Punjab-Haryana High Court
Balbir Singh @ Beera vs State Of Punjab on 11 August, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Date of decision: 11.8.2011
(1) Criminal Appeal No. 875-DB of 2004
Balbir Singh @ Beera .....Appellant
vs.
State of Punjab .....Respondent
Present: - Mr. A.P.S. Deol, Sr. Advocate with Mr. Vishal Rattan Lamba, Advocate for the appellant.
Mr. S. S. Dhaliwal, Addl. AG, Punjab.
(2) Criminal Appeal No. 353-DB of 2005 Gurmeet Singh @ Meeta Singh .......Appellant.
vs.
State of Punjab ......Respondent.
Present: - M/s S.K. Jain and Ajay Jain, Advocates for the appellant.
Mr. S. S. Dhaliwal, Addl. AG, Punjab.
CORAM: - HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE VIJENDER SINGH MALIK
HEMANT GUPTA, J
This order shall dispose of Criminal Appeal No. 875-DB of 2004, preferred by Balbir Singh @ Beera son of Budh Singh and Criminal Appeal No. 353-DB of 2005, Crl. A. No. 875-DB of 2004 2 preferred by Gurmeet Singh @ Meeta Singh son of Gurdial Singh against the judgment of conviction and order of sentence dated 13.10.2004 passed by learned Additional Sessions Judge, Mansa whereby it convicted the appellant Balbir Singh @ Beera for an offence under Section 302 of the Indian Penal Code (for short the 'code') and the appellant Gurmeet Singh @ Meeta Singh for an offence under Section 302 read with Section 34 of the Code. Both the appellants were directed to pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months respectively.
Both the accused were also sentenced under Section 380 of the Code to undergo rigorous imprisonment for one year and to pay a fine of Rs. 200/- each. In default of payment of fine to further undergo rigorous imprisonment for a period of 15 days.
Prosecution case was set in motion, on the basis of the statement of Tek Chand (PW-4) son of Raja Ram, an employee with M/s Jiwan Kumar Suresh Kumar, liquor contractors, Mansa, made to SI Mukhtiar Singh, S.H.O., Police Station, Mansa. A ruqa (Ex. PE/1) was sent at about 10.30 p.m. on 13.5.2002 to the Police Station. On the basis of said statement, FIR (Ex. PE) was lodged and the special report delivered to the learned Magistrate at 12.45 a.m. on 14.5.2002. Tek Chand has stated that he used to collect the Crl. A. No. 875-DB of 2004 3 daily sale proceeds from the outer liquor vends, as per the instructions, on his vehicle. The liquor vend of village Maujia is situated at a distance of 2/3 furlongs from the village. On the said liquor vend, Sri Krishan son of Ram Bharose resident of village Rampura, Police Station Patiali, District Ietan, U.P. was employed. He along with one Jai Pal son of Ram Dass, on a Bolero jeep, driven by Raghbir Singh (PW-6), went to the liquor vend of village Maujia to collect the sale proceeds at about 8.30 p.m. When they reached near the liquor vend, they saw in the light of jeep that in front of the kiosk, Balbir Singh @ Beera son of Budh Singh, resident of Makha, has caught hold of Sri Krishan from his arms by taking the same towards his head side and Gurmit Singh @ Meeta Singh was continuously giving the blows with kirch. Both of them were known to him as they used to take liquor from the liquor vend at village Maujia. On the alarm being raised, Balbir Singh and Gurmit Singh took out the sale proceeds from the right pocket of pant of Sri Krishan. Balbir Singh lifted two bottles of liquor by entering into the kiosk and then decamped from the spot towards village Makha on scooter. They started taking care of Sri Krishan but he succumbed to the injuries at the spot. Sri Krishan received injuries on the back, abdomen and shoulders by the sharp edged weapons and blood was oozing out from the injuries. He along with his companions entered the kiosk and found neither any bottle of liquor nor any cash. Crl. A. No. 875-DB of 2004 4 He left Raghbir Singh and Jai Pal at the spot and after reaching Mansa narrated the whole story to Suresh Kumar, partner of the firm. Thereafter, they reached at the Police Station to lodge the report. He has stated that the liquor vend of Maujia was permitted to sell 35 bottles of liquor and the daily sale proceeds used to be in the tune of Rs. 2300/- to Rs. 2400/- approximately. He stated that Gurmit Singh and Balbir Singh have committed the murder of Sri Krishan and theft. On the basis of the said statement, FIR (Ex PE) as mentioned above was lodged.
SI Mukhtiar Singh (PW-7) reached the place of occurrence and took steps for getting the photographs of the place of occurrence and also prepared the inquest report (Ex. PC) of the dead body of Sri Krishan. He arranged to send the dead body for post mortem examination. He recorded the statements of the witnesses, inspected the spot and also lifted the blood stained earth and sample earth (Ex. PG), kept them in a separate sealed parcels and taken into possession in the presence of the Jai Pal and Raghbir Singh. He also prepared the rough site plan (Ex. PH). Tek Chand produced the details of the stock. It was on 21.5.2002, the accused, Gurmail Singh and Balbir Singh @ Bira were arrested when they were coming on a scooter bearing No. PB-44A/4779 driven by Gurmej Singh.
