Punjab-Haryana High Court
Gian Singh And Others vs State Of Punjab on 25 April, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Crl. Appeal No. 614-DB of 2005 - 1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Criminal Appeal No. 614-DB of 2005
Date of Decision: 25.4.2012
Gian Singh and others .........Appellants
Vs.
State of Punjab .......Respondent
CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. H.S.Bhullar, Advocate
for the appellants.
Mr. P.C.Goyal, Addl. A.G., Punjab.
.....
SABINA, J.
Appellants have preferred this appeal challenging their conviction and sentence under Section 302/34 of the Indian Penal Code ('IPC' for short) as ordered by the trial court vide judgment/order dated 26.7.2005/28.7.2005.
Complainant Nirmal Kaur stated in her statement before Sub Inspector Bachittar Singh that a land dispute was pending between her husband and his elder brother Gian Singh. Her husband Pargat Singh and her brother-in-law Gian Singh had constructed shops at Dadwan Road in the area of village Rania adjacent to each other. There was a vacant site on the backside of the shops and the said land was to be demarcated on 5.10.2001. At about 5.30 P.M., she was standing in front of their shops along with her husband Pargat Singh and his elder brother Joginder Singh, her sister Lakhwinder Kaur and her son Daljit Singh. Her son was serving with Border Security Force and had Crl. Appeal No. 614-DB of 2005 - 2- come on leave. In the meantime, Gian Singh armed with tesa (a sharp edged tool used by a Carpenter), Nirdev Singh armed with sota (stick) and Hardev Singh armed with sota came out of their shops and started hurling abuses at them and said "today you will be given possession of this land". Then Nirdev Singh gave a tesa blow on the head of Daljit Singh. Gian Singh gave a sota blow on the head of Pargat Singh. Both Pargat Singh and Daljit Singh fell on the ground. Then Hardev Singh gave a sota blow on the head of Daljit Singh. Thereafter all the above three persons inflicted more injuries on the person of Pargat Singh and Daljit Singh with their respective weapons. They raised alarm 'killed killed'. Thereafter, the assailants fled away from the spot with their respective weapons. The cause behind the occurrence was that they had a land dispute with Gian Singh. After arranging for a vehicle, she took Pargat Singh and Daljit Singh to Civil Hospital, Gurdaspur for treatment. Daljit Singh succumbed to his injuries whereas condition of Pargat Singh was serious and he was referred to hospital at Amritsar for medical treatment.
On the basis of the statement of the complainant, formal FIR No. 142 dated 5.10.2001 was registered at Police Station Dhariwal under Section 302, 307, 34 of the Indian Penal Code ('IPC' for short).
After completion of investigation and necessary formalities challan was presented against the accused.
In order to prove its case, prosecution examined 18 witnesses during trial.
After the close of prosecution evidence, appellant Hardev Singh when examined under Section 313 of the Code of Crl. Appeal No. 614-DB of 2005 - 3- Criminal Procedure, 1973 ('Cr.P.C.' for short) pleaded as under:-
"I am innocent. I have been falsely implicated in this case to aggravate gravity of this case in hand. I was not present at my place of work/shop in village Rania P.S.Dhariwal on the day and time of occurrence and also at the spot. I was away to my sister Balbir Kaur wife of Davinder Singh in village Qila Tarkhana District Amritsar to fix the wooden doors of her newly built house. In this respect and regarding aforesaid plea an enquiry/investigation was held by Sh. Jagdeep Singh the DSP/HQ, Gurdaspur under the orders of SSP, Gurdaspur. I had been found as innocent vide his report dated 14.12.2001 as per the case diary is of this case of the date I had been not sent up by the local police as the accused in the charge sheet filed by the police and I had been shown in column no.2 of this report but I was wrongly and falsely committed to face trial to this Hon'ble Court to be dealt with."
Appellant Nirdev Singh, when examined 313 Cr.P.C., pleaded as under:-
"I am innocent. I had no property dispute with deceased Pargat Singh who was brother of my father nor was there any occasion for demarcation. The house of Pargat singh is opposite to our house in the jurisdiction of village Rania (Dhariwal). Lakhwinder Kaur was ill disposed towards us and we have been named on this misplaced suspicion."Crl. Appeal No. 614-DB of 2005 - 4-
Appellant Gian Singh, when examined 313 Cr.P.C., pleaded as under:-
"I am innocent. I had no property dispute with deceased Pargat Singh who was my brother of my father nor was there any occasion for demarcation. The house of Pargat singh is opposite to our house in the jurisdiction of village Rania (Dhariwal). Lakhwinder kaur was ill disposed towards us and we have been named on this misplaced suspicion."
