Punjab-Haryana High Court
Harvinder Singh Alias Babbu vs State Of Punjab on 21 December, 2011
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D 392-DB of 2008
Date of decision: 21.12.2011
Harvinder Singh alias Babbu
.....Appellant
Versus
State of Punjab
......Respondent
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.D.N.Ganeriwala, Advocate for the appellant
Mr.Rajesh Bhardwaj, Addl.A.G. Punjab
Jasbir Singh, J.
For committing murder of Davinder Singh alias Bittu on 6.7.2005, vide the impugned judgment and order dated 1.5.2008, the appellant was convicted for commission of an offence under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- with a default clause.
Process of law was set in motion on a statement (Ex.PD) made by Surinder Singh (PW3), brother of the deceased at 1.30 pm on 6.7.2005, on the basis of which, formal FIR (Ex.PD/1) was recorded in police station Goraya at 3.05 pm. CRA-D 392-DB of 2008 2 Case of the prosecution, as noted by the trial Judge, reads thus:-
"that on 6.7.2005 Davinder Singh alias Bittu a Granthi at Gurudwara Baba Sang Ji, Sang Dhesia was reciting Hymns from Guru Granth Sahib in a room of the said Gurdwara. Pws Kashmir Singh and Surinder (complainant) were listening to those recitations that at about 11.45 a.m. accused Harvinder Singh alias Babbu came there on the pretext of paying obeisance and assaulted Davinder Singh with a Sword, even if Surinder Singh and Kashmir Singh tried to save Davinder Singh. The injured was removed to hospital but succumbed to the injuries so inflicted by the accused. Shortly after the incident, the accused was apprehended at the spot and was handed over to the police."
Statement of Surinder Singh (PW3) was recorded by SI Som Nath (PW12). It is necessary to mention here that in the meantime, the deceased Davinder Singh was rushed to Primary Health Centre at Bera Pind, where was he declared brought dead by Dr.Usha Sidhu (PW13), who sent an intimation (Ex.PQ) to SHO PS Goraya in that regard. The investigating officer went to PHC Bera Pind. Inquest report qua dead body was prepared and it was sent to Civil Hospital Phillaur for conducting post-mortem examination, which was conducted by Dr.Kamaljit (PW2) on 7.7.2005. The investigating officer then went to the place of occurrence and taken in possession blood stained curtain, blood stained turban of the deceased and blood stained white sheet of cloth. Blood was also lifted from the floor of the room. Weapon of offence i.e. sword was recovered against a recovery memo. The appellant-accused was also arrested. Investigating officer also got prepared rough site plan with correct marginal notes of the place of CRA-D 392-DB of 2008 3 occurrence. He also got the place of occurrence photographed through Amarjit Singh (PW11). As per post-mortem report prepared by Dr.Kamaljit (PW2), following injuries were found on the person of the deceased:-
"1. An incised wound measuring 15 cms x 2.5 cm having clean and sharp margins standing from mid of interior surface of the chin. 1.5 cm below the lower lip to the left side of the upper part of the neck cutting underlying mandibular bone muscles, blood vessels and nerves of upper part of left side of the neck. Teeth of the left ramus of lower jaw were displaced down from their sockets."
2. An incised wound 8 cm x 3cm having sharp margins standing from interior surface of right side of chin towards right side of upper part of the neck cutting right ramus on the madule muscles clotted blood vessels, nerves and other tissues of upper part of right side of the neck. Teeth of the right side of lower jaw were also displaced from their sockets.
3. Two small superficial subcutaneous tissue deep incised wound having sharp margins measuring 3 cm x 0.5 cm and 2.5 cm x 0.4 cm respectively were present on superior aspects of right shoulder.
4. An incised wound measuring 6 cm x 0.5 cm was present on dorsal (posterior) surface of right hand over the region of fourth metacarpal bone underlying tendon was cut and the 4th metacarpal bone was fractured.
CRA-D 392-DB of 2008 4
5. Incised wound measuring 4 cm x 0.5 cm was present over dorsal surface of right hand over the region of the 5th metacarpal bone underlying tendon was cut and the 5th metacarpal bone was fractured."
Cause of death was declared shock and hemorrhage due to injuries mentioned above. Injury Nos.1 and 2 were sufficient to cause death in ordinary course and all the injuries were ante-mortem in nature.
After recording statements of the witnesses and completing other formalities, final report was put in Court for trial. Copies of the documents as per provisions of Section 207 Cr.P.C. were supplied to the appellant-accused and his case was committed to the Court of Sessions for trial vide order dated 10.2.2005. The appellant was charge sheeted, to which he pleaded not guilty and claimed trial. The prosecution produced 14 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, statement of the appellant was recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to him, which he denied, claimed innocence and false implication. He also led evidence in defence.
