Punjab-Haryana High Court
Jasbir Singh @ Beera And Others vs State Of Punjab on 28 April, 2010
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. A. No. 607-DB of 2008
DATE OF DECISION : 28.04.2010
Jasbir Singh @ Beera and others
.... APPELLANTS
Versus
State of Punjab
..... RESPONDENT
Crl. A. No. 24-DB of 2009
DATE OF DECISION : 28.04.2010
State of Punjab
.... APPELLANT
Versus
Jaswant Singh alias Jassi
..... RESPONDENT
CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
Present: Mr. L.S. Goraya, Advocate,
for the appellants
(in Crl. A. No. 607-DB of 2008)
Ms. Gurveen H. Singh, Addl. A.G., Punjab.
Mr. K.S. Dhaliwal, Advocate,
for the respondent
(in Crl. A. No. 24-DB of 2009).
Mr. Mandeep Singh Bedi, Senior Advocate, with
Ms. Gauri Bedi, Advocate,
for the complainant.
***
Crl. A. No. 607-DB of 2008 -2-
SATISH KUMAR MITTAL , J.
1. This judgment shall dispose of two appeals, i.e. Criminal Appeal No. 607-DB of 2008, filed by three accused against their conviction and sentence for committing the murder of Hardial Singh, and Criminal Appeal No. 24-DB of 2009, filed by the State of Punjab, against the acquittal of accused Jaswant Singh alias Jassi.
2. In the present case, four accused, namely Jasbir Singh alias Beera, Sahib Singh alias Pardhan Singh, Balraj Singh and Jaswant Singh alias Jassi (hereinafter referred to as A-1, A-2, A-3 and A-4, respectively) were tried by the court of Additional Sessions Judge, Gurdaspur, for committing the murder of Hardial Singh. A-2, A-3 and A-4 are son, nephew and younger brother of A-1. One more accused, namely Ajmer Singh (son of A-4) whose name came in the supplementary statement of the complainant, was also summoned under Section 319 Cr.P.C., but since he was a juvenile on the day of the occurrence, therefore, his case was referred to the Juvenile Justice Board, which is stated to be still pending.
3. The trial court, vide its judgment and order dated 11.7.2008, convicted and sentenced A-1 to undergo rigorous imprisonment for life and to pay a fine of Rs. 20,000/- under Section 302 IPC. A-2 and A-3 were convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 20,000/- each, under Section 302 read with Section 34 IPC. However, A-4 was acquitted of the charge. In the order of sentence, a direction was also issued by the trial court that no period of parole or Crl. A. No. 607-DB of 2008 -3- remission granted to the convicts should be deducted from the sentence awarded and the convicts should not be released without undergoing a minimum period of twenty years rigorous imprisonment.
4. Against the aforesaid judgment and order, these two appeals have been filed, one by the convicts and the other by the State.
5. As per the prosecution version, which is based upon the statement of Davinder Singh (brother of deceased Hardial Singh), both the parties are residents of village Aujla. A criminal case under Section 307 IPC, titled as State versus Jasbir Singh and others, was pending in the court of Additional Sessions Judge, Gurdaspur. In the said case, Hardial Singh (deceased) and his brother Davinder Singh were the complainant and the witness. The said case was fixed for prosecution evidence for 24.5.2004 (the day of occurrence). Davinder Singh was an Advocate. On the day of occurrence, his brother Hardial Singh was going on his bicycle from his village to the court compound, Gurdaspur, through Kahnuwan Road, to attend the hearing of his case. Complainant Davinder Singh and his nephew Harinder Singh were also going to the court compound, Gurdaspur, on their scooter. When at about 9.30 AM, complainant and Harinder Singh reached near Chandan Palace, near `T' Point, then all the four accused, who were riding on two scooters, crossed them at a high speed. When the complainant and his nephew Harinder Singh reached in front of Pandit Mohan Lal S.D. College, they saw that A-4, A-1 and A-2 were holding `Kirpans' in their hands and A-3 was holding `Dang'. After stopping their scooters, they ran Crl. A. No. 607-DB of 2008 -4- towards Hardial Singh to kill him. On seeing them, Hardial Singh, after throwing his bicycle, ran towards the gate of S.D. College, in order to save his life. All the four accused followed him. They entered the College. On this, the complainant and his nephew, after stopping their scooter, also entered the College. They saw that A-4 gave `Kirpan' blow to Hardial Singh, which hit him on his head. A-1 also gave `Kirpan' blow to Hardial Singh, which also hit on his head. Then he fell down on the ground. When he was lying on the ground, A-2 gave three `Kirpan' blows, which hit on his right eye brow and right cheek. Then A-4 and A-1 gave `Kirpan' blows which hit on right hand and left hand of Hardial Singh. Then A-3 gave `Dang' blow, when Hardial Singh was lying on the ground. The complainant and his nephew raised noise `Bachao - Bachao'. Then the aforesaid accused ran towards them. In order to save their lives, the complainant and his nephew ran towards the Canteen in the College. Thereafter, all the aforesaid accused, after coming outside the gate of college, fled away along with their respective weapons. Then the complainant and his nephew saw that Hardial Singh had succumbed to the injuries at the spot, whose dead body was lying in a pool of blood near the office of Principal. The complainant, after leaving his nephew at the spot to guard the dead body, went to Police Station for giving information.
6. The aforesaid statement of Davinder Singh (PW.2) was recorded by Naresh Kumar SI/SHO, Police Station City Gurdaspur, at 10.10 AM on the day of occurrence. On the basis of the said statement, the formal Crl. A. No. 607-DB of 2008 -5- FIR (Ex.PD) was registered against the accused under Sections 302/34 IPC at 11.00 AM in Police Station City Gurdaspur. The special report was received by the Illaqa Magistrate at 11.40 AM.
7. After registering the FIR, on 24.5.1994, the day of occurrence, SI Naresh Kumar (PW.9) along with the police party went to the spot. He prepared the inquest report (Ex.PC) and the injury statement (Ex.DC), wherein he had shown six injuries on the body of the deceased. He also lifted the blood stains from the place of occurrence, put the same in a plastic container, and after duly sealing, took the same into possession vide memo Ex.PW9/A. He also took into possession one cycle vide memo Ex.PW9/B, prepared the rough site plan (Ex.PW.9/C) of the place of occurrence, sent the dead body for post mortem examination, took into possession the clothes of the deceased vide memo Ex.PW9/D, and recorded the statements of the witnesses.
