Punjab-Haryana High Court
Shah Alam Chaudhary Alias Mian vs State Of Punjab on 16 December, 2011
Author: Rajive Bhalla
Bench: Rajive Bhalla, Naresh Kumar Sanghi
Criminal Appeal No.143-DB of 2007 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No.143-DB of 2007
Date of Order: 16th December, 2011
Shah Alam Chaudhary alias Mian
...Appellant
Versus
State of Punjab
..Respondent
CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE NARESH KUMAR SANGHI
Present: Ms. Tanu Bedi, Advocate
for the appellant.
Ms. Manjari Nehru Kaul, Addl. A.G.,Punjab
for the State.
RAJIVE BHALLA, J.
The appellant prays that judgment and order dated 01.09.2006, convicting him under Sections 302 and 309 of the Indian Penal Code and sentencing him to life imprisonment under Section 302 and to pay a fine of Rs.3,000/-. In default of payment of fine, to undergo further R.I. of one year and simple imprisonment of one year under section 309 (sentences to run concurrently), may be set aside.
Parshotam Singh deceased was the owner of "Sonia Hotel". The appellant was employed as a servant and also looked after the business of the hotel, in the absence of Parshotam Singh. A few days before the occurrence, the deceased is alleged to have told his nephew Sardool Singh, Criminal Appeal No.143-DB of 2007 -2- PW3 that as the appellant is not furnishing correct accounts, he proposes to terminate his service. On 21.08.2004, the complainant Sardool Singh, PW3, Gurminder Singh, PW4 and Kanwaljit Kaur, came to the hotel to resolve the dispute and saw the appellant quarreling with the deceased, at the reception of the hotel. The appellant was holding a "Toka" (chopper) in his hand and in their presence, inflicted a number of blows with the "Toka" on the head of the deceased, who fell down, unconscious. Sardool Singh and Gurminder Singh, tried to catch the appellant but he ran to a room on the upper storey of the hotel shouting that he has killed Parshotam Singh as his service has been terminated and would now commit suicide by setting himself on fire. He also threatened that if any one made an attempt to catch him he would meet the same fate. Sardool Singh and Gurminder Singh, PW3 and PW4 raised an alarm that attracted people from the market. The accused run upstairs and set himself on fire. The hotel also caught fire. A fire brigade was called to control the fire. Sardool Singh and Gurminder Singh, PW3 and PW4 removed Parshotam Singh to Amandeep Hospital, where he died within 4/5 minutes of their arrival. The police received information about the death of the deceased from the hospital. Jagat Preet Singh, SHO, PW8, proceeded to the hospital where he met the complainant Sardool Singh, who made a statement Ex.PB. The SHO made an endorsement Ex.PB/1 and forwarded the statement to the police station where Criminal Appeal No.143-DB of 2007 -3- upon formal FIR No.267, dated 21.08.2004, under Section 302, 309 and 427 of the Indian Penal Code was registered. The SHO prepared an inquest report Ex.PF and thereafter sent relevant documents along with the dead body to Medical College, Amritsar for post mortem through Puran Singh, HC, PW7 and Constable Nirmal Singh. Jagat Preet Singh, the SHO proceeded to the place of occurrence, inspected the site, prepared a rough site plan, Ex.PH with marginal notes. A photographer was called on the spot to take photographs of different portions of the hotel and the place of occurrence. The police took a blood soiled turban belonging to the deceased into possession and sealed it with seal JPS. The sealed parcel Ex.MO2 was taken into possession vide memo Ex.PJ. Blood from the spot was collected and was put in a small plastic jar converted into a parcel MO3 and sealed with the same seal and was taken into possession vide memo Ex.PK. The blood stained "Toka" MO1 was recovered and its rough scale plan is Ex.PL. The "Toka" was converted into a parcel, sealed with the same seal and taken into possession vide memo Ex.PM. The appellant who had suffered burn injuries was found at the spot and was taken to the ESI Hospital, by Naresh Kumar, HC, PW10. The autopsy of the dead body was performed by Dr. Ashok Chanana, PW1, who found 9 injuries on the person of the deceased and opined that the cause of death was trauma to the head as a result of these injuries, which were ante mortem in Criminal Appeal No.143-DB of 2007 -4- nature and sufficient to cause death in ordinary course of nature.