The trial Judge, on appraisal of evidence, found the appellant- accused guilty for the offence with which he was charged and conviction and sentence was awarded accordingly vide the impugned judgment and order. Hence, this appeal.
Counsel for the appellant has vehemently contended that PW3 (Surinder Singh) and PW4 the alleged eye witnesses were not trusty worthy. There exists a large number of contradictions in their statements and furthermore, the sequence of events given by them appears to be fabricated. It is his argument that the FIR was ante timed, PW3 (Surinder Singh) and CRA-D 392-DB of 2008 5 PW4 were summoned from their houses and then shown as eye witnesses. Independent corroboration to the case of the prosecution is missing in this case. It is further stated that there was no motive with the appellant-accused to commit murder of the deceased. Further reference was made to the statements of ASI Gurmit Singh (PW6) and SI Som Nath (PW12), to show that the witnesses were discrepant regarding the mode and manner, in which investigation was conducted. It is stated that the prosecution has failed to prove its case against the appellant and prayer is to give benefit of the same to the appellant-accused by setting aside the impugned judgment and order in this case.
Prayer made has vehemently been opposed by the State counsel, who stated that the case of the prosecution rest upon an eye witness account. Murder was committed in a Gurdwara Sahib when the deceased was reciting Gurbani from Shri Guru Granth Sahib. No enmity has been alleged with the witnesses to implicate the appellant-accused falsely in this case. The appellant was arrested on that very date which leaves no chance to improve upon the story of the prosecution. He further argued that the testimony of the investigating officer (PW12) SI Som Nath inspires confidence. He prayed that appeal having no substance be dismissed.
To say that PW3 (Surinder Singh) and PW4 were not present at the spot, reference has been made to late receipt of special report by the Illaqa Magistrate at 7.15 pm. It is stated that death had occurred at 11.45 am on 6.7.2005. Police station Goraya is situated at a distance of 5 kms. and the Illaqa Magistrate was available at a further distance of about 18 kms. The very fact that the special report took more than six hours to reach the concerned officer, it casts doubt upon the case of the prosecution. CRA-D 392-DB of 2008 6
This Court feels that the argument raised is not tenable. In this case, as per statement (Ex.PD) made by PW3 Surinder Singh, he along with Kashmir Singh (PW4) was present in Gurdwara Sahib. Assault was committed upon the deceased by the appellant in their presence. Injuries were caused with a sword to the deceased and thereafter, the appellant ran away from the spot along with weapon of offence. As per case of the prosecution, assault was committed upon the deceased by the appellant at about 11.45 am on 6.7.2005. The injured was rushed to the Primary Health Centre Bera Pind by Manager of the Gurdwara. As per deposition made by Dr.Usha Sidhu (PW13) injured was brought dead to the hospital and intimation Ex.PQ was sent to the police station by her. She has specifically stated that the dead body was brought in the hospital at 12.35 pm. It is also on record that statement of Surinder Singh (PW3) was recorded by SI Som Nath (PW12) at 1.30 pm. Ruqa was sent to the police station, which led to registration of an FIR (EX.PD/1) at 3.05 pm. Special report reached the concerned magistrate at 7.15 pm. The time taken appears to be natural. Merely because there is some delay, the prosecution story cannot be disbelieved.
Further averment of counsel for the appellant that PW3 (Surinder Singh) was summoned from his house and then shown as an eye witness, is liable to be rejected. Deceased was not resident of Sang Dhesia, where occurrence had taken place. He was serving as a Paathi at Gurdawara Baba Sang Ji, Sang Dhesia. He belongs to village Gulzarpur, district Patiala. Distance between both the places is such that it cannot be believed that the parents of the deceased were informed and thereafter when they reached at the spot, his brother was shown as an eye witness. Dead body had reached the hospital at about 12.30 pm. and as per case of the CRA-D 392-DB of 2008 7 prosecution, statement of PW3 (Surinder Singh) was recorded at 1.30 pm. Kashmir Singh (PW4) is also related to the deceased and his village is also situated at a distance of more than 50 kms. away. This witness has given his landline telephone number and also mobile number when deposing in Court. No attempt was made by the defence, to show that after the alleged assault upon the deceased by the appellant, this witness received any telephonic call from Gurdwara Sahib and then came to the place of occurrence.
