Punjab-Haryana High Court
Baldev Singh And Another vs State Of Punjab on 11 March, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
Crl. Appeal No. 983-DB of 2007 [1]
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
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Crl. Appeal No. 983-DB of 2007
Date of decision : March 11, 2010
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Baldev Singh and another
............appellants
Versus
State of Punjab
...........respondent
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CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE JORA SINGH
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Present: Mr. Manvinder Singh Sidhu, Advocate for the appellant.
Mrs. Gurveen H. Singh, Additional Advocate General,
Punjab for the respondents.
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JORA SINGH, J.
Baldev Singh and Harjinder Singh residents of Village Sharianwala have challenged the judgment of conviction and order of sentence dated 1.11.2007 rendered by Additional Sessions Judge, Ferozepur in Sessions Case No.77 of 6.8.2004 arising out of FIR No. 59 dated 10.6.2004 at Police Station Guruharsahai registered under Sections 302, 201/34 IPC. Vide the said judgment, Baldev Singh and Harjinder Singh were convicted under Sections 302 and 201 IPC and were sentenced to undergo imprisonment for life and to pay a fine of Rs.10,000/- each and in default of payment of fine each of the convict/accused were further directed to undergo rigorous Crl. Appeal No. 983-DB of 2007 [2] imprisonment for six months under Section 302 IPC. Both the accused were further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.5000/- each and in default of payment of fine each of the accused shall further undergo rigorous imprisonment for three months under Section 201 IPC. Both the sentences were ordered to run concurrently.
Sadha Singh was acquitted of the charge levelled against him but against his acquittal, no appeal was filed by the State.
Mita Singh (fourth accused) was juvenile and has been facing trial before the Juvenile Justice Board.
Prosecution story, in brief, is that Sukhdev Singh Ex- Panch complainant resident of village Sharianwala reported to the police that on 10.6.2004 at about 8:00 p.m, he along with Gurcharan Singh son of Hakam Singh and Surinder Singh son of Teja Singh while going towards the fields were present near the gate of Bus Stand. Electric light was on. At that time Amrik Singh son of Thakur Singh was seen while sitting there. He had parked his tempo on one side of the road. In the meantime, Sadha Singh armed with sota, Baldev Singh armed with iron rod, Harjinder Singh armed with iron rod and Mita armed with iron pipe came while raising lalkara. Sadha Singh exhorted the other co-accused that Amrik Singh should not be allowed to escape and should be taught a lesson for deserting his daughter. Then Baldev Singh armed with iron rod gave a blow hitting on the head of Amrik Singh. On receipt of rod blow, Amrik Singh fell on the ground then Harjinder Singh gave rod blow hitting the right jaw of Amrik Singh while lying on the ground. Mita gave iron pipe blow hitting on the inner side of right ankle of Amrik Singh. He along with Crl. Appeal No. 983-DB of 2007 [3] Gurcharan Singh and Surinder Singh raised raula "na maro, na maro"and stepped forward to rescue Amrik Singh. Sadha Singh raised a lalkara that if anybody comes forward then he will also be eliminated and Amrik Singh should be killed because he (Amrik Singh) had turned out his daughter after giving her beatings. Amrik Singh had succumbed to his injuries while lying on the spot. Out of fear, they did not come forward. Thereafter, Amrik Singh was caught hold from his arms and was taken by the accused to their house while dragging. Twenty years back, Amrik Singh was married with Bholi daughter of Sadha Singh. Amrik Singh was not having cordial relations with Bholi. Bholi was residing separately with her parents. Gurcharan Singh and Surinder Singh were deputed to guard the dead body. Sukhdev Singh had gone to lodge report. Near Gurudwara Beer Sahib, police party headed by SI, Jalour Singh had met the complainant, where his statement Ex.P5 was recorded. Statement was read over and explained to him who had signed the same in token of its correctness. After making endorsement at 10:05 p.m, statement was sent to the police station, on the basis of which formal FIR Ex.P5/C was recorded at 10:30 p.m. Special report was delivered to the Ilaqa Magistrate at 2:45 a.m on 11.6.2004.
