Punjab-Haryana High Court
Inder Singh vs State Of Punjab on 31 October, 2014
Author: Surinder Gupta
Bench: Rajive Bhalla, Surinder Gupta
CRA-D-52-DB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH.
Crl. Appeal No.D-52-DB of 2003
Date of Decision: October 31, 2014.
Inder Singh
..........APPELLANT(s).
VERSUS
State of Punjab
........RESPONDENT(s).
CORAM:- HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE SURINDER GUPTA
Present: Mr. Karamvir Singh, Advocate,
Amicus-Curiae for the appellant.
Mr. Rajesh Bhardwaj, Addl. A.G. Punjab
*******
SURINDER GUPTA, J.
This appeal has been preferred against the judgment of conviction and order of sentence dated 26.11.2002 passed by Additional Sessions Judge, Mansa, whereby the appellant was convicted for offence punishable under Section 302 of Indian Penal Code (for short 'IPC') and sentenced to undergo imprisonment for life and to pay a fine of `10000/- and in default of payment of fine, to further undergo rigorous imprisonment for one year.
As per the case of prosecution, on 29.05.2001, Geba Khan, complainant along with his sons Jagga Khan and Tara Khan had gone towards the village fields to fetch grass for their mules. They started cutting SACHIN MEHTA 2014.11.28 13:58 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -2- grass near the 'Sem' drain. Tara Khan, younger son of complainant was cutting grass near the pucca drain while the complainant and his elder son Jagga Khan were cutting grass at a distance of about one killa ahead of him. At about 7.00 p.m., appellant armed with a 'Takua' came running from the side of 'Sem' drain and gave a 'Takua' blow on the right side of head of Tara Khan, who fell on the ground. The appellant gave 4/5 more blows with 'Takua' to Tara Khan while he was lying on the ground which hit on his head near the left eye and right jaw. The complainant and his son Jagga Khan raised alarm and rushed towards Tara Khan but the appellant after causing injuries fled from the spot. On reaching the spot, they found that Tara Khan had succumbed to the injuries.
The motive for the occurrence was that Tara Khan had developed illicit relations with the wife of appellant. This fact was known to everyone in the village and the matter had come to Panchayat which intervened and got it settled. On settlement of the dispute, the matter was not reported to the police. About one and a half month ago, wife of appellant died and for that reason, appellant was harbouring a grudge against Tara Khan (later referred to as the deceased) and this enmity led to causing of sharp edged weapon injuries by appellant to deceased, resulting in his death.
The complainant left his son Jagga Khan near the dead body and came to the village. He narrated the whole incident to his cousin Mohinder Khan and they proceeded to report the matter to police. Sub Inspector Hardavinder Singh (PW6), SHO, Police Station Bhikhi met the complainant near Gurudwara Sahib in the area of village Samaon and recorded his SACHIN MEHTA 2014.11.28 13:58 statement Ex.PE on which he made his endorsement Ex.PE/1 and sent it to I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -3- Police Station Bhikhi District Mansa on which the formal FIR Ex.PE/2 was registered.
SI Hardavinder Singh accompanied the complainant to the place of occurrence, prepared death report Ex.PC, lifted blood stained earth and simple earth from the spot, put it in a parcel sealed with seal 'HS' and took the same in possession vide memo Ex.PF. Blood stained Parna ( a piece of cloth either kept on shoulder or tied around the head by a male person) of 'the deceased' was also found at the spot and taken into possession vide memo (Ex.PG) after preparing a parcel, sealed with seal 'HS'. The dead body was examined and the injury report Ex.PL was prepared and thereafter was sent to Civil Hospital, Mansa along with request Ex.PB for conducting the post-mortem examination.
Dr. Tejinderpal Singh Rekhi (PW1) conducted the post-mortem examination and found the following injuries on the person of deceased :-
"1. Incised wound 5 cm x 2 cm over the middle of right external ear, transversely placed, cutting the external ear in two parts. Clotted blood was present.
