Punjab-Haryana High Court
Surjit Singh And Another vs State Of Punjab on 6 May, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 646-DB of 2001
DATE OF DECISION : 06.05.2010
Surjit Singh and another
.... APPELLANTS
Versus
State of Punjab
..... RESPONDENT
Crl. A. No. 110-DB of 2003
DATE OF DECISION : 06.05.2010
Surjit Singh and another
.... APPELLANTS
Versus
State of Punjab
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. J.S. Bains, Advocate,
for the appellants.
Ms. Gurveen H. Singh, Addl. A.G., Punjab.
***
SATISH KUMAR MITTAL , J.
1. This judgment shall dispose of two appeals i.e. Criminal Appeals No. 646-DB of 2001 and 110-DB of 2003. Both these appeals have been filed by the same accused against the judgment and order 14.8.2001, Crl. A. No. 646-DB of 2001 -2- passed by the Court of Sessions Judge, Patiala, whereby accused Surjit Singh, who is owner of Lahori Dhaba, Main Bazar, Tripuri, Patiala, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-, in default of payment of fine to undergo further rigorous imprisonment for a period of two months, under Section 302 IPC; and accused Prabhu Kumar, who is working as servant on Lahori Dhaba, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-, in default of payment of fine to undergo further rigorous imprisonment for a period of two months, under Section 302 with the aid of Section 34 IPC.
2. As per the prosecution version, which is based upon the statement (Ex.PA) of Satya Nand (PW.1), father of deceased Gulshan Kumar, recorded by Rajbir Singh (PW.9), SHO, Police Station Civil Lines, Patiala, the complainant was a retired DSP from the Punjab Police. On 17.3.1998 (a day prior to the occurrence), he along with his friend Brij Lal son of Nanu Ram (PW.2) was present in his house, situated in Street No. 4, Tripuri Patiala. At about 7.00/8.00 PM, his son Gulshan Kumar (deceased) came to the house and told him that a dispute had taken place between him and accused Surjit Singh on account of money. He stated that in anger, he had hurled abuses to Surjit Singh, who had threatened to kill him. Meanwhile, accused Surjit Singh also came to his house. He lodged protest to the complainant to make understand his son Gulshan Kumar, otherwise, he will be done to death, as he had hurled abuses to him at his shop. At this, Crl. A. No. 646-DB of 2001 -3- complainant told him (Surjit Singh) that tomorrow, he will come to his shop and would patch up the matter. Then accused Surjit Singh left in anger. On the next day i.e. 18.3.1998 (day of occurrence), at about 12.30 PM, he along with Brij Lal and his son Gulshan Kumar went to the Dhaba of accused Surjit Singh, where Ajit Inder Singh son of Harjinder Singh resident of Jhill, Police Station Sadar, Patiala, was also present. On noticing them, accused Surjit Singh armed with fork (Chhuri) and his servant Prabhu Kumar came out of the Dhaba. Prabhu Kumar declared that Gulshan Kumar is the same person, who had abused them on the previous day, he should not be allowed to escape. Then accused Surjit Singh, who was holding fork (Chhuri) in his hand, gave a Chhuri blow on the left side of the chest of Gulshan Kumar. Accused Prabhu Kumar caught Gulshan Kumar from his hair and threw him on the ground. Then accused Surjit Singh gave two/three blows to Gulshan Kumar on his back, when he was lying on the ground. He (complainant) became perturbed, on seeing his son writhing. Meanwhile, Harshinder Singh son of Santokh Singh resident of Street No. 3, Guru Nanak Nagar, Patiala also arrived at the spot. Then, he (complainant), Harshinder Singh and Ajit Inder Singh took away his son in an injured condition to Rajindra Hospital, Patiala, in a vehicle, where doctor declared him dead. The complainant further stated that when he was going to Police Station to lodge the report, Inspector Rajbir Singh, SHO Police Station Civil Lines, Patiala met him at Leela Bhawan Chowk, Patiala, who recorded his statement. The complainant further stated that his son Gulshan Kumar has been murdered Crl. A. No. 646-DB of 2001 -4- by Surjit Singh and his servant Prabhu Kumar with common intention.
3. Inspector Rajbir Singh (PW.9) made his endorsement (Ex.PA/1) on the above said statement at 3.15 PM and on the basis of the said statement (Ex.PA), the formal FIR (Ex.PA/2) was registered at 4.25 PM. The special report was received by the Judicial Magistrate at 5.10 PM.
4. After recording the statement (Ex.PA), Inspector Rajbir Singh (PW.9) went to the Hospital along with the complainant. He associated Harshinder Singh and Inderjit Singh Chopra, who were present there, and prepared the inquest report (Ex.PC/2) and recorded their statements. He deputed HC Joginder Singh to get the post mortem conducted on the dead body. Thereafter, he along with the complainant went to the spot. According to him, at the spot, Constable Iqbal Singh along with two SPOs, namely Amrik Singh and Gurmit Singh, met him. They handed over both the accused persons to him and informed that both the accused were being subjected to beating by the public. It is further the case of the prosecution that Inspector Rajbir Singh picked up the blood stained earth from the spot and vide recovery memo (Ex.PO), he also took into possession the blood stained Chhuri (Ex.P4), which was lying on the spot.
