009 6 bone with bony fragment impinging the brain parenchyma and has proved her C.T. scan report as Ex. PGG. Thus, it cannot be accepted as is sought to be canvassed on behalf of the appellants that there could be a cause of injury by a fall. The post mortem examination conducted by PW3 Dr. Preminder Jit Singh further illustrates through documents Exs. PH, PJ, PJ/1 and PK that injury no. 3 which is corresponding to occipital and left temporal lobes of the brain was an internal injury individually sufficient to cause death. Though as per the post mortem report effective injuries are only two in number and the other two are scarp apparently on account of surgery and defect. Thus, this medical evidence and the deposition of PW14 Dr. Ashwani Kumar Chaudhari who had performed the surgeries and has proved through record consisting of Exs. PHH and PJJ that he performed surgeries on the deceased who was diagnosed with head injury with depressed fracture.
The ocular version spelled out by PW1 of exhortation by Sukhpal Singh who was empty handed to accused Nirmal Singh who had given two consecutive blows from the reverse side of kasia on the head and arm of the deceased. Learned counsel for the appellants could not pin point anything that has come in his cross-examination which could blunt the case of the prosecution. The defence plea that they have been falsely implicated is negated by their own suggestion put to this witness that Lakha Singh was working as labourer on the day Maghar Singh received injury and that Maghar Singh had fallen from the bullock cart in an intoxicated state certainly by this stand the defence accepts the occurrence having taken place Tiwana Dalbir Singh 2014.01.17 11:15 I attest to the accuracy and integrity of this document. High Court, Chandigarh Criminal Appeal No. D-831-DB of 2009 7 on the date, time and place as claimed by the prosecution and thus, only the fact that needs to be resolved is if the accused were responsible for this or not. No doubt this witness is brother-in-law of the deceased being his wife Amarjit Kaur's brother in his stand has categorically stated that he had come to visit his sister one day prior to the occurrence on 11.12.2005. The place of occurrence is established by none other the Investigating Officer SI Harvinder Singh PW10 and has proved through rough site plan Ex. PBB and scaled site plan proved by PW7 Sikander Singh Patwari by way of Ex. PY that it was at that very place the IO had lifted blood stained and plain earth which was taken into police possession through memo Ex. PB.
Though the submission on behalf of the appellants that there is no independent corroboration to the deposition of PW1 appears to be highly convincing but having regard to the fact that it is the case of the prosecution as claimed by them that the occurrence had taken place in the fields away from human habitation and that too at odd hours of the day around 3.00 PM when both the deceased and the complainant were collecting and loading cotton sticks on the bullock cart and therefore, it cannot be accepted that there would be some other person to witness this occurrence. More-so PW6 SI Pritpal Singh who was then posted as ASI is attesting witness of this investigation so conducted by PW10 and has proved his signatures/memos of taking into possession of documents Exs. PM, PM/1, PR, PR/1, PS, PS/1, PA, PB, PE, PF, PG, PC, PD, PT, PU, PV, PJ, PJ/1, PX and PX/1. Though testimony of PW8 Constable Sukhbinder Singh by way of Ex. PZ, of PW11 HC Baljit Singh by way of Ex. PFF, of HC Pritam Masih by way of Ex. Tiwana Dalbir Singh 2014.01.17 11:15 I attest to the accuracy and integrity of this document. High Court, Chandigarh Criminal Appeal No. D-831-DB of 2009 8 PGG and that of PW9 HC Lakha Singh by way of Ex. PAA are formal in nature regarding safe deposit of the parcels and their dispatch to the Laboratory and the report of the FSL Ex. PKK bear out the presence of blood in one of the sample and earth collected from the place of occurrence further establishes it so.