After post-mortem, clothes found on the dead body were produced before the SHO, who prepared a parcel and sealed the clothes with seal JPS. The clothes were taken into possession vide memo Ex.PN. After this recovery, the appellant was arrested by the police on 17.09.2004 vide memo Ex.PP. The photographs, prepared by HC Harmeet Singh, were taken into possession vide memo Ex.PQ. A photostat copy of the bed head ticket of the accused Ex.PC was also taken into possession. After completion of investigation, a report was filed before the Chief Judicial Magistrate who committed the matter to the Sessions Court.
After due consideration, the trial court framed charges under Sections 302/309 of the Indian Penal Code but as the appellant pleaded not guilty and claimed trial, the prosecution was directed to lead evidence. The prosecution has produced the following witnesses:-
PW1 Dr. Ashok Chanana has deposed that he conducted the post mortem and found 9 injuries on the face and left side of head of the deceased. He also opined that the injuries are ante- mortem in nature, the result of a sharp edged weapon and death is the result of mechanical trauma to the head as a result of injuries No.1,2, and 3 (individually or collectively) which are sufficient in the ordinary course of nature to cause death.
PW2 Dr. Bhupinder Singh Walia, has deposed that the Criminal Appeal No.143-DB of 2007 -5- appellant was admitted to ESI Hospital, Amritsar, on 21.08.2004 with burn injuries. He was discharged on 17.09.2004. He has also deposed that burn injuries were the result of an inflammable liquid.
PW3 Sardool Singh, is one of the eye witness of the occurrence and has deposed that on 21.08.2004, he went to 'Sonia Hotel' along with Gurwinder Singh and Kanwaljit Kaur. They saw that the appellant was quarreling with Parshotam Singh. The appellant was holding a "Toka" in his hand. The appellant suddenly inflicted 7/8 toka blows on the head of Parshotam Singh, deceased. When he tried to save Parshotam Singh, the appellant tried to kill him. Parshotam Singh fell to the ground unconscious. The appellant ran upstairs with the 'Toka' shouting that he has killed Parshotam Singh and he will set fire to the hotel and immolate himself. Parshotam Singh was removed to Amandeep Hospital where he died 4-5 minutes after arrival. Sardool Singh has acknowledged his statement Ex.PB made to the police.
PW4 Gurwinder Singh is another eye witness and has corroborated the statement made by PW3.
PW5 Jaspal Singh, Fireman, Fire Brigade Gilwali Gate, Amritsar, has proved the incident of fire in "Sonia Hotel" and deposed that the fire was extinguished by the fire brigade. He has also deposed that the Criminal Appeal No.143-DB of 2007 -6- appellant was present in the hotel and had received burn injuries.
PW6 Surjit Singh, has deposed in his affidavit Ex.PD, with respect to delivery of special report.
PW7 Constable Puran Singh, has filed his affidavit Ex.PE relating to delivery of the dead body for post mortem.
PW8 Jagat Preet Singh, Inspector, is the Investigating Office. He has proved the lodging of the FIR and collection of evidence.
Upon conclusion of prosecution evidence, the incriminating circumstances appearing against the appellant were put to him. The appellant denied the allegations and pleaded his innocence.
After hearing arguments, the trial court held appellant guilty under Section 302 and 309 of the Indian Penal Code and convicted and sentenced him.
