Punjab-Haryana High Court
Bhupinder Singh Alias Bhinda vs State Of Punjab on 3 August, 2012
Author: Rekha Mittal
Bench: Rajive Bhalla, Rekha Mittal
Criminal Appeal No. 338-DB of 2006 -1-
In the High Court for the States of Punjab and Haryana at
Chandigarh
...
Criminal Appeal No. 338-DB of 2006
Date of decision: 3.8.2012
Bhupinder Singh alias Bhinda ..Appellant
Versus
State of Punjab ..Respondent
Coram: Hon'ble Mr.Justice Rajive Bhalla
Hon'ble Mrs.Justice Rekha Mittal
Present: Mr. J.S. Parmar, Advocate
for the appellant as Amicus Curie.
Mr. Rajesh Bhardwaj, Addl. A.G.Punjab
for the respondent-State.
******
1.To be referred to the Reporters or not ?
2.Whether the judgment should be reported in the
digest ?
REKHA MITTAL,J.
1. The present appeal has been directed against the judgment of conviction and order of sentence dated 12.9.2005, passed by the learned Sessions Judge, Amritsar, whereby the appellant has been convicted for the commission of offences punishable under Section 302, 449 IPC and sentenced as under:-
Accused/appellants Section Sentence Bhupinder Singh 302 IPC Sentenced to life imprisonment alias Bhinda and to pay a fine of ` 5000/- and in default thereof to further undergo rigorous imprisonment for a period of two years. Criminal Appeal No. 338-DB of 2006 -2- -do- 449 IPC Sentenced to undergo rigorous imprisonment for a period of ten years and to pay a fine of ` 3000/- and in default thereof to undergo further rigorous imprisonment for a period of one year. 2. This case relates to murder of Darshna wife of
complainant Prem Parkash at whose instance the first information report was lodged by the police. As per the version of the complainant, on 4.10.2002, at 9.15 a.m., the complainant had gone away from his house in connection with some personal work. Daljit Kumar son of Durga Dass and Ram Lubhaya met him near the railway crossing. They informed the complainant that they were going to his house for some consultation. At 10.30/11.00 a.m, the complainant, along with Daljit Kumar and Ram Lubhaya, came back to his house. The complainant was few steps ahead of aforesaid two persons. When he entered the gate of his house, Bhupinder Singh alias Bhinda, resident of Vishvakarma Colony, Patti, the appellant herein, was pulling the ear rings of his wife Darshana with his left hand and he gave injuries to Darshna on her neck and abdomen with a 'Chhura' held in his right hand. The occurrence was witnessed by Daljit Kumar and Ram Lubhaya, who also reached the spot. On raising raula, Bhupinder Singh alias Bhinda climbed up the roof of the house through stair case and jumped in the vacant place on the back side of the house. Darshna succumbed to the injuries received by her in the occurrence. The appellant also carried with him the ear rings of the victim. On hearing raula, Jugraj son of Daljit Singh a neighbourer Criminal Appeal No. 338-DB of 2006 -3- came on the spot. Jugraj Singh tried to catch Bhupinder Singh but latter was successful in managing to escape.
3. The statement of the complainant led to the registration of first information report, Ex. PC/3, under Sections 302,449 IPC, on the basis of ruqa Ex. PC/2 sent by the Investigating Officer. Post mortem examination was conducted on the dead body. Blood was lifted from the spot. The accused was arrested in the case. He made a disclosure statement with regard to his being in possession of Chhura (knife), the weapon of crime and the ear rings of Darshana. The recovery of knife and ear rings was got effected in pursuance of the disclosure statement made by the accused. The recovered articles were taken into police possession. The accused also got recovered his blood stained shirt. On the completion of necessary investigation formalities and receipt of the report of Chemical Examiner, the final report under Section 173 Cr.P.C. was submitted before Ilaqa Magistrate for the trial of the accused.
4. After completion of the requirements of the Code of Criminal Procedure (for short, ''Cr. P. C."), the case was committed to the court of Sessions for trial since the offences under Section 302 and 449 IPC are exclusively triable by the Court of Sessions.