Crl. A. No. 875-DB of 2004 5
In the presence of Santokh Singh, the accused made the disclosure statements. The registration certificate of scooter (Ex. P-2), driving licence (Ex. P-3) was recovered whereas the purse was recovered from the back pocket of trouser of Gurmit Singh. Memo of personal search (Ex. PL) was prepared, signed by Gurmit Singh, attested by the witnesses. Nothing was recovered from the personal search of Balbir Singh. Gurmit Singh also made a disclosure statement in respect of the kirch, kept concealed in the house of Baldev Singh son of Lal Singh resident of village Sandoha. On the basis of such disclosure statement-(Ex. PN), signed by Gurmit Singh and attested by witnesses, police party got recovered a kirch (Ex. P-5) in the presence of the witnesses and Prithi Singh, Chowkidar who also joined the process.
Post mortem (Ex. PA), on the dead body of the deceased-Sri Krishan, was conducted by Dr. Sohan Lal (PW-1) on 14.5.2002 at about 10.30 a.m. He found as many as 10 injuries but injury No. 1 i.e. 12 incised wounds scattered on the left side of the chest and on the front side were found to be sufficient to cause death.
On completion of the investigations, the accused were made to stand trial and on the basis of the evidence led by the parties, learned trial Court convicted and sentenced the appellants as mentioned above. To prove its case, the prosecution has examined Tek Chand son of Raja Ram, Crl. A. No. 875-DB of 2004 6 author of the FIR and an employee of the liquor contractor as PW-4 and also examined Raghbir Singh son of Lal Singh as PW-6 apart from examining the other formal witnesses and completing the chain of events.
The entire prosecution case is dependent upon the testimonies of Tek Chand son of Raja Ram (PW-4) and Raghbir Singh son of Lal Singh (PW-6), his co-employee. SI Mukhtiar Singh was examined as PW-7 who inter alia, deposed in respect of the association of Santokh Singh as DW-1 in the matter of suffering of disclosure statements and the recovery of scooter, its registration certificate and the driving licence as well as examination of Prithi Chand as DW-2, the witness of the recovery process. Prosecution also examined Baldev Singh as DW-3 from whose house the kirch was allegedly recovered. After considering the evidence led by the parties, learned trial Court convicted the appellants as mentioned above. The witness of the disclosure statement i.e. Santokh Singh has turned hostile and so is Prithi Singh (DW-2), the witness of the recovery of kirch. Baldev Singh (DW-3) is the owner of the house from where the kirch is said to have been recovered.
The first question which is required to be examined is: whether the occurrence has taken place within the sight of the witnesses i.e. Tek Chand (PW-4) and Raghbir Singh (PW-6) and; whether the testimonies of such witnesses are that of a Crl. A. No. 875-DB of 2004 7 reliable witnesses which can form basis of conviction of the appellants.
Tek Chand (PW-4) has deposed in respect of the manner of occurrence, role of each of the appellants whereas Raghbir Singh (PW-6), another employee of the liquor contractor has supported the testimony of Tek Chand substantially.
In the statement of Tek Chand as PW-4, it has come on record that he along with Jai Pal and Raghbir Singh went from Mansa to liquor vend to collect the sale proceeds. Thereafter, they did not go anywhere else due to the occurrence. He deposed that he saw the accused from the distance of 1½ furlongs in the light of the jeep. None of them tried to chase the accused as they were armed and they reached near the deceased within 1-2 minute. PW-6 Raghbir Singh has deposed that he is the driver with liquor vend i.e. M/s Jiwan Kumar Suresh Kumar of Mansa and that on 13.5.2002 at about 8.30 p.m., he along with Tek Chand and Jai Pal went to Village Maujia to collect the sale proceeds of the liquor vend on a jeep bearing No. HR-24E-7478. They saw Balbir Singh has caught hold of the deceased-Sri Krishan from his arm and Gurmit Singh was giving kirch blows on whole of his body. In the cross-examination, he stated that the light of the jeep goes about 15 feet and that he reached near the dead body within 1-2 minute. The statements of PW-4 Tek Chand Crl. A. No. 875-DB of 2004 8 and PW-6 Raghbir Singh are sought to be disputed by learned counsel for the appellants that it is not possible for the witnesses to identify the accused in the light of the jeep from a distance of more than 2/3 furlongs i.e. more than 400 meters. Doubting the presence of (PW-4) Tek Chand and (PW-6) Raghbir Singh, it is argued that there is no reason as to why the witnesses would not apprehend the accused. If the prosecution story is to be believed, the accused are on scooter and said to have fled away on scooter, whereas Tek Chand was having a jeep and could very well chase the accused to bring them to book.