Counsel for the appellant submits that the story set up by the prosecution is based upon the deposition of alleged eye witnesses. The fortuitous presence of these witnesses is highly improbable and unbelievable. The alleged incident occurred on 21.08.2004 at 5.30 PM and as per the inquest report, the incident came to the knowledge of Investigating Officer at 7.30 P.M. The FIR Ex.PB/2 was lodged at 8.15 PM and the special report was received at 04.30 PM. The delay in lodging the FIR and forwarding the special report clearly establish that the police Criminal Appeal No.143-DB of 2007 -7- were trying to arrange witnesses, so as to falsely implicate the appellant. It is further submitted that it is rather surprising that three witnesses arrived at the hotel at the exact movement of the quarrel and the alleged attack, upon the deceased. The fortuitous presence of the eye witnesses at the very instance of the attack, casts a serious doubt upon the prosecution story. The eye witnesses are close relatives of the deceased. The falsity of their statements is established by the fact that the police has not produced any worker from the hotel though, PW8, the Investigating Officer states that he recorded statements of employees of the hotel. The hotel is in a public area and as per eye witnesses a large number of people had gathered. The police made no attempt to record the statement of any member of the general public and instead introduced family members as eye witnesses. The rough site plan of the place of occurrence does not disclose the locations where the eye witnesses were standing at the time of occurrence. The doctor, who declared that Parshotam Singh, has passed away, has not been examined and the clothes of eye witnesses, which were alleged to be blood soaked, were not taken into possession. The car, in which the deceased was transported and as per the appellants was also blood stained, has not been taken into possession. The story that eye witnesses saw the entire occurrence and removed the deceased to the hospital is false. The eye witnesses have made improvements in their statements in court Criminal Appeal No.143-DB of 2007 -8- as while deposing before the Court they stated that the appellant threatened to burn the hotel whereas in their statements under Section 161 of the Code of Criminal Procedure, they have stated that he threatened to immolate himself. The injuries upon the deceased are 9 in number. Such a large number of injuries could not be inflicted in a few seconds as deposed by the witnesses. If the time taken in inflicting the injuries, the removal of the deceased to the hospital, and the arrival of the police is taken into consideration, it clearly establishes that the eye witnesses have deposed falsely, so as to falsely implicate the appellant. The eye witnesses, are chance witnesses and their explanation that they had come to resolve a dispute between the appellant and the deceased remains un-substantiated by reference to any independent testimony or evidence. It is further submitted that the photographs of the room, which had caught fire, establishes that the room is burnt from the outside. The story that the appellant sprinkled kerosene on his person and set himself ablaze, is contradictory to the photographs.
Counsel for the State of Punjab, however, submits that the prosecution has produced two eye witnesses who have deposed in unison that the appellant inflicted "Toka" blows on the head of the deceased, ran upstairs, sprinkled kerosene and set himself on fire. A little delay in lodging the FIR is but natural as eye witnesses are close relatives and were concerned about the welfare of the deceased. They removed him to a hospital Criminal Appeal No.143-DB of 2007 -9- and only thereafter made their statements before the police. There is no reason for the police to introduce false witnesses particularly when burn injuries on the body of the appellant establish his presence at the site and in fact leads to a conclusion that the appellant committed the murder as alleged. Minor contradictions in the deposition of the witnesses or a little delay are irrelevant and do not cast any doubt upon the depositions of prosecution witnesses.
We have heard counsel for the parties, perused the record and the impugned judgment.
The prosecution story revolves around the depositions of PW3-Sardool Singh and PW4-Gurwinder Singh, eye witnesses of the occurrence, corroborated by injuries found on the person of the deceased, the burn injuries suffered by the appellant, the fire caused in a room of the hotel and recoveries effected from the spot. The eye witnesses have deposed in unison, though with minor but natural variations, that the appellant was employed by Parshotam Singh, deceased, as a worker and looked after the accounts, Parshotam Singh suspected him of wrong doing and proposed to terminate the appellant's service. Parshotam Singh asked them to intercede in the matter On 21.08.2004, they arrived at "Sonia Hotel" and saw that the appellant and the deceased were quarreling. The appellant was holding a "Toka" in his hand. The appellant inflicted a flurry of 7/8 blows on the head of Parshotam Singh, deceased. Sardool Singh, PW3, tried to approach the appellant but was threatened and retreated, Parshotam Singh fell down unconscious. The appellant Criminal Appeal No.143-DB of 2007 -10- ran upstairs, shouting that he has killed Parshotam Singh, would set fire to the hotel and immolate himself. The appellant, though, set fire to his room and in the process received burn injuries. Parshotam Singh was removed to Amandeep Hospital, where he died. The police received information about the death of Parshotam Singh from the hospital and proceeded to the hospital. The statement of Sardool Singh, PW3, was recorded, which leads to the registration of the FIR. In the meanwhile, the fire brigade arrived at the hotel and doused the fire. The appellant was taken by constable Naresh Kumar to the ESI Hospital, where he was admitted with burn injuries. The appellant was arrested after he was released from hospital.
