Punjab-Haryana High Court
Munna Singh Vohra vs State Of Punjab on 13 February, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeal No. 498-DB of 2005 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Criminal Appeal No. 498-DB of 2005
Date of Decision: 13.2.2012.
Munna Singh Vohra .......Appellant
Vs.
State of Punjab ......Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. K.D.S.Mann, Advocate
Amicus Curiae for the appellant.
Mr. Rajesh Bhardwaj, Addl. A.G., Punjab.
.....
SABINA, J.
Appellant Munna Singh Vohra has preferred this appeal challenging his conviction and sentence under Section 302 of the Indian Penal Code ('IPC' for short) as ordered by the trial court vide judgment/order dated 30.5.2005/2.6.2005.
Prosecution case, in brief, is that on 06.9.2003 at about 7.00 P.M., complainant Krishan Dev Rana was driving a tractor in the fields of Baldev Singh. He saw one person running towards him who was soaked in blood. He was followed by one clean shaven person with a dagger in his hand. The person who was soaked in blood told him that he was Chetan Singh Vohra and was working with Purewal Palace and Munna Lal Vohra who was from his village had given him dagger blows and he should be saved from him. The complainant raised alarm. The person who was armed with a dagger fled away. Chetan Singh Vohra, Crl. Appeal No. 498-DB of 2005 - 2- however, succumbed to his injuries. Thereafter, Baldev Singh, Harjinder Singh and Jagdev Singh reached the spot and he narrated the incident, witnessed by him, to them.
On the basis of the statement of the complainant, formal FIR No. 352 dated 6.9.2003 was registered at Police Station Nakodar under Section 302 IPC.
Sub Inspector Tarlochan Singh thereafter visited the spot and prepared the inquest report qua the dead body. The dead body was sent for post mortem examination. He prepared rough site plan qua the place of occurrence and took in possession blood stained earth from the spot. The appellant was arrested on 8.9.2003. During interrogation on 10.9.2003, appellant got recovered one dagger from the disclosed place on the basis of his disclosure statement. The said weapon was taken in possession.
After completion of investigation and necessary formalities challan was presented against the appellant.
In order to prove its case, prosecution examined 11 witnesses during trial.
After the close of prosecution evidence, appellant when examined under Section 313 of the Code of Criminal Procedure, 1973 ('Cr.P.C.' for short) pleaded that he was innocent and false case had been planted against him at the instance of interested witnesses. It was a case of blind murder.
The appellant examined two witnesses in his defence. Learned Amicus Curiae for the appellant has submitted that the appellant had no enmity against the deceased to have committed his murder. Thus, the appellant had no motive to commit the murder of the deceased. There was Crl. Appeal No. 498-DB of 2005 - 3- inordinate delay in lodging of the FIR and sending the special report to the Magistrate. The recovery of weapon had been falsely foisted on the appellant. Recovery of weapon was effected from a thoroughfare.
Learned state counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. The complainant was an independent person and had no reason to falsely involve the appellant in this case. The appellant had also suffered an extra judicial confession before PW-7, owner of the palace where he was working.
The present case rests on an eye witness account. The complainant, while appearing in the witness box as PW-2, has deposed as per the contents of the FIR. The complainant is an independent witness. He did not know the appellant or the deceased and had, thus, no reason to falsely involve the appellant in this case. The complainant has deposed in a most natural manner and his statement inspires confidence. Further, the statement of the complainant is duly corroborated by medical evidence.
PW-1 Dr. Sunil Verma deposed that on 7.9.2003, he had conducted post mortem examination on the dead body of Chetan Singh Vohra and had found following injuries on his person:-
1. Incised wound 3 cm x 2 cm on the right side of back in its middle. Fresh bleeding was present.
ON DISSECTION: Wound was going deep and right lung was ruptured. Thoracic cavity was full of blood. Liver was also ruptured in its upper lobe. Crl. Appeal No. 498-DB of 2005 - 4- Abdomenal cavity was full of blood.
2. Incised wound 2 cm x 1 cm on the right elbow joint. Fresh bleeding was present.
3. Incised wound on the bases of all the fingers of right hand.
He further opined that the cause of death in this case was due to injury No.1 resulting in neurogenic and haemorrhagic shock which was sufficient to cause death in the ordinary course of nature.
