Punjab-Haryana High Court
Bir Singh & Anr vs State Of Punjab on 22 October, 2009
Author: Daya Chaudhary
Bench: Jasbir Singh, Daya Chaudhary
Crl. Appeal No. 321-DB of 2001 (1)
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No. 321-DB of 2001
DATE OF DECISION: 22.10.2009
Bir Singh & Anr. ..........Appellants
Versus
State of Punjab ..........Respondent
CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE DAYA CHAUDHARY
Present:- Mr. Ashok Saini, Advocate
for the appellants.
Mr. D.S. Brar, Deputy Advocate General,
Punjab assisted by Mr. K.S. Kahlon, Advocate
for the complainant.
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Daya Chaudhary, J.
The present appeal arises out of judgment of conviction and order of sentence dated 17.5.2001 passed by Sessions Judge, Gurdaspur in Sessions Case No. 27 of 19.11.1998, whereby, accused-Bir Singh has been convicted and sentenced to undergo life imprisonment and to pay a fine in the sum of Rs.1000/- under Section 302 IPC and in default of payment of fine to further undergo RI for three months and accused- Mangal Singh has been convicted and sentenced to undergo life imprisonment and to pay a fine in the sum of Rs.1000/- under Section 302/34 IPC and in default of payment of fine to further undergo RI for three months.
Briefly, the facts of the prosecution case are that FIR No. 72 Crl. Appeal No. 321-DB of 2001 (2) dated 10.8.1998 was registered against the accused-appellants at Police Station Rangar Nangal for the offences punishable under Section 302/34 IPC on the basis of statement made by Buta Singh, son of the deceased. He stated that he has taken five killas of land on 'Batai' of half share from one Basant Kaur @ Bawi who was having five acres of land in village Sukha Chirra. On 9.8.1998 at about 7.30 pm, he along with his father- Shangara Singh and brother Jarnail Singh was returning from the field to the village and when they reached near the sugarcane field of Amarjit Singh, accused Mangal Singh who was empty handed and accused-Bir Singh who was armed with gandasi came from the back side. Accused-Bir Singh exhorted and told his brother Mangal Singh that Shangara Singh has been cultivating the land of their Aunt-Basant Kaur @ Bawi forcibly and Shangara Singh had illicit relations with her and he should not be spared. Mangal Singh and Bir Singh grappled with Shangara Singh and also exchanged abuses. Mangal Singh caught hold of Shangara Singh and Bir Singh started giving gandasi blows to Shangara Singh. First blow struck on left ear of Shangara Singh, on which an alarm was raised by both the brothers. Second blow was given on the left eye of Shangara Singh due to which he fell down and died at the spot. After leaving Shangara Singh, both the accused-appellants ran away from the spot along with their respective weapons. Meanwhile, one Narinder Singh also reached at the spot and witnessed the entire occurrence. Later on, other villagers also reached at the spot. The motive put up by the prosecution was that Shangara Singh was cultivating the land of Basant Kaur @ Bawi, aunt of Bir Singh and Mangal Singh and both of them were under the impression that Shangara Singh had illicit relations with their aunt and because of that reason they committed murder of Shangara Singh.
On the basis of statement made by complainant-Buta Singh to SI Natha Singh, a formal FIR under Section 302/34 IPC was recorded.
Crl. Appeal No. 321-DB of 2001 (3) After registration of the FIR, SI Natha Singh reached at the spot and made necessary investigation and after completing required formalities dead body was sent for postmortem examination. Both accused-Bir Singh and Mangal Singh were arrested on 13.8.1998. On 16.8.1998, the gandasi which was used for causing injuries was recovered on the basis of disclosure statement made by Bir Singh.
After completion of investigation and necessary formalities, challan was presented in the court of Illaqa Magistrate. After supplying copies of the documents under Section 207 Cr.P.C. to the accused- appellants, the case was committed to the Court of Sessions vide order dated 5.11.1998. Accused-appellants were chargesheeted under Section 302/34 IPC by Additional Sessions Judge, Gurdaspur vide order dated 23.12.1998, to which, they pleaded not guilty and claimed trial.
