Punjab-Haryana High Court
Jasbir Singh And Another vs State Of Punjab on 16 September, 2008
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.156-DB of 1998 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.156-DB of 1998
Date of decision:September 16, 2008
Jasbir Singh and another
......Appellants
Versus
State of Punjab
.......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mrs.Baljit Kaur Mann, Advocate,
for the appellants.
Mr.Rajesh Bhardwaj, DAG, Punjab.
****
JUDGMENT
SABINA, J.
Jasbir Singh and Dalbir Singh, by way of this appeal, have challenged the judgment dated 11.3.1998 passed by learned Additional Sessions Judge, Amritsar, whereby they were convicted and sentenced under Section 302 IPC.
Prosecution case was set in motion on the basis of statement made by Nazir Singh. Complainant stated in his statement that on 16.9.1995 at about 9.30 p.m. he was present at his tubewell along with his brother Charan Singh. His another brother Balkar Singh had switched on his tubewell, which was at a distance of 2 Criminal Appeal No.156-DB of 1998 2 killas from their tubewell and was coming towards their tubewell for turning the outlet. When Balkar Singh reached near the dera of Jasbir Singh@ Ghulla, complainant saw that Jasbir Singh @ Ghulla armed with a barchhi (spear), Dalbir Singh armed with a spear, Kabal Singh and Ajit Singh armed with sua and Gurjant Singh @ Sona armed with a dang (stick) came out of the dera of Jasbir Singh. At that time electric bulb of Jasbir Singh's dera was on. Jasbir Singh raised a lalkara exhorting his companions to be brave and to catch hold of Balkar Singh and further that Balkar Singh be not allowed to go alive and should be taught a lesson for irrigating the land. Jasbir Singh gave a spear blow which hit Balkar Singh in the middle of his chest. Dalbir Singh gave a spear blow which hit him on his left flank. Balkar Singh raised alarm and fell on the ground. Then all the assailants gave injuries on the person of Balkar Singh with their respective weapons on the left elbow, left thigh, left leg, knee, left side of waist, middle finger of the left hand and on other parts of the body. Complainant and his brother Charan Singh raised alarm and all the assailants fled away from the spot with their respective weapons. Balkar Singh succumbed to his injuries at the spot. The motive behind occurrence was that there was a common water course which was being used for irrigation and the turns for irrigation had been fixed but Jasbir Singh and his brothers harboured a grudge qua the same.
On the basis of the statement of the complainant formal Criminal Appeal No.156-DB of 1998 3 FIR No.126 dated 16.9.1995 was recorded by the police of Police Station Chhehartta.
SI Gajinder Singh then visited the spot along with other police officials and lifted blood stained earth from the spot. He also lifted juti from the spot. He prepared inquest report with regard to dead body of Balkar Singh and the dead body was sent for postmortem examination.
Dr.A.S.Thind conducted the postmortem examination on the dead body of Balkar Singh on 17.9.1995 at 12.30 p.m. and found the following injuries on his person:-
"1. Reddish brown abrasion 5 cm x 0.2 cm obliquely placed, 4 cm above and 5 cm lateral to the umbilicus on right side.
2. Reddish brown abrasion 3 x 0.2 cm, 1 cm below the proceeding injury on right side.
3. Reddish brown abrasion 1 x 0.2 cm, 4 cm below and 1 cm lateral to the umbilicus.
4. Stab wound 4 cm x 2 cm, 4 cm above and 11 cm medial to the right nipple. On dissection skin subcutaneous tissues, Muscles, sternum, mediastinal vessels, pleura, right lung shows injuries, right chest cavity contained blood, clotted blood was present.
5. Stab wound 4 cm x 2cm, 18 cm below and 3 cm lateral to the left nipple. On dissection skin subcutaneous Criminal Appeal No.156-DB of 1998 4 tissues, muscles, greater omentum were damaged. Clotted blood was present.
6. Stab wound 4 cm x 2 cm, 18 cm below the enterior, superior iliac spine on left side. On dissection skin subcutaneous tissue, muscle were damaged, clotted blood was present.
7. Abrasion reddish brown in colour, 1.5 x 0.5 cm, 10cm above and left knee joint.
8. Stabbed wound 4 cm x 1.5 cm on the posterior aspect of left elbow joint. Clotted blood was present.
9. Stab wound 4 cm x 1.5 cm on the posterior aspect of left elbow joint. Clotted blood was present. On dissection, injuries No. 8 and 9 were communicating with each other and were perpendicular, skin subcutaneous tissues were damaged.