5. On 18.3.1998 at 5.30 PM, Dr. Deepak Walia (PW.4) conducted autopsy on the body of the deceased. He proved the Post Mortem Report (Ex.PD). The dead body was identified by Harshinder Singh and Inderjit Singh Chopra, who were present at the time of the inquest proceedings. During post mortem examination, the doctor found the following injuries on Crl. A. No. 646-DB of 2001 -5- the body of the deceased :
1. A stab wound with clean cut margins 2.5 cm x 1 cm spindle shaped, obliquely placed on left side of the chest. 2 cm above left nipple and 7 cm left of mid line. On dissection, pericardium was cut and pericardium cavity contained about 500 cc of blood. There was cut in left atrium of heart, left pleura was also cut and the pleural contained about 400 cc of blood, left lung was also found to be cut.
2. A stab wound 1 cm x 0.3 cm on right side of back 2 cm right of mid line, muscle deep at 5th thorax vertebra level.
3. A stab wound 0.5 cm x 0.2 cm on left scapula near inferior angle, 11 cm left of mid line muscle deep.
4. A stab wound 1 cm x 0.3 cm on back in mid line at lumbar vertebra No.1 level, bone deep.
5. A stab wound 2 cm x 0.5 cm on left scapular 4 cm left of mid line near superior and medial angle of scalp, 11 cm below the hair line of the scalp, muscle deep.
6. An abraded contusion 6 cm x 4 cm on left side of the back in its middle on left scapular area.
All the injuries were ante-mortem in nature. In the opinion of the doctor, the cause of death was due to injury to vital organ, heart and lung. Injury No.1 individually was sufficient to cause death in the ordinary course of nature. He further opined that injuries No.1 to 5 were caused by sharp pointed weapon. The time between injuries and death was within a few minutes; and between death and post mortem within 4 to 6 hours. It is mentioned here that the prosecution did not show the recovered Chhuri (Ex.P4) to Crl. A. No. 646-DB of 2001 -6- Dr.Deepak Walia (PW.4) to get his opinion as to whether the aforesaid injuries could be caused by the said weapon, though for the first time, Chhuri (Ex.P4) was shown to the doctor in the court, when he appeared as a witness. Further, the doctor noticed that the stomach contained about 200 cc of semi digested food. In the cross-examination, he denied the suggestion that he did not take the viscera in this case as the deceased was smelling of alcohol from the mouth at the start of the post mortem examination. He also denied the suggestion that due to the pressure of the police, he intentionally avoided to send viscera to the Chemical Examiner.
6. After completion of investigation, the challan was filed against both the accused. Accused Surjit Singh was charge sheeted for the offence under Section 302 IPC and accused Prabhu Kumar was charge sheeted for the offence under Section 302 read with Section 34 IPC. They did not plead guilty to the charges and claimed trial.
7. In support of its case, the prosecution examined ten witnesses, out of whom PW.1 Satya Nand, father of the deceased; PW.2 Brij Lal, who along with Satya Nand went to the spot and claims himself to be the eye witness; PW.4 Dr. Deepak Walia, who conducted post mortem examination on the body of the deceased; PW.6 Iqbal Singh Constable, who had apprehended the accused at the spot; PW.7 Dr. Rajinder Pal, who had medico legally examined both the accused on the day of occurrence at Model Town Dispensary, Patiala, at 11.00 PM and 11.55 PM; and PW.9 Inspector Rajbir Singh, the Investigating Officer of the case, are the Crl. A. No. 646-DB of 2001 -7- material witnesses. The statements of the remaining witnesses are formal in nature.
8. PW.1 Satya Nand supported the prosecution version. However, he made improvement with regard to the number of blows caused by accused Surjit Singh to the deceased. In his statement, he did not explain the injuries, which were later on found on the body of the deceased. Though he admitted that Leela Bhawan Chowk, Patiala, is located in a busy and crowded market, but according to him, none of the shopkeepers of the neighbouring shops was attracted at the spot. In his cross-examination, he had also stated that he does not remember when Gulshan Kumar had taken his last meal on the day of occurrence.
9. PW.2 Brij Lal also supported the prosecution version, though on certain aspects, there are contradictions between his statement and the statement of PW.1 Satya Nand.
10. PW.4 Dr. Deepak Walia proved the Post Mortem Report (Ex.PD) of the deceased Gulshan Kumar.
11. PW.6 Iqbal Singh Constable stated that on the day of occurrence, he along with SPOs Amrik Singh and Gurmit Singh (both not examined) was on beat duty in Main Bazar. On that day, at about 1.00 PM, they were coming from the side of Kohli Sweet Chowk. He saw that members of the public were beating accused Surjit Singh and Prabhu Kumar. He rescued them and handed them over to his companions Amrik Singh and Gurmit Singh. He noticed that blood was lying on the ground and Crl. A. No. 646-DB of 2001 -8- a blood stained Chhuri was also lying there. He protected the area and at about 5.00/5.30 PM, Inspector Rajbir Singh (PW.9) reached the spot, who was accompanied by two ASIs and other police officials. On their arrival, he handed over the accused to them. Thereafter, he showed the place of occurrence to them, where blood and blood stained Chhuri were lying, which were taken into possession by the police party and his statement was recorded by Inspector Rajbir Singh.