8. On the same day at 4.50 PM, Dr. Sudhir Kumar (PW.1) conducted the autopsy on the body of the deceased. He found the following seven injuries on the body of the deceased :
1. An incised wound 17 x 3 cm on the left side of head, 6 cm above the left pinna.
2. An incised wound of 6 x 2 cm on the back of head.
3. A lacerated wound of 5.5 x 2.5 cm on the forehead just above the right eye brow.
On dissection of head, the underlying bone corresponding the injury Crl. A. No. 607-DB of 2008 -6- No.1 was fractured and membranes of brain were lacerated. Right brain was lacerated. Injuries No.2 and 3 were bone deep.
4. An incised wound 12.5 x 2.5 cm on the right face just below the right lobule of ear.
On dissection, the underlying muscles, blood vessels and the bone i.e. face bone are fractured.
5. A lacerated wound of 6 x 2.5 cm on the web of thumb and index finger of the right hand.
On dissection, no abnormality was detected on the underlying bones.
6. An incised wound 5.5 linear and it was skin deep.
On dissection, the wound was skin deep.
7. A lacerated wound of 6.5 x 2.5 cm in the web of left thumb and index finger of left hand.
On dissection, the wound was skin deep.
All the injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was immediate and between death and post mortem was within 12 hours. In the opinion of Dr. Sudhir Kumar, injuries No.1, 2, 4 and 6 could be caused by sharp edged weapon, like `Kirpan' and injuries No. 3, 5 and 7 could be the result of blunt weapon, like `Dang'. He has proved the Post Mortem Report Ex.PA.
9. Part of the investigation in the case was conducted by Sukhdev Singh SHO (PW.4). A-2 surrendered before him on 5.6.2004. During Crl. A. No. 607-DB of 2008 -7- interrogation, on 6.6.2004, in pursuance of his disclosure statement (Ex.PW4/A), he got recovered one blood stained `Kirpan', which was kept concealed by him on one side of the bypass in the thick trees. The same was taken into possession vide recovery memo Ex.PW4/C, in the presence of ASI Kuljinder Singh, HC Jasbir Singh and Yusuf Masih, a private witness.
10. Similarly, A-4 surrendered before Sukhdev Singh SHO on 12.6.2004 and during interrogation, on 15.6.2004, in pursuance of his disclosure statement (Ex.PW4/E), he got recovered one `Kirpan', which was kept concealed by him near Sheesham tree on the southern side of `Gande Nale Wali Pulli' constructed on the Kahnuwan Road. The same was taken into possession vide recovery memo Ex.PW4/G, in the presence of HC Mohinder Pal and Jagjit Singh, a private witness.
11. On 26.6.2004, A-3 was arrested. On 28.6.1994, in pursuance of his disclosure statement (Ex.PW4/N), he got recovered one `Dang', which was kept concealed by him on one side of S.D. College, Kahnuwan Road, towards the southern side of `Gande Nale Wali Pulli'. The same was taken into possession vide recovery memo Ex.PW4/P, in the presence of HC Satnam Singh and Harcharan Singh, a private witness.
12. On 28.6.2004, A-1 was arrested. On the same day, in pursuance of his disclosure statement (Ex.PW4/J), he got recovered one blood stained `Kirpan', which was kept concealed by him on one side of the bye pass in the thick trees. The same was taken into possession vide recovery memo Ex.PW4/L, in the presence of HC Satnam Singh and Harcharan Singh, a Crl. A. No. 607-DB of 2008 -8- private witness.
13. After completion of investigation, the challan was filed and all the four accused were charge sheeted under Section 302 read with Section 34 IPC, to which they did not plead guilty and claimed trial.
14. In the initial FIR, name of Ajmer Singh did not figure, but according to the prosecution, the supplementary statement of the complainant was recorded on the same day, in which he stated that after A-3 gave `Dang' blow to Hardial Singh, when he was lying on ground, Ajmer Singh (son of A-4) also arrived at the spot. He exhorted all the four accused to finish the work at the earliest and at least before any body arrives there. He gave kick blows to Hardial Singh, when he was lying on the ground. Then the complainant and his nephew raised alarm `Bachao-Bachao'. However, during investigation, Ajmer Singh was found innocent and no challan was filed against him. Subsequently, on the application filed by the prosecution, he was summoned under Section 319 Cr.P.C., and fresh charges were framed against all the five accused for the offences under Sections 148, 302 read with Section 149 IPC, to which they did not plead guilty and claimed trial. Thereafter, on 23.5.2007, the trial court found that accused Ajmer Singh was a juvenile, at the time of the occurrence, and accordingly, his case was referred to the Juvenile Justice Board, Gurdaspur.
15. In support of its case, the prosecution examined 10 witnesses. PW.1 Dr. Sudhir Kumar conducted the autopsy on the body of the deceased. PW.2 Devinder Singh (complainant) and PW.3 Harinder Singh are the eye Crl. A. No. 607-DB of 2008 -9- witnesses. They have fully supported the prosecution case. PW.4 Inspector Sukhdev Singh, who partly investigated the case, arrested the accused persons and effected the recoveries from them. PW.9 SI Naresh Kumar recorded the statement of the complainant, prepared the inquest report, rough site plan and partly investigated the case. PW.10 Sarwan Singh, Ahlmad, proved the pendency of criminal case, titled as State Versus Jasbir Singh and others. He has stated that as per the zimni order, the said case was fixed for 24.5.2004 for prosecution evidence. On the earlier date i.e. on 18.5.2004, Hardial Singh (deceased), who was complainant in the said case, was examined as a witness. He further stated that as per the zimni order dated 7.5.2004, Hardial Singh and Davinder Singh (complainant in this case) were present in the court and on that day, but they could not be examined. According to him, the said case was finally decided on 15.6.2006.
16. PW.5 MHC Jabarjit Singh, PW.6 C. Ajit Singh and PW.7 Janak Singh Dhanjal, Draftsman, who prepared the scaled site plan Ex.PW7/A of the place of occurrence, and PW.8 Constable Jang Bahadur, are the formal witnesses.