SI Jalour Singh had gone to the spot where dead body was lying. Inquest report Ex.P9 was prepared. Dead body was sent to the hospital for post mortem examination and after post mortem examination, dead body was handed over to the relatives of the deceased for cremation. Blood stained earth and simple earth was lifted from the place of occurrence and from near the place where dead body was lying, blood stained earth and simple earth were Crl. Appeal No. 983-DB of 2007 [4] made into separate sealed parcels sealed with the seal bearing impression `JS'. Sealed parcels were taken into police possession vide different memos attested by the witnesses. Rough site plan with correct marginal notes was prepared.
When SI, Jalour Singh, Investigating Officer was returning to the police station then on the way, Head Constable, Tarlochan Singh had produced copy of the post mortem report and the clothes worn by the deceased. Clothes were sealed with seal bearing impression `JS'. Sealed parcel was taken into police possession. On return to the police station, case property was deposited with the incharge of malkhana. On 18.6.2004, SI, Jalour Singh along with other police officials was present near Bus Stand Sharianwala. After joining Bagicha Singh, police party was present near Bus stand of Village Sadiq, where Sadha Singh, Harjinder Singh and Baldev Singh were found present. They were arrested in this case. Accused were interrogated separately. In pursuance of the disclosure statement Ex.P12 suffered by Sadha Singh, a sota was got recovered from the specified place. As per disclosure statement Ex.P16 suffered by Baldev Singh, iron rod was got recovered from the specified place. Iron rod was made into a sealed parcel and the parcel was taken into police possession. Harjinder Singh also suffered disclosure statement Ex.P-20 and in pursuance of the disclosure statement got recovered iron rod from the specified place. Recovered article was sealed with the seal bearing impression `JS' and the sealed parcel was taken into police possession vide separate memo attested by the witnesses. On return to the police station, case property was deposited with the MHC.
Crl. Appeal No. 983-DB of 2007 [5]
After completion of investigation, challan was presented in the Court.
Accused were charged under Sections 302 and 201 IPC to which they pleaded not guilty and claimed trial.
Prosecution examined following witnesses to substantiate its charge:
PW-1, Dr. O.P Baghri stated that on 11.6.2004 he had conducted post mortem examination on the dead body of Amrik Singh, aged about 40 years and found following injuries on his person:
1. Swelling measuring 18 cm x 12 cms on right side of head in temporal frontal and parietal areas dissection, clotted blood was present. On further dissection, clotted blood was present in mandibular areas.
Right temporal bones right frontal and mandible were fractured.
2. Reddish brown abrasion 6 cm x 6 cm left side of forehead was present. On dissection clotted blood was present.
3. Black eye on left side was present.
4. Brownish contusion on medical side of right foot measuring 3 cm x 2 cm. On dissection clooted blood was present.
Cause of death was due to 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.
Crl. Appeal No. 983-DB of 2007 [6]
PW-2, Sukhdev Singh and PW-3, Surinder Singh are the eye witnesses and have supported the prosecution story by saying that Amrik Singh was given injuries by the appellants. Amrik Singh had died on the spot.
PW-4, Krishan Lal Sondhi, Draftsman stated that he had prepared scaled site plans Ex. P-7 and P-8.
PW-5, ASI, Sat Pal Singh was with the Investigating Officer on 18.6.2004 at the time of initial investigation of the case in hand when the weapons of offence were got recovered from the appellants in pursuance of their disclosure statements.
PW-6, Rajinder Singh, Constable tendered his affidavit Ex.P-24.
PW-7, Pawan Kumar stated that on 10.6.2004, there was regular electric supply in Village Sharianwala from 8:00 p.m to 8:50 p.m. PW-8, HC, Pawan Kumar tendered his affidavit Ex.P-26. PW-9, HC, Tarlochan Singh was with the party of SI, Jalour Singh on 10.6.2004. Dead body was handed over to him for getting the post mortem examination conducted.
PW-10, Jalour Singh, retired Sub-Inspector was the Investigating Officer.