12. PW.7 Dr. Rajinder Pal stated that on 18.3.1998, he was posted as Medical Officer at Model Town Dispensary, Patiala. On that day, at about 11.00 PM, he medico legally examined Prabhu Kumar and found the following injuries on his person :
1. Swelling of right foot involving all the right foot upto ankle joint. No external injury. No bleeding. Tender on pressing.
2. An abrasion 2 x 1 ½ cm in size on the right elbow joint on the dorsal aspect. Clotted blood was seen on the wound.
3. Complaint of pain on the back. No external injury.
According to him, the duration of injuries was within 12 hours. He proved the Medico Legal Report (Ex.PF) of the said accused. He further stated that on the same day at 11.55 PM, he medico legally examined accused Surjit Singh and found the following injuries on his body :
1. Complaint of pain in the right foot. On examination swelling of right foot extending upto ankle joint on the ventral aspect. No external wound.Crl. A. No. 646-DB of 2001 -9-
2. Complaint of pain in the left foot. No swelling. No wound mark.
3. Multiple abrasion marks on the right lower leg on the lateral aspect of the thigh.
4. Multiple abrasion marks on the left side of the knee joint of various sizes.
5. A lacerated wound on the little finger of the right hand ½ x ½ cm, 1 cm from the nail bed.
6. Complaint of pain in the back. No external wound. No swelling. Able to bend.
7. An abrasion on the lateral aspect of the hip 8 cm from the iliac spine on the left side.
He stated that the probable duration of injuries was within 12 hours and proved the MLR (Ex.PH) of the said accused.
13. PW.9 Inspector Rajbir Singh is the Investigating Officer of the case. He stated that the statement of Satya Nand (Ex.PA) was recorded by him. He also proved the inquest report (Ex.PC/2). He stated that when he inspected the spot, Constable Iqbal Singh handed over both the accused to him. He also proved the recovery memos Ex.PM and Ex.PO, vide which he took into possession the blood stained earth and the blood stained Chhuri from the spot. In his cross-examination, he stated that during his investigation at the spot, he had joined 14/15 persons having their shops adjoining to the place of occurrence, but none of them was cited as a witness.
14. In his statement under Section 313 Cr.P.C., accused Surjit Singh denied all the allegations appearing against him in the prosecution Crl. A. No. 646-DB of 2001 -10- evidence. He stated that he was innocent and was arrested from his house on 18.3.1998 after 3.00 PM by the police. He was taken to his Dhaba, where complainant Satya Nand and his gunman were present. He was given beating by Inspector Rajbir Singh, other police officials and Satya Nand. He stated that he was not given beating by any public man. Deceased Gulshan Kumar came to his Dhaba at noon time. He further stated that his servant Prabhu Kumar and two other servants were present there at that time. Gulshan Kumar had a quarrel with them and had broken the window of the shop and show room. His servants gave pushes to Gulshan Kumar, who received injuries when struck against sharp broken pieces of glass. At that time, Satya Nand, Brij Lal and other witnesses were not present there. This is the reason that no body from the locality i.e. shop keepers came to support the prosecution version, which was cooked up by the prosecution in connivance with the police. Gulshan Kumar was a quarrel some type of person.
15. Accused Prabhu Kumar, in his statement under Section 313 Cr.P.C., also denied all the incriminating evidence, put to him. He stated that he and two other servants were present at Lahori Gate at about 1.00 PM, when Gulshan Kumar came there and demanded fish and meat from them. They told him that the owner was not present and the owner had also stopped them from giving eatables to Gulshan Kumar. At this, he and his two accomplices became rash and started breaking show room and window panes of the Dhaba. When they (accused Prabhu Kumar and other servants) Crl. A. No. 646-DB of 2001 -11- tried to push Gulshan Kumar away, he fell on the broken pieces and received injuries. Complainant Satya Nand, Brij Lal and other witnesses were not there. The other boys accompanied by Gulshan Kumar ran away from the spot. Thereafter, Surjit Singh, owner of the Dhaba, was arrested from his house after 3.00 PM. He was brought to Dhaba and was given beating there by the police and complainant Satya Nand.
