Punjab-Haryana High Court
Avtar Singh And Another vs State Of Punjab on 4 May, 2012
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No. 303-DB of 2008 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No. 303-DB of 2008
Date of decision:May 04, 2012
Avtar Singh and another
......Appellants
Versus
State of Punjab .......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mr. Vinod Ghai, Advocate,
for the appellant.
Mr. Rajesh Bhardwaj, Additional A.G., Punjab.
****
JUDGMENT
SABINA, J.
Appellants have preferred this appeal challenging their conviction and sentence for commission of an offence under Sections 302/ 34 of the Indian Penal Code, 1860 (IPC for short), as ordered by the trial Court vide judgment/ order dated 12.4.2008.
Complainant Balbir Kaur stated in her statement before Sub Inspector Ashwani Kumar on 11.10.2003 that a month ago her son Joga Singh had quarrelled with Paggi and Avtar Singh in connection with daughter-in-law of Gurdev Singh. The matter was compromised in the panchayat. Joga Singh was employed on a Criminal Appeal No. 303-DB of 2008 2 private bus as a conductor. At about 5.30 A.M. on the said day, her son Joga Singh had gone in the fields to answer the call of nature. She was following her son. When Joga Singh crossed the road and reached near the bushes, three young men came there on a motorcycle namely Paggi son of Malkiat Singh and Avtar Singh son of Gurdev Singh, whereas, she did not know the name of the third young man. Paggi raised a lalkara that Joga Singh had come and he should be caught hold of. Avtar Singh caught hold of Joga Singh and Paggi gave a sabbal (iron rod) blow on the head of Joga Singh. Avtar Singh fired from his pistol and she had heard the sound of the shot. Joga Singh fell down on account of injuries suffered by him on his head. She raised alarm 'killed- killed'. Her elder son Gursewak Singh also reached the spot, who had gone to answer the call of nature prior to them. Then all the three assailants sped away from the spot with their respective weapons on a black colour motorcycle. She took the injured to the hospital along with her son Gursewak Singh, after arranging for a vehicle.
On the basis of the statement of the complainant formal FIR No.144 was registered on 11.10.2003 at police station under Lohian, Jalandhar Sections 302/ 34 IPC and Section 25 of the Arms Act, 1959 (the Act for short).
Sub Inspector Ashwani Kumar visited the spot and prepared inquest report qua the dead body of Joga Singh and sent the same for postmortem examination. He lifted blood stained earth from the spot. He prepared rough site plan qua the place of occurrence. The appellants were arrested on 5.11.2003. During Criminal Appeal No. 303-DB of 2008 3 interrogation, on 6.11.2003 appellant Pargan Singh @ Paggi suffered a disclosure statement and got recovered the iron rod from the disclosed place and the same was taken in possession. During investigation, appellants were declared innocent. An application for discharge of the appellants was moved by the prosecution.
On 5.9.2004, Sub Inspector Sulakhan Singh (DW-3), Incharge, CIA Staff, Pathankot, during investigation of FIR No.129 dated 5.9.2004 under Sections 307, 148, 149 IPC and Section 4/ 5 Explosive Act registered at Police Station, Pathankot recorded disclosure statements suffered by Sarup Singh, Rachhpal Singh and Nirmal Singh. The said persons suffered disclosure statements that in October, 2003 at the instance of Satta, presently residing in England, had committed murder of Joga Singh, conductor and had received ` 3,00,000/- towards consideration. Out of the said amount ` 2,00,000/- had been shared by Rachhpal Singh, Raju and Sonu, whereas, ` 1,00,000/- were paid to Nirmal Singh. Challan was presented against the said persons qua commission of murder of Joga Singh. In the said trial, an application was moved by the prosecution under Section 319 of the Code of Criminal Procedure, 1973 (Cr.P.C. For short) for summoning the present appellants as accused. Thereafter, the trial Court separated the trial of the present appellants and supplementary challan was presented qua the appellants.
Prosecution in order to prove its case examined 7 witnesses.
Criminal Appeal No. 303-DB of 2008 4
Appellant Avtar Singh, when examined under Section 313 Cr.P.C. after the close of prosecution evidence, prayed as under:-
"I am innocent and I have been falsely implicated in this case. I am running dairy at Jalandhar since 1983. I reside in Lal Nagar, at Jalandhar, which is at a distance of 55 k.m. from village Lal. I was at Jalandhar at the time of alleged occurrence and I was with Boota Singh and Ram Chander, who appeared before the police. My children were born at Jalandhar and they are studying at Jalandhar. I was found innocent by the police during the investigation of the case. Sarup Singh, Nirmal Singh, Rashpal Singh and Ranjit Singh were challaned by the police for the murder of Joga Singh, who are facing trial before this learned court."