Further, the appellant had suffered an extra judicial confession before PW-7 Sukhwinder Pal Singh. The said witness deposed that the appellant as well as the deceased were working as waiters in his marriage palace. On 6.9.2003, he had received a phone call from another employee that dead body of Chetan was lying near the railway line. Thereafter, he had reached the spot and saw that the dead body was lying in the fields of Baldev Singh. On 8.9.2003, the appellant had come to him at 6.00 A.M. and had told him that he had inflicted knife (chhura) blows to Chetan while he was under the influence of bhang.
Evidentiary value of extra judicial confession depends upon trustworthiness of the witness before whom confession is made. Law does not contemplate that the evidence of an extra judicial confession should in all cases be corroborated. It is not an inflexible rule that in no case conviction can be solely based on extra judicial confession. It is basically in the realm of appreciation of evidence and a question of fact to be decided in the facts and circumstances of each case.
It has been held in Bhagwan Dass vs. State of (NCT) Crl. Appeal No. 498-DB of 2005 - 5- of Delhi 2011 (2) RCR (Criminal) 920, as under:-
"12. In our opinion the statement of the accused to his mother Smt. Dhillo Devi is an extra judicial confession. In a very recent case this Court in Kulvinder Singh & Anr. vs. State of Haryana Criminal Appeal No.916 of 2005 decided on 11.4.2011 referred to the earlier decision of this Court in State of Rajasthan vs. Raja Ram (2003) (4) RCR (Cril.) 238, 2004 (1) Apex Criminal 471 (2003) 8 SCC 180, where it was held (vide para 10) :
"An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from Crl. Appeal No. 498-DB of 2005 - 6- the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touch-stone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
In the present case, the extra judicial confession suffered by the appellant before PW-7 appears to be genuine as PW-7 was none other than the employer of the appellant. The appellant had reason to repose confidence in his employer. Further, the appellant was produced before the police by PW-7 which also strengthens the statement of PW-7 qua extra judicial confession suffered by the appellant before him. The fact that PW-7 has stated that he had produced the appellant before the police at 10.00 A.M. and PW-10 investigating officer stated in his cross examination that the accused was produced before him at 2/2.30 P.M. in itself is not fatal to the prosecution case. Such minor discrepancies are liable to occur with the lapse of time. The fact remains that PW-7 had produced the appellant before Crl. Appeal No. 498-DB of 2005 - 7- the investigating officer and, thereafter, he was arrested on 8.9.2003.
Although the appellant did not take the plea of alibi when he was examined under Section 313 Cr.P.C. but in his defence he has examined DW-1 Narain Singh and DW-2 Hira Singh in this regard. The said witnesses have deposed that on 6.9.2003, Munna Singh and Chetan Singh had met them and at about 4.00 P.M., they had all taken tea together. Thereafter, Chetan Singh had left and the appellant had stayed with them. In the morning they came to know that Chetan Singh had died.
The Apex Court in Binay Kumar Singh vs. State of Bihar, 1997 AIR(SC) 322, regarding the plea of alibi held as under:-
"We must bear in mind that alibi is not an exception (special or general) envisaged in the Indian Penal Code or any other law. It is only a rule of evidence recognized in S.11 of the Evidence Act that facts which are inconsistent with the fact in issue are relevant. Illustration (A) given under the provision is worth reproducing in this context:
`The question is whether A committed a crime at Calcutta on a certain date; the fact that on that date, A was at Lahore is relevant."
The Latin word alibi means "elsewhere" and that word isused for convenience when an accused takes recourse to a defence line that when the occurrence took place he was so far away from the place of occurrence that it is extremely improbable that he Crl. Appeal No. 498-DB of 2005 - 8- would have participated in the crime. It is basic law that in a criminal case, in which the accused is alleged to have inflicted physical injury to another person, the burden is on the prosecution to prove that the accused was present at the scene and has participated in the crime. The burden would not be lessened by the mere fact that the accused has adopted the defence of alibi. The plea of the accused in such cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such Crl. Appeal No. 498-DB of 2005 - 9- circumstances, the burden on the accused is rather heavy. It follows, therefore, that strict proof is required for establishing the plea of alibi. This Court has observed so on earlier occasions (vide Dudh Nath Pandet v. State of Uttar Pradesh, (1981) 2 SCC 166:
AIR 1981 SC 911; State of Mahrashtra v. Narsingrao Gangaram Pimple, AIR 1984 SC 63)."