In order to substantiate the charge, prosecution examined Janak Raj Patwari (PW-1), Dr. Sukhdip Singh (PW-2), Buta Singh (PW-3), Jarnail Singh (PW-4), Surjan Singh MHC (PW-5), ASI Balwinder Kumar (PW-6), Natha Singh (PW-7).
After close of the prosecution evidence, statements of accused-appellants under Section 313 Cr.P.C. were recorded, wherein, they denied the allegations of the prosecution and pleaded false implication. The accused stated in their statements that they had falsely been implicated in the case whereas Shangara Singh died under mysterious circumstances and was found lying dead near the house of Amarjit Singh and his brother Roor Singh. They further stated that when the police had failed to find any clue for the death of Shangara Singh, they have falsely been implicated in the case at the instance of complainant. It was also mentioned in the statement of accused-Mangal Singh that the allegations against him are totally false as being a blind person he was not in the capacity to commit the murder of Shangara Singh as alleged against Crl. Appeal No. 321-DB of 2001 (4) him. In defence, accused-appellants examined Roor Singh (DW-1) and Amarjit Singh (DW-2).
The trial Court after hearing both the parties and perusing the evidence available on record convicted and sentenced accused-appellants as mentioned above.
The judgment of conviction and order of sentence passed by learned trial Court is under challenge in the present appeal.
Mr. Ashok Saini, learned counsel for the accused-appellants argued that there is delay in lodging the FIR and the same has not been explained by the prosecution. As per prosecution story, the occurrence took place on 9.8.1998 at 7.30 pm and the FIR was registered on 10.8.1998 at 1.30 pm. There was an inordinate delay of more than 18 hours in registration of FIR and the prosecution witnesses have failed to explain the same. The explanation given by prosecution witnesses cannot be accepted as simply it has been mentioned that they were afraid of the accused and, therefore, the matter was not reported to the police. The conduct of eye witnesses in remaining silent for more than 18 hours seems to be unnatural. Both the eye witnesses i.e. Buta Singh (PW-3) and Jarnail Singh (PW-4) are the sons of deceased-Shangara Singh and they were following their father while coming from their fields. One Narinder Singh was also present at the spot and injuries were given in their presence but neither they raised any voice nor did anything to save their father-Shangara Singh. Moreover, the complainant party were four in number and accused- appellants were only two.
Mr. Saini further argued that as per certificate issued by Civil Surgeon, appellant-Mangal Singh was totally blind person, whereas, as per prosecution story, he caught hold of deceased-Shangara Singh and injuries were given to the deceased by his brother Bir Singh. The prosecution version does not seem to be convincing as a blind person cannot catch Crl. Appeal No. 321-DB of 2001 (5) hold of a person and Bir Singh cannot give so many injures in presence of four persons from the complainant side. Moreover, no efforts were made by both the sons to save their father. It is also the argument of learned counsel for the accused-appellants that the story put forward by the defence is more probable and trustworthy that it was a blind murder and the death of the deceased was reported to Buta Singh (PW-3) by one Roor Singh (DW-1). As per prosecution version, the incident was witnessed by two sons of the deceased and one Narinder Singh but Narinder Singh was not examined. Even the cause of murder was that Shangara Singh was having illicit relations with Basant Kaur @ Bawi but she was not examined by the prosecution.
Mr. Saini also argued that there is an inconsistency between the medical evidence and the ocular evidence. As per prosecution version, the occurrence took place at 7.30 pm, whereas, as per statement given by Doctor in his evidence, who conducted postmortem examination of the dead body, semi digest food was found in the stomach of the deceased. Since the death occurred at 7.30 pm then the deceased might have taken food at or around 5.00 pm, which is highly doubtful as it was not the time for taking food. It clearly shows that the time of death cannot be believed on the basis of medical evidence.
Mr. D.S. Brar, Deputy Advocate General, appearing for the State of Punjab has argued that the prosecution has fully proved its case on the basis of statements of prosecution witnesses and since it was a case of eye witness account, therefore, the testimony of the eye witness cannot be doubted. The delay in registration of the FIR has been explained by the complainant and the accused-appellants have rightly been convicted for committing murder of Shangara Singh.