16. In support of their defence, the accused examined eight witnesses.
17. DW.1 Constable Mohan Singh was examined to prove that PW Brij Lal was involved in an excise case in the year 1999, after the occurrence in this case. DW.2 SPO Amarjit Singh was examined in order to prove the involvement of PW Brij Lal in another case under the Excise Act in the year 1999, which is also after the alleged occurrence in this case. DW.3 Constable Manohar Singh proved copy of FIR No. 55 dated 24.5.1999 (Ex.DJ) registered at Police Station Sadar Kapurthala against Brij Lal. DW.4 Amarjit Singh, Addl. Ahlmad of the Court of Addl. Civil Judge, Senior Division, Patiala, was examined to prove that Brij Lal was cited as a prosecution witness in case FIR No. 113 dated 28.2.2000 registered at Police Station Civil Lines, Patiala, under Sections 356/382/171 IPC, which was also registered after the day of occurrence in this case. DW.5 HC Balwant Singh also proved that Brij Lal was accused in case FIR No. 171 dated 9.4.2000 under Section 160 IPC registered at Police Station Civil Lines, Patiala, which is also after the occurrence in this case. Crl. A. No. 646-DB of 2001 -12-
18. DW.6 Ravinder Singh resident of Anand Nagar B, Tripuri, Patiala, is the witness, who had seen the alleged occurrence. According to him, he knew Gulshan Kumar deceased and his father Satya Nand as well as Brij Lal PW and accused Surjit Singh. His shop is situated ten shops away from Lahori Dhaba of the accused. He stated that on the day of occurrence, between 12.40 PM to 1.00 PM, when he was carrying his cable work in his shop, he saw three persons, namely Gulshan Kumar (deceased), Harshinder Singh and Inderjit Singh, sitting in Lahori Dhaba. The Dhaba owner was not present there. Prabhu Kumar servant was saying that he will not supply the meals on credit, but Gulshan Kumar and his companions were insisting to take the meals on credit. Then Gulshan Kumar and his companions started giving Soti blows on the glass panes of the Dhaba. The workers of Dhaba quarreled with them. They caught hold of Gulshan Kumar, who fell down and his companions ran away. He (Gulshan Kumar) suffered injuries, as they exchanging brick bats and broken glass pieces. He further stated that Harsh Inder Singh and Inderjit Singh took Gulshan Kumar on a scooter to the hospital. The scooter was being driven by Inderjit Singh. He further stated that he gave information to the parents of Gulshan Kumar and then he also went to the hospital, where Harsh Inder Singh and Inderjit Singh were also present. He further stated that both the accused were not given any beating by the people, but they were tortured by the police.
19. DW.7 Sanjeev Kumar, Record Clerk, Judicial Record Room, Patiala, was examined to prove that Ajitinder was also an accused in case Crl. A. No. 646-DB of 2001 -13- FIR No. 49 dated 7.4.1994 registered at Police Station Civil Lines, Patiala under Sections 326/325/323/34 IPC. DW.8 Dr. S.S. Chauhan, Medical Officer stated that X-ray of accused Surjit Singh was done, which is part of the Bed Head Ticket.
20. The trial court, after considering the evidence on record, while relying upon the oral testimony as well as the medical evidence, convicted and sentenced both the accused, as indicated above.
21. We have heard the arguments of learned counsel for both the parties.
22. Learned counsel for the appellants argued that in the present case, the prosecution has not proved the guilt of both the appellants beyond reasonable doubt. According to him, case of the prosecution is based upon the testimonies of two eye witnesses, namely PW.1 Satya Nand and PW.2 Brij Lal, but their presence at the spot is highly doubtful and their version is improbable. PW.1 Satya Nand is a highly interested witness and PW.2 Brij Lal is having the criminal background. According to the learned counsel, complainant Satya Nand (PW.1), who is retired DSP from the Punjab Police, has concocted the whole story in connivance with the local police, though he had not seen the occurrence, as he was not present at the time of the occurrence. Learned counsel submits that the version given by these two witnesses could have been corroborated by Ajit Inder Singh, who was also present at the time of the occurrence, but without any justification and reason, he has not been examined by the prosecution. Similarly, Harshinder Crl. A. No. 646-DB of 2001 -14- Singh, who came later on at the place of occurrence and took the deceased to the Hospital, has also not been examined by the prosecution. The other witness, namely Inderjit Singh Chopra, who was present at the time of the inquest proceedings and had identified the dead body before post mortem, has also not been examined.
23. Learned counsel for the appellants, while referring to the statements of PW.1 Satya Nand and PW.2 Brij Lal, pointed out certain contradictions. According to him, in the cross-examination, PW.1 Satya Nand stated that the deceased was taken to Rajindra Hospital by other persons and he followed them to the hospital and his car was being driven by Ajit Inder Singh. He further stated that he was taken to the police station by Bhajan Singh, who drove the car. The prosecution has not examined Bhajan Singh. However, PW.1 Satya Nand has further stated that during investigation, the Investigating Officer neither examined his car nor took into possession his blood stained clothes. On the other hand, PW.2 Brij Lal stated that Harshinder Singh and Ajit Inder Singh put the injured Gulshan Kumar into the car and they along with Satya Nand removed Gulshan Kumar to the hospital, whereas he (Brij Lal) stayed back, as there was no space in the car. Secondly, learned counsel pointed out that both the witnesses have made improvements in the court with regard to the number of blows caused by the accused to the deceased. Thirdly, according to the learned counsel, PW.2 Brij Lal stated that on the day of occurrence, Satya Nand complainant made him telephone call and asked him to accompany Crl. A. No. 646-DB of 2001 -15- him to the shop of Surjit Singh, whereas PW.1 Satya Nand does not state so. Fourthly, PW.1 Satya Nand states that when the occurrence had taken place, no one from public had gathered there. On the other hand, PW.2 Brij Lal states that at the time of the occurrence, many persons had gathered and some of the members of the public started giving beating to Surjit Singh. He further states that after 15-20 minutes, the police reached there and rescued the accused from public. He also states that Satya Nand caught hold Surjit Singh of his arms and he (PW.2 Brij Lal) also caught hold Surjit Singh. These contradictions clearly indicate that both the witnesses had not seen the occurrence.