In the present case, the plea of alibi put up by DW-1 and DW-2 fails to inspire confidence. Firstly, the appellant himself had not taken the said plea when he was examined under Section 313 Cr.P.C. The plea of alibi thus appears to be an afterthought. DW-2 has deposed that he had narrated his version to the investigating officer but his statement was not recorded. However, when the investigating officer was examined during trial, no such suggestion was put to him. DW-1 and DW-2 fail to rebut the testimony of PW-2. In these circumstances, no reliance can be placed on the statements of DW-1 and DW-2 and, hence, they fail to advance the case of the appellant.
Although the prosecution has failed to establish any motive which could have induced the appellant to have committed the murder of the deceased but the said fact in itself is not fatal to the prosecution case.
It has been held by the Apex Court in Sheo Shankar Singh vs. State of Jharkhand and another 2011 (2) RCR (Criminal) 634 as under:-
"The legal position regarding proof of motive as an essential requirement for bringing home the guilt of the accused is fairly well settled by a long line of Crl. Appeal No. 498-DB of 2005 - 10- decisions of this Court. These decisions have made a clear distinction between cases where prosecution relies upon circumstantial evidence on the one hand and those where it relies upon the testimony of eye witnesses on the other. In the former category of cases proof of motive is given the importance it deserves, for proof of a motive itself constitutes a link in the chain of circumstances upon which the prosecution may rely. Proof of motive, however, recedes into the background in cases where the prosecution relies upon an eye-witness account of the occurrence. That is because if the court upon a proper appraisal of the deposition of the eye-witnesses comes to the conclusion that the version given by them is credible, absence of evidence to prove the motive is rendered inconsequential. Conversely even if prosecution succeeds in establishing a strong motive for the commission of the offence, but the evidence of the eye-witnesses is found unreliable or unworthy of credit, existence of a motive does not by itself provide a safe basis for convicting the accused. That does not, however, mean that proof of motive even in a case which rests on an eye-witness account does not lend strength to the prosecution case or fortify the court in its ultimate conclusion. Proof of motive in such a situation certainly helps the prosecution and supports the eye- witnesses. See Shivaji Genu Mohite v. The State of Maharashtra, Crl. Appeal No. 498-DB of 2005 - 11- (1973) 3 SCC 219, Hari Shanker v. State of U.P. (1996) 9 SCC 40 and State of Uttar Pradesh v.
Kishanpal and Ors. (2008) 16 SCC 73."
Thus, merely because the prosecution has failed to establish the existence of motive with the appellant to have committed the crime is not fatal to the prosecution case. Motive operates in the mind of the assailant and it is a very difficult arena for the prosecution to reach. In the present case, the motive was known only to the appellant or the deceased and hence, it was not possible for the prosecution to have established the same. The present case rests on an eye witness account and is duly established on record. Hence, the fact that the prosecution has failed to establish any motive available with the appellant to have committed the murder of the deceased loses its significance.
In the present case, the occurrence had taken place at 7.00 P.M. The statement of the complainant was recorded at 10.40 P.M. Thereafter, formal FIR was registered from 11.20 P.M. to 12'O clock midnight. The special report reached the Magistrate at 5.30 A.M. on 7.9.2003. In the facts and circumstances of the present case, there is no unexplained delay in lodging of the FIR or sending the special report to the Magistrate. Further, there is nothing on record to suggest that the time between the occurrence and the recording of the FIR had been utilized for consultation or false involvement of the appellant. It is a settled proposition of law that every delay in lodging the FIR or sending the special report to the Magistrate is not fatal to the prosecution case unless it is established that the Crl. Appeal No. 498-DB of 2005 - 12- delay has been utilized for deliberations and consultations and putting up a distorted version. The complainant in the present case was not known to the deceased or the appellant. After witnessing the occurrence, he narrated the same to the owner of the fields and reported the matter to the police. Thus, there was no unexplained delay in lodging of the FIR or sending the special report to the Magistrate.
Thus, in the present case, the prosecution had been successful in proving its case. The eye witness account is duly corroborated by the medical evidence. Further, the appellant had also suffered an extra judicial confession before the employer qua the crime. The appellant has failed to establish the plea of alibi put up by him in his defence evidence. Hence, the learned trial court had rightly convicted and sentenced the appellant for commission of an offence under Section 302 IPC.
No ground for interference is made out.
Dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
February 13, 2012
Gurpreet