It is the own case of the prosecution that there was litigation over the estate of husband of Kartar Kaur and it is not disputed that the accused are the sons of Harnek Singh brother of Kartar Kaur apparently being issueless the nephews of the deceased Chand Singh wanted to have the property of Chand Singh who happens to be real brother of their father Jaggar Singh and it was also brought about by DW2 Sukhjinder Singh, DW3 Seetal Kumar Copyist by way of Ex. DW3/A. Even the defence through DW5 Amarjit Singh has highlighted this litigation and dispute between the parties and though through this witness the defence has sought to establish that Maghar Singh fell from the cart and received injuries but a close look at his cross- examination as has been canvassed on behalf of the appellants that he had learnt later on from the villagers regarding this fact thus his testimony falls within the ambit of hearsay evidence. Rather the witness has shown ignorance regarding the incident of causing injuries to the deceased by the accused. Statement of DSP Hitender Singh Ghai, DW6 does not augur well for the defence as he claims to have only verified the investigation and found accused Sukhpal Singh as innocent and his cross-examination depicts that without recording statement of any witness and without joining complainant side including the complainant he has drawn this conclusion Tiwana Dalbir Singh 2014.01.17 11:15 I attest to the accuracy and integrity of this document. High Court, Chandigarh Criminal Appeal No. D-831-DB of 2009 9 rather is a distressing feature for the defence and documents Ex. D1 to D4 and the testimony of DW1 Ajmer Singh, Reader, Irrigation Department has not much to offer. The claim of the defence through DW4 Dr. Mamta Jindal that one of the accused Sukhpal Singh had undergone operation from 17.9.2005 to 28.9.2005 does not cuts much ice for the defence and even bed head ticket Ex. DW4/A and discharge card Ex. DW4/B does not establish that he was bed ridden and rather in her cross-examination accepts that after the discharge the patient was able to lead normal life, thus not much to help and improbablise that he could not participate in the occurrence that has taken place on 13.11.2005 that too after so many months of this surgery. Even by this plea of alibi the defence has failed to satisfy the Court that the accused was not present at the time of the occurrence in terms of section 103 of the Evidence Act.
It was in the police custody accused Nirmal Singh had been interrogated and in the presence of the Investigating Officer SI Harvinder Singh and PW6 Pritpal Singh SI has suffered disclosure statement Ex. PE and led the police party and got the kasia recovered whose rough sketch Ex. PF was prepared and taken into police possession vide memo Ex. PG and rough site plan Ex. PG/1 illustrates it so. Appellants' counsel could not convince this Court how it is not possible to cause such an injury by the reverse side of such a weapon. Rather the nature of the injuries described by the medical evidence clearly enlist possibility of these injuries having been caused by a kasia blow. Thus the medical evidence and the eye witness account materially corroborate each other. More-so the occurrence has Tiwana Dalbir Singh 2014.01.17 11:15 I attest to the accuracy and integrity of this document. High Court, Chandigarh Criminal Appeal No. D-831-DB of 2009 10 taken place on 13.11.2005 and the accused had been apprehended on 27.11.2005 and during the intervening period the accused have absconded and thus, this reflects guilty mind of the accused in terms of section 8 of the Evidence Act.
Though motive is not essential to be provided in every case as it is something which delves deep in the crevices of the heart of the perpetrator of the crime but in this case the defence has by their own evidence and stand brought about that there was a land dispute between two sides is in itself enough to show that what has led to this episode. No doubt it was on 15.11.2005 at about 6.10 PM, the FIR was registered and the contentions of Shri R.K. Handa that there is delay does not convinces the Court much. By now it is settled principle of law, reliance of which can be placed on Ravinder Kumar v/s State of Punjab, 2002(1) R.C.R. (Criminal) 227 SC that delay in every case does not necessarily is to be construed as fatal for the prosecution. In this case, the Investigating Officer has clearly shown that after receipt of medical ruqa he had approached the Civil Hospital, Mansa and was informed that the injured has been referred to DMC and at DMC on the police application the patient had been shown to be not fit to make statement, is a sufficient explanation for this delay. More-so, the defence could not impress the Court how there is an embellished account having been portrayed by the prosecution and the time has been utilized to bring about a false account when after receipt of injuries the deceased was in a precarious state of health it cannot be expected that he would be able to make a statement. It is only on 26.11.2005 the police was able to record the Tiwana Dalbir Singh 2014.01.17 11:15 I attest to the accuracy and integrity of this document. High Court, Chandigarh Criminal Appeal No. D-831-DB of 2009 11 statement of injured Maghar Singh by way of Ex. PEE and who has reproduced ditto reassertion of the averments made by the complainant. The medical evidence and eye witness account of the occurrence proves the occurrence having taken place and in view of this statement though is under section 161 Cr.P.C. to the mind of this Court though does not falls within the scope of section 32 of the Evidence Act but the same certainly can be legitimately lead way of corroboration to this happening.
Thus from this evidence it irrefutably stands established beyond any doubt that it was none else but the accused who were instrumental in causing injuries resulting in death of the deceased which was premeditated and in a cool calculated manner had assaulted the deceased after giving kasia blows.
The trial court has given a well reasoned finding which does not require to be disturbed. We do not find any merit in this appeal which stands dismissed.
(Hemant Gupta)
Judge
(Fateh Deep Singh)
September 23, 2013 Judge
'tiwana'
Tiwana Dalbir Singh
2014.01.17 11:15
I attest to the accuracy and
integrity of this document.
High Court, Chandigarh