2. There was incised wound over the right side of scalp 5 cm x 2 cm, 4cm above the right ear, was transversely placed.
Clotted blood was present. On dissection underlying skull bone was cut along with injury to membrance and brain tissue. Clotted blood was present.
3. Incised wound 5 cm x 1.5 cm over the right side of scalp over right parietal area of scalp, clotted blood was present. On dissection, there was fracture of underlying skull bone with cut in underlying membrances and brain tissue. Clotted blood was present.
4. Incised wound 8 cm x 2 cm over the vertex of scalp SACHIN MEHTA 2014.11.28 13:58 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -4- anteroposteriorly placed clotted blood was present. On dissection, there was fracture of underlying skull bone with cut in underlying membrane and laceration of brain tissue with clotted blood present.
5. Lacerated wound 5 cm x 2 cm over the left side of face below left eye. Clotted blood was present. On dissection underlying maxilla was fractured.
6. There was lacerated wound 4 cm x 2 cm over the left side of lower lip and chin, clotted blood was present. On dissection underlying bone was fractured."
In the opinion of doctor, cause of death in this case was severe head injuries which were sufficient to cause death in ordinary course of nature. He prepared post-mortem report, copy of which is Ex.PA with pictorial diagram Ex.PA/1. He also gave the opinion that possibility of causing injuries No.1 to 4 with sharp side and injuries No.5 and 6 with blunt side of 'Takua' could not be ruled out.
On the day of occurrence, it was raining and due to the darkness and night time, further proceedings were not conducted at the spot. SI Hardavinder Singh reached the spot on the next day and prepared rough site plan Ex.PM, showing place of occurrence. On 01.06.2001 on receipt of secret information, SI Hardavinder Singh reached Bus Stand Matti along with Seera Khan and arrested the appellant. On interrogation, appellant suffered a disclosure statement that he had kept concealed 'Takua' in the stock of wheat chaff in his residential house. His disclosure statement Ex.PJ was recorded and then at his instance, 'Takua' was recovered. After preparing its rough sketch (Ex.PJ/1), it was put in a parcel, sealed with seal 'HS' and taken into possession vide recovery memo Ex.PK. After completion SACHIN MEHTA 2014.11.28 13:58 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -5- of investigation, report under Section 173 (2) Cr.P.C. was presented in Court.
Copies of final report and connected documents were supplied to appellant as envisaged under Section 207 Cr.P.C. As the evidence on file disclosed commission of offence punishable under Section 302 IPC, Judicial Magistrate, Mansa vide order dated 13.10.2001 committed the case to Court of Sessions for trial.
The case was tried by Additional Sessions Judge, Mansa. Finding a prima facie case under Section 302 IPC, appellant was charge- sheeted vide order dated 08.11.2001 to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined Dr. Tejinderpal Singh Rekhi who had conducted post-mortem examination of the deceased, as PW1. Complainant Geba Khan and his son Jagga Khan appeared as PW2 and PW3 respectively and supported prosecution case. SI Hardavinder Singh, who conducted investigation, appeared as PW6 and ASI Baldev Singh, who was in the police party of SI Hardavinder Singh (PW6) and remained associated in the investigation of the case, appeared as PW5. Gurmel Singh Patwari, who had prepared scaled site plan of the place of occurrence (Ex.PH) was examined as PW4 and Head Constable Balbir Singh, who had taken the dead body of 'the deceased' to hospital for post- mortem examination, appeared as PW7. The affidavits of formal witnesses Angrej Singh Ex.PN/1 and of Constable Kulwant Singh Ex.PO/1 were tendered in evidence and accused made a statement that he had not to cross- examine them. After tendering Forensic Science Laboratory (for short 'FSL') SACHIN MEHTA 2014.11.28 13:58 report (Ex.PQ), prosecution closed its evidence.
I attest to the accuracy andauthenticity of this document Chandigarh CRA-D-52-DB of 2003 -6-
The appellant was confronted with entire incriminating evidence produced by prosecution which he denied and pleaded his false implication. In his defence, he stated as follows:-
"I am innocent. I did not commit the murder of Tara Khan. I was falsely implicated on the suspicion.