The appellants examined seven witnesses in their defence.
Submissions:-
Learned counsel for the appellants has submitted that prosecution had miserably failed to prove its case. No reliance could be placed on the statements of the eye witnesses. The said witnesses were not present at the spot and had falsely deposed against the appellants being close relatives of the deceased. There was no occasion for PW-4 Lakhwinder Kaur to have been present at the spot. There were material discrepancies in the statements of the eye witnesses which rendered their statements doubtful. The recoveries have been falsely planted on the appellants. No independent witnesses had been joined at the time of disclosure statements and recoveries effected in pursuance thereto. The ocular version was not corroborated by medical evidence. Appellant Hardev Singh was not present at the spot. His plea of alibi was liable to be accepted. The defence witnesses examined in this regard were liable to be believed. Learned counsel has placed reliance on 'State of Haryana Crl. Appeal No. 614-DB of 2005 - 5- versus Ram Singh' 2002(1) RCR (Criminal) 443, wherein it was held as under:-
"Incidentally be it noted that the evidence tendered by defence witnesses cannot always be termed to be a tainted one- the defence witnesses are entitled to equal treatment and equal respect as that of the prosecution. The issue of credibility and the trustworthiness ought also to be attributed to the defence witnesses at par with that of the prosecution."
Learned State counsel, on the other hand, has submitted that the prosecution case rests on eye witness account. The eye witnesses had no reason to falsely involve the appellants in this case and shield the real culprits. The plea of alibi set-up by appellant Hardev Singh was not substantiated on record and had been set-up after 1½ month of the occurrence. Medical evidence:-
PW-18 Dr. Arvind Mahajan deposed that on 5.10.2001, Nirmal Kaur brought patient Pargat Singh in their hospital (Civil Hospital, Gurdaspur). After initial treatment, patient was referred to Guru Nanak Dev Hospital, Amritsar on the same day at 7.15 P.M. Another patient namely Daljit Singh was admitted in their hospital on the same day at 6.20 P.M. and he died at 6.50 P.M. The dead body was shifted to mortuary and information was sent to Police Station, Dhariwal.
PW-1 Dr. Harjinderpal Singh Kaler deposed that on 6.10.2001 at 9.30 A.M., he had conducted post mortem examination on the dead body of Daljit Singh and had found Crl. Appeal No. 614-DB of 2005 - 6- following injuries on his person:-
1. An incised wound 8 cms x 1 cm present 5 cms above the left pinna. Wound was clean cut.
2. An incised wound 9 cms x 1 cm, 2 cms above injury no.1 i.e. on the left side.
3. Contusion 6 cms x 4 cms over right temporal region of skull.
4. Lacerated wound 1½x½x1/4cm over middle of the shin of right leg.
5. Bleeding from the nose and both ears were present. On dissection, underlying skull bones corresponding to injuries nos. 1 and 2 were cut down at two sides.
Below these two fractures of skull, laceration of brain was present. Underlying injury No.3 with haemotoma (subdural) 6x6 cms was present. On dissection of brain, ventricles were full of blood on both the sides. All other organs of the body were normal. 50 mls of blood was present in the right centricle of the heart. Blood was present in phynx. Urinary blood contained 100 mls of urine.
In his opinion, cause of death was injury to vital organ and shock (brain) and haemorrhage which were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem in nature.
PW-11 Dr. Raj Kamal deposed that as per the bed head ticket injured Pargat Singh was admitted in their hospital on 5.10.2001 and had died on 7.12.2001. The patient was Crl. Appeal No. 614-DB of 2005 - 7- admitted in the hospital in a very serious condition. The patient had suffered severe head injury and was in coma with low blood pressure. At the time of admission, patient was not fit even for CT scan and had been put on ventilator. He was having difficulty in breathing. On the next day, his CT scan was done which showed that right frontal contusion and haemotoma with right frontal S.D.H with left temprox parietal haemorrhage and fracture of left parietal bone. The patient was operated on the same day. The patient remained in a serious condition after surgery and was put on ventilator. He showed some improvement after seven days but his breathing remained poor throughout. The patient had remained in coma throughout.