17. The prosecution has also tendered into evidence certain documents.
18. In their statements under Section 313 Cr.P.C., A-1 to A-3 pleaded innocence. They stated that the prosecution case as well as the witnesses are false, and they have been falsely implicated in this blind Crl. A. No. 607-DB of 2008 -10- murder case, as there was long standing intense enmity between their family and the family of the complainant. They did not lead any evidence in defence.
19. A-4, in his statement under Section 313 Cr.P.C., pleaded that he was the Karta of his family. On 24.5.2004 at about 9.30 AM, he was arrested at Saidpur crossings falling in the area of Police Station Kathua (J&K) in an excise case, when he was carrying liquor for a personal party and lateron, he was convicted and sentenced in the said case by the Judicial Magistrate, Kathua. The distance between the place of occurrence at Gurdaspur and Saidpur crossing is more than 70 Kms. Devinder Singh complainant is not a practising lawyer. He had no seat in the court compound at Gurdaspur. A-4 further stated that he was falsely implicated in the case due to intense enmity between them and the complainant party. In support of his defence of alibi, he examined four witnesses.
20. DW.1 HC Kulbhushan Singh of Police Station Kathua brought the original FIR register. He stated that on receipt of the ruqa on 24.5.2004, an FIR No. 141 dated 24.5.2004 under Section 48-A of the Excise Act was registered against A-4 at 1.45 PM in Police Station Kathua. Copy of the FIR was proved on record as Ex.DD. He also proved on record the ruqa Ex.DE, on the basis of which the FIR Ex.DD was registered. He also stated that in the month of May, 2004, working time of the Courts in Kathua was from 7.30 AM to 1.30 PM. He further stated that after completion of investigation, challan in that case was presented within two days i.e. on Crl. A. No. 607-DB of 2008 -11- 26.5.2004.
21. DW.2 Sudarshan Kumar, MHC, Police Station Kathua, brought the DDR register for the year 2004 and proved on record copies of DDRs No. 3 and 5 dated 24.5.2004, 4 and 6 dated 25.5.2004, 3 and 9 dated 26.5.2004, as Ex.DF, Ex.DG, Ex.DH, Ex.DJ, Ex.DK and Ex.DL, respectively. DDR No. 3 dated 24.5.2004 (Ex.DF) shows the departure time of the police party at 8.10 AM. DDR No. 5 dated 24.5.2004 (Ex.DG) shows the arrival of the police party in the Police Station at 10.45 AM. DDR No. 9 dated 26.5.2004 (Ex.DL) shows that the challan was filed after two days i.e. on 26.5.2004.
22. DW.3 Sub Inspector Rajeshwar Singh is the Investigating Officer in the aforesaid excise case against A-4. He stated that on 24.5.2004 at about 8.10 AM, he started for patrolling towards the side of village Saidpur Nakkin and at about 9.30 AM, he intercepted A-4, when he was coming on his scooter bearing registration No. PB-58A-9411. This witness conducted the search of the scooter and found twelve bottles of country made liquor of Punjab Government in the dickie of the scooter. A-4 was arrested by him on the spot and ruqa (Ex.DE) was sent to Police Station Kathua for registration of the case, on the basis of which FIR (Ex.DD) was registered. He further stated that after completing the formalities, he came to the Police Station at 9.45 AM and made entry (Ex.DG) in the DDR. A-4 was locked in the police station and on the next day i.e. on 25.5.2004, he was produced before the Ilaqa Magistrate at Kathua in the morning. On that Crl. A. No. 607-DB of 2008 -12- day, he was taken on police remand for one day and on the next day, he was again produced before the Magistrate and bail was granted to him. On the same day, challan was also presented against him.
23. DW.4 Manzoor Hussain, Record Keeper, Sessions Court, Kathua, produced the judicial file of the case, titled as State Vs. Jaswant Singh, registered under Section 48-A of the Excise Act. He stated that as per the court record, A-4 was produced for the first time in the court on 25.5.2004. The police had taken his remand for one day. Then he was again produced on 26.5.2004, on which day the bail was granted and the challan was also presented in the court.
24. The trial court, after considering the evidence led by the prosecution as well as the defence and other documents and while relying upon the evidence led by the prosecution, held that the prosecution has fully proved beyond reasonable doubt the presence and participation of A-1 to A- 3 in the occurrence and causing of injuries by them to the deceased. The contradictions in the medical evidence and the ocular version regarding the injuries attributed to the accused persons, as pointed out by learned defence counsel, were held to be minor in nature. Accordingly, A-1 was convicted and sentenced under Section 302 IPC, while A-2 and A-3 were convicted and sentenced under Section 302 read with Section 34 IPC, as indicated in the earlier part of this judgment. Regarding A-4, it was found that his presence at the time of the alleged occurrence was doubtful and he has established his plea of alibi, which was held to be probable and reliable. Crl. A. No. 607-DB of 2008 -13- Accordingly, A-4 was acquitted of the charges. Against the said judgment, these two appeals have been filed.