Mr. K.S. Kahlon, learned counsel for the complainant has also reiterated the same arguments as has been advanced by learned counsel Crl. Appeal No. 321-DB of 2001 (6) for the State and has also contended that no leniency should be taken as Shangara Singh has been murdered by both the accused-appellants by using deadly weapon in the presence of two eye witnesses.
We have heard the arguments of learned counsel for the parties and perused the evidence and other doucments available on record.
In the present case, as per prosecution story, the occurrence took place on 9.8.1998 at 7.30 pm and admittedly the FIR was got registered on 10.8.1998 at 1.30 pm and as such there is a delay of more than 18 hours in reporting the matter to the police. The explanation given by complainant-Buta Singh (PW-3) and Jarnail Singh (PW-4) that due to fear, the matter could not be reported to the police is not acceptable. The explanation given by the prosecution witnesses does not seem to be based on reasoning of the prudent person as the murder took place in presence of two sons of deceased-Shangara Singh. Moreover, the complainant party were four persons at the spot, whereas, the accused persons were only two and out of two one was blind. The conduct of both eye witnesses was not natural as both the sons of the deceased i.e. Buta Singh (PW-3) and Jarnail Singh (PW-4) did not make any efforts to save the life of their father when he was being murdered at the hands of accused-appellants. As per prosecution story, before this incident there was grappling and exchange of abuses between the deceased and appellants and there was no sudden attack, The normal course of conduct expected from Buta Singh (PW-3) and Jarnail Singh (PW-4) was that they would have intervened and had attacked the appellants or at least they would have tried to save their father from the clutches of the appellants. The explanation that both of them were under fear of attack is not accepted.
As per statements of Buta Singh (PW-3) and Jarnail Singh (PW-4), real sons of deceased-Shangara Singh, there was one Narinder Crl. Appeal No. 321-DB of 2001 (7) Singh with them at the spot, who was an independent witness but he has not been examined, which doubts the presence of both the eye witnesses. The motive put up by the trial Court that the deceased was having illicit relations with one Basant Kaur @ Bawi and he was cultivating her land on 'Batai' is also not proved. Nothing has come on record to prove that allegation as neither there is any revenue record on the file nor Basant Kaur has been examined. The Trial Court has totally failed to appreciate the golden principle of criminal jurisprudence that the "Motive is a double edged weapon which cuts both ways. It can be used by both, prosecution as well as defence in the same fashion". This view has been supported by the Hon'ble Supreme Court of India in the case of Rampal Vs. State of Maharashtra, 1972 Criminal Law Journal 473, wherein, it has been held that if in a criminal case motive as a circumstances is put forward it must be fully established like any other incriminating circumstance.
The ocular version has not been supported by medical evidence. As per prosecution version, the occurrence took place at 7.30 pm and as per statement of Doctor, who conducted the postmortem examination of the deadbody, semi-digest food was found in the stomach of the deceased which does not correspond the time of occurrence.
It was a case of blind murder and the trial Court has not properly appreciated the evidence available on record. It is not worth believing that a totally blind person has participated in causing injuries, grappling with the deceased and thereafter taking the deceased into his arms holding him tightly and giving rise to other accused to inflict injuries on the deceased. The prosecution story is totally unbelievable, untrusthworthy and beyond the imagination of a common prudent man. It is also surprising that a totally blind person ran away from the place of commission of murder in presence of two sons of deceased. The Apex Court in the case of Mohan Singh Vs. State of M.P. 1999(1) RCR Crl. Appeal No. 321-DB of 2001 (8) (Criminal) 723 has held that no innocent person should be punished, but at the same time no guilty person should go scot-free. The evidence that is required to be led by the prosecution to connect the accused with the commission of crime, as per the law laid down by the Apex Court is preponderance of evidence of high degree.
For the reasons mentioned above, we are of the view that the prosecution has totally failed to prove its case against accused-appellants. Accordingly, the appeal is allowed. The impugned judgment of the trial Court is set aside. The appellants are acquitted of the charges framed against them. If they are on bail, they shall stand discharged of their bail bonds. If they are in custody, they shall be set at liberty at once, if not required in any other case.
(DAYA CHAUDHARY)
JUDGE
October 22, 2009 (JASBIR SINGH)
pooja JUDGE
Note:-Whether this case is to be referred to the Reporter .......Yes/No