After the close of prosecution evidence, statements of the accused were recorded under Section 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of accused Sadha Singh and Harijinder Singh was that they are innocent and were not present at the time of Crl. Appeal No. 983-DB of 2007 [7] occurrence. Case is false one, whereas defence version of Baldev Singh was that he was a salesman on the liquor shop. Amrik Singh deceased had some altercation with him and while quarrelling he had entered their house which is nearby the shop. Amrik Singh used derogatory language against his sister, Bholi. Then he became furious and caused one injury on the head and mandible of Amrik Singh. Sadha Singh and Harjinder Singh were not present at the spot.
In defence, DW-1, Surjit Singh was examined and stated that he was owning a shop near Bus Stand of village Sharianwala. During the paddy season, shop was closed at 11/12 midnight. There was a liquor vend adjoining his shop. Baldev Singh was employed at liquor vend. Amrik Singh was owning a tempo. At 8:00 p.m, Amrik Singh came near the Bus stand of Village Sharianwala and started abusing Baldev Singh. Baldev Singh after closing his shop had gone to his residence. Amrik Singh followed him while abusing. Derogatory language was used against his wife. Baldev Singh became furious and gave blow with a pipe. On receipt of pipe blow, Amrik Singh fell down.
After hearing learned Public Prosecutor for the State, learned counsel for the accused and from the perusal of the evidence on the file, appellants were convicted and sentenced as stated aforesaid.
We have heard the learned counsel for the appellants- accused and learned State counsel and have gone through the evidence on the file.
Learned counsel for the appellants argued that ocular Crl. Appeal No. 983-DB of 2007 [8] evidence is contrary to the medical evidence. According to the story, appellants had caused injuries to Amrik Singh when he was present near the bus stand. He died on the spot. Then Amrik Singh was dragged by the appellants to their house. But no contusion or abrasion was noticed on the person of the deceased. There were no marks of dragging. Trail of blood was not noticed. Distance of the place of occurrence from the house of the accused was about 33 karams. Four injuries were noticed on the person of the deceased. Injury no.1 was the cause of death. Remaining injuries i.e injuries no. 2 to 4 were possible by fall. As per evidence on receipt of first injury at the hands of Baldev Singh, Amrik Singh fell on the ground. While lying on the ground, remaining injuries were caused. Harjinder Singh was armed with an iron rod. Sadha Singh who was acquitted by the trial Court, was armed with a sota, whereas Mita juvenile was armed with iron pipe. While lying on the ground, injuries no. 2 to 4 were not possible with iron rod, sota or iron pipe. Baldev Singh was armed with an iron rod. If Harjinder Singh gave blow with iron rod then injury no.2 attributed to Harjinder Singh should be like injury no.1 attributed to Baldev Singh. Eye witnesses are very much interested in the success of this case because Gurcharan Singh who was not examined by the prosecution was the cousin (brother) of the deceased. Sukhdev Singh PW-2 and Surinder Singh, PW-3 had litigation with Baldev Singh. Litigation was pending at the time of alleged occurrence and this fact is clear from the copy of the order Ex.D-1 dated 28.7.1998 and D-3 dated 5.4.2007 but Sukhdev Singh when appeared in Court then stated that litigation with the appellants was not pending at the time of occurrence. Statement of Sukhdev Crl. Appeal No. 983-DB of 2007 [9] Singh Ex.P-5 was recorded near Gurudwara Beer Sahib. But while appearing in Court as PW-2, he stated that his statement was recorded where dead body was lying. As per FIR, Ex.P-5, Sadha Singh had not given sota blow but in Court witnesses have stated that Sadha Singh gave sota blow. Supplementary statement alleged to have been made by the complainant was not got exhibited by the learned Public Prosecutor for the State for the reasons best known to him. In fact, Baldev Singh had altercation with the deceased. Sister of Baldev Singh was married with the deceased. Deceased was a tempo driver and while present near bus stand, had some altercation with Baldev Singh. Derogatory language was used by Amrik Singh against his wife. Baldev Singh came to his house but Amrik Singh followed him. In the house of the appellants when derogatory language was used by the deceased then Baldev Singh felt offended and gave blow with a rod hitting the deceased on his head. On receipt of that injury, Amrik Singh fell down. Other injuries are possible by fall. Blow was not repeated. Intention was simply to cause injuries and not to cause murder. Learned counsel for the appellant argued that Baldev Singh had no knowledge that if blow with a rod is given then Amrik Singh would die. When Amrik Singh had no litigation with his wife, Baldev Singh is liable for punishment under Section 304 Part-I or Part-II IPC and not under Section 302 IPC.