5. The accused/appellant was charge sheeted for commission of offence punishable under Sections 302,449 IPC to which he did not plead guilty and claimed trial.
6. To prove its case, the prosecution examined Constable Lakhwinder Singh (PW1), HC Balwinder Singh (PW2), Prem Parkash Criminal Appeal No. 338-DB of 2006 -4- complainant (PW3), Daljit Kumar, an eye witness to the occurrence (PW4), Jugraj Singh, another eye witness to the occurrence (PW5), Constable Karam Singh (PW6) Dr. Sukhwinder Singh (PW7), HC Kulwant Singh(PW8), SI Gurbans Singh, Investigating Officer (PW9), SI Anil Kumar (PW10). The prosecution also tendered into evidence reports of Forensic Science Laboratory Ex. PS and Ex. PT.
7. After closure of the evidence of the prosecution, the statement of the accused was recorded under Section 313 Cr.P.C. wherein he denied all the incriminating circumstances appearing in evidence against him and pleaded his innocence and false implication. However, he did not examine any witness in defence.
8. We have heard Mr. J.S. Parmar, Advocate, appointed as amicus curiae for the appellant and Mr. Rajesh Bhardwaj, Addl. A.G. Punjab representing the State and have gone through the trial court records.
9. The present case is based upon eye witness account given by complainant Prem Parkash (PW3), Daljit Kumar (PW4) while Jugraj Singh (PW5) was attracted to the spot on hearing the raula of the complainant and could see the accused jumping from the roof of the house of the complainant and fleeing away while holding a Chhura in his hand. Prem Parkash complainant has reiterated the story set down by him in the FIR, lodged at his instance, which is Ex. PC/3, the same has been corroborated in all material particulars with regard to the date,time and manner of the occurrence, in question, by Daljit Kumar (PW4). The version given by these two witnesses that Criminal Appeal No. 338-DB of 2006 -5- the accused jumped from the house of complainant Prem Parkash after climbing the roof of the house finds corroboration from the testimony of Jugraj Singh (PW5), a neighbourer of Prem Parkash. There is no challenge to the case of the prosecution that appellant Bhupinder Singh alias Bhinda is a resident of the same colony wherein Prem Parkash, along with his family, had been living in a house where occurrence in question took place.
10. Dr. Sukhwinder Singh, Medical Officer, Civil Hospital, Patti, conducted post mortem examination on the dead body of Darshana on 4.10.2002 at 4.30 p.m. He noticed rigour mortis on the upper part of the body of Darshana (deceased). He found the following injuries on the person of the deceased:-
1. An incised wound 9 x 3 cms. on left side of face.
Wound was bone deep, underlying mandible cut.
2. An incised wound 18 x 4 cms., transverse on front and side of upper part of neck. Trachea, eosphagus, and vessels, nerves cut.
3. An incised penetrating wound 22 x .75 cm, longitudinal on front of left upper part of chest just below clavical.
4. An incised penetrating wound 5 x 0.5 cm, on right upper part of chest, transverse in direction.
5. An incised wound 6 x .5 cm transverse on left breast muscle deep.
On dissection: Injury No.3 has cut muscle, pleura and left lung. About 20 cc of blood was present in the left Criminal Appeal No. 338-DB of 2006 -6- chest cavity.
Injury No.4 has cut muscles, right pleura and right lung. About 25 c.c of blood was present in the right chest cavity.
6. An incised wound 10 x 1 cm on lower part of chest and upper part of abdomen, cutting left sided lower ribs and puncturing stomach.
7. An incised penetrating wound 3 x .5 cm on front of abdomen, 5 cms. above umblicus. It has cut muscles peritoneum and omentum.
8. An incised wound 6 x .5 cms on back of left hand and wrist, muscle deep.
9. An incised wound 3 x .2 cm oblique on back of proximal phalynx of index finger of left hand, wound cut.
10. An incised wound 2.5 x .5 cms on upper right side of abdomen, muscle deep.
11. An incised penetrating wound 3 x .5 cm on right lower lateral side of chest, cutting muscles and pleura."
11. He has given his opinion that the death was caused by injury No.2, which was sufficient to cause death in the ordinary course of nature. The probable duration between injuries and death was instantaneous and probable duration between death and post- mortem was about six hours. He has proved the post-mortem report Ex. PK.