25. We have heard the arguments of learned counsel for both the parties.
26. Shri L.S. Goraya, Advocate, learned counsel for the appellants (A-1 to A-3) in Criminal Appeal No. 607-DB of 2008, argued that the entire prosecution case rests upon the testimonies of PW.2 Devinder Singh and PW.3 Harinder Singh. The presence of both these alleged eye witnesses at the time of the occurrence was doubtful and their testimonies are highly improbable. According to the learned counsel, both the witnesses had not witnessed the occurrence, as at that time they were present in their village, which was 2 Kms., away from the place of occurrence. They were called from the village on telephone, and by taking the benefit of delay in lodging the FIR, they were introduced as witnesses in connivance with the police. Learned counsel, while referring to the statements of both the witnesses made before the police as well as in the court, pointed out certain contradictions with regard to the seats of injuries and attribution of particular injuries to each accused. He argued that these contradictions clearly establish that both the witnesses had not witnessed the occurrence. He further argued that as per the prosecution version, A-4 gave a `Kirpan' blow to Hardial Singh, which hit him on his head. A-1 also gave `Kirpan' blow, which also hit on the head of Hardial Singh. Then he fell down on the ground and A-2 gave him three `Kirpan' blows, which hit on his right eye Crl. A. No. 607-DB of 2008 -14- brow and right cheek. Thereafter, A-4 and A-1 gave `Kirpan' blows which hit on his right hand and left hand and then A-3 gave a `Dang' blow, while Hardial Singh was lying on the ground. But according to the learned counsel, these injuries attributed to all the accused persons do not find corroboration from the medical evidence i.e. the Post Mortem Report. Learned counsel argued that as per the Post Mortem Report (Ex.PA), seven injuries were found on the body of the deceased, out of which only four were incised wounds and the remaining three injuries were lacerated wounds. He argued that except A-3, all the accused were allegedly carrying `Kirpans' and as per the prosecution version, eight injuries (seven by `Kirpans' and one by `Dang') were caused to the deceased, but the medical evidence does not corroborate causing of seven injuries by `Kirpans', because three injuries were found to be lacerated wounds, and as per the opinion of the Doctor, these could have been caused by blunt weapon. Therefore, according to the learned counsel, these facts create serious doubt in the prosecution case as well as regarding the presence of the two eye witnesses at the time of the alleged occurrence. Learned counsel further argued that both the eye witnesses did not receive any injury in the occurrence. They even did not make any attempt to intervene and save the deceased, who was brother of PW.2 Devinder Singh and uncle of PW.3 Harinder Singh. These facts further create doubt about the presence of these two witnesses at the time of the alleged occurrence. Learned counsel contended that the alleged occurrence has taken place in the premises of the Crl. A. No. 607-DB of 2008 -15- college. Many persons had witnessed the alleged occurrence in the college, but the prosecution neither associated any independent witness during the investigation nor produced any one of them in the court. Learned counsel also argued that recovery of the alleged weapons at the instance of the accused is also doubtful, as no independent witness, who was allegedly associated at the time of the disclosure statement and the recovery, was examined by the prosecution. In the last, learned counsel argued that the motive is a double edged weapon and the complainant in the present case, while taking benefit of the pendency of criminal case, has falsely implicated the accused, in order to take revenge. This fact is further established by the fact that after the occurrence, a supplementary statement was recorded, in which even the minor son of A-4 was implicated as an accused.
27. On the other hand, Ms. Gurveen H. Singh, Additional Advocate General, Punjab, and Shri Mandeep Singh Bedi, Senior Advocate, assisted by Ms. Gauri Bedi, Advocate, learned counsel for the complainant, while arguing against the acquittal of A-4, submits that the prosecution has fully proved its case against all the four accused beyond reasonable doubt. The presence of both the eye witnesses at the time of the occurrence was most natural. According to their testimonies, all the four accused, including A-4, had participated in the occurrence and caused injuries to the deceased. She submits that on the basis of the minor contradictions in the oral version and the medical evidence, the prosecution version cannot be discarded. She further argued that the trial court has committed grave illegality while Crl. A. No. 607-DB of 2008 -16- accepting the plea of alibi taken by A-4. While referring to the statement of A-4 under Section 313 Cr.P.C., and the defence evidence led by him, learned counsel argued that the evidence clearly reflects that after participation in the alleged crime, A-4 went to Kathua and got himself implicated in an Excise case and got prepared the anti-time record, in order to show his presence in Kathua. Learned counsel argued that though it was alleged that A-4 was apprehended by the police of J & K at 9.30 AM with liquor, but the FIR was registered at 1.45 PM. This clearly indicates that he could easily go to Kathua, which was only 70 Kms. away from the place of occurrence, within one hour. Therefore, according to the learned counsel, the plea of alibi taken by A-4, which was palpably concocted, was wrongly relied upon by the trial court, whereas his participation in the occurrence has been proved by the testimonies of PW.2 Devinder Singh and PW.3 Harinder Singh, the eye witnesses. Therefore, according to the learned counsel, the acquittal of A-4 by the trial court was not justified and is against the evidence on record, which is liable to be set aside and A-4 deserves to be convicted for the offence under Section 302 IPC, as he had caused injury on the head of Hardial Singh, which resulted into his death.
28. Shri K.S. Dhaliwal, Advocate, learned counsel for the respondent (A-4) in Criminal Appeal No. 24-DB of 2009, filed by the State of Punjab, argued that since A-4 was not present at the time of the alleged occurrence and he did not participate in the occurrence. He has fully proved his plea of alibi by leading sufficient, authentic and reliable evidence. Crl. A. No. 607-DB of 2008 -17- Therefore, while believing his plea of alibi of A-4, the learned trial court has rightly acquitted him of the charges. Thus, no interference is required against the acquittal of A-4.
29. We have considered the rival contentions of learned counsel for the parties and perused the record of the case.
30. In the present case, the prosecution version is based upon the testimony of PW.2 Devinder Singh (complainant) and PW.3 Harinder Singh. According to them, on 24.5.1994 at about 9.30 AM, when they were going on the scooter from their village to court complex, Gurdaspur, they had witnessed the occurrence, which had taken place inside the S.D. College, Gurdaspur. At that time, Hardial Singh (deceased) was going to court complex, Gurdaspur, on his bicyle, to attend the hearing of his case. It is the admitted position and also has been established by the statement of PW.10 Sarwan Singh, Ahlmad, that a criminal case under Section 307 IPC, titled as State Versus Jasbir Singh and others was pending in the court of Additional Sessions Judge, Gurdaspur, against A-1 and on 24.5.2004, the day of occurrence, that case was fixed for prosecution evidence. It is also admitted position that Hardial Singh (deceased) was the complainant and Devinder Singh (PW.2) was a witness in that case. Prior to that on 7.5.2004, the deceased along with Devinder Singh were present in that case. It has also come in evidence that complainant Devinder Singh is an Advocate by profession, though according to the defence, he is not a practising lawyer. As per the prosecution version, the deceased was coming on his bicycle to Crl. A. No. 607-DB of 2008 -18- the court complex, Gurdaspur, to attend the proceedings in the aforesaid case, whereas both the eye witnesses were coming to the court on their scooter. At about 9.30 AM, when they reached near `T' point of Chandan Palace, all the four accused, riding on two scooters, overtook them at a high speed. When the eye witnesses reached in front of Pandit Mohan Lal S.D. College, they saw that all the four accused, who were armed with `Kirpans' and `Dang', after getting down from their scooters, attacked the deceased with intention to kill him. Thereupon, the deceased, after throwing his bicycle, ran towards the College, in order to save his life, and entered the College. All the four accused chased him and in front of the office of Principal of the college, A-4 gave `Kirpan' blow to Hardial Singh, which hit him on his head. A-1 also gave a `Kirpan' blow on his head. Then he fell down on the ground. Thereupon, A-2 gave `Kirpan' blows, which hit on the right eye brow and right cheek of Hardial Singh. Then A-4 and A-1 gave `Kirpan' blows which hit on his right hand and left hand. Thereafter, A-3 gave him `Dang' blow. According to the testimonies of these eye witnesses, all the four accused have participated in the crime with common intention to kill Hardial Singh. Specific role was attributed to them. In the court, both the witnesses have fully supported the prosecution version.