Learned State counsel argued that Amrik Singh was not having cordial relations with his wife. Appellants had the motive to commit the crime. While present near Bus Stand, injuries were caused to Amrik Singh. Then his body was lifted from the arms and Crl. Appeal No. 983-DB of 2007 [10] brought by the appellants to their house by dragging. Dead body was lying in the house of the appellants when the police party came to the spot. If intention was to cause injuries only then there was no idea to cause number of injuries particularly on the vital parts and shift the dead body from the place of occurrence to their courtyard. Evidence on the file was rightly scrutinized.
Undisputedly, sister of Baldev Singh was married with the deceased about 20 years back. About 1½ years earlier to the occurrence, Amrik Singh had some dispute with his wife. Amrik Singh was owning a tempo and had parked the same on one side of the road near bus stand. As per evidence on the file, there are two versions. According to the prosecution, near the bus stand, appellants had caused injuries to Amrik Singh, whereas defence version is to the effect that near the bus stand there was a liquor vend and in that liquor vend, Baldev Singh was serving. Amrik Singh had quarrelled with him and while quarrelling, he had entered into the house of the appellants. Amrik Singh had used derogatory language against his wife, Bholi. After that Baldev Singh became furious and gave injury on his head. On receipt of injury, Amrik Singh fell on the ground. When there are two versions then Court is to see as to which version is probable whether the prosecution story inspires confidence or the defence version seems to be probable.
Sukhdev Singh, Surinder Singh and Gurcharan Singh had witnessed the occurrence but Gucharan Singh was not examined for the reasons best known to the prosecution. Sukhdev Singh appeared as PW-2, whereas Surinder Singh is PW-3. But Sukhdev Singh had litigation with Baldev Singh and this fact is clear Crl. Appeal No. 983-DB of 2007 [11] from the copy of the order Ex.D-1 dated 28.7.1998. Baldev Singh appellant had filed suit for permanent injunction against Sukhdev Singh and others and suit was dismissed due to non-appearance of the parties on 28.7.1998. Ex.D-2 is the copy of the plaint. Sukhdev Singh when appeared in the Court then admitted that Gurcharan Singh is the cousin of Amrik Singh, deceased. In his statement Ex.P-5, Sukhdev Singh has not stated a word that Sadha Singh had given sota blow to the deceased but in Court stated that after first injury by Baldev Singh when Amrik Singh fell on the ground then Harjinder Singh gave blow with a rod. Sadha Singh raised a lalkara not to spare Amrik Singh because their daughter Bholi was deserted by Amrik Singh. Amrik Sngh died on the spot. After that, body was brought to their house by dragging. Surinder Singh and Gurcharan Singh were deputed to guard the dead body. Sukhdev Singh had gone to lodge report and near Gurudwara Beer Sahib, statement Ex.P-5 was recorded. Lastly stated that his supplementary statement was recorded wherein he has stated that Harjinder Singh gave iron rod blow hitting on the forehead of Amrik Singh. Sadha Singh gave blow which hit on the left thigh of Amrik Singh. In cross- examination admitted that there was a dispute amongst Sadha Singh and Surinder Singh, PW-3. Baldev Singh was a salesman on the liquor vend. His statement was recorded near the dead body. There were number of shops near the place of occurrence as the shops used to remain open up to 9:00 p.m. Lastly admitted that he had not seen Baldev Singh and Amrik Singh while quarrelling. He cannot say whether on the day of occurrence, Amrik Singh had quarrelled with Baldev Singh on account of Bholi. So one thing is clear from the Crl. Appeal No. 983-DB of 2007 [12] statement of Sukhdev Singh that he had litigation with Baldev Singh before the present occurrence. Ex.P-5, statement of Sukhdev Singh was recorded near Gurudwara Beer Sahib, whereas in Court Sukhdev Singh stated that statement was recorded near the dead body. Sukhdev Singh has not categorically stated that on the day of occurrence, Amrik Singh had not quarreled with Baldev Singh. Death was on the spot i.e near the bus stand and from the place of occurrence dead body was dragged by the appellants to their house. So, statement of Sukhdev Singh qua occurrence near bus stand is not correct one.