PW-7 Dr. Jatinder Singh deposed that on 6.10.2001, he was posted as Medical Officer in Shri Muni Lal Chopra Memorial Hospital, Amritsar. On that day, he had declared patient Pargat Singh unfit to make a statement on an application moved by the police seeking opinion qua fitness of the patient. On 23.10.2001, Dr. Raj Kamal had declared patient Pargat Singh unfit to make a statement on a police request. On 25.11.2001 Dr. Ravi Kumar had declared patient Pargat Singh unfit to make a statement on a police request. On 14.12.2001, he had declared patient Pargat Singh unfit to make a statement on police request. Pargat Singh was admitted in their hospital on 5.10.2001 and had died on 7.12.2001 at 10.00 P.M. The patient had remained unconscious and unfit to make a statement from the time of his admission till his death.
PW-10 Dr. Vijay Kumar deposed that on 8.12.2001, he had conducted post mortem examination on the dead body of Pargat Singh along with Dr. H.S.Kaler and Dr. H.S.Bhatia and Crl. Appeal No. 614-DB of 2005 - 8- they had found following injuries on his person:-
Injuries:-
1. 'C' shaped scar on right side of the forehead near the anterior hair line starting from mid of the forehead, going up just anterior to tragus.
2. 6 cms scar vertically placed 3 cms above and anterior to the left ear at the tempoeral region.
3. 'V' shaped scar on parieto occipital region, one limb of the scar was 12 cms and another 9 cms.
4. Infected wound on right middle finger, terminal phalanx already amputated.
5. Trachostomy wound present on anterior side of neck in mid line.
6. Bed sore on both buttocks on medial part covering area 20 cms x 2 cms on left side, another bed sore on posterior lateral aspect of right thigh at the level of hip joint, 15 cms x 8 cms. Another bed sore posterior lateral aspect of thigh, 12 cms. x 8 cms.
walls, ribs and cartilages, Not any disease. Plurae:- N.A.D. Larynx and tracheae:- Trachostomy wound was present. Right and left lungs congested.
Heart:- Right side contained 40cc of blood. Left side:- empty.
Dissection of the skull:- There were multiple healing fractures seen on right frontal region and left temporal region and also on occipital region. On opening the skull, blood stained flued mixed with flakes of puss Crl. Appeal No. 614-DB of 2005 - 9- seen in the cranial cavity as well as in the ventricular system. Also there were hemmorrgic infarcts in the right frontal lobes on left temporal lobe and right occipital lobe.
Abdomen:- Walls, peritonum, mouth, pharapynx and oesophatus:- N.A.D. Stomach and its contents:- Yellowish scretions present.
Small intestinds and large intestines:- N.A.D. Liver, spleen and kidneys, congested. Bladder was empty. All other organs were healthy.
In their opinion, the cause of death was head injury leading to brain injury and infection of brain which were sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem in nature.
Ocular version:-
Complainant Nirmal Kaur while appearing in the witness box as PW-6 has deposed as per the contents of the FIR. PW-4 Lakhwinder Kaur has corroborated the statement of the complainant qua the manner of occurrence. Investigation:-
PW-15 Sub Inspector Bachittar Singh deposed that on 5.10.2001, he had recorded the statement of complainant Nirmal Kaur and on the basis of the same formal FIR Ex. PW15/B was registered. Thereafter, he reached Civil Hospital, Gurdaspur and prepared inquest report qua the dead body of Daljit Singh.
The dead body was sent for post mortem examination. He recorded the statements of the witnesses. Injured Pargat Crl. Appeal No. 614-DB of 2005 - 10- Singh had been referred to Guru Nanak Dev Hospital, Amritsar. Thereafter, on the next day, he went to the spot and lifted blood stained earth. Accused Gian Singh and Nirdev Singh were arrested. After completion of investigation and necessary formalities challan was presented by Major Singh, Station House Officer, Police Station Dhariwal.