31. Now, the question arises for consideration is whether in the facts and circumstances of the case, the presence of both the eye witnesses at the time of the occurrence is doubtful or they have not witnessed the occurrence at all, and were lateron introduced as witnesses, after calling Crl. A. No. 607-DB of 2008 -19- them from the village, as claimed by the defence.
32. It is well settled that while assessing the evidence of an eye witnesses, the Court must adhere to two principles : whether in the circumstances of a case, it was possible for eye witness to be present at the scene and whether there was anything inherently improbable or unreliable in his statement. In the present case, we have carefully scrutinized the testimonies of PW.2 Devinder Singh and PW.3 Harinder Singh, the eye witnesses in the case, keeping in view the fact that they are related witnesses. We find their presence at the time of the occurrence most natural and their testimonies as more probable and reliable. The deceased was having the date of hearing in the court of Additional Sessions Judge, Gurdaspur, in a case under Section 307 IPC, in which he was the complainant and A-1 was the accused. The deceased was going from his village to the court compound, Gurdaspur, to attend the hearing of his case. Complainant Devinder Singh (PW.2) was an Advocate. He along with his nephew Harinder Singh (PW.3) was going to the court. They started on scooter from their village 10 minutes after the deceased started on bicycle to attend the court proceedings in the court at Gurdaspur. The distance of the place of occurrence from the village of the deceased was about 2 Kms. In this situation, the presence of both the eye witnesses at the scene of occurrence cannot be said to be unnatural or by chance. Both the witnesses have given the complete eye view account of the whole occurrence. They have categorically stated that A-4 caused injury on the head of the deceased Crl. A. No. 607-DB of 2008 -20- by `Kirpan'. A-1 also gave `Kirpan' blow on the head of the deceased. A-2 gave `Kirpan' blows on the right eye brow and right cheek of the deceased. Second time, A-4 and A-1 gave `Kirpan' blows on the right hand and left hand of the deceased and A-3 gave `Dang' blow to the deceased, when he was lying on the ground. Merely because in the FIR it was stated by complainant Devinder Singh that A-2 caused three `Kirpan' blows on the right eye brow and right cheek of the deceased, whereas in the court, he and PW.3 Harinder Singh stated that A-2 gave two `Kirpan' blows on the right eye brow and right cheek of the deceased, the testimonies of these witnesses cannot be said to be improbable or their presence cannot be held to be doubtful. Similarly, because of the minor contradiction in their statements with regard to the seats of injuries attributed to each accused, the testimonies of these two witnesses cannot be discarded. These are the minor contradictions, which occur, when the statements are being made by the witnesses after lapse of more than three years. On the basis of such minor contradictions, the prosecution case cannot be disbelieved or held to be doubtful. In Gajanand Amrut Gaekwad v. State of Maharashtra, AIR 1996 SC 3332, it was held that when a person is attacked by a number of assailants, failure of eye witnesses to say exactly whose blow has caused which injury is not fatal.
33. It is an admitted fact that both the eye witnesses are related to the deceased. Keeping in view this fact, their testimonies have been analysed and examined with care and caution. Merely because of their Crl. A. No. 607-DB of 2008 -21- relations with the deceased, their testimonies cannot be discarded, if the same are found to be trust-worthy. On careful examination of statements of both these eye witnesses, we do not find any material contradiction in their statements or any improbability in the same. Their testimonies with regard to participation of all the four accused in the occurrence are reliable and trust-worthy. In the present case, when all the four accused armed with deadly weapons were causing injuries to the deceased, the conduct of the eye witnesses, who were empty hand, in not intervening cannot be said to be improbable. Merely because there are litigations between two parties and the eye witnesses are related to the deceased, the ocular evidence cannot be brushed aside if it is otherwise trust-worthy, credible and inspires confidence. When the Court is satisfied that the eye version account given by the witnesses is trust-worthy and inspires confidence, then the minor inconsistencies in their statements can be safely ignored.
34. The contention of learned counsel for the appellants that there was a delay in lodging the FIR and by taking the benefit of the said delay, both the eye witnesses were called from the village and lateron introduced as eye witnesses cannot be accepted. The occurrence had started at 9.30 AM, when all the four accused overtook the eye witnesses at `T' point near Chandan Palace. Thereafter, when the witnesses reached near the S.D. College, they witnessed the occurrence. After causing injuries to Hardial Singh, when the accused with their respective weapons ran away from the spot, both the eye witnesses went near Hardial Singh and found that he had Crl. A. No. 607-DB of 2008 -22- succumbed to the injuries. Thereafter, PW.2 Devinder Singh, after leaving PW.3 Harinder Singh at the spot to guard the dead body, went to Police Station City Gurdaspur, for reporting the matter to the police. At 10.10 AM, his statement was recorded by PW.9 SI Naresh Kumar, on the basis of which the formal FIR (Ex.PD) was registered at 11.00 AM and the special report was delivered to the Ilaqa Magistrate at 11.40 AM. In these facts, it cannot be said that there was any delay in lodging the FIR. In our opinion, the incident was reported to the police so promptly that within 30 minutes of the occurrence, all the details of the occurrence were stated to the police. Therefore, there was no scope for the police to call two persons from the village, which was at a distance of 2 Kms., and then introduce them as eye witnesses. Thus, we do not find any substance in the argument of learned counsel for the appellants that both these witnesses were lateron introduced by the police as eye witnesses.