10. Abrasion reddish brown, 1 cm x 0.5 cm present on the dorsum of the left hand, wrist joint.
11. Lacerated wound 1 cm x 0.3 cm in the middle of first phalynx on middle finger of left hand. Clotted blood was present."
In his opinion the cause of death was shock and haemorrhage as a result of injuries, which were ante mortem in nature and sufficient to cause death in the ordinary course of nature.
All the accused were arrested on 23.9.1995. On Criminal Appeal No.156-DB of 1998 5 24.9.1995 Gurjant Singh suffered a disclosure statement during interrogation and on the basis of the same he got recovered a dang from the disclosed place which was taken in possession. Accused Jasbir Singh during interrogation suffered a disclosure statement and on the basis of the same he got recovered a spear from the disclosed place, which was also taken in possession.
On 26.9.1995 accused Dalbir Singh during interrogation suffered a disclosure statement and on the basis of the same he got recovered a spear from the disclosed place, which was taken in possession. On the same day Ajit Singh, during interrogation, suffered a disclosure statement and on the basis of the same, he got recovered a sua from the disclosed place, which was also taken in possession. Kabal Singh also suffered a disclosure statement during interrogation and on the basis of the same he got recovered a sua from the disclosed place, which was taken in possession. On return to the police station, case property was deposited with the MHC.
After completion of investigation and necessary formalities accused were sent up for trial. Charge against the accused was framed under Section 302 IPC on 13.6.1996 to which they did not plead guilty and claimed trial.
Thereafter, vide order dated 7.11.1996, learned trial Judge separated the trial of accused Gurjant Singh and sent him for trial before the Juvenile Justice Court at Gurdaspur.
Prosecution in order to prove its case at the trial Criminal Appeal No.156-DB of 1998 6 examined as many as ten witnesses. After close of prosecution evidence accused, when examined under Section 313 Cr.P.C., prayed that they had been falsely involved in this case and were innocent.
Learned trial Judge believed the prosecution version so far as accused Jasbir Singh and Dalbir Singh were concerned and convicted them under Section 302 IPC and sentenced them to undergo imprisonment for life and fine of Rs.2,000/- each. Accused Kabal Singh and Ajit Singh were acquitted of the charge framed against them by giving them benefit of doubt. Hence, the present appeal.
In appeal it has been argued that it was a case of blind murder. The eye witnesses were not present at the spot. The dead body was recovered from the fields of Sukha Singh in the morning. FIR was ante timed, which was recorded after due deliberation and the appellants were falsely involved in this case. The presence of Charan Singh at the spot was doubtful as he did not have his land near the place of occurrence. Appellant Dalbir Singh had no grievance or motive to commit the murder of deceased Balkar Singh. The land of Dalbir Singh was not near the place of occurrence. The spear alleged to have been recovered from him was not sent for chemical examination.
Learned State counsel, on the other hand, has submitted that the presence of eye witnesses at the spot was natural as they Criminal Appeal No.156-DB of 1998 7 were present near the tubewell of complainant. The eye witnesses have witnessed the occurrence from a distance of 50 feet in the light of the electric bulb glowing in the dera of appellant Jasbir Singh.
The complainant, while appearing in the witness box, has deposed as per the contents of the FIR. The manner of occurrence as deposed by the complainant is duly corroborated by his brother Charan Singh (PW-5). Presence of the eye witnesses at the spot appears to be natural.
Exhibit PF is the site plan with regard to place of occurrence. We have carefully perused it and a perusal of the same reveals that the eye witnesses had witnessed the occurrence from a distance of about 50 feet. There is a passage in between the fields of Balkar Singh deceased and Sukha Singh. The house of Jasbir Singh is near the place of occurrence and at point 'D', shown in the site plan, an electric bulb was glowing. The tubewell of Nazir Singh is also near the house of Jasbir Singh on one side and fields of Balkar Singh on the other side. Complainant Nazir Singh has categorically deposed that he had gone with his brother Charan Singh at his tubewell at 9.30 p.m. It is not unnatural for Charan Singh to accompany his brother Nazir Singh at his tubewell. From the site plan it become clear that the eye witnesses could have easily witnessed the occurrence from the place where they were standing. The dead body was recovered from the fields of Sukha Singh, which is adjacent to the house of Jasbir Singh accused and Criminal Appeal No.156-DB of 1998 8 fields of Balkar Singh deceased. Hence, there is no force in the contention raised by learned counsel for the appellants that the eye witnesses were not present at the spot or could not have witnessed the occurrence as it was night time.