PW-17 Sub Inspector Rajbir Singh deposed that on 9.10.2001, investigation of this case was entrusted to him. Accused Nirdev Singh and Gian Singh were already in police custody. During interrogation, accused Nirdev Singh suffered a disclosure statement and got recovered a tesa from the disclosed place. Accused Gian Singh suffered a disclosure statement and got recovered the stick from the disclosed place. On 12.10.2001, accused Hardev Singh was arrested. During interrogation, he suffered a disclosure statement and got recovered the stick from the disclosed place.
PW-8 Assistant Sub Inspector Sharam Singh has corroborated the statement of PW-17 qua the disclosure statements suffered by accused Gian Singh and Nirdev Singh and recoveries effected in pursuance thereto. He further deposed that on 8.12.2001, he received information from the hospital qua the death of Pargat Singh. Thereafter, he reached the spot and prepared inquest report qua the dead body of Pargat Singh and the dead body was sent for post mortem examination. Defence Evidence:-
DW-1 Balbir Kaur deposed that Hardev Singh accused was her real brother. On 4.10.2001, Hardev Singh had reached her house at 7.00 P.M. for fixing wooden doors which were Crl. Appeal No. 614-DB of 2005 - 11- purchased from Dhariwal. On 5.10.2001, the doors were fixed by the accused. During investigation, her statements were recorded by Deputy Superintendent of Police Mr. Hundal and another enquiry officer Mr. Dhindsa.
DW-2 Joginder Singh, eye witness to the occurrence, was given up by the prosecution during trial on the ground that he had been won over by the accused. DW-2 deposed that Gian Singh accused and Pargat Singh deceased were his real brothers. On the day of occurrence, he was present behind the shops along with Gian Singh and Nirdev Singh. On hearing alarm they reached the spot/road and saw that Pargat Singh and his son were lying in injured condition on the road. Hardev Singh accused was not present at the spot as he had gone to the house of his sister to fix wooden doors. He had informed Nirmal Kaur wife of Pargat Singh qua the occurrence.
DW-3 Swinder Singh deposed that on 4.10.2001, Hardev Singh loaded the wooden doors on his truck. Hardev Singh had accompanied him to village Kotla Tarkhana and after unloading the wooden doors he had gone to Amristar for unloading the truck.
DW-4 Dalbir Singh deposed that on 5.10.2001, he had gone to the house of Balbir Kaur. On his inquiry, Balbir Kaur told him that the person, who was fixing the doors in her house, was her real brother.
DW-7 Deputy Superintendent of Police Jagdip Singh Hundal deposed that he had conducted the enquiy as per the orders of Senior Superintendent of Police Hardev Singh and had found accused Hardev Singh innocent in this case. Crl. Appeal No. 614-DB of 2005 - 12- Discussion/Conclusion:-
PW-13 complainant is the wife of deceased Pargat Singh and mother of deceased Daljit Singh. As per this witness, demarcation of the land was to be conducted on 5.10.2001. In these circumstances, her presence at the spot cannot be doubted. It appears that she must have been interested in watching the demarcation proceedings and had followed her husband and son to the spot. PW-4 is the sister of the complainant. On the day of occurrence, she had come to visit her sister. It has come on record that distance between her village Bariar and village Rania is about 25 kilometers. In these circumstances, her presence at the spot is probable. It is not unusual for a lady to visit her sister without any occasion. Further PW-4 has duly corroborated the testimony of PW-13 qua the manner of occurrence. Both the eye witnesses have categorically deposed that Nirdev Singh had given a tesa blow on the head of Daljit Singh. Hardev Singh had given a sota blow on the head of Daljit Singh when he had fallen down. Gian Singh had given a sota blow on the head of Pargat Singh. Thereafter, the accused had inflicted more injuries on the person of Pargat Singh and Daljit Singh. The ocular version in this regard is duly corroborated by the medical evidence. The fact that PW-4 Lakhwinder Kaur has stated that the accused had stayed at the spot after causing injuries whereas PW-13 has deposed that the accused had left the spot after causing injuries with their respective weapons in itself is not sufficient to disbelieve their statements. Such minor discrepancy is liable to occur with the passage of time. The fact remains that the eye witnesses had Crl. Appeal No. 614-DB of 2005 - 13- witnessed the occurrence. Their statements being natural inspire confidence. Further the fact that the clothes of the eye witnesses were not stained with blood and had not been taken in possession during investigation cannot be said to be fatal to the prosecution case. It appears that DW-2 Joginder Singh was won over by the accused and has deposed in favour of the accused. The said fact in itself does not render the statements of PW-4 and PW-13 unreliable. PW-4 and PW-13 had no reason to falsely involve the appellants in this case and shield the real culprits. Since on the day of occurrence, demarcation proceedings were to be carried out, the presence of the complainant and her sister at the spot appears to be natural. Thus, there is no force in the argument raised by the learned counsel for the appellants that the eye witnesses had not witnessed the occurrence and had been later on introduced as witnesses to falsely involve the appellants in this case.