Merely because the eye witnesses are related to the deceased, their testimony cannot be discarded. Furthermore, some delay in sending the special report to the Illaqa Magistrate will also not vitiate case of the prosecution. It depends upon facts and circumstances of each case. In this case, time consumed in between appears to be natural. Assault had taken place at village Sang Dhesian, body was lying in PHC Bera Pind, police station is situated at Goraya, Magistrate was available at Phillaur. May be on account of above situation, some more time was taken by the police authorities to send the special report to the Magistrate. PW3 (Surinder Singh) and PW4 have very categorically stated that assault was committed by the appellant upon the deceased in their presence. Merely because there is some discrepancy regarding the witnesses visiting at Bera Pind hospital at Phillaur, is no ground to discard their testimony. May be on account of lapse of time, the witnesses have given some facts which are not matching with each other. Their Lordships of the Supreme Court in Harbans Kaur and another v. State of Haryana, 2005 SCC (Cri) 1213, when dealing with a similar situation, observed as under:-
"7. There is no proposition in law that relatives are to be treated as untruthful witnesses. On the contrary, reason has to be shown when a plea of partiality is raised to show that the CRA-D 392-DB of 2008 8 witnesses had reason to shield actual culprit and falsely implicate the accused. No evidence has been led in this regard. So far as the delay in lodging the FIR is concerned, the witnesses have clearly stated that after seeing the deceased in an injured condition immediate effort was to get him hospitalized and get him treated. There cannot be any generalization that whenever there is a delay in lodging the FIR, the prosecution case becomes suspect. Whether delay is so long as to throw a cloud of suspicion on the seeds of the prosecution case, would depend upon the facts of each case. Even a long delay can be condoned if the witnesses have no motive of implicating the accused and have given a plausible reason as to why the report was lodged belatedly. In the instant case, this has been done. It is to be noted that though there was cross- examination at length no infirmity was noticed in their evidence. Therefore, the trial Court and the High Court were right in relying on the evidence of the prosecution witnesses."
As has been discussed earlier, the delay in recording the FIR appears to be natural. PW3 (Surinder Singh) and PW4 though related to the deceased have stood test of the cross-examination. Minor discrepancies in their statements here and there cannot be made basis to give benefit of doubt to the appellant-accused. Further, it does not appear to be a case where witnesses were summoned from a distant place and then shown as eye witnesses. PW9 Kishan Singh and PW10 Surjit Singh, who are the employees of Gurdwara Baba Sang Ji have proved on record that deceased was serving as a Paathi (a person who recites Gurbani from Shri Guru CRA-D 392-DB of 2008 9 Granth Sahib in a Gurdawara) and on that date, he was on duty when assault was committed upon him. Duty roster has been put on record as Ex.PH. Merely because the witnesses have failed to state the number of the room in which he was staying, is no ground to discard their testimony.
Further contention of counsel for the appellant that contradictions in the statements made by PW6 ASI Gurmeet Singh and SI Som Nath (PW12) are fatal to the case of the prosecution is not worth acceptance. We have perused the statements made by those witnesses. Except few minor discrepancies, as to when they reached at the place of occurrence, the PHC at Bera Pind and when statement of PW3(Surinder Singh) was recorded the deposition made by above witnesses inspires confidence. Small mistakes in the statements of the witnesses, after a lapse of time in between, when the occurrence had taken place and when their statements were recorded are bound to happen. In the present case occurrence had taken place in the month of July 2005 and the statements of above witnesses were recorded in the month of July and November 2006. We have seen the nature of the contradictions. The Court is of the opinion that those are not fatal to the case of the prosecution. It has also come on record that the appellant was apprehended at the spot by sewadars of the Gurdwara. Merely because police official, who handed over him to the investigating officer was not brought in the witness box, the case of the prosecution cannot be discarded. Non-joining of independent witnesses from Gurdawara Sahib is not a major lapse on the basis of which prosecution's case can be rejected. When close relatives were available to give eye witness account, the investigating officer may not have tried to join other witnesses. As has been discussed in earlier part of this order, deposition made by PW3 (Surinder Singh) and PW4 inspires confidence. It CRA-D 392-DB of 2008 10 is quality and not quantity of witnesses which matters. Merely because the prosecution has not proved motive to commit the murder, benefit of doubt cannot be given to the appellant-accused. Motive is always hidden in the mind of a culprit and if the prosecution has failed to detect it, benefit will not go to an accused. Manner in which assault was committed upon the deceased by the appellant in Gurdawara Sahib is very startling. There is not an iota of evidence on record to suggest, even remotely, as to why the eye witnesses will leave the real culprit and entangle the appellant-accused in this case. No previous enmity has been established on record. Except taking a routine defence of innocence, no worth while evidence was brought on record by the defence to show that case of the prosecution was false. No official of the Gurdawara Sahib has appeared in favour of the appellant- accused in defence.
In view of facts mentioned above, no case is made out for interference in the judgment and order passed by the Court below.
Dismissed.
(Jasbir Singh)
Judge
21.12.2011 (Sabina)
gk Judge