Punjab-Haryana High Court
Dharam Singh & Other vs State Of Punjab on 17 November, 2012
Author: Rameshwar Singh Malik
Bench: Rameshwar Singh Malik
Crl. Appeal No.761-SB of 1999 (O&M) &
Crl. Revision No.1273 of 1999 (O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Crl. Appeal No.761-SB of 1999 (O&M)
Date of Decision : November 17, 2012
Dharam Singh & other ........Appellants
Versus
State of Punjab ........Respondent
And
Crl. Revision No.1273 of 1999 (O&M)
Swinder Singh ........Petitioner
Versus
Dharam Singh etc. ........Respondents
******
CORAM : Hon'ble Mr. Justice Rameshwar Singh Malik Present : Mr. R.N. Moudgil, Advocate for the appellants (in Crl. Appeal No.761-SB of 1999). Mr. Ankur Jain, AAG, Punjab.
None for the petitioner/complainant (in Crl. Revision No.1273 of 1999) ****** Rameshwar Singh Malik, J The instant appeal is directed against the judgment of conviction and order of sentence dated 27.07.1999, passed by the learned Additional Sessions Judge Gurdaspur, whereby both the appellants were convicted for the offences under Sections 450/324/323 IPC and were sen- tenced, accordingly. Since the complainant-injured Swinder Singh has also filed Criminal Revision No.1273 of 1999 (Swinder Singh Vs. Dharam Singh Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 2 etc.) seeking enhancement of the sentence, the appeal as well as the revi- sion petition are being decided vide this common judgment.
The criminal law was set into motion by Swinder Singh son of Dhian Singh while getting recorded his statement as Ex.PB. The prosecution story, when put in a narrow compass, was that on 09.05.1992 at about 9 p.m., when Swinder Singh was sitting in his behak situated in his fields along with his wife Mohinder Kaur and children, his brother Dharam Singh armed with kirpan and Dharam's son Sant Singh armed with datar came there. Both the accused were under the influence of liquor. They raised a lalkara that Swinder Singh be taught a lesson for demanding share in the land. Hearing that, Swinder Singh bolted himself in a room. The accused broke open the door and trespassed into the house. Accused Dharam Singh gave three blows with his kirpan which hit on head of Swinder Singh. Thereafter, accused Sant Singh gave two consecutive blows of datar which hit on the left wrist and index finger of the right hand of Swinder Singh. Complainant tried to ward off the blows, Dharam Singh gave two blows with his kirpan which hit on the back of the complainant. Thereafter, accused Sant Singh gave two consecutive blows from the reverse side of his datar which hit on the arms of the complainant. On seeing and hearing of this, Mohinder Kaur, wife of the complainant, hurled brick bats in order to rescue the complainant. The accused ran away from the spot with their respective weapons. The motive behind the assault was that the complainant and accused Dharam Singh were real brothers and there was a dispute regarding the inheritance of agricultural land left by their father. The civil litigation was pending between the parties and the complainant was demanding his share in the land from the accused.
When ASI Surinder Pal Singh, Police Station City, Gurdaspur was present in the area of village bus stand Sidhwan on petrol duty on Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 3 10.05.1992, he received a wireless message from police station Kahnuwan to the effect that Swinder Singh complainant was lying injured and admitted in the Civil Hospital, Gurdaspur. After receiving this information, ASI Surinder Pal Singh PW 6 secured the copy of medico legal report from the police station and went to Civil Hospital, Gurdaspur. He moved an application Ex.PE seeking opinion of the doctor regarding fitness of the injured, to record his statement. Doctor declared the injured fit and thereafter the statement of the injured-complainant was recorded as Ex.PB. However, finding the matter to be suspicious, Investigating Officer recorded the same in daily diary under Rule 24.4 of the Punjab Police Rules. Accordingly, endorsement Ex.PB/2 was made and thereafter it was sent for registration of the report vide Ex.PC. During the course of investigation, the then SHO SI Karamjit Singh verified the facts and registered the FIR Ex.PF on 17.05.1992. Thereafter, on 18.05.1992 Surinder Pal Singh, ASI went to the place of occurrence. He prepared the rough site plan Ex.PG with correct marginal notes. Dharam Singh was arrested on 20.05.1992 and accused Sant Singh was arrested on 22.05.1992.
After completion of the investigation, report under Section 173 Cr.P.C. was presented to the learned court of competent jurisdiction against both the accused. The relevant documents were supplied to the accused, in accordance with law. Since the offence was found to be exclusively triable by the courts of sessions, the learned Magistrate committed the case for trial to the learned Sessions Judge, Gurdaspur vide order dated 16.12.1993.