Somebody might have killed him in the night. The parents of Tara Khan along with police found the dead body after midnight and thereafter in consultation with police and witnesses, I was falsely roped in the case. None of the witness saw Tara Khan being murdered."
The additional statement of appellant under Section 313 Cr.P.C. confronting him with the affidavits of formal witnesses and FSL report, was recorded on 25.11.2001 which he denied. The appellant had not examined any witness in his defence.
Learned amicus curiae for appellant has argued that case of the prosecution is based on improbabilities and there is delay in the post-mortem examination. In fact, 'the deceased' was murdered by some unidentified person and his dead body was located after midnight. Due to enmity with appellant over the allegation of relations of 'the deceased' with his (appellant's) wife, he was falsely implicated. As per the complainant, the occurrence took place at 7.00 p.m. when they were cutting grass. 'The deceased' was caused six injuries and it must have taken some time for the assailant to cause the injuries. The appellant and his son were also having grass cutting implements with them. In the event of their finding the appellant causing injuries to 'the deceased', they must have rushed to spot immediately in order to catch the appellant and would have either caused SACHIN MEHTA 2014.11.28 13:58 I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -7- injuries to appellant or received injuries in the process. The fact that they did not rush to the spot or received any injury or the appellant was caused any injury by them, rule out presence of PW2 Geba Khan and PW3 Jagga Khan at the spot. As per the prosecution version, the complainant had gone to the spot to collect green fodder for their mules and they were cutting grass at the edge of 'Sem' drain. In site plan prepared along with the death report Ex.PC and in the site plans Ex.PH and Ex.PN, no grass which 'the deceased' and the eyewitnesses had cut at the spot, was shown or taken into possession, thereby falsifying the prosecution case. The group of blood found on the 'Takua' allegedly recovered from appellant, was not got matched with the blood group of 'the deceased'. The post-mortem examination was conducted after a delay of 18 and half hours which supports the defence version that dead body of 'the deceased' was found after midnight and the entire prosecution story regarding the recording of statement of complainant and reaching of police at the spot, was ante-dated. He has further argued that Gulab Khan son of Dula Khan and Bagha Khan son of Hassi Khan have identified dead body of Tara Khan 'the deceased' and their statements were also recorded while preparing death report, but they were not examined by the prosecution. All the above facts and circumstances when taken into consideration, create serious doubt about the veracity of prosecution case and testimony of complainant and his son Jagga Singh, alleged eyewitness, particularly in view of lack of independent corroboration. The complainant as well as eyewitnesses being closely related to 'the deceased' and have got interest and motive to implicate and depose against appellant. SACHIN MEHTA 2014.11.28 13:58
Learned State counsel has argued that testimony of complainant, I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -8- who lost his son and Jagga Khan, brother of 'the deceased', is reliable. They were present at a secluded corner of the village, where they had gone in the evening to cut grass/fodder for their mules. As per practice, when three or four persons go together to cut grass/fodder, they start cutting fodder at some distance from each other, to get maximum fodder. The appellant came running towards 'the deceased', caused him injuries on head with his 'Takua' and before the complainant and his son could reach the spot, succeeded in running away. 'The deceased' had received serious head injuries and it was natural for the complainant and his son to first take care of 'the deceased' and then to follow the assailant. The moment, they reached 'the deceased', he was found dead. Jagga Khan PW3 has stated that on reaching spot, he became almost unconscious. The complainant was an old person and he could not follow appellant who was a youngman of 25/26 years at that time. The argument by learned amicus curiae that grass which complainant and his sons have cut at the spot, was not taken into possession or has not been shown in the site plan, has no merit particularly in view of the statement of Jagga Khan PW3 who has stated that they had already cut about 3/4 head- loads of green grass. The fodder which the complainant and his son cut, was not relevant piece of evidence and prosecution case does not suffer from any infirmity because of the fact that the bales of fodder cut by 'the deceased' and his brother and father were not taken into possession by police. Immediately after the incident, complainant came to his village and then proceeded to Police Station Bhikhi where on the way, SI Hardavinder Singh met him. The recording of his statement was completed at 09.40 p.m. Ruqa was sent to