Punjab-Haryana High Court
Desa Singh vs State Of Punjab on 11 September, 2013
Author: Mehinder Singh Sullar
Bench: Mehinder Singh Sullar
Crl.Appeal No.1432-SB of 2002(O&M) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl.Appeal No.1432-SB of 2002(O&M)
Date of Decision:11.09.2013
Desa Singh .....Appellant
Versus
State of Punjab .....Respondent
CORAM: HON'BLE MR. JUSTICE MEHINDER SINGH SULLAR.
Present: Mr.P.S.Ahluwalia, Advocate,
for the appellant.
Mr.Raj Preet Singh Sidhu, Assistant Advocate General,
Punjab, for the respondent-State.
****
MEHINDER SINGH SULLAR , J.(oral) The matrix of the facts & evidence, unfolded during the course of trial, culminating in the commencement, relevant for deciding the instant appeal and emanating from the record, as claimed by the prosecution, is that on 09.09.1993, complainant-Harbans Singh(PW1) son of Jagat Singh(for brevity "the complainant") and Sarpanch Sarabjit Singh were present near the Rest House of village Dhangara. His son Narinderjit Singh was carrying green fodder on his 'Bullock-cart'. At about 9.30 AM, as soon as, his cart reached near the house of Balbir Kaur @ Biro, in the meantime, her son appellant-Desa Singh son of Sajjan Singh(for short "the appellant"), having long blade axe(gandasi), accused-Sher Singh @ Shera armed with medium blade axe(Takua), accompanied by their sister Harjinder Kaur, came out of their house, raising 'lalkara'. They came in front of and stopped the Bullock-cart. Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 2 Thereafter, appellant-Desa Singh inflicted a long blade axe(gandasi) blow, which landed on the front side of the head, whereas accused Sher Singh gave a medium blade axe('takua') blow, which also hit on the head of Narinderjit Singh(PW5). Complainant-Harbans Singh, Sarpanch Sarabjit Singh and Ex-Sarpanch Piara Singh ran towards the place of occurrence and raised raula "Na Maro, Na Maro". Then accused Harjinder Kaur left the rope of Bullock-cart and went inside her house, whereas Desa Singh and Sher Singh decamped from the spot with their respective weapons. Narinderjit Singh was removed in an injured condition and was admitted in the Civil Hospital, Bilga. The motive alleged was that the land of the complainant-party adjoins the boundary of the village and the cattle of Balbir Kaur used to damage their crops. They lodged protest in this regard and on that account, the accused were stated to have caused injuries to Narinderjit Singh, son of the complainant.
2. Levelling a variety of allegations and narrating the sequence of events, in all, the prosecution claimed that the appellant and his other co-accused with their common intention, have attempted to commit murder and caused injuries on the head of Narinderjit Singh, with their respective weapons. In the background of these allegations and in the wake of statement(Ex.PA) of complainant-Harbans Singh, the present criminal case was registered against appellant-Desa Singh, main accused Sher Singh and their sister Harjinder Kaur, vide FIR No.113 dated 11.09.1993(Ex.PA/2), on accusation of having committed the offences punishable under Sections 324, 307/34 IPC, by the police of Police Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 3 Station Nurmahal, in the manner described here-in-above.
3. After completion of the investigation, final police report (challan) was submitted by the police against appellant-Desa Singh and Harjinder Kaur, to face trial for the offences in question. As, the main accused Sher Singh(since deceased as per information supplied by the learned State Counsel), to whom main injury subject matter of offence punishable under Section 307 IPC was attributed, was a juvenile, therefore, his case was separated for trial by the Juvenile Justice Board.
4. Having completed all the codal formalities, appellant-Desa Singh was substantially charge-sheeted for the commission of offence punishable under Section 324 IPC, whereas accused-Harjinder Kaur was charge-sheeted under Sections 324/34 IPC. They were also vicariously charge-sheeted under Sections 307/34 IPC. As, they did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution by the trial Court.