As per the medical evidence the injuries No. 4, 5, 6, 8 and 9 were result of sharp and pierce weapon. The doctor further opined that the possibility of the same having been caused with one and the same weapon could not be ruled out. The remaining injuries were opined to be with blunt weapon. Stab wound was always incised wound and could be caused with a sharp pointed edged weapon. Thus, there are five injuries on the person of the deceased which had been caused with a sharp and pierce weapon, whereas, the remaining injuries have been caused with the blunt weapon. Both the appellants were carrying spears. Depending on their use, spears can cause sharp as well as blunt injury. Hence, the ocular version is duly corroborated by the medical version. Since both the appellants were carrying spears and had inflicted injuries on the person of the deceased with their respective weapons, it is not possible to hold that five stab wounds had been caused by only one person as has been suggested by the doctor. The opinion of the doctor is based on dimensions of injuries No.4,5,6,8 and 9. Since the weapons carried by the appellants were similar, the dimensions of injuries would have also been the same.
The motive attributed to the accused in this case is with Criminal Appeal No.156-DB of 1998 9 regard to water channel. The accused party was dissatisfied with the turn of water. At the time of occurrence the deceased, after switching on his tubewell, was proceeding towards the outlet for turning the water and due to this reason he was attacked by the appellants. Although Dalbir Singh was not having a joint land with the accused Jasbir Singh and was having a separate residence yet his presence at the spot cannot be doubted because he must have come to the spot in order to help his real brother Jasbir Singh to achieve his object. In a case of an eye witness account motive more or less loses its significance, although in the present case the prosecution has been able to establish motive.
Occurrence in this case had taken place at about 9.30 p.m on 16.9.1995. The matter was reported to the police and the FIR was recorded at 11.40 p.m. The special report, however, reached the Magistrate at 9.30 a.m. on 17.9.1995. Devinder Singh (PW-10) has been examined in this regard, who has stated in his affidavit that on 16.9.1995 MHC of Police Station had handed over to him special report. On that day Area Magistrate was on leave and he could not locate the residence of Sh. U.S.Gera, Judicial Magistrate (Ist class), Amritsar and handed over the special report to the said Magistrate at 9.30 a.m. on 17.9.1995. From this it is evident that the special report could not be handed over to the Magistrate forthwith as the Constable on duty could not locate house of the other Magistrate as the Duty Magistrate was on leave. It can be said that the Constable Criminal Appeal No.156-DB of 1998 10 had not acted in a prompt manner but in the facts of the present case it cannot be said that the delay in sending the special report to the Magistrate had been mis-utilised. It has been held by the Apex Court in the case of Shiv Ram v. State of Uttar Pradesh 1998 (1) RCR 778 that delay in sending special report to Magistrate would not demolish the other positive and credible evidence on record. This would only show that the investigating agency was not careful and prompt as it ought to be.
It has further been held by the Apex Court in the case of State of Uttar Pradesh v. Gokaran and others AIR 1985 Supreme Court 131 that it was not that if every delay in sending special report to the District Magistrate would necessarily lead to the inference that the FIR had not been lodged at the time stated or had been antetimed or antedated or that the investigation was not fair and forthright.
In the present case the investigation started immediately on receipt of the information regarding the occurrence. FIR was promptly recorded and the Investigating Officer immediately visited the spot. As such, the delay in sending the special report to the Magistrate fails to demolish the prosecution case, which is otherwise duly established from the ocular and medical evidence on record and it cannot be held in the present case that the FIR was ante timed. The barchi recovered on the basis of disclosure statement suffered by accused Dalbir Singh was not sent for chemical examination as it Criminal Appeal No.156-DB of 1998 11 was not blood stained. It must have been cleaned by the accused and hidden at the disclosed place.
We have carefully examined the entire evidence on record and find that there is no reason to differ with the view taken by the learned trial Judge in convicting and sentencing the appellants under Section 302 IPC.
Accordingly, this appeal is dismissed.
(SABINA) JUDGE (JASBIR SINGH) JUDGE September 16, 2008 anita