24. Learned counsel further argued that the testimonies of both the alleged eye witnesses are highly improbable. They have not stated as to what was the money dispute between the deceased and accused Surjit Singh. The version given by them is that one day prior to the day of occurrence, accused Surjit Singh came to the complainant's house and complained about the dispute and on the assurance given by the complainant, he went away. If that was the position, then on the next day, when complainant along with Brij Lal and his son Gulshan Kumar reached the Dhaba of accused Surjit Singh for negotiations, there was no occasion for the accused to immediately attack upon Gulshan Kumar. It is further highly improbable that when the accused were causing injuries to Gulshan Kumar in the presence of his father Satya Nand (PW.1), he did not make any attempt to save his son, particularly when the accused were two in number and the Crl. A. No. 646-DB of 2001 -16- complainant side were three in number. The explanation given by PW.1 Satya Nand that on seeing his son being given injuries by accused Surjit Singh, he became perturbed, cannot be accepted, because PW.1 is not a feeble and weak man, as he retired as a DSP. Learned counsel further argued that Dr. Deepak Walia, while conducting post mortem examination, noticed that stomach of the deceased contained semi digested food, whereas as per the statement of PW.1 Satya Nand, the deceased did not take any food on that day. This contradiction falsifies the version given by these two witnesses and supports the defence version. Learned counsel further argued that the prosecution has failed to explain the injuries, found on the bodies of both the accused. According to the initial version given by complainant Satya Nand before the police and subsequently in the court, he did not see any person from the public causing injuries to the accused. The explanation given by PW.6 Iqbal Singh Constable in this regard is highly improbable and concocted. The prosecution has not examined two SPOs, namely Amrik Singh and Gurmit Singh, who were present at that time, which creates doubt in the version given by this witness. Learned counsel further argued that as per the evidence available on record, many shopkeepers and persons from the public gathered at the spot, bur during the investigation, the Investigating Officer neither associated nor recorded statement of any of them nor any independent witness has been produced in the court to corroborate the prosecution version, which is solely based upon the Crl. A. No. 646-DB of 2001 -17- testimonies of interested witnesses. Learned counsel further argued that the `Chhuri' (Ex.P4) recovered from the spot does not contain the blood. It further creates doubt in the prosecution version. According to the learned counsel, the prosecution has not proved the alleged motive by leading any evidence and whole of the investigation is tainted. No photograph of the spot was taken, because if the photographs would have been taken, then the broken glasses and window panes would have appeared in those photographs, which the investigating agency wanted to avoid. No blood stains from the car was taken. Actually, the deceased was not taken to the hospital in the car and that is the reason, the prosecution did not collect the blood stains from the car and the blood stained clothes of the complainant. In the last, learned counsel argued that in the instant case, the prosecution has suppressed the true version from the court. In these circumstances, when the prosecution has failed to prove its version, the version given in the defence assumes more importance, particularly when it is not found to be false and appears to be probable and reliable.
25. On the other hand, learned Additional Advocate General, Punjab, while supporting the judgment of conviction and the order of sentence, passed by the trial court, submitted that the presence of PW.1 Satya Nand and PW.2 Brij Lal at the time of the occurrence was natural. They had witnessed the entire occurrence and have fully supported the case of the prosecution. According to her, the contradictions pointed out in the testimonies of these witnesses are minor in nature. She further submits that Crl. A. No. 646-DB of 2001 -18- the motive to commit the crime has also been established by the prosecution by leading sufficient evidence. Thus, the trial court has rightly convicted and sentenced both the appellants for committing the murder of Gulshan Kumar.
26. We have considered the rival contentions of learned counsel for both the parties and perused the record of the case.
27. From the medical evidence i.e. the Post Mortem Report (Ex.PD) and the statement of Dr. Deepak Walia (PW.4), it has been proved that Gulshan Kumar son of complainant Satya Nand had died due to injuries to the vital organ, heart and lung. During the post mortem examination, six injuries were noticed on the body of the deceased, out of which one was abraded contusion and the remaining five injuries were stab wounds. According to the doctor, the deceased had died due to injury No.1, which was a stab wound on the chest. In the opinion of the doctor, injuries No.1 to 5 could have been caused by sharp pointed weapon.
28. Now the question arising for consideration is : Who and in what manner had caused injuries to deceased Gulshan Kumar ? According to the prosecution version, which is based upon the statement of Satya Nand, on 18.3.1998, at about 12.30 PM, he along with Brij Lal and his son Gulshan Kumar went to Lahori Dhaba, and on seeing them, accused Prabhu Kumar raised `Lalkara' and accused Surjit Singh caused injuries to Gulshan Kumar with `Chhuri' (Ex.P4). He gave one injury on the chest and the other injuries were given by him, when Gulshan Kumar had fallen down. Crl. A. No. 646-DB of 2001 -19- Regarding second accused, namely Prabhu Kumar, it is alleged that he only raised `Lalkara', but did not cause any injury to the deceased. On the other hand, as per the defence version, which is based upon the plea taken by the accused in their statements under Section 313 Cr.P.C., and the statement of DW.6 Ravinder Singh, deceased Gulshan Kumar suffered injuries, when on 18.3.1998, between 12.40 PM to 1.00 PM, he along with his companions, on refusal by the servants of Lahori Dhaba to serve them food free of cost, started breaking the window panes of the Dhaba, and when servants of the Dhaba tried to catch hold Gulshan Kumar, he fell down on the broken pieces of glass and suffered injuries. It was also stated that Gulshan Kumar and servants of the Dhaba had been exchanging brick bats and glass pieces. Thus, it is undisputed position that Gulshan Kumar had received injuries on 18.3.1998 between 12.40 PM to 1.00 PM at Lahori Dhaba, but there is a difference in the version of the prosecution and the defence, with regard to the manner, in which the injuries found on the body of the deceased were received by him.