5. Sequelly, the prosecution in order to substantiate the charges framed against the appellant and his other co-accused, examined injured PW5-Narinderjit Singh, who has deposed in the following terms:-
"On 9.9.93, at about 9.30/10 a.m., I was coming to my house with fodder on a cot. When I reached near the house of Balbir Kaur, Desa Singh armed with gandasi, Sher Singh with takua raising lalkara came out of the house of Balbir Kaur. Their sister Harjinder Kaur also came out. They put obstacle to my cart. Desa Singh gave gandasi blow on my head while Sher Singh also gave takua blow on my head. I became unconscious after receipt of injuries. I do not know who else had witnessed the occurrence. The motive which led to the present occurrence was that Balbir Kaur had about 40/50 cattle which used to destroy my crop. We had asked them not to allow their cattle to damage our crop. My statement was recorded after about 14-15 days of the occurrence when I regained consciousness."Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 4
6. Likewise, PW1-complainant Harbans Singh has also tried to support the prosecution version. Instead of reproducing his entire statement and in order to avoid the repetition, suffice it to say that he has attempted to corroborate his initial version contained in his statement (Ex.PA) on all vital counts, by means of his piecemeal statements recorded on 06.10.1997, 27.07.1998 and 05.08.2002 by the trial Court. However, the prosecution did not examine other independent eye- witness.
7. Similarly, PW2-Dr.Joginder Sahota, medico legally examined injured Narinderjit Singh, vide MLR(Ex.PC) and pictorial diagram(Ex.PC/1) showing the seat of the injuries and found the following injuries on his person:-
"i) Incised wound 2x2 cm on the fronto parietal junction.
The wounds bleeds fresh, concerned area is tender and painfull. I adviced X-Ray skull.
ii) Incised wound 2x1cm x 0.5cm on the fronto zygomatic junction on right side. The wound was bleeding fresh, concerned area was tender and painful. Advised X-Ray."
Having seen the X-Ray report(Ex.PC/2) in the Court, he opined that injury No.1 was dangerous to life, as it was a fracture on the head. If medical aid would not have been given, then Narinderjit Singh would have died. PW7-Dr.Yogesh Chander, radiologically examined Narinderjit Singh on 13.09.1993. He prepared X-Ray report(Ex.PK), on the basis of skiagrams(Exs.PK/1 and PK/2).
8. Now adverting to the evidence of police officers, PW3-SI Ravinder Singh, has investigated the case. He maintained that on Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 5 09.10.1993, appellant-Desa Singh was produced before him by Ram Chand, Lambardar. According to PW3-SI Ravinder Singh and PW4-HC Vijay Singh, during the course of interrogation, he(appellant) suffered a disclosure statement(Ex.PD) and got recovered the long blade axe (gandasi), in pursuance thereof, which was taken into possession, by way of recovery memo(Ex.PE) attested by the witnesses. PW4 has also so stated in his statement. PW3 prepared the site plan(Ex.PF) of the place of recovery and rough sketch(Ex.PG) of the long blade axe(gandasi) and recorded the statements of the witnesses as well.
9. The last to note is the testimony of PW6-HC Surinder Singh, the main investigating officer, who has deposed that on 09.09.1993, on receipt of information, he went to the Civil Hospital, Bilga and moved application(Ex.PH) before the Medical Officer. The doctor, vide his opinions(Exs.PH/1 to PH/3) dated 09.09.1993, 10.09.1993 and 11.09.1993, declared that the injured was unfit to make the statement. PW6 has maintained that on 11.09.1993, complainant-Harbans Singh met him in the hospital. He recorded his statement(Ex.PA) on the same day. He signed the same in token of its correctness. He(PW6) made his endorsement(Ex.PA/1) and sent it to the police station for registration of the case, on the basis of which, formal FIR(Ex.PA/2) was recorded by MHC Bhupinder Singh. He identified his signatures. On the same day, he along with the complainant, inspected and prepared the rough site plan (Ex.PJ) of the place of occurrence with its correct marginal notes. The blood-stained shirt of Narinderjit Singh was taken into possession, by virtue of recovery memo(Ex.PB) attested by the witnesses. On Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 6 15.09.1993, on receipt of X-Ray report, he added the offence punishable under Section 326 IPC. On 19.09.1993, he recorded the statement of injured-Narinderjit Singh. After completion of the investigation, final police report(challan) was prepared by Inspector/SHO Kuldip Singh. This is the total oral as well as documentary evidence brought on record by the prosecution.