Criminal Appeal No. 338-DB of 2006 -7-
12. SI Gurbans Singh (PW9) conducted part of the investigation. Initially, he was associated in the investigation by SI Anil Kumar, Investigating Officer. In his presence, blood was lifted from the spot and was taken into police possession vide recovery memo. Ex. PM. During investigation conducted by him, he interrogated the accused on 10.10.2002. The accused made a disclosure statement that 'Chhura' used in the commission of crime and the ear rings removed from the person of Darshana have been kept concealed by him within bushes near railway line in the area of Patti. The disclosure statement is Ex. PO which is duly signed by him(accused) and attested by witnesses. He has also deposed about the recovery of the blood stained 'Chhura' and the ear rings in pursuance of the disclosure statement of the accused which were taken into police possession vide recovery memo Ex. PB.
13. Counsel for the appellant has assailed the prosecution case on various grounds. He has argued with vehemence that the story propounded by the prosecution is not free from lacunas, loopholes, exaggerations and embellishments.
14. Mr. Parmar has contended that the conduct of alleged eye witnesses is quite unnatural which makes their presence on the spot highly doubtful. To substantiate his contention, he submits that as per the case of the prosecution, complainant Prem Parkash, husband of the deceased, along with two witnesses, namely, Daljit Kumar (PW4) and Ram Lubhaya, was present at a distance of 20/22 feet from the place of occurrence but no effort was made by any of Criminal Appeal No. 338-DB of 2006 -8- them to save the deceased or to stop the assailant from causing injuries to Darshana. He has further argued that the situation would have been different, had the assailant been armed with a fire arm weapon and firing indiscriminately from some distance but in the present case, the assailant is stated to be armed with 'Chura' (knife). According to counsel for appellant, there is nothing in the testimony of the witnesses that they examined the body of Darshana to see, whether she was alive, and no effort was made to shift her to the hospital to get her treated medically.
15. Counsel has submitted that the first information report is ante-dated which raises a doubt about the correctness of the story of the prosecution. In this context, it is argued that no special report was sent to the Sub Divisional Judicial Magistrate, Patti and the special report exhibited on record bears the initials of Sub Divisional Magistrate, Patti.
16. The blood stained 'Chhura'(knife) was not sent for analysis to the Forensic Science Laboratory as stated by the Investigating Officer, SI Anil Kumar (PW10). The parcels containing clothes of the deceased, the shirt of the accused, the incriminating weapon and ear rings of the deceased were sent to the laboratory more than two months after recovery. Only one sample seal bearing impression "AK" was sent to the laboratory but the other parcel containing the knife and ear rings had the seal bearing impression "GS". It has been stressed that since the sample seal bearing impression "GS" was not sent to the laboratory, there was no Criminal Appeal No. 338-DB of 2006 -9- occasion and opportunity with the laboratory to compare the seals on the parcel containing knife and ear rings with the sample seal and to record its observations that the seals were intact. He has further argued that the prosecution could not prove it beyond doubt that the case property, i.e., knife and ear rings, remained intact and un- tempered, ever since the time of its sealing by the Investigating Officer till the time it reached the Forensic Science Laboratory, therefore, the prosecution cannot use the report of Forensic Science Laboratory in respect of knife and ear rings.