Finding a prima facie case having been made out against the accused, charges for the offences punishable under Sections 450/326/324/34 IPC were framed against the accused. The accused did not plead guilty to the charge and claimed trial.
In order to prove its case, the prosecution examined as many as Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 4 six PWs, besides tendering the relevant documents in evidence. On conclusion of the prosecution evidence, statements of the accused under Section 313 Cr.P.C were recorded. All the incriminating material brought on record was put to the accused. They alleged false implication and claimed complete innocence. Opting for leading the defence evidence, the accused examined DW1 Tarsem Lal, Clerk from the office of Sub-Registrar who proved the document bearing No.255 dated 03.01.1985 which was Forgatinama (deed of disownment) and proved the same as Ex.D1. Besides this, relevant documents were also tendered in the defence evidence.
After hearing both the parties and going through the evidence brought on record, the learned trial court held both the accused guilty and convicted them for the offences punishable under Sections 450/324/323 IPC vide judgment of conviction dated 27.07.1999. Vide order of even date i.e. 27.07.1999 the learned Additional Sessions Judge, awarded the sentence to the convicts, as under :-
"Under Section 450 IPC :-
R.I. for a period of one year and to pay a fine of `1,000/- and in default of payment of fine to further undergo S.I. for a period of two months.
Under Section 324 IPC :-
R.I. for a period of one year and to pay fine of `500/-, in default of payment of fine to further S.I. for one month.
Under Section 323 IPC :-
R.I. for a period of six months and to pay a fine of `500/-, in default of payment of fine to further S.I. for one month."
However, all the offences were ordered to run concurrently. Feeling aggrieved against the judgment of conviction and order Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 5 of sentence, the appellants have approached this Court by way of instant appeal whereas the complainant has filed the criminal revision, noted above, seeking enhancement of sentence. That is how, this Court is seized of the matter.
Learned counsel for the appellants, at the very outset submits that during the pendency of this appeal appellant No.1 Dharam Singh had since expired on 16.10.2002. He produced the photocopy of death certificate dated 13.01.2003 issued by the competent authority and the same has been placed on record as Mark 'A'. Since the fact regarding death of appellant No.1 Dharam Singh has not been denied by the learned counsel for the State, the instant appeal is ordered to be abated qua appellant No.1. However, liberty is granted to the State of Punjab to get the appeal revived, in case the above said information is found to be incorrect. In this view of the matter, the present appeal survives only qua appellant No.2, namely, Sant Singh.
Learned counsel for the appellant vehemently contended that in the present case, the prosecution has miserably failed to prove its case beyond any reasonable doubt. The motive, as a matter of fact, has worked as double edged weapon in the present case because of which the complainant has falsely implicated the appellants. Learned counsel for the appellants further contended that the occurrence took place on 09.05.1992, whereas the FIR came to be recorded on 17.05.1992 and the inordinate long delay of 8 days has since not been explained by the prosecution, a serious doubt had been created in the prosecution story. Learned counsel for the appellant next contended that the medical evidence also did not support the prosecution story. He concluded by submitting that the occurrence took place more than 20 years ago and the appellant Sant Singh had undergone the actual sentence for 29 days. He prays for setting aside the impugned Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 6 judgment of conviction and order of sentence by allowing the appeal.
Per contra, learned State counsel contended that the prosecution has proved its case by leading cogent evidence. The learned trial court has not committed any illegality while recording the conviction of the appellants. There was a strong motive with the appellants to commit the offence. The delay in filing this case had also been duly explained. Finally, he submits that the appeal was without any merit and the same was liable to be dismissed.
Nobody has put in appearance on behalf of the petitioner- complainant in the criminal revision petition. Having heard learned counsel for the parties and after careful perusal of the record of the case as well as giving thoughtful consideration to the rival contentions raised, this court is of the considered opinion that the conviction of the appellant Sant Singh is not sustainable in law and the appeal deserves to be accepted. To say so, the reasons are more than one, which are being recorded hereinafter.