10. After close of the prosecution evidence, statements of the appellant and his other co-accused were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them therein, as envisaged under Section 313 Cr.PC. Although, they have stoutly denied the prosecution evidence in its entirety and pleaded false implication, but they did not prefer to produce any evidence in defence, despite adequate opportunities.
11. Taking into consideration the entire evidence brought on record by the prosecution, accused Harjinder Kaur was acquitted of the charge/vicarious liability under Sections 307, 324/34 IPC. At the same time, appellant-Desa Singh was substantively convicted and sentenced to undergo rigorous imprisonment(for short "RI") for a period of one year, to pay a fine of `1,000/- and in default thereof, to further undergo RI for a period of one month, on accusation of having committed an offence punishable under Section 324 IPC. He was further vicariously convicted and sentenced to undergo RI for a period of three years, to pay a fine of `5,000/- and in default of payment of fine, to further undergo RI for a period of five months, for the commission of offences punishable under Sections 307/34 IPC. However, all the sentences were ordered to run Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 7 concurrently, by means of impugned judgment of conviction and order of sentence dated 02.09.2002 by the trial Judge.
12. Aggrieved thereby, appellant-Desa Singh has preferred the instant appeal. That is how, I am seized of the matter.
13. At the very outset, learned counsel for the appellant has contended with some amount of vehemence that the story of the prosecution is highly improbable, there is inordinate and unexplained delay in reporting the matter to the police, the ocular version was contradicted by the medical evidence, and the trial Court has committed a legal mistake to convict the appellant for the pointed offences. Thus, he prayed for acceptance of the appeal.
14. On the contrary, learned State Counsel has vehemently urged that the prosecution has brought on record sufficient acceptable ocular and medical evidence to prove the guilt of the appellant, the delay is duly explained and no interference is warranted in the impugned judgment of the trial Court in this regard.
15. Having heard the learned counsel for the parties, having gone through the record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, the instant appeal deserves to be accepted.
16. What cannot possibly be disputed here is that all the cogent cardinal fundamental principles and basic rules of criminal law/jurisprudence, have to be kept in focus while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 8 cannot possibly be convicted without any substantive evidence as the evidence is essential element in the criminal proceedings, notwithstanding the seriousness of the allegations alleged against him. The criminal proceedings require strict proof of guilt. It is the legal evidence, on the basis of which, the decision of a criminal court is based and is the legal requirement of criminal justice. Otherwise, in the absence of cogent substantive evidence, the Courts have no option, but to record an order of acquittal howsoever painful the same may be.
17. Taking, the pointed cardinal fundamental principle of criminal law vis-a-vis the indicated evidence brought on record by the prosecution, into focus, now the short & significant question, though important, that arises in this appeal and invites an immediate attention of this Court is, as to whether the prosecution has proved the culpability of the appellant by producing cogent evidence or not in this relevant context?
18. Having regard to the rival contentions of learned counsel for the parties, to me, the answer must obviously be in the negative. The pointed submissions of learned counsel for the appellant have considerable force and the appellant deserves the benefit of doubt and acquittal, for the reasons mentioned here-in-below.
19. As is evident from the record, the prosecution claimed that on 09.09.1993 at about 9.30 AM, Sher Singh(since deceased), main accused caused injury with the medium blade axe(Takua) on the head of PW5-Narinderjit Singh, which is subject matter of offence punishable under Section 307 IPC. It is not a matter of dispute that main accused Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 9 Sher Singh has since expired. According to the complainant, appellant- Desa Singh inflicted a single simple injury on the head of his son Narinderjit Singh(PW5) with long blade axe(gandasi). As per MLR, the solitary injury assigned to the appellant is an incised wound of 2x 1cm x 0.5cm on the fronto zygomatic junction on right side(not on the head, as claimed by PW1 and PW5). The occurrence was stated to have been witnessed by complainant-Harbans Singh, Sarpanch Sarabjit Singh and Ex-Sarpanch Piara Singh-PWs.