17. The counsel has contended that no independent witness was joined at the time of interrogation of the accused leading to the disclosure statement, allegedly, made by him and the recovery of the incriminating articles in pursuance of the said disclosure statement. He has further contended that even the official witnesses, stated to be present at the time of recording of the statement of the accused under Section 27 of the Indian Evidence Act and the recovery in pursuance thereof, have not been examined in the case. The last submission made by the learned counsel is that even the jeweller, who identified the ear rings stated to be made by him, has not been examined in this case and, therefore, the prosecution could not prove beyond doubt that the ear rings allegedly recovered from the accused actually belonged to deceased Darshana. He has also added that even Jugraj Singh (PW5) has been introduced later on so as to connect the accused with the crime. As per the site plan prepared by the Investigating Officer, the accused jumped from the roof of the Criminal Appeal No. 338-DB of 2006 -10- house of the victim to the vacant space but Jugraj Singh(PW5) has deposed that he saw the accused while running on the road and the said road is on the opposite side of the vacant space as depicted in the site plan Ex. PQ. No test identification parade was conducted to get the accused identified from Jugraj Singh (PW5). Jugraj Singh(PW5) has admitted during his cross-examination that before his appearance in the court for examination,he had an opportunity to see the accused during his police custody and therefore, identification of the accused by Jugraj Singh (PW5) in court is of no significance.
18. The counsel representing the State has supported the judgment passed by the trial Court on the plea that it is based upon correct appreciation of the evidence led on record. He has submitted that the testimony of eye witnesses, i.e., Prem Parkash (PW3) and Daljit Kumar (PW4) could not be assailed during their cross examination. Prem Parkash(PW3) being the husband of the deceased and Daljit Kumar(PW4) a relative of the complainant and deceased cannot be expected to depose against some body at the cost of shielding the real culprit. No reasons are forthcoming either during the cross-examination of the witnesses or from the statement of the accused recorded under Section 313 Cr.P.C that the complainant had any reason much less a strong motive to get Bhupinder Singh alias Bhinda falsely implicated in this case. In the last, he has argued that even if the Investigating Officer of the case has committed any lapse during investigation of the case either Criminal Appeal No. 338-DB of 2006 -11- intentionally or otherwise, the complainant cannot be condemned for the same or the same cannot be used to cause prejudice to the testimony of the complainant which gets corroboration from the testimony of Daljit Kumar(PW4) and the medical evidence.
19. We have given our thoughtful consideration to the rival submissions made by the learned counsel in the light of the material available on record.
20. Un-disputedly, complainant Prem Parkash(PW3) entered the gate of his house when he witnessed the assailant pulling ear rings and causing injuries to his wife. Daljit Kumar (PW4) and Ram Lubhaya, another eye witness to the occurrence (not examined in the case), reached the spot soon after the arrival of Prem Parkash. The witnesses were at a distance of few steps from the spot where the occurrence took place. Prem Parkash and Daljit Kumar were cross- examined at length by the defence counsel but no explanation was sought from them as to why they did not intervene to save the victim from the attack. Every person, who witnesses a murder, reacts in his own way. Some are stunned, become speechless and stand rooted to the spot. Some become hysterical and start wailing. Some start shouting for help. Some run away to keep themselves removed from the spot as far as possible. Yet only few rush to the rescue of the victim, going to the extent of counter-attacking the assailant.Every one reacts in his own way. There is no set precedent of natural reaction. To discard the evidence of a witness(es) on the ground that he/they did not react in any particular manner, is to appreciate Criminal Appeal No. 338-DB of 2006 -12- evidence in a wholly unrealistic and unimaginative way. In this view of the matter, the appellant cannot seek advantage tof his contentions from the fact that Prem Parkash and Daljit Kumar PWs did not intervene to rescue the victim from the hands of the assailant. The appellant caused injuries to the victim on her chest and neck with a sharp edged weapon. Prem Parkash PW has stated that on receipt of injuries Darshana died there and then. Once the complainant knew that Darshana had succumbed to the injuries sustained in the occurrence, there was no occasion with the complainant and the eye witnesses to shift Darshana to a hospital for medical help. The argument of the counsel for the appellant that the conduct of the witnesses is unnatural because they did not shift Darshana to hospital is devoid of any merit and is rejected.