the SACHIN MEHTA 2014.11.28 13:58 Police Station and FIR was recorded at 11.00 p.m. Special report reached I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -9- the Illaqa Magistrate in the night of 29/30.05.2001 at 01.15 a.m. All this reflects that there was no delay in reporting the matter to police and also rules out the defence version that dead body of deceased was found after midnight. The complainant while appearing as PW2 has stated that they reached with dead body to the Civil Hospital, Mansa at 01.30 a.m. The dead body was taken to the Civil Hospital on a Peter Rehra (an unauthorised vehicle, which is run by placing diesel pump engine on wooden planks given the shape of a vehicle and fixed with three or four wheels, a steering and brakes). The statement of complainant to this effect is unrebutted. Gulab Khan and Bagha Khan were not eyewitnesses of the occurrence. They had joined the proceedings relating to preparation of death report, as such, were not material witnesses. In the facts and circumstances of the case, despite being father and brother of the deceased, the testimony of complainant and Jagga Khan cannot be disbelieved for want of independent corroboration.
We have given careful thought to the submissions of learned amicus-curiae for the appellant, learned State counsel and have perused the record with their assistance.
Firstly we shall deal with the motive factor for commission of crime by appellant. As per prosecution case, 'the deceased' was having illicit relations with the wife of appellant and this fact was well-known in village. A Panchayat was also convened. While appearing as PW2, complainant Geba Khan has stated that with the intervention of Jaildar Sarpanch, matter was patched up and under the compromise, a payment of `6000/- was made to appellant but about two months before the occurrence, the wife of the SACHIN MEHTA 2014.11.28 13:58 appellant committed suicide by consuming insecticide and due to this reason, I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -10- appellant caused injuries, resulting in death of 'the deceased'. In cross- examination of complainant and Jagga Khan PW3, the motive factor attributed to the appellant has not been rebutted except by giving a suggestion that the wife of appellant had died a natural death. The unrebutted statement of complainant and eyewitness Jagga Khan prove the motive for the appellant to cause injuries to 'the deceased'.
This argument of learned amicus curiae that complainant and his son did not intervene or chase the appellant, in the facts and circumstances of the case, is without any substance. As per PW3 Jagga Khan, it was raining since 2.00 p.m. in the day and drizzling continued till 08.00 p.m. on the day of occurrence. Investigating Officer SI Hardavinder Singh (PW6) has also stated that due to night time and rain, he did not conduct further proceedings at the spot after preparing the death report Ex.PC. As per the complainant, he along with his two sons had gone to the side of 'Sem' drain to cut fodder for their mules. While they were busy cutting fodder, the appellant came running and caused injuries with 'Takua' to 'the deceased' and fled from the spot before the complainant and his son Jagga Khan could reach there. As per the site plan Ex.PH, the complainant and his son were at a distance of 200 yards from 'the deceased' at the time of occurrence. It took some time for them to respond to the cries of the deceased, to raise alarm and rush towards 'the deceased' and before they could cover the distance, appellant succeeded in running away from the spot. The fact that it was raining and place of occurrence was the side of a drain, which is usually a kacha one, would have further slowed down the speed of complainant and his son. In SACHIN MEHTA 2014.11.28 13:58 natural course, the complainant would have first rushed towards the injured, I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -11- taken care of him and when they found him dead, the trauma, pain and agony which they suffered at that moment, can be well imagined. Immediately, the complainant came towards village, narrated the incident to his relatives and proceeded towards police station to report the matter. This plea of appellant that some one killed 'the deceased' and his dead body was located after midnight, is belied by the evidence on record. Firstly, the police recorded the statement of complainant at 09.40 p.m. on the day of occurrence. Secondly, DDR No.20 dated 29.05.2001 was recorded at Police Station Bhikhi at 10.10 p.m. Thirdly, the FIR was registered at Police Station Bhikhi at 11.40 p.m. Fourthly, the special report was received by Illaqa Magistrate at 01.15 a.m. i.e. within a period of one hour and thirty five minutes of recording of FIR. The above sequence of time in reporting the matter to police, recording of FIR and delivering special report to Illaqa Magistrate, reflects that there was no undue delay in reporting the matter to police. This argument of learned amicus curiae for appellant that entire police proceeding and recording of FIR were ante-dated, in the above facts and circumstances, is also without merit.