20. At the first instance, the prosecution version appears to be highly improbable and there is inordinate and unexplained delay, in reporting the matter to the police. The occurrence in this case had taken place at 9.30 AM on 09.09.1993, in which, PW5 sustained injuries. He was immediately removed to, in an injured condition and was admitted in, the hospital at 10.30 AM by complainant-Harbans Singh. He was medico legally examined by PW2-Dr.Joginder Sahota at 10.30 AM on the same day. He(PW2) has admitted that the patient was conscious at the time of admission, he put his signatures on the MLR(Ex.PC) and certified that he was not earlier medico legally examined by any other medical officer. Not only that, the doctor immediately informed and sent the copy of MLR to the concerned police station, whereupon PW6-HC Surinder Singh reached the hospital, Bilga. (PW2 has also so admitted in his cross- examination that the police came in the hospital on the same day). Then he(PW6) moved the application(Ex.PH). It has also come in the evidence that his mother remained present in the hospital to look after her injured son. Hence, it is proved on record that the injured was conscious at the Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 10 time of admission and put his signatures on the MLR. He was got admitted in the hospital by his father PW1-Harbans Singh and his mother remained present there.
21. In that eventuality, it remains an unfolded mystery as to why the matter was not reported to the police there and then either by the injured himself, by his mother or by his father complainant-Harbans Singh, or any other eye-witnesses of the occurrence. The very vague and unnatural explanation pressed into service by the prosecution is that after admitting PW5 in the hospital on 09.09.1993, his father complainant- Harbans Singh(PW1) did not visit the Civil Hospital, Bilga till 11.09.1993, when his statement(Ex.PA) was recorded at 12.30 PM, which formed the basis of the FIR.
22. In this manner, it is highly difficult to consume that if a son of the complainant is lying admitted in the hospital with serious head injuries, then a father would not visit to know about his welfare or treatment in the hospital. The further vague explanation put-forth that he did not visit the hospital as he was suffering from blood pressure, is not at all believable in the absence of any material on record. It appears to be an after-thought, an imaginary story, as he has not so stated and was duly confronted with his initial version. If the prosecution story was true and genuine, then his conduct would have naturally warranted him to be present in the hospital to look after the treatment of his ailing son and he would not leave it only to his wife alone under these compelling circumstances.
23. Not only that, PW1-Harbans Singh in his piecemeal cross- Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 11 examination recorded on 05.08.2002, has categorically admitted that he made statement in the court of Juvenile Justice Board(where the same case of main accused-Sher Singh(since deceased) was pending) that, the police came to the hospital on the date when the injured was got admitted in the hospital and he narrated the entire incident to the police on the same day. He has also admitted that the police has recorded the statement of Sarabjit Singh, independent eye witness of the occurrence on the same day. No explanation, much less cogent, is forthcoming on record, as to why the police did not record FIR, either on the statement of the complainant or Sarpanch-Sarabjit Singh, or eye-witness there and then. It creates serious doubt about the genuineness of prosecution story.
24. Moreover, it is not proved on record that the injury sustained by injured, was dangerous to life. In this respect, PW2-Dr.Joginder Sahota has categorically admitted in his cross-examination that the patient was conscious at the time of admission and he put his signatures on the MLR. He sent the copy of MLR to the police station immediately and the police came to the hospital on the same day. The patient started improving after the treatment. He was discharged on 25.09.1993. PW2 has specifically admitted that on 17.12.1993 on police request, he had given his opinion that the injury was not dangerous to life vide his opinion/endorsement(Ex.DA). He has further admitted that on 27.11.1996, for the first time, he gave his opinion in the court that injury No.1 on the person of injured was dangerous to life, when neither the patient was under his treatment, nor was examined by him at that time. After receipt of X-Ray report in Ex.PA, he neither declared injury No.1 Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 12 grievous or dangerous to life. In the bed-head ticket, there is no entry to that effect. That means, vague opinion for the first time in the court by PW2 after three years of the occurrence without any basis, appears to have been tailored, in order to help the complainant-party and is meaningless. Hence, it stands proved on record that the injured was very much conscious and the complainant, Sarpanch Sarabjit Singh, an eye- witness, were present in the hospital on 09.09.1993, when the police reached there. Therefore, the crux of the above indicated circumstances would naturally suggest that till 11.09.1993, it was not known to the complainant-party, who had inflicted injuries to Narinderjit Singh, injured. Perhaps, that was the reason for not recording the FIR on 09.09.1993.