21. The occurrence, in question, took place in the broad day light at about 10.30/11.00 a.m. on 4.10.2002. Prem Parkash(PW3) gave his first version to the police at 12.45 P.M. within two hours of the occurrence. The formal FIR was registered at the Police Station concerned at 1.05 p.m. There is no force in the contention of the learned counsel for appellant that no special report was sent to Sub Divisional Judicial Magistrate, Patti or the FIR is ante-dated. It appears to us that the letters "JM" in the designation as "SDJM" are written jointly, however, the counsel appears to have read those letters as "M" alone in order to submit that the endorsement on FIR Ex. PC/3 in token of receipt of special report is of "SDM" instead of "SDJM". Apart from this, the delay in lodging the FIR itself cannot be Criminal Appeal No. 338-DB of 2006 -13- fatal to the case of the prosecution. If there is delay in lodging the FIR, it puts the court at guard and requires it to appreciate the evidence of the prosecution more meticulously to rule out the possibility of false implication. In the instant case, no such fact has been elicited either during cross-examination of the witnesses or by way of leading positive evidence in defence. The complainant Prem Parkash did not have any animosity as to falsely accuse the appellant, therefore, there is no substance in the argument of the counsel that either the FIR, in this case, has been ante-dated or no special report was sent to the Sub Divisional Judicial Magistrate, Patti.
22. The counsel has raised arguments to point out certain discrepancies and flaws in the case which relate to post occurrence period. The present case is based upon the eye witness account of Prem Parkash(PW3) and Daljit Kumar(PW4). The defence counsel during cross-examination of witnesses could not elicit any such fact which could cast a doubt much less a serious doubt with regard to their presence at the spot. He could not impeach the credibility and veracity of these witnesses. Under these circumstances, even if there were some discrepancies in the case of the prosecution or the Investigating Officer had,either intentionally or otherwise, failed to conduct fool proof investigation, the same cannot be used to the disadvantage of the complainant, who is the real victim of the crime. Nevertheless, we would like to address to all those submissions in the latter part of our judgment.
Criminal Appeal No. 338-DB of 2006 -14-
23. The counsel for appellant has submitted that there is delay of two months in transmitting the parcels of case property from the 'malkhana' of police station to the laboratory but the counsel has failed to contend as to what adverse effect thereof has been caused to the prosecution case. There is no merit in the contention of the counsel that only one sample seal bearing impression "AK" was sent to the Laboratory and the other seal bearing impression "GS" was not sent for the purpose of comparison of the seals on the parcel containing incriminating weapon and the ear rings. This contention is falsified and belied from the testimony of Constable Lakhwinder Singh (PW1), who tendered his affidavit Ex. PA, wherein he has clearly and categorically deposed that when he transferred the parcel containing the seals with impression "AK", he carried with him sample seal in its intact condition, along with the parcel which were deposited with the office of Director, Forensic Science Laboratory, Chandigarh, on 12.12.2002. The other parcel was transmitted by the witness on 18.12.2002 which had the seals of impression "GS" and he also carried the sample seal along with him which was deposited by him in the aforesaid laboratory on 19.12.2002. He has also deposed that so long as the case property on both the occasions remained in his possession, he did not tamper with the same. Even a perusal of the report of Forensic Science Laboratory Ex. PS in respect of parcel containing the pair of ear rings and Chhura and report Ex. PT in respect of parcel containing the clothes of the deceased and the 'Kameez' of the accused reveals that there is a specific mention that Criminal Appeal No. 338-DB of 2006 -15- the seals were found intact on tallying with the specimen seals.
24. It is a fact that during interrogation of the accused, when he suffered disclosure statement leading to the recovery of the incriminating articles, as well as at the time of recovery in pursuance of the disclosure statement, no independent witness was joined. Equally true is that two police officials, who attested the disclosure statement and the recovery memo. were not examined in the case. The disclosure statement suffered by the accused and the recovery of the articles effected in pursuance thereof, have been duly proved by the Investigating Officer of the present case. The Investigating Officer of this case was subjected to cross-examination at length by the defence counsel but failed to create any dent in his deposition much less to convince the Court that the alleged recoveries have been planted against the accused in order to strengthen the case. There is nothing on the record to suggest that the Investigating Officer of the case had any ill-will or enmity against the accused. As we have already mentioned above but would like to repeat that the complainant at whose behest criminal action has been set in motion, did not have any differences much less previous animosity with the accused in order to implicate him falsely in the case because of the death of his wife by some unknown/ unidentified person(s). The testimony of a police official is not to be discarded or disbelieved merely for the reason that he belongs to the police force. There is no rule of law or evidence that conviction cannot be recorded on the testimony of police officials, if found reliable, unless corroborated by Criminal Appeal No. 338-DB of 2006 -16- some independent witness. We are further of the view that where evidence of police officials after careful scrutiny inspires confidence and is found to be trust-worthy and reliable. It can be relied upon by the court without looking for corroboration thereto by an independent witness. Thus, the contention of the counsel for the appellant that the disclosure statement made by the accused and the recovery in pursuance thereof cannot be relied upon for want of corroboration is untenable and is rejected.