PW-3, Surinder Singh is the second eye witness but statement of Surinder Singh is contrary to the statement of PW-2, Sukhdev Singh. In examination-in-chief, Surinder Singh stated that first blow was given by Baldev Singh on the head of Amrik Singh and on receipt of this blow, Amrik Singh fell down, while lying on the ground. Harjinder Singh gave an iron rod blow hitting on the left side of the forehead. Mita gave blow with an iron pipe on the right ankle. Sadha Singh gave thrustwise blow with his sota hitting his right thigh. Death was on the spot then two accused dragged body of Amrik Singh and brought the same to their house. He along with Gurcharan Singh remained at the spot to guard the dead body. Police came at 10:30 p.m. In cross-examination, Surinder Singh stated that he had no dispute with the appellants and no dispute was pending. He cannot tell whether Sadha Singh had any dispute with Bagicha Singh. Injuries on the head were bleeding profusely. Blood was falling on the ground when body was being dragged and brought to their house by the appellants. There were drag marks from the Crl. Appeal No. 983-DB of 2007 [13] place of occurrence to the place where dead body was lying. He cannot say if there were abrasions as a result of dragging. 10/15 residents had collected on the spot before arrival of the police. But he cannot tell whether panch, sarpanch or lambardar came to spot or not. He cannot tell whether statement of Sukhdev Singh was recorded on the spot or not. Ex.D-3 is the copy of judgment dated 5.4.2007. Bagicha Singh and PW-3, Surinder Singh had filed civil suits against the appellants. Suit was instituted on 24.9.2003 that means at the time of occurrence, civil litigation was pending amongst PW-3, Surinder Singh and the appellants but in Court Surinder Singh stated that he had no dispute with the appellants and the dispute was not pending. That means this witness was inimical towards the appellants and is not telling the truth.
Jalour Singh, Investigating Officer in cross-examination admitted that statement of Sukhdev Singh Ex.P-5 was not recorded in the house of the appellants. In fact the statement was recorded near Gurdwara Beer Sahib. House of the appellants where dead body was lying was about 33 karams from the place where Amrik Singh had received injuries. He had not seen the trail of blood from the place of occurrence up to the place where dead body was lying. Drag marks were also not noticed. If the occurrence had taken place at a distance of 33 karams from the house of the appellants and after death of Amrik Singh, the body was brought by the appellants to their house then why marks of dragging were not noticed. Secondly, there should have been a trail of blood when the injuries were bleeding profusely. When no trail of blood and marks of dragging were not noticed then it means that occurrence had not taken place near the Crl. Appeal No. 983-DB of 2007 [14] bus stand as per prosecution story. Surinder Singh and Sukhdev Singh have deposed being interested witnesses because they had litigation with the appellants. Third witness, Gurcharan Singh not examined by the prosecution was relation of the deceased. 10/15 persons from the village had collected on the spot where dead body was lying but, no explanation why their statements were not recorded. If statements of all the persons present on the spot are not to be recorded then statements of at least 1-2 witnesses should have been recorded by the Investigating Officer. Sukhdev Singh and Surinder Singh were inimical towards the appellants and in case the dead body was brought to their house by the appellants then Sukhdev Singh cannot state that Gurcharan Singh and Surinder Singh were deputed to guard the dead body and he had gone to lodge report. Gurcharan Singh and Surinder Singh being inimical cannot remain present in the house of the appellants till the arrival of the police. Ex.P-5 was recorded near Gurudwara Beer Sahib whereas Surinder Singh stated that statement Ex.P-5 was recorded where dead body was lying. So the occurrence had not taken place as per prosecution story.