35. During the course of arguments, a contention was raised that at the time of the inquest report, the Investigating Officer had noticed six injuries on the body of the deceased, whereas during the post mortem examination, seven injuries were found on his body. According to the learned counsel for the appellants, this fact creates doubt in the prosecution version. We do not find any substance in this argument also. At the time of preparing the inquest report, the Investigating Officer has to mention the injuries on the body, which are found visible, whereas at the time of conducting the post mortem examination, detail of each injury found on the Crl. A. No. 607-DB of 2008 -23- body is to be given by the Doctor, therefore, merely because in the inquest report, instead of 7 injuries, 6 injuries were noticed by the Investigating Officer, it cannot be said that the prosecution version with regard to the causing of injuries by all the four accused is doubtful.
36. Learned counsel for the appellants have relied upon the judgment of the Hon'ble Supreme Court in Hallu and others v. State of Madhya Pradesh, AIR 1974 Supreme Court 1936, wherein it was observed that normally when a witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp- edged or a piercing instrument was used as a blunt weapon. While referring this judgment, learned counsel argued that out of the seven injuries found on the body of the deceased, three were lacerated wounds, which in the opinion of the Doctor could have been caused by blunt weapon, but as per the prosecution version, only A-3 gave `Dang' blow to the deceased, when the deceased was lying on the ground. Therefore, according to the learned counsel, the ocular version is not in conformity with the medical evidence and the prosecution could not get it clarified from the witnesses examined by it as to how these lacerated wounds were caused by `Kirpans', which creates doubt in the prosecution case.
37. It is trite that medical evidence is hardly conclusive because it is primarily evidence of opinion and not of fact. It was held by the Hon'ble Crl. A. No. 607-DB of 2008 -24- Supreme Court in Mohan Singh v. State of M.P., AIR 1999 SC 883 that mere variance of the prosecution story with the medical evidence, in all cases, should not lead to the conclusion, inevitably to reject the prosecution story. Efforts should be made to find the truth. This is the very object for which Courts are created. To search it out, the Courts have been removing the chaff from the grain. It has to disperse the suspicious cloud and dust out the smear of dust as all these things clog the very truth. Further, it was held by the Supreme Court in Prem v. Daula, AIR 1997 SC 682 that the medical evidence being the opinion evidence cannot nullify the evidence of eye witnesses which is absolutely unimpeachable. It is also well settled that when there is a conflict between the medical evidence and the oral testimony of witnesses, the evidence can be assessed only in two ways. A Court can either believe the prosecution witnesses unreservedly and explain away the conflict by holding that the witnesses have merely exaggerated the incident or rely upon the medical evidence and approach the oral testimony with caution testing it in the light of the medical evidence. The first method can be applied only in those cases where the oral evidence is above reproach and creates confidence and there is no appreciable reason for the false implication of any accused. Where the evidence is not of that character and the medical evidence is not open to any doubt or suspicion, the only safe and judicial method of assessing evidence is the second method.
38. In the present case, the contradiction in the medical evidence and the oral testimonies are minor. Three injuries were found to be lacerated Crl. A. No. 607-DB of 2008 -25- wounds. The possibility of these injuries in the occurrence from the reverse side of the `Kirpan' cannot be ruled out. The testimonies of both the eye witnesses are wholly reliable and trust-worthy. There is no reason to held that they had not witnessed the occurrence or they have falsely implicated the accused persons. In the present case, the FIR was so promptly recorded that there was no time left for false implication of any of the accused. When the four accused were causing injuries to the deceased and both the eye witnesses had witnessed the occurrence from some distance, then such kind of contradictions in the oral evidence and the medical evidence are bound to occur. The witnesses have stated that three accused had caused injuries by `Kirpans'. They have not stated that the accused had caused injuries from the blunt side or from the sharp side of the `Kirpans'. Merely because the injuries were caused by `Kirpans', it cannot be said that the same were caused by the sharp side. An injury by `Kirpan' can be caused by its sharp side or reverse side. Therefore, it cannot be said that two lacerated wounds could not have been caused by `Kirpan' from its reverse side. Keeping in view all these facts, we do not find any reason to discard the testimonies of both the eye witnesses and held the prosecution version as false on the basis of the aforesaid variance in the medical evidence and the oral testimonies.
39. In the instant case, there was a strong motive for the accused to commit the alleged crime. Undisputedly, a criminal case under Section 307 IPC was pending in the court against A-1. The deceased was the complainant in that case and he had already deposed against the accused. It Crl. A. No. 607-DB of 2008 -26- was the motive, for which the alleged crime was committed. It cannot be said that due to this motive, the whole family of the accused has been falsely implicated. The contention of learned counsel for the appellants that none of the independent witnesses to the recovery of weapons of offence from the accused has been examined, therefore, the recovery of the weapons has not been proved, cannot be accepted. The recovery has been duly proved by PW.4 Sukhdev Singh, the Investigating Officer in the case. Merely because the independent witness to the recovery was not examined, the recovery cannot be discarded. Therefore, we do not find any illegality or infirmity in the judgment of the trial court, whereby A-1 was convicted under Section 302 IPC, and A-2 as well as A-3 were convicted under Section 302 read with Section 34 IPC, as they caused injuries on the non-vital parts of the body of the deceased, but participated in the occurrence with common intention to kill Hardial Singh.
40. Now, the question arising for consideration is : Whether A-4 was present at the time of the alleged occurrence and caused injuries to the deceased or he has proved his plea of alibi that at the time of the alleged occurrence, he was arrested by the J & K Police in connection with an offence under the Excise Act. We have already held that testimonies of both the eye witnesses are wholly trust-worthy and reliable. They were present at the time of the occurrence and they witnessed all the four accused, including A-4, causing injuries to the deceased by `Kirpans' and `Dang'. The trial court, after appreciating the evidence led by the prosecution, including the Crl. A. No. 607-DB of 2008 -27- testimonies of two eye witnesses, has held that the testimonies of both the eye witnesses are reliable and minor contradictions in the medical evidence and the ocular version regarding injuries attributed to the accused are ignorable. However, it is observed that A-4 has been successful in causing dent in the prosecution story regarding his presence at the place of occurrence. The learned trial court has made this observation while prima facie accepting the plea of alibi taken by A-4.