Appellant Pargan Singh @ Paggi, when examined under Section 313 Cr.P.C. after the close of prosecution evidence, prayed as under:-
"I am innocent and I have been falsely implicated in this case. I was with Ex-Sarpanch Chanan Singh of village Lal, at the time of alleged occurrence at my residence. I was found innocent by the police during the investigation of the case. Nirmal Singh, Sarup Singh, Rachhpal Singh and Rajinder Singh were challaned by the police for the murder of Joga Singh, who are facing trial before this court."
The appellants examined 5 witnesses in their defence. Criminal Appeal No. 303-DB of 2008 5 Learned counsel for the appellants has submitted that the prosecution had miserably failed to prove its case. The appellants had been falsely involved in this case. In fact, Rachhpal Singh and others had committed the murder of Joga Singh at the instance of Satta son of Gurdev Singh. Rani, wife of Satta, was having illicit relations with the deceased and due to this reason, Satta got Joga Singh murdered by hiring Rachhpal Singh and others. In fact, Rachhpal Singh and others had suffered confession before a police officer relating to police station Pathankot, whereas, the present occurrence relates to police station Lohian. No reliance could be placed on the testimony of the complainant. She had been introduced as a witness at a later stage. There was no occasion for the complainant to follow her son in the morning when he had gone to answer the call of nature.
Learned State counsel, on the other hand, has submitted that the statement of the complainant was duly corroborated by medical evidence. Rachhpal Singh and others had been acquitted by the trial Court vide a separate judgment.
The facts of the present case are peculiar. The prosecution case was set in motion on the basis of the statement of the complainant. The complainant had given eye witness account qua the occurrence. However, during investigation, the prosecution sought discharge of the present accused. Rachhpal Singh and others were arrested on 5.9.2004 by the police of police station Pathankot in another case. During investigation of the said case, Rachhpal Singh, Sarup Singh and Nirmal Singh suffered disclosure Criminal Appeal No. 303-DB of 2008 6 statements admitting the commission of murder of Joga Singh at the instance of Satta. Admittedly, Rachhpal Singh and others have been acquitted by the trial Court qua murder of Joga Singh.
The statement of the complainant inspires confidence. Complainant is none other than the mother of the deceased. She has categorically deposed that on the day of occurrence, she was following her son, who was going to the fields to ease himself. She further deposed that Pargan Singh had inflicted a rod blow on the head of Joga Singh, whereas, Avtar Singh had fired a shot from his pistol. The complainant had no reason to shield the real culprits and involving the appellants falsely in this case. The complainant was merely interested to see that the culprits are adequately punished and justice be done to her. Had the other set of accused committed the murder then there was no occasion for the complainant to depose qua the involvement of the appellants in the crime. The complainant has withstood the test of lengthy cross-examination. Her testimony qua the manner of occurrence could not be shaken during cross-examination. The eye witness account is duly corroborated the medical evidence.
PW- 1 Dr. Bhupinder Singh deposed that on 11.10.2003 at 4.15 P.M., he had conducted the postmortem examination on the dead body of Joga Singh and observed as under:-
"There was a diffuse swelling 12 cm x 11 cm on the left tempero-parietal region and a lacerated wound measuring 1 ½ cm x 1 cm on its lower part, above and lateral to pinna. It was having charred and inverted margins and Criminal Appeal No. 303-DB of 2008 7 on dissection: the underlying parietal bone was having a fracture and whole of the underlying dura and sub dura was having blood and on deep dissection: brain matter was having lacerations and whole of the cranial cavity was having blood and a bullet measuring 2.9 cm recovered from the cranial cavity which was present in the right side of brain.
The membranes of brain were congested and the brain matter was lacerated."
In his opinion, the cause of death was due to head injury i.e. fire arm injury which was ante mortem and was sufficient to cause death in the ordinary course of nature.
Thus, as per the medical evidence, two injuries were found on the person of the deceased. One was defused swelling on the left temporal region and the other was lacerated wound on its lower part, above and lateral to pinna. The bullet was also recovered from the cranial cavity. This shows that appellant Pargan Singh had inflicted a rod blow on the head of the deceased, whereas, appellant Avtar Singh had fired on the head of the deceased from his pistol. Both the said injuries were on the left tempo parietal region of the deceased. The fact that the complainant had not specifically stated in her statement before the police that appellant Avtar Singh had fired the shot on the head of the deceased cannot be fatal to the prosecution case. The complainant had categorically deposed that appellant Avtar Singh had fired at Joga Singh. As per the medical evidence, deceased had suffered a fire arm injury on his head. Criminal Appeal No. 303-DB of 2008 8 Thus, there is no variance between the ocular and medical evidence.