Dr. O.P Bagri had noticed four injuries on the person of the deceased. First injury was on the head caused by Baldev Singh with iron rod. Second injury was caused by Harjinder Singh when Amrik Singh while lying on the ground. Harjinder Singh was armed with iron rod but second injury being simple abrasion doubtful with an iron rod. Injury no.3 i.e black eye on the left side was caused by Sadha Singh. In the FIR, there is not a word that Sadha Singh gave blow with a sota on the left eye. Supplementary statement was Crl. Appeal No. 983-DB of 2007 [15] recorded but no explanation where and when supplementary statement was recorded and got exhibited. Injuries no.2 to 4 were found to be simple in nature and were possible by fall against hard surface. All this shows that Sadha Singh and his three sons were implicated in this case due to enmity with the eye witnesses. Evidence rather shows that defence version seems to be probable. Occurrence had not taken place as told by the prosecution.
Amrik Singh was not having cordial relations with his wife. Amrik Singh was suspecting that his wife was characterless. Baldev Singh was serving as a salesman on the liquor vend. Amrik Singh had some altercation with Baldev Singh. While quarrelling, he had entered into his house. Amrik Singh then used derogatory language against the sister of Baldev Singh then Baldev Singh gave blow on the head.
Sadha Singh was acquitted by the trial Court and injury alleged to have been caused by Harjinder Singh was found to be simple in nature and was possible by fall. He was implicated being the cousin of Baldev Singh. Acquittal of Sadha Singh also supports the defence version when against acquittal, no appeal was filed by the State.
In defence, Surjit Singh appeared and has supported the defence version of Baldev Singh. Surjit Singh was running a shop near the bus stand. No suggestion was put to Surjit Singh that Amrik Singh deceased had not quarrelled with Baldev Singh. Secondly, Amrik Singh had not used derogatory language against his wife Bholi sister of Baldev Singh. Rather a suggestion was given that before the present occurrence, appellants were challaned for causing Crl. Appeal No. 983-DB of 2007 [16] injuries to Amrik Singh because he was not maintaining his wife. No document on the file that a criminal case was registered against the appellants earlier to the present occurrence. Bholi had not filed any application under Section 125 Cr.P.C or divorce petition. If as per suggestion by the State counsel to the defence witness, appellants were challaned for causing injuries to Amrik Singh then this fact shows that Harjinder Singh was also implicated by the eye witnesses due to litigation with Sadha Singh.
For the reasons recorded above, we are of the opinion that presence of Harjinder Singh at the time of occurrence is doubtful. He was implicated being the brother of Baldev Singh. Role attributed to the appellant is similar to the role of Sadha Singh who was acquitted by the trial Court. Benefit of doubt is given to Harjinder Singh and he is acquitted of the charge levelled against him.
Baldev Singh was armed with iron rod when Amrik Singh used derogatory language then gave blow hitting on the head of Amrik Singh. Blow was not repeated. Intention was not to murder. If intention was to murder then Baldev Singh could easily cause number of injuries. Evidence shows that Baldev Singh has committed an offence of culpable homicide not amounting to murder. When the blow was not repeated and earlier there was no litigation with Amrik Singh then Baldev Singh is liable for punishment under Section 304-Part-I IPC and not under Section 302 IPC. In stead of undergoing life imprisonment as ordered by the trial Court, Baldev Singh is directed to undergo RI for a period of 10 years under Section 304-Part I IPC. Fine is ordered to be maintained.
In the light of above discussion, appeal is party allowed; Crl. Appeal No. 983-DB of 2007 [17] the impugned judgment of conviction and order of sentence is modified to the extent that appellant no.1 Baldev Singh is convicted under Section 304 Part I IPC and sentenced to undergo rigorous imprisonment for ten years with a fine of Rs.10,000/-, in default to undergo further rigorous imprisonment for a period of six months; and appellant no.2, Harjinder Singh is acquitted of the charges. Appellant no.2, who is in custody, be set at liberty forthwith, if not required in any other case.
( JORA SINGH )
JUDGE
March 11, 2010 ( SATISH KUMAR MITTAL )
ritu JUDGE