41. In the light of the evidence led by A-4, we have considered his plea of alibi, with the able assistance of learned counsel for the parties.
42. The word "alibi" is a Latin expression. It implies in common parlance "elsewhere". It is a defence, based on the physical impossibility and participation in the crime by an accused by placing a letter in a location other than the scene of crime at the relevant time. In Dudh Nath Pandey v. State of U.P., AIR 1981 SC 811, it was held by the Hon'ble Supreme Court that the plea of alibi can succeed only if it is shown that the accused was so far away at the relevant time that he could not be present at the place where the crime was committed. The distance and the physical impossibility of the presence of the accused at the scene of occurrence at the relevant time would be a material fact in the acceptability of the plea of alibi. The burden of proving the plea of alibi lies on the accused. In order to establish the said plea, the accused must lead evidence to show that he was so far off at the moment of crime from the place where the offence was committed that he could not have committed the imputed act. The standard of proof which is Crl. A. No. 607-DB of 2008 -28- required in regard to the plea of alibi is the same as the standard which is applicable to the prosecution evidence. In both the cases, it should be a reasonable standard. 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 Section 11 of the Indian Evidence Act, 1872 that facts which are inconsistent with the fact in issue are relevant.
43. In the present case, the plea of A-4 is that at the time and on the day of the alleged occurrence, he was arrested by the J & K Police in connection with an offence under the Excise Act and in that case, he was released on bail on 26.5.2004 and subsequently, he was convicted on 27.10.2004. In order to prove this plea, he has examined four witnesses. DW.1 HC Kulbhushan Singh of Police Station Kathua proved FIR (Ex.DD) under Section 48-A of the Excise Act registered against A-4 on 24.5.2004 at 1.45 PM. DW.2 Sudarshan Kumar, MHC, Police Station Kathua, proves copies of DDRs No. 3 and 5 dated 24.5.2004, 4 and 6 dated 25.5.2004, 3 and 9 dated 26.5.2004, as Ex.DF, Ex.DG, Ex.DH, Ex.DJ, Ex.DK and Ex.DL, respectively. DW.3 Sub Inspector Rajeshwar Singh stated that on 24.5.2004 at about 9.30 AM, while patrolling towards the side of village Sadipur Nakkin, he intercepted A-4, when he was coming on his scooter. On conducting search of the scooter, twelve bottles of country made liquor of Punjab Government were recovered from the dickie of the scooter. A-4 was arrested at the spot and thereafter, he was produced before the Illaqa Magistrate on 25.5.2004. After getting one day remand, he was released on Crl. A. No. 607-DB of 2008 -29- bail on 26.5.2004. DW.4 Manzoor Hussain, Record Keeper, Sessions Court, Kathua proved that A-4 was produced in the court for the first time on 25.5.2004 and his police remand was granted for one day and then on re- production on 26.5.2004, he was released on bail, on which day the challan was also presented in the court.
44. From close scrutiny of the aforesaid evidence led by A-4, it cannot be said that it was physically impossible for A-4 not to be present at the scene of crime on the day of occurrence at the relevant time. The distance between the place of occurrence at Gurdaspur and Saidpur crossings falling in the area of Police Station Kathua (J&K), where A-4 was allegedly intercepted by DW.3 Sub Inspector Rajeshwar Singh, is about 70 Kms. According to DW.3, he intercepted A-4 at 9.30 AM, when he was coming on his scooter bearing registration No. PB-58A-9411. On search, he recovered twelve bottles of country made liquor of Punjab Government from the dickie of the scooter. A-4 was arrested on the spot and a ruqa (Ex.DE) was sent to the Police Station for registration of the case. DW.3 further stated that after completing all the formalities, he came to the Police Station at 9.45 AM and the accused was locked in the police station and on the next day, he was produced before the Illaqa Magistrate.
45. There are three important factors, which clearly cause serious doubt about the arrest of A-4 at 9.30 AM by J & K Police in the case under the Excise Act. Firstly, after the arrest of A-4, ruqa (Ex.DE) was sent to the police station for registration of the case, and when DW.3, the Investigating Crl. A. No. 607-DB of 2008 -30- Officer of the case, after completing all the formalities himself came to the police station at 9.45 AM and put A-4 in lock-up, then why the FIR was not registered immediately and why it was registered at 1.45 PM. Secondly, when A-4 was arrested early in the morning and put up in the lock-up in the police station, why he was produced before the Illaqa Magistrate on the next day. Thirdly, in his statement under Section 313 Cr.P.C., A-4 has stated that when he was carrying liquor for his personal party, on 24.5.2004 at about 9.30 AM, he was arrested by the J & K Police in an excise case. During the arguments, it was argued on behalf of A-4 that liquor was cheaper in J & K, therefore, A-4 was bringing liquor from J & K to Gurdaspur for his personal use. This defence is contrary to the evidence on record, as the recovered country made liquor was manufactured in Punjab and not in J & K. Further, DW.3 Sub Inspector Rajeshwar Singh has stated that he came back to the police station at 9.45 AM and made entry (Ex.DG) in the DDR, whereas the entry (Ex.DG) shows the arrival time of the police party in the Police Station at 10.45 AM. It is admitted position that on the basis of the ruqa (Ex.DE), FIR (Ex.DD) was registered at 1.45 PM, but no time has been given on the ruqa, which clearly indicates that A-4 was not arrested in that case at 9.30 AM. DW.4 Manzoor Hussain has admitted that on the title of the recovery memo as well as in the site plan, name of the accused is not mentioned. It has been further admitted by DW.3 Sub Inspector Rajeshwar Singh that there is no entry in the DDR for sending the Constable to the Magistrate for sealing the case property. The case diary was not produced Crl. A. No. 607-DB of 2008 -31- by this witness. The DDR register was not containing the entry regarding the sending of the sample for chemical examination. It has been further admitted by this witness that the challan was filed within two days without waiting for the report of the Chemical Examiner. On the court question, DW.3 Sub Inspector Rajeshwar Singh could not explain as to under which provision in a bailable offence, the police had sought the remand of the accused. This witness in his statement has stated that after arresting A-4, he gave wireless message to SHO, Police Station City Gurdaspur, regarding arrest of A-4 in connection with an excise case. He further stated that he asked the concerned SHO to inform the parents of A-4 regarding his arrest. But SI Naresh Kumar (PW.9), the then SHO, Police Station City Gurdaspur, has categorically stated that he did not receive any message from the J & K Police.