29. Now, we will examine the issue as to whether the prosecution has established its version beyond shadow of a reasonable doubt. In order to prove its version, the prosecution has examined PW.1 Satya Nand and PW.2 Brij Lal. According to them, a day before the occurrence, when both the witnesses were present in the house of Satya Nand, Gulshan Kumar came there and told his father Satya Nand in the presence of Brij Lal that accused Surjit Singh had threatened to kill him, because he (Gulshan Kumar) had Crl. A. No. 646-DB of 2001 -20- abused him at his Dhaba, in a dispute between them on money. It is alleged that in the meanwhile, accused Surjit Singh also came to the house of the complainant and lodged protest about the behaviour of Gulshan Kumar. On this, the complainant pacified him and told that he will come to his shop tomorrow and would patch up the matter. Then accused Surjit Singh went away. It is the case of the prosecution that on the next day at about 12.30 PM, complainant Satya Nand along with his son Gulshan Kumar and Brij Lal went to the Dhaba of accused Surjit Singh, where Ajit Inder Singh son of Harjinder Singh was also present. On seeing them, accused Prabhu Kumar raised `Lalkara' and accused Surjit Singh gave a `Chhuri' blow on the chest of Gulshan Kumar. When Gulshan Kumar fell down on the ground, then accused Surjit Singh gave two/three blows to him on his back. In the meantime, Harshinder Singh son of Santokh Singh also came on the spot. Then complainant Satya Nand, Ajit Inder Singh and Harshinder Singh took Gulshan Kumar to Rajindra Hospital, Patiala, where he was declared dead. It is admitted position that neither Ajit Inder Singh nor Harshinder Singh has been examined by the prosecution. The entire prosecution version rests upon the testimonies of PW.1 Satya Nand and PW.2 Brij Lal. Now the question arising for consideration is as to whether the presence of both the witnesses at the time of the alleged occurrence is proved to be beyond reasonable doubt, and secondly version given by them is probable. After carefully examining their statements, in light of the other evidence, particularly the medical evidence as well as the statement of PW.6 Iqbal Crl. A. No. 646-DB of 2001 -21- Singh Constable, we have come to the conclusion that presence of both the alleged eye witnesses at the time of the occurrence is highly improbable, and their version appears to be quite improbable.
30. It is well settled that while assessing the evidence of an eye witnesses, the Court must adhere to two principles : whether in the circumstances of a case, it was possible for eye witness to be present at the scene and whether there was anything inherently improbable or unreliable in his statement. In the present case, PW.1 Satya Nand is the father of the deceased. About one year and four months prior to the occurrence in this case, he retired as DSP from the Punjab Police Department, whereas PW.2 Brij Lal is alleged to be a friend of PW.1, who is involved in many criminal cases. In view of these facts, we have carefully and cautiously examined the statements of both these witnesses. We find material contradictions in their statements, which create serious doubt about their presence at the spot as well as the version given by them. In his statement before the police, PW.1 Satya Nand stated that on receiving injuries by Gulshan Kumar, he, Harshinder Singh and Ajit Inder Singh took him in an injured condition to Rajindra Hospital in his car, but when he appeared in the witness box in the court, in the cross-examination, he had stated that the deceased was taken to the hospital by other persons at 1.00 PM and he followed them to the hospital (This part of the statement has been compared with the statement in vernacular in Punjabi, available on the record). Therefore, the version of the prosecution that Gulshan Kumar in injured condition was shifted to the Crl. A. No. 646-DB of 2001 -22- hospital by complainant Satya Nand, Harshinder Singh and Ajit Inder Singh is doubtful, particularly if we analyse this part of the statement of Satya Nand in the light of the statement of DW.6 Ravinder Singh, who had also seen the occurrence and stated that Harshinder Singh and Inderjit Singh took Gulshan Kumar to the hospital on the scooter, which was being driven by Inderjit Singh. It is pertinent to mention here that during the inquest proceedings, the presence of Harshinder Singh and Inderjit Singh had been marked, but no where the presence of both the witnesses was made in the inquest proceedings. Further, PW.1 Satya Nand has admitted that in the course of shifting Gulshan Kumar to the hospital, the seat covers of his car and his clothes were smeared with blood, but it is admitted fact that no blood stained cloth of this witness and the blood stained seat cover of his car was taken into possession by the police.