Still further, neither the disclosure statement nor the recovery proceedings are proved to be witnessed by trustworthy and reliable witnesses. On the basis of disclosure statement, suffered by Gurmit Singh @ Meeta Singh, the kirch has been recovered and sent for chemical examination. The chemical examiner has received the sample on 28.5.2002 and found that kirch is sustained with human blood. The witnesses of recovery have not supported the prosecution case, though Santokh Singh (DW-1) and Prithi Singh (DW-2) has admitted their signatures on the numerous documents produced by PW 7 SI Mukhtiar Singh. DW-1 Santokh Singh and DW-2 Prithi Chand have turned hostile. Thus, there is no independent, reliable and trustworthy witness to prove the recovery process from the person of the accused. Crl. A. No. 875-DB of 2004 9
Having heard learned counsel for the parties, we find that the prosecution has proved the commission of crime as alleged by Tek Chand (PW-4) in his statement (Ex. PM/2).
Dr. Sohan Lal has conducted the post mortem examination on 14.5.2002. He has found numerous injuries. Tek Chand (PW-4) and Sri Krishan are the employees of a liquor contractor. The statement of Tek Chand that he used to collect the daily sale proceeds of the liquor vend has not been doubted. The categorical statement of PW-4 Tek Chand and that of PW-6 Raghbir Singh leaves no manner of doubt that Tek Chand and Raghbir Singh were in fact on jeep but could not apprehended the accused.
It is impossible to imagine that Tek Chand (PW-4) and Raghbir Singh (PW-6) would falsely implicate the accused. The presence of Tek Chand and Raghbir Singh at the time of occurrence is beyond doubt as it is part of their normal duty to visit liquor vends to collect sale proceeds. The statement of Tek Chand and Raghbir Singh is reliable and credible witnesses. No doubt, the attesting witness of the disclosure statement namely Santokh Singh (DW1) and Prithi Singh (DW2) have turned hostile but their testimonies cannot be rejected as a whole. In the cross-examination, they have admitted their signatures on the documents but have alleged that the police have obtained their signatures on the blank papers. There is no motive attributed by Santokh Singh Crl. A. No. 875-DB of 2004 10 (DW-1) and Prithi Singh (DW-2) to SI Mukhtiar Singh to join them in false investigations. The fact that such witnesses have been examined and the signatures on the numerous documents show that their testimonies in respect of recovery process cannot be rejected out rightly. There is no explanation as to why their signatures would appear on number of documents. There is no evidence that they are the stock witnesses of the police or some way otherwise under the influence of police.
All the defence witnesses are the witnesses in respect of recovery of kirch in pursuance of the disclosure statement. The said kirch in the Forensic Science Laboratory have been found to be sustained with the human blood. SI Mukhtiar Singh who has recorded the disclosure statement and recovery proceedings has not been suggested that Santokh Singh and Prithi Singh were not the witnesses associated by him or that he has obtained their signatures on blank papers. The fact that they have been examined in defence, shows that they have been won over by the accused.
Similarly, Tek Chand and Raghbir Singh are the natural witnesses. It is the part of their duty to collect the sale proceeds from the liquor vends. They were expected at the liquor vend in ordinary course of business. Though, Raghbir Singh (PW-6) has stated that the head light of jeep would go up to 15 feet but the said part of the statement cannot be Crl. A. No. 875-DB of 2004 11 accepted as correct. Judicial notice can be taken of the fact that during the dark night, the light of the vehicle would spread over an area of more than hundred feet. The distance given by the witnesses is by approximation. Since, the jeep is moving towards the kiosk, the visibility of manner of occurrence would become clear. Therefore, we do not find that either Tek Chand (PW-4) and Raghbir Singh (PW-6) could not identify the accused as the assailants.
The accused were arrested on 21.5.2002 but their names find mentioned in the FIR lodged within two hours. Tek Chand has stated that he identified the assailants as they used to take liquor from his vend. The said part of the statement is not disputed. Since, the accused were known to the witnesses, their names have been found in the FIR lodged soon after the occurrence.
We do not find any merit in the arguments raised by learned counsel for the appellant-Balbir Singh @ Beera that it is not possible to cause stab wounds in the manner suggested by the prosecution. It is contended that if the stab wounds are not only on the chest but on the back also. It is contended that the stab wounds on the back is not possible if the hands of the victim are at his back. We do not find any merit in the said argument as well. The witnesses have witnessed the occurrence from a moving vehicle. There can be an error in observing the exact manner of causing injuries but the fact Crl. A. No. 875-DB of 2004 12 remains that both the witnesses are categorical that they have seen the accused giving injuries to the victim in the light of the vehicle. No benefit can be extended to the accused on the basis of minor contradictions in the manner of causing of injuries to the victim.
Learned trial Court has considered the entire evidence to record the appellants guilty of the commission of crime. We do not find that the findings recorded by learned trial Court suffers from any patent illegality or material irregularity which may warrant interference in an appeal.
Dismissed.
(HEMANT GUPTA) JUDGE (VIJENDER SINGH MALIK) JUDGE 11.8.2011 preeti