46. All the aforesaid factors clearly indicate that A-4 got himself arrested after 1.00 PM and manipulated the anti-time record regarding his arrest in the case under the Excise Act. The distance between the place of occurrence at Gurdaspur and Saidpur crossings falling in the area of Police Station Kathua (J&K) is only 70 Kms. When the crime was committed, A-4 was on scooter. The possibility cannot be ruled out at all that on the said scooter, he fled away towards J & K and covered the distance of 70 Kms., within one or two hours and then got himself implicated at Police Station Kathua ( J & K ) in a case under the Excise Act, by manipulating the time of his arrest at 9.30 AM. Though A-4 was allegedly arrested by the J & K Crl. A. No. 607-DB of 2008 -32- Police at 9.30 AM and ruqa Ex.DE was sent, which does not bear any time, but there is no reason as to why the FIR was registered so late at 1.45 PM. This fact clearly indicates that A-4 was not arrested at the alleged time of 9.30 AM and he got himself arrested subsequently, immediately before registration of the FIR at 1.45 PM or lateron and the FIR was also anti- timed. It has also come in evidence that the FIR was registered on the last page of the register of FIR. Keeping in view all these facts, we are of the opinion that the plea of alibi taken by A-4 does not inspire any confidence. Thus, in our opinion, A-4 has failed to prove his plea of alibi i.e at the time of alleged occurrence he was so far away that it was physically impossible for him to be present on the spot, where the crime was committed.
47. The prosecution has fully proved the presence of A-4 at the time of occurrence, his participation in the alleged crime and causing of injuries to the deceased. In our opinion, the evidence of alibi led by A-4 is not of such a quality and standard, which inspires confidence regarding his absence at the time and place of occurrence. If the prosecution evidence and the defence evidence are weighed against each other, in our opinion, the balance is not tilting in favour of A-4. Rather, the prosecution evidence clearly establish the presence of A-4 at the time of the occurrence. Thus, in our opinion, the trial court has committed grave illegality while accepting the plea of alibi set up by A-4. In our opinion, the prosecution has fully proved guilt against A-4 beyond shadow of a reasonable doubt and he is liable to be convicted under Section 302 IPC for causing fatal injury to the Crl. A. No. 607-DB of 2008 -33- deceased on his head, due to which he has died.
48. In the last, learned counsel for the appellants argued that in the facts and circumstances of the case, without any justification, the trial court has directed that while completing the life sentence, no deduction with regard to the legal parole and remissions granted shall be granted to the convicts, and in no case, the convicts should be finally released from jail without undergoing minimum period of twenty years rigorous imprisonment. The present case is not an exceptional case, where the trial court is justified in awarding life sentence for a specified period of twenty years.
49. We have examined the aforesaid contention of learned counsel for the appellants and find force in the same. The question with regard to prescribing the length of incarceration by the sentencing court has been considered by the Hon'ble Supreme Court in various cases. Recently in Ramraj v. State of Chhattisgarh, (2010) 1 SCC 573, while considering the various precedents in this regard, including the decision in Swamy Shraddananda v. State of Karnataka, (2008) 13 SCC 767, the Supreme Court has held that life imprisonment is not to be interpreted as being imprisonment for the whole of a convict's natural life within the scope of Section 45 of the Code. In some cases, where on account of the brutal murder having been committed, death sentence was awarded by the trial court and reference was accepted by the High Court, the Supreme Court, while coming to the conclusion that the case does not fall within the Crl. A. No. 607-DB of 2008 -34- definition of `the rarest of rare cases' which warrants death sentence, reduced the death sentence to life imprisonment. In those cases, in the opinion of the Supreme Court, claim of the prisoners for pre-mature release after a minimum incarceration for a period of 14 years, as envisaged under Section 433-A Cr.P.C., could not be acceded to. In such cases, it was ordered that the authority will consider the release of the convict after completion of 20 years of imprisonment, including remissions earned. In another recent judgment in the case of Mulla and another v. State of Uttar Pradesh, (2010) 3 Supreme Court Cases 508, the Hon'ble Supreme Court, while following the dictum of in the aforesaid case, held that it is open to the sentencing court to prescribe the length of incarceration, but that is especially true in cases where death sentence has been replaced by life imprisonment. In such cases, the court should be free to determine the length of imprisonment which will suffice the offence committed. In that case, while the death sentence was substituted with life sentence, which was to extend to the full life of the convicts subject to any remission by the Government for good reasons. But in the present case, the appellants were not awarded the death sentence by the trial court. Therefore, in the facts and circumstances of the case, the trial court is not justified in prescribing the length of incarceration as 20 years. Accordingly, to that extent, the judgment of the trial court is liable to be modified.
50. In view of the above, the impugned judgment qua conviction of A-1 to A-3 is upheld. The judgment qua acquittal of A-4 is set aside and Crl. A. No. 607-DB of 2008 -35- A-4 is convicted under Section 302 IPC and is sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of two months. However, the order of sentence against A-1 to A-3 is modified to the extent that A-1 is sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/-, in default of payment of fine to further undergo rigorous imprisonment for a period of two months under Section 302 IPC; A-2 and A-3 are sentenced to undergo imprisonment for life and to pay a fine of Rs. 20,000/- each, in default of payment of fine to further undergo rigorous imprisonment for a period of two months under Section 302 read with Section 34 IPC.
51. Accordingly, Criminal Appeal No. 607-DB of 2008 is dismissed and Criminal Appeal No. 24-DB of 2009 stands allowed.
52. Accordingly, A-4, namely Jaswant Singh alias Jassi, who was acquitted by the trial court, is directed to surrender himself before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against him in accordance with law.
( SATISH KUMAR MITTAL )
JUDGE
April 28, 2010 ( JORA SINGH )
ndj JUDGE
Refer to Reporter