25. This is not the end of the matter. PW5-Narinderjit Singh has categorically admitted in his cross-examination that "I had not seen the accused inflicting injuries to him". At this stage, the trial Court has assumed the role of the public prosecutor(which is not legally permissible) and put a court question. In pursuance thereof, he replied that he had seen Desa Singh causing injury with long blade axe(gandasi), but he did not notice the other accused Sher Singh(since deceased), causing injuries to him. Meaning thereby, the injured has projected different versions of the same incident to conceal its origin. However, he has denied the suggestion that some unidentified persons had caused injuries to him, which appears to be probable.
26. Moreover, according to PW1 and PW2, appellant-Desa Singh caused an injury on the head of Narinderjit Singh, but as per Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 13 medical evidence, injury No.2 attributed to the appellant is a simple incised wound of 2 x 1cm x 0.5cm on the fronto zygomatic junction on right side. Strictly speaking, as per medical jurisprudence, zygomatic portion is not a part of the head. In this manner, the ocular version of the prosecution also appears to be contradicted by the medical evidence.
27. The matter did not rest there. The complainant was stated to have made the statement(Ex.PA) to the police at 12.30 PM on 11.09.1993, which formed the basis of FIR. PW6-HC Surinder Singh has categorically admitted in his cross-examination that Illaqa Magistrate received the special report on 14.09.1993 at 2.30 PM. No explanation, much less cogent, is forthcoming on record as to why FIR in a cognizable offence did not reach the Magistrate immediately after its registration on 11.09.1993 and why it reached the Magistrate on 14.09.1993. That means, the FIR was even ante-dated by the prosecution and only recorded on 14.09.1993, in order to conceal the origin of the occurrence/incident, as suggested on behalf of the appellant. Had the incident occurred in the manner projected by the prosecution, then the injured, complainant or other eye-witnesses would have or ought to have been promptly reported the matter to the police. They miserably failed to do so, for the reasons best known to them. It leads us to only one conclusion, perhaps at that time, they were not aware about the actual assailants. Moreover, the previous enmity between the parties is admitted. In that eventuality, the possibility of false implication of the appellant in the present case, cannot be ruled out under the present set of circumstances, particularly when, the prosecution version with regard to the role attributed to Harjinder Kaur, Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 14 his sister, has already been disbelieved, as she was acquitted by the trial Court.
28. There is yet another aspect of the matter, which can be viewed entirely from a different angle. The prosecution claimed that the incident was also witnessed by Sarpanch Sarabjit Singh and Ex-Sarpanch Piara Singh. The prosecution has neither examined them, nor any explanation is forthcoming on record in this context. Their evidence was very much relevant to provide independent corroboration to the prosecution version. Meaning thereby, the prosecution has withheld the best possible independent evidence, for the reasons best known to it and an adverse inference against it is inevitable in this relevant connection. Therefore, no implicit reliance can be placed on the self-serving contradictory statements and inimical interested evidence of PW1 and PW5 in the absence of any independent corroboration.
29. Therefore, if the facts of highly improbable story, inordinate & unexplained delay in reporting the matter to the police, ante-dated FIR, interested and inimical contradictory evidence, non-examination of material independent witnesses and totality of special indicated circumstances, emerging out from the evidence on record, as discussed here-in-above, are put together, then to me, the conclusion is inescapable and irresistible, that the evidence brought on record by the prosecution falls short, as is required to prove a criminal charge against the appellant. Thus, the prosecution has miserably failed to bring guilt home to the accused, which entails the benefit of doubt and acquittal of the appellant as well. Hence, the impugned judgment of conviction and order of Rani Seema S 2013.09.13 16:25 I attest to the accuracy and integrity of this document High Court Chandigarh Crl.Appeal No.1432-SB of 2002(O&M) 15 sentence cannot legally be maintained and deserve to be set aside in the obtaining circumstances of the case.
30. No other point, worth consideration, has either been urged or pressed by the learned counsel for the parties.
31. In the light of aforesaid reasons, the instant appeal is accepted. The impugned judgment of conviction and order of sentence are set aside. Having extended the benefit of doubt, appellant-Desa Singh is hereby acquitted of the offences punishable under Sections 324, 307/34 IPC as well.
Needless to mention that the necessary compliance and procedural consequences would naturally follow.
September 11, 2013 (MEHINDER SINGH SULLAR)
seema JUDGE
Whether to be referred to reporter? Yes/No
Rani Seema S
2013.09.13 16:25
I attest to the accuracy and
integrity of this document
High Court Chandigarh