25. The ear rings recovered from the accused were identified by complainant Prem Parkash(PW3) husband of the deceased. He had every opportunity to see those ear rings in the ears of his wife. Those ear rings were got made by Prem Parkash himself from a jeweller, who though was also associated during investigation but not examined. Since the ear rings were identified by Prem Parkash himself, the non-examination of Partap Singh, Saraf (jeweller) of Patti cannot be said to be fatal to the case of the prosecution.
26. Much stress has been laid by the learned counsel on the identification of the accused by Jugraj Singh (PW 5). Prem Parkash(PW3) gave his (accused's) complete particulars in the FIR itself. The accused is a resident of Vishvakarma Colony,Patti, in which the house of the complainant is situated. The complainant knew the accused prior to the occurrence . The crime was committed in broad day light at about 11.00 A.M. in the month of October, 2002. The complainant had an opportunity to see the accused at the time of occurrence as well as when he climbed the stairs to go to the roof of Criminal Appeal No. 338-DB of 2006 -17- the house and escaped. PW 5 Jugraj Singh is also a resident of the same colony, as such, he is also known to the accused. Further,the testimony of complainant Prem Parkash(PW3), corroborated by Daljit Kumar (PW4) has established the identity of the accused beyond any doubt. Under these circumstances, even if the statement of Jugraj Singh (PW5) is taken out of consideration or it is stated to be not convincing to establish the identity of the accused, the accused cannot be extended any benefit in the circumstances of the present case.
27. No other point has been raised before us.
28. We would like to advert to another important aspect of the case. The eye witness account has been given by Prem Parkash(PW3) husband of the deceased and Daljit Kumar(PW4) a close relative of the complainant and the victim. Both star witnesses of this case happen to be close relatives of the deceased. Now the question arises as to whether the version given by these two PWs can become the basis for conviction without seeking corroboration from any independent witness. At the outset, the answer appears to be in the positive. This question came up for consideration before the Hon'ble Supreme Court of India in State of Andhra Pradesh Versus S. Rayappa and others AIR 2006 (SC) 3079, Satbir Singh and others vs. State of Uttar Pradesh (2009)13 SCC 790 and Balraje alias Trimbak vs. State of Maharashtra (2010) 6 SCC 673. The Hon'ble Apex Court has consistently held that a relation witness is not necessarily an interested witness. On the other hand, being a Criminal Appeal No. 338-DB of 2006 -18- close relation to the deceased, they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against some body and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. Now testing the case in hand on the touch stone of various principles laid down by the Apex Court, no such facts are elicited on record which could be suggestive that eye witnesses, who are related to the deceased, are not truthful and worth reliance or they had motive to implicate the accused in this case even at the cost of screening the real culprit. In this view of the matter, the testimony of Prem Parkash(PW3) and Daljit Kumar(PW4) cannot be doubted on the ground that they happen to be relatives of the deceased.
29. In the result, the appeal filed by the appellant fails. The judgment of conviction and order of sentence passed by the learned Sessions Judge, Amritsar, are hereby affirmed. The appellant, if on bail, be taken into custody to undergo the remaining period of sentence.
(REKHA MITTAL)
JUDGE
August 3,2012 (RAJIVE BHALLA)
nk JUDGE
Criminal Appeal No. 338-DB of 2006 -19-