The first argument is that the fortuitous presence of two close relatives of the appellant Sardool Singh, PW3 and Gurwinder Singh, PW4, at the exact moment of the occurrence is, improbable, if not impossible and should, therefore, be discarded. The eye witnesses Sardool Singh, PW3 and Gurwinder Singh, PW4 have deposed that as Parshotam Singh intended to terminate the service of the appellant, he asked them to intervene in the matter. The witnesses have clearly deposed that on the day of the occurrence, Parshotam Singh had telephoned them that they should come to his hotel to settle the dispute. PW4-Gurwinder Singh, who is the resident of Tarn Taran came to the residence of PW3-Sardool Singh, who is resident of Amritsar and thereafter proceeded to the house of deceased. Kanwaljit Kaur, daughter-in-law of the deceased accompanied them to the hotel. They have deposed that when they arrived at the hotel, the appellant was quarreling with the deceased while holding an iron Toka. The appellant inflicted injuries on the Criminal Appeal No.143-DB of 2007 -11- head of the deceased. The depositions of Sardool Singh, PW3 and Gurwinder Singh, PW4, are clear and cogent on all material particulars and their detailed cross-examination has failed to elicit any material contradiction that would enable this Court to hold that they were not present at the time of the occurrence or did not witness the occurrence and have been introduced to strengthen the prosecution case. A few minor discrepancies, that have been pointed out with respect to the time when the matter was brought to the notice of the police, the time that elapsed between the incident and the death the difference in the statement attributed to the appellant when he ran upstairs etc. do not detract from the essence of their depositions. The witnesses are close relatives of the deceased and had been asked by Parshotam Singh to help in resolving the dispute. In our considered opinion, these testimonies cannot be doubted, much less discarded. The eye witnesses have no reason to depose falsely much less conceal the identity of the true assailant. Their depositions are corroborated by the medical evidence from the deposition of PW1-Dr. Ashok Chanana, who found 9 injuries on the head of the deceased.
The next argument relates to delay in lodging the FIR and delay in forwarding the special report. It is true that delay if not explained may suggest false implication and a court may depending upon the facts and circumstances of a case, reject prosecution evidence. Where, however, facts that constitute the prosecution version are otherwise credible and have been proved in accordance with law, delay is by itself is insufficient to discard the prosecution version. The ocular testimony of PW3 and PW4 is corroborated by Criminal Appeal No.143-DB of 2007 -12- the medical evidence. The room allegedly in occupation of the appellant was set on fire and the appellant sustained burn injuries for which he was admitted to hospital. The burn injuries on the person of the appellant establish the correctness of the prosecution story as deposed to by the eye witnesses. The delay in lodging the FIR or forwarding the special report to the learned Magistrate does not , therefore, cast any doubt on the prosecution story.
Another argument that nine wounds could not be inflicted in a few moments, as alleged by the eye witnesses, is irrelevant. The expression "inflicted injuries in a few moments" is a manner of speech that refers to the speed with which the appellant attacked the deceased. It is obvious that nine injuries would take some time but in the comprehension of the eye witnesses it may have taken a few moments. The use of the word 'a few moments' does not detract from the truthfulness of the eye witnesses' depositions.
Another argument that the doctor who declared Parshotam Singh dead has not been examined, in our considered opinion, does not place any question mark on the prosecution version as there is no dispute that Parshotam Singh died in Amandeep Hospital and a post mortem examination was conducted.
The argument that the prosecution did not take the clothes worn by the deceased and car into possession or conducted a forensic examination of the car in which the deceased was allegedly transported to hospital, may be an error on the part of the prosecution but does not entitle the appellant to derive any benefit. This lapse does not cast any doubt on the prosecution version. The withholding of statements recorded by other servants admittedly Criminal Appeal No.143-DB of 2007 -13- recorded by the Investigating Officer, cannot be said to be fatal to the prosecution. In the presence of two eye witnesses, there was no need for the prosecution to multiply witnesses. The failure of the police to show the place where eye witnesses were standing in the site plan cannot be said to negate the prosecution version.
The deposition of eye witnesses PW3 and PW4, is corroborated by injuries on the deceased, the setting of a room in the hotel on fire, the burn injuries sustained by the appellant when he set fire to the room and poured kerosene an inflammable liquid, on his person. The prosecution witnesses have no previous enemity with the appellant, as to falsely name him as the assailant, who caused the death of Parshotam Singh.
We are satisfied that the appellant committed the murder of Parshotan Singh and has, therefore, been rightly convicted and sentenced by the trial court.
In view of what has been stated hereinabove, the appeal is dismissed.
(RAJIVE BHALLA)
JUDGE
December 16th, 2011 (NARESH KUMAR SANGHI)
nt JUDGE