31. The second important contradiction, which creates doubt about the presence of the prosecution witnesses at the spot is that according to the statement of PW.1 Satya Nand, on receiving injuries by Gulshan Kumar, he was immediately shifted to the hospital. He did not state any thing about the causing of injuries to the accused by the public. On the other hand, PW.2 Brij Lal stated that after Surjit Singh gave two/three knife blows to Gulshan Kumar on his back, Satya Nand caught hold Surjit Singh of his arms. He further stated that the public collected there and he also caught hold of Surjit Singh and his knife was brought to the ground. Then members of the public started beating Surjit Singh. The injured was taken to the hospital by Crl. A. No. 646-DB of 2001 -23- Satya Nand, Harshinder Singh and Ajit Inder Singh. However, PW.1 Satya Nand never stated that he caught hold Surjit Singh or at that time, public gathered there and gave beating to the accused. Rather, according to him, at the time of the occurrence, none of the shopkeepers of the neighbouring shops was attracted at the spot. From the facts and circumstances of the case, it appears that the story of giving beating to the accused by the public was introduced later on, in order to explain the injuries found on the bodies of both the accused, during their medical examination by PW.7 Dr. Rajinder Pal. In this regard, the prosecution has examined PW.6 Iqbal Singh Constable, whose version is very strange and improbable. According to him, on the day of occurrence, he along with SPOs Amrik Singh and Gurmit Singh was on beat duty in Main Baazar. At about 1.00 PM, he saw that members of the public were beating accused Surjit Singh and Prabhu Kumar. He rescued them and handed over them to his companions Amrik Singh and Gurmit Singh. According to him, they remained at the spot along with accused till 5.30 PM, when Inspector Rajbir Singh reached the spot. On his arrival, he handed over both the accused to him. It does not stand to reason that when this witness, who was a police official, had seen that the public was giving beatings to Surjit Singh and Prabhu Kumar and also noticed that the blood and the blood stained `Chhuri' were also lying on the ground, then why he did not give any information to the police. They were three in number. He could have easily sent one of the SPOs to the Police Station. It is not understandable that why he waited from 1.00 PM to 5.30 Crl. A. No. 646-DB of 2001 -24- PM, to reach the police at the spot. The prosecution has not examined SPOs Amrik Singh and Gurmit Singh. In these circumstances, the statement given by this witness does not inspire any confidence. This witness did not state any thing that Brij Lal was present there and he told them that Gulshan Kumar injured was shifted to the hospital. In our opinion, this witness was introduced by the prosecution only to explain the injuries found on the bodies of the accused. Therefore, the version given by DW.6 Ravinder Singh that the public did not cause any injury to the accused, but they were given thrashing by the police later on, appears to be credible. It is highly improbable, as stated by PW.1 Satya Nand, that though the place of occurrence was situated in the crowded marked, but in the noon time, at the time of the occurrence, no neighbourer was attracted at the spot. This fact has been controverted by the other prosecution witness, who has categorically stated that at the time of the occurrence, many shopkeepers gathered at the spot and had seen the occurrence. Even PW.9 Inspector Rajbir Singh, the Investigating Officer of the case, has admitted that during investigation, he had recorded statements of many shopkeepers, but it is strange that in spite of the fact that the occurrence had taken place in the noon time, none of the adjoining shopkeepers, who had witnessed the occurrence, has been examined by the prosecution. Two other independent witnesses, namely Harshinder Singh and Ajit Inder Singh, who were present at the time of the occurrence and had also shifted the deceased to the hospital, have also not been examined by the prosecution. From all these Crl. A. No. 646-DB of 2001 -25- facts, it emerges that the prosecution has not brought forwarded the true version of the occurrence. The conduct of PW.1 Satya Nand and PW.2 Brij Lal, at the time of the alleged occurrence, is also highly improbable. As per the version given by these witnesses, when accused Surjit Singh caused injuries to the deceased, they did not intervene. Though in this regard, PW.2 Brij Lal had made improvements in his statement before the court to the effect that PW.1 Satya Nand caught hold of Surjit Singh, when he was causing injuries to the deceased, but PW.1 Satya Nand did not say anything in this regard. It does not stand to any reason as to why the complainant party, who were three in number and particularly when the complainant was a retired DSP from the Punjab Police, did not intervene and try to save Gulshan Kumar from the injuries being caused by the accused. This improbable conduct of the witnesses creates serious doubt about their presence at the time of the occurrence.