It is the own case of the prosecution that the alleged occurrence took place on 09.05.1992 at about 9.00 P.M. The injured Swinder Singh allegedly suffered nine injuries out of which injury No.1 was found to be grievous. Injuries No.6,7,8 and 9 were simple whereas injuries No.2,3,4 and 5 were declared simple after receiving the x-ray report. However, P.W.1 Dr. R.K. Attri deposed that since bone cut regarding injury No.1 was visible to the naked eye, he did not advise x-ray for that injury. In the cross- examination, PW1 admitted it to be correct that in order to see the extent of cut in bone, x-ray was the surest test. He further admitted it to be correct that injuries No.6 to 9 could be the result of blunt side of datar and kirpan. He also deposed that these injuries could be the result of rubbing against a hard surface. Possibility of injuries No.2 to 5 through friendly hands, could not be ruled out. He also deposed that at the time of medical examination, Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 7 the injured was accompanied by his neighbourer Sewa Singh. He did not mention the colour of the injuries in respect of injuries No.1 to 5. Similarly, he did not mention regarding injuries No.2 to 5 that any bleeding was present on the injuries or not. It is pertinent to note here that Sewa Singh, neighbourer of Swinder Singh-injured, who has been stated to be accompanying the injured in the hospital at the time of his medical examination, had not been examined as prosecution witness for the reasons best known to the prosecution. Thus, out of 9 injuries 8 were found to be simple. Regarding injury No.1, which was declared grievous, admittedly, no x-ray was conducted before declaring that injury as grievous. Although, the doctor PW1 has admitted in his cross examination that x-ray was the surest test, to see the extent of cut in bone for declaring the injury to be grievous, yet he could not give any explanation as to why x-ray was not got conducted.
A close perusal of the record would show that the prosecution has failed to complete the chain of events thereby connecting the appellants with the crime. Another very serious lacuna in the case of the prosecution was that none of the PWs, including the investigating officer, have said even a word whether the alleged weapons of offence were recovered from any of the accused. In the absence of evidence of recovery of the alleged weapons of offence from the appellants, it is not safe to uphold the conviction of the appellants. There was no witness produced by the prosecution who might have witnessed the recovery of weapons of offence from either of the accused.
PW1 was the doctor whose evidence have been discussed above. PW2 was Swinder Singh injured-complainant and PW3 was his wife Smt. Mohinder Kaur. PW4 was Vinod Kumar Head Constable No.1434 who proved DDR No.21 Ex.PC dated 10.05.1992, which was got recorded by the Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 8 ASI Surinder Pal singh under Rule 24.4 of the Punjab Police Rules. PW 5 was doctor H.S. Bajwa who proved the discharge slip Ex.PD about the discharge of injured Swinder Singh from the hospital. PW6 was the then investigating officer Surinder Pal Singh ASI. None of these witnesses said anything regarding recovery of weapons of offence from the accused- appellants. In this view of the matter, this Court feels no hesitation to hold that since the recovery of alleged weapons of offence from the accused- appellants, has not been duly proved by the prosecution, conviction of the appellants was illegal on the face of it.
The injured Swinder Singh-complainant who appeared as PW2 stated that the incident took place at about 9.00 p.m. on 09.05.1992. Nine injuries were caused to him by the accused by kirpan and datar i.e. sharp edged weapon. This material witness admitted in his cross examination that Gurdaspur city was at a distance of about 13/14 kms. from the village, whereas Kahnuwan town was at a distance of 8/9 kms from his village. His village falls within the jurisdiction of police station Kahnuwan. He also admitted that mini busses ply on the road leading from his village to Kahnuwan. Tongas also ply. There was a Civil Hospital at Kahnuwan. But he preferred to go to Gurdaspur ignoring the Civil Hospital at Kahnuwan although it was nearer to his village. Explantion given is that since he had serious head injuries, he apprehended that there may not be x-ray facility at Civil Hospital, Kahnuwan.
This statement of the injured-complainant does not inspire confidence. It does not appeal to reason that in a seriously injured condition, he would not go to the nearby Civil Hospital, even for first aid. PW2 Swinder Singh has also admitted in his cross examination that there was a picket of border security force in his village in those days. He did not send any person to the BSF picket for information regarding his injuries. Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 9 Similarly, village Lalpur falls at a distance of 3 kms from his village which was on the way to Gurdaspur or to Kahnuwan. ASI Surinder Pal Singh PW 6 was the incharge of police post Lalpur, in those days. He did not send any person for lodging report at police post Lalpur nor he himself stopped at police post Lalpur, while going to Civil Hospital Gurdaspur, with Sewa Singh, on scooter. This conduct of the injured PW2 also seems to be unnatural on the face of it which creates doubt in the prosecution story.