So far as appellant Hardev Singh is concerned, he has taken the plea of alibi. 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 Crl. Appeal No. 614-DB of 2005 - 14- 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 issued 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 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 Crl. Appeal No. 614-DB of 2005 - 15- 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 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)."
DW-1 is none other than the real sister of appellant Hardev Singh. In her cross examination, she has deposed that her statement was recorded on 14.12.2001. It appears that being the sister of accused Hardev Singh, she has helped her brother. DW-4 Dalbir Singh is resident of village Kotla Tarkhana and the possibility that he has deposed in favour of appellant Hardev Singh being a co-villager of Balbir Kaur cannot be ruled out. Further, DW-1 has not deposed qua his visit to her home on 5.10.2001. So far as enquiry conducted by DW-7 Jagdip Singh Hundal, Deputy Superintendent of Pollice is concerned, the same cannot be relied upon as he had not joined any Lambardar, Sarpanch or respectable of the village Tarkhana. He had recorded the statements of the witnesses who had been produced before him by the accused party. The complainant party was not Crl. Appeal No. 614-DB of 2005 - 16- summoned in the said enquiry. Statement of DW-3 Swinder Singh also fails to inspire confidence. In case he had transported wooden doors to the house of Balbir Kaur, he must have done so on payment. However, there is no such receipt on record. From the testimony of this witness it cannot be inferred that he had done so on account of his personal relations with Hardev Singh or Balbir Kaur. There is no quarrel with the proposition of law that defence witnesses are also entitled to equal treatment as prosecution witnesses but the defence witnesses in the present case, examined by appellant Hardev Singh to substantiate his plea of alibi, fail to inspire confidence. Rather from the ocular version, the presence of Hardev Singh is duly established. Hence, the plea of alibi putforth by appellant Hardev Singh is liable to be disbelieved.
There is no force in the argument raised by the learned counsel for the appellants that the recoveries of the weapons had been falsely planted on the accused. In order to establish the recoveries effected on the basis of the disclosure statements suffered by the accused, PW-17 Sub Inspector Rajbir Singh has been examined during trial. PW-8 Assistant Sub Inspector Sharam Singh has corroborated his statement qua recoveries effected on the basis of disclosure statements suffered by appellants Nirdev Singh and Gian Singh. The said witnesses were acting in discharge of their official duties and had no reason to falsely plant the recoveries on the accused. Learned counsel has pointed out some minor discrepancies in the statements of PW-17 and PW-8 qua the time of interrogation. PW-8 has deposed in his cross examination that appellant Nirdev Singh and Gian Singh were taken out of the judicial lock-up for Crl. Appeal No. 614-DB of 2005 - 17- interrogation at 10.30 A.M. whereas PW-17 has stated that the said accused were interrogated at 3.00 P.M. The said minor discrepancy is liable to occur in the statements of the witnesses with the passage of time. Both the witnesses have categorically deposed that disclosure statements were suffered by accused Nirdev Singh and Gian Singh during interrogation on 9.10.2001 which led to the recovery of the weapons at their instance.
Thus, in the present case the prosecution had been successful in proving its case. The eye witness account is duly corroborated by medical evidence. A perusal of injuries on the person of deceased Daljit Singh reveals that he had suffered injuries on his head with sharp edged weapon as well as blunt weapon. A perusal of Ex. PK, admission and discharge record of deceased Pargat Singh reveals that he had suffered multiple lacerated wounds over occipital region of scalp. He had also suffered injuries on his hands and right leg just above the ankle joint. Both the parties are closely related to each other. Hence, it cannot be said to be a case of mistaken identity of the accused. Learned trial court had, thus, rightly convicted and sentenced the appellants for commission of offence under Section 302/34 IPC.
No ground for interference is made out.
Dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
April 25, 2012
Gurpreet