32. Further, on scrutiny of the prosecution evidence, the alleged motive to commit the crime by the accused also appears to be doubtful. As per the prosecution version, there was some money dispute between Gulshan Kumar and accused Surjit Singh. For that dispute, an altercation took place on 17.3.1998 at the Dhaba of accused Surjit Singh, where Gulshan Kumar abused him. Thereafter, Gulshan Kumar came to his house and told his father Satya Nand about the said fact and the threat given to him by accused Surjit Singh to kill him. It is alleged that immediately thereafter, accused Surjit Singh also came to the house of complainant and Crl. A. No. 646-DB of 2001 -26- complained about the behaviour of Gulshan Kumar to his father, on which the complainant assured and promised Surjit Singh that he will come on the next day to his shop and would patch up the matter. This whole version appears to be improbable. It has not come on record that what was the money dispute between the deceased and the accused; whether the money was owed by Surjit Singh accused to Gulshan Kumar or Gulshan Kumar owed money to accused Surjit Singh. It is stated that Gulshan Kumar told all these facts to his father Satya Nand in the presence of Brij Lal, who was present there in connection with discussion regarding the marriage of his niece. It has come in evidence that neither any marriage was solemnized nor the marriage palace was booked. Secondly, there is a contradiction in the statements of PW.1 Satya Nand and PW.2 Brij Lal. According to PW.1 Satya Nand, he had fixed up the time with PW.2 Brij Lal on 17.3.1998 and also in the morning of 18.3.1998 about their visit to the Dhaba of accused Surjit Singh, but PW.2 Brij Lal has deposed that Satya Nand had not fixed any time at which they were to go together to the Dhaba of Surjit Singh, when he left his house on the previous evening. Thirdly, when the matter was already pacified on the previous day, then what was the occasion for the complainant to took his son Gulshan Kumar to the Dhaba of accused Surjit Singh on the next day. Even otherwise, if the matter was to be patched up on the next day, then there was no reason for the accused to straight way attack Gulshan Kumar on his arrival at the Dhaba of the accused. It is not the case of the prosecution that after reaching the Dhaba, negotiations Crl. A. No. 646-DB of 2001 -27- started and during the negotiations, there was hot exchange of words, upon which accused Surjit Singh gave `Chhuri' blow to the deceased. All these facts create doubt in the prosecution version and give the impression that the prosecution has withheld the real genesis of the occurrence and had come with a story, which does not appear to be probable.
33. Further, in the present case, the manner in which the investigation has been conducted creates doubt in the prosecution version. No photograph of the place of occurrence was taken by the prosecution. In this regard, the Investigating Officer did not give any plausible reason. Neither the statement of any independent person from the neighbourhood was recorded during investigation nor any such witness was produced as a witness. The deceased was alleged to have been taken to the hospital in the car, belonging to the complainant. According to the complainant, the car as well as his clothes had smeared with blood, but neither the blood stained seats of the car nor the blood stained clothes of the complainant were taken into possession. These types of evidence collected during the investigation could have corroborated the presence of the complainant at the spot and the version of the prosecution. The Investigating Officer may have conducted the tainted investigation in this case in order to suppress the true version from the court, under the influence of complainant Satya Nand, who retired from the Punjab Police as DSP. As per the report of the Chemical Examiner (Ex.PL), the Chhuri (Ex.P4) which was alleged to have been recovered from the spot was not having any stains of human blood on it. As per that report, Crl. A. No. 646-DB of 2001 -28- the blood was found only on the articles, which were marked as `X'. Chhuri (Ex.P4) is not marked as `X'. The observations of the trial court in this regard are contrary to the record. In the report of the Serologist (Ex.PV) also, no blood was found on the Chhuri. It is stated in this report that the blood stains on Chhuri were disintegrated and its origin could not be determined. It further creates doubt that injury No.1 was caused by Chhuri (Ex.P4). It has also come in the evidence of the doctor that during investigation, the police did not show him the Chhuri to get his opinion about causing of injury No.1 by the said weapon. However, in the court, Chhuri (Ex.P4) was shown to the doctor for the first time, when he appeared as a witness. Then he stated that possibility of causing that injury by the said Chhuri could not be ruled out. During the course of arguments, much emphasis was put by learned counsel for the respondent-State that the version given by the defence is not corroborated by the medical evidence, because according to the doctor, all the five injuries were caused by sharp pointed weapon and further, according to her, if the injuries could have been caused by glass pieces, then the glass pieces could have been found by the doctor during the post mortem examination. This argument appears to be attractive, but it cannot be wholly ruled out that the injuries on the back of the deceased, which are within small close area, could not be caused by fall on the glass pieces. It has also come in evidence that the deceased and the servants of the Dhaba were exchanging brick bats and glass pieces. In that situation, possibility of causing injury No.1 by a sharp edged glass piece also cannot be ruled out. Since the prosecution has withheld the true version Crl. A. No. 646-DB of 2001 -29- from the court, therefore, the other probabilities of the occurrence cannot be ruled out. In Aher Raja Khima v. State of Saurashtra, AIR 1956 Supreme Court 217, it was held that on appreciation of evidence, if two views are possible, then benefit has to be given to the accused. It was held that there are two important factors in every criminal trial that weigh heavily in favour of an accused person; one is that the accused is entitled to the benefit of every reasonable doubt and the other, an off-shoot of the same principle, is that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions they should ordinarily be accepted unless the circumstances indicate that they are false. In the present case, the prosecution has failed to prove its version beyond reasonable doubt. The version given by both the eye witnesses has been found to be unbelievable, as their presence at the time of the occurrence was doubtful. The possibility of the occurrence being happened in the manner, as given in the version of the accused, cannot be ruled out.
34. In view of the aforesaid discussion, we are of the opinion that in the present case, the prosecution has failed to prove its case against the appellants beyond a shadow of reasonable doubt. Therefore, the impugned judgment and order is set aside and the appellants are acquitted of the charges. Both the appeals are, accordingly, allowed.
( SATISH KUMAR MITTAL )
JUDGE
May 06, 2010 ( JORA SINGH )
ndj JUDGE