The fact that in the inquest report, the Investigating officer has not referred to fire arm injury and had only stated that the weapon used was sharp in column No.12 cannot be said to be fatal to the prosecution case. It appears that the investigating officer had not properly investigated the case from the very beginning. The investigating officer should have been able to observe that the deceased had suffered a fire arm injury. Rather he wrote in the inquest report that sharp weapon had been used. It is a settled proposition of law that the complainant party cannot be made to suffer on account of any negligence committed by the investigating agency during investigation. If, that be so, then it would amount to playing into the hands of the investigating officer who may be designedly trying to help the accused party. In view of the ocular version, which is duly corroborated by medical opinion, any negligence committed by the investigating agency cannot be said to be fatal to the prosecution case.
There is also no force in the argument raised by the learned counsel for the appellants that the complainant had no occasion to follow her son when he was going to answer the call of nature. It is probable that the complainant herself was also going to answer the call of nature. The complainant has not specifically said so in her statement that she was also going to answer the call of nature but from her statement it can be inferred that it is possible that she was also going to answer the call of nature. Her elder son Gursewak Singh had also returned after answering the call of nature Criminal Appeal No. 303-DB of 2008 9 at the time of occurrence.
Appellant Avtar Singh 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 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 is used 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 Criminal Appeal No. 303-DB of 2008 10 cases need be considered only when the burden has been discharged by the prosecution satisfactorily. But once the prosecution succeeds in discharging the burden it is incumbent on the accused, who adopts the plea of alibi, to prove it with absolute certainty so as to exclude the possibility of his presence at the place of occurrence. When the presence of the accused at the scene of occurrence has been established satisfactorily by the prosecution through reliable evidence, normally the Court would be slow to believe any counter evidence to the effect that he was elsewhere when the occurrence happened. But if the evidence adduced by the accused is of such a quality and of such a standard that the Court may entertain some reasonable doubt regarding his presence at the scene when the occurrence took place, the accused would, no doubt, be entitled to the benefit of that reasonable doubt. For that purpose, it would be a sound proposition to be laid down that, in such 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-3 Sub Inspector Sulakhan Singh has deposed qua Criminal Appeal No. 303-DB of 2008 11 the disclosure statements suffered by Sarup Singh and Rachhpal Singh before him qua the murder of Joga Singh by them at the instance of Satta. In his cross-examination, he deposed that he had not joined any witness from public at the time of interrogation of the said accused nor any recovery was effected from them in consequent to their disclosure statements. Since the disclosure statements had been made by Rachhpal Singh and others before the police while in custody and no recovery had been effected in pursuance thereto, no reliance can be placed on the testimony of DW-3.
DW-5 Lashkir Singh deposed that during investigation he had recorded statements of Surinder Kumar, Baljit Singh and others and had declared the appellants innocent. In his cross-examination, he admitted that only oral evidence had been produced before him qua the plea of alibi taken by the appellants. He admitted that the complainant had specifically named the accused and had attributed specific role to them. He also admitted that the case was investigated by Station House Officers Ashwani Kumar and Baljit Singh and both of them had found the accused guilty during their investigation.
In order to establish his plea of alibi, appellant Avtar Singh had examined DW-1 Surinder Kumar. The said witness deposed that on 11.10.2003, Avtar Singh had met him at Chara Mandi at about 5.15 P.M. and had remained with him up to 6.00 P.M. He came to know about registration of the case on the next day.
The statements of DW-1 and DW-5 fail to advance the case of the appellants as the said witnesses had disregarded the Criminal Appeal No. 303-DB of 2008 12 investigation conducted by earlier Station House Officers. DW-5 had not bothered to verify the plea of alibi taken by appellant Avtar Singh by insisting on some documentary evidence. DW-1 stated in his cross-examination that whosoever purchased or sold fodder in Chara Mandi was supplied with a written slip. The said witness deposed in his examination-in-chief that he had purchased fodder from the Mandi. In these circumstances, DW-1 could have produced the slip issued to him qua purchase of fodder from the Mandi to substantiate his presence in the Mandi. DW-1 had failed to substantiate the visit of appellant Avtar Singh in the Mandi and hence, the presence of appellant Avtar Singh at the fodder Mandi is not established.
Thus, in the present case, the prosecution had been successful in proving its case. The eye witness account is duly corroborated by medical evidence. Although in the present case, the investigating agency had been negligent in conducting the investigation yet the prosecution has been successful in proving its case. Appellant Avtar Singh is admittedly the son of Gurdev Singh and brother of Satta. He has failed to establish his plea of alibi. The learned trial Court had rightly convicted and sentenced the appellants vide the impugned judgement/ order dated 12.4.2008. No ground for interference is called for.
Accordingly, the appeal is dismissed.
(JASBIR SINGH) (SABINA)
JUDGE JUDGE
May 04, 2012
anita/gurpreet