Similarly, this witness further admitted in his cross examination that blood had oozed out of his injuries. However, neither he tried to go to any hospital nor took even medical first aid during the whole night on 09.05.1992 and he straightway went to Civil Hospital, Gurdaspur next day and that too at about 12.00 noon. He further stated that he narrated the occurrence to Harjinder Sngh and Mannu but did not ask them to inform the police. Neither Harjinder Singh nor Mannu was produced as prosecution witness. On the other hand, he also admitted that he did not state in his statement Ex.PB that his father had executed a registered Will vide which property had been divided in two equal shares. He also did not mention in his statement that the accused had forged a Will in 1985 or that the civil court had decided the case in favour of all legal heirs of Dhian Singh.
Again, he did not mention in his statement Ex.PB regarding the mutation or that accused Dharam Singh did not give any share to him. He also did not mention in his statement Ex.PB that the accused had broken the window panes and the ventilators of his house at the time of alleged occurrence nor he has stated that accused had broken the door of his house with datar. He further stated in his cross examination that the clothes of his wife had also become blood stained. However, when his wife Mohinder Kaur appeared as PW3, she did not say so in her statement. Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 10 Thus, PW3 who had tried to support her husband has contradicted him on this aspect. Thus, when the statement of PW2 and PW3 are read together, the same are self contradictory, hence not reliable.
Admittedly, the alleged incident took place on 09.05.1992 whereas the FIR came to be registered on 17.05.1992. No explanation is forthcoming for this inordinate long delay. The contention of the learned counsel for the appellant merits acceptance on this aspect that this long delay was caused for concocting a story so as to falsely implicate the appellants. Thus, it is unhesitatingly held that since the delay of about 8 long days in registration of the FIR has gone unexplained, it also creates serious doubt in the case of the prosecution.
It is also pertinent to refer to the defence evidence led on behalf of the accused-appellants. DW1 Tarsem Lal, Clerk, from the office of Sub-Registrar, Gurdaspur proved Ex.D1 which was a registered document bearing No.255 dated 03.01.1985 vide which father of the complainant- injured has disinherited him because of his bad character and undesirable activity. A combined reading of the other documents tendered in defence evidence in the form of Ex.D2 to Ex.D5, would show that mutation No.5688 was duly sanctioned by Assistant Collector 1st Grade, Gurdaspur vide his order dated 17.01.1992, on the basis of above said registered document Ex.D1 dated 03.01.1985. This mutation was sanctioned in favour of Dharam Singh son of Dhian Singh.
It is relevant to point out here that Dharam Singh accused- appellant and Swinder Singh injured-complainant were the real brothers and Sant Singh appellant is the son of Dharam Singh. So far as the other civil litigation between the parties was concerned, the learned Additional District Judge, Gurdaspur vide his judgment and decree dated 21.11.1988 had accepted the Civil Appeal No.146/325 filed by Dhian Singh and Akshar Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 11 Singh sons of Udham Singh, against Swinder Singh injured-complainant. Feeling aggrieved against the judgment dated 21.11.1988, complainant Swinder Singh filed RSA No.871 of 1989 before this Court wherein vide order dated 31.10.1989, status quo regarding possession was ordered to be maintained between the parties.
Thus, it becomes crystal clear that the civil courts as well as the revenue authorities have decided the matter in favour of the accused- appellants and their possession has also been duly established. Under these circumstances, this Court finds force in the argument raised by learned counsel for the appellants that the injured-complainant was having a strong motive to falsely implicate the appellants.
Since the learned trial court has not appreciated the clinching and voluminous evidence discussed hereinabove, in the right prospective, the impugned judgment of conviction is not sustainable in law.
Since the prosecution has failed to prove any motive, recovery of any alleged weapon of offence against the accused-appellants, the learned trial court has proceeded on an erroneous approach while recording the conviction of the appellants. Further, there are serious contradictions in the evidence of the prosecution which created doubt in the prosecution story. The prosecution witnesses have contradicted themselves on material aspects of the matter. Inordinate delay of 8 days in registration of the FIR has also not been duly explained. Similarly, the medical evidence also does not support the case of the prosecution. Thus, in view of the discussion hereinabove, this Court is of the considered view that the prosecution has failed to prove its case beyond reasonable doubt.
Considering the totality of the facts and circumstances noted above, coupled with the reasons aforementioned, the impugned judgment of conviction and order of sentence are set aside. Appellant Sant Singh is Crl. Appeal No.761-SB of 1999 (O&M) & Crl. Revision No.1273 of 1999 (O&M) 12 ordered to be acquitted of the charges framed against him whereas the criminal revision petition filed by the complainant, being without any substance and bereft of any merit, is ordered to be dismissed.
Resultantly, the appeal stands allowed.
( Rameshwar Singh Malik ) Judge 17.11.2012 Anand