The appellant was named in first version of the occurrence given to police, which was disclosed without any delay. The motive for the appellant to commit the crime was also disclosed. The police had reached the spot immediately and conducted the required proceedings including preparing death report Ex.PC. The mere fact that the grass which had been cut by complainant and his sons, was not shown in site plans prepared at the spot or was taken into possession, is not a material fact. PW3 Jagga Khan SACHIN MEHTA 2014.11.28 13:58 has stated that "they have already reaped about 3/4 head-loads of green I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -12- grass" and his testimony is not rebutted. He has further stated that on hearing the alarm raised by 'the deceased', they started running towards him but by that time, the accused had already succeeded in fleeing from the spot.
Learned amicus curiae has referred to the statement of PW3 Jagga Khan, wherein he has stated that on the day of occurrence, there was dust storm and in the dust storm, they could not see as to what was happening. While placing heavy reliance on this part of statement of PW3, learned amicus curiae for the appellant has tried to develop his argument that even if the presence of PW2 Geba Khan and PW3 Jagga Khan at the spot be believed, when the occurrence took place, still they could not see the appellant causing injuries to 'the deceased' because of the dust storm. On perusal of the statement of PW3 Jagga Khan, we find that the above argument of learned amicus curiae cannot be accepted, as Jagga Khan had given a complete version of the manner of occurrence and the way it took place. His mere saying, when he was re-examined, that there was a dust storm and they could not see as to what had happened, is to be read in the context of his whole statement. In the next line, he stated that accused ran away after killing 'the deceased'. This shows that even if there was a storm, it was not to the extent that the eyewitnesses could not see as to what had happened. As already discussed, it was raining since 2.00 p.m. and drizzling continued upto 08.00 p.m. on the day of occurrence. When it has been raining for the last about five hours, this reduces dust in the storm, as the dust settles with rainfall. Even otherwise, this fact was not suggested to PW2 Geba Khan or to the Investigating officer (PW6). From the testimony SACHIN MEHTA 2014.11.28 13:58 of complainant Geba Khan and eyewitness Jagga Khan, it is duly proved that I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -13- they had witnessed the occurrence and the appellant causing injuries to the deceased.
Much stress has been laid on the fact that post-mortem examination was conducted on the next day at about 01.30 p.m. and the police papers were received by the doctor at 11.00 a.m. on the next day. The delay in the post-mortem examination in no manner affects the testimony of complainant and eyewitness, particularly when the complainant has specifically stated in his statement that they reached with the dead body to the hospital at 01.30 a.m. in the night. Moreover, the injuries on the person of 'the deceased' find mention in injury report (Ex.PL) prepared at the spot by Investigating Officer SI Hardavinder Singh. In these circumstances, delay in conducting post-mortem examination, in no manner affects the prosecution case.
Gulab Khan and Bagha Khan were associated as witnesses who identified the dead body of deceased at the spot and in whose presence, death report Ex.PC was prepared. They are not the eyewitnesses of the occurrence, as such, their non-examination, in no manner, help the appellant. Even at the time of post-mortem, both these witnesses had identified the dead body. It is usually seen that such a tragic incident put the entire family in disarray and deep trauma. The co-villagers, well-wishers, friends and relatives rush to sympathise and render help. For the purpose of identification of dead body and getting legal formalities like post-mortem examination etc. some near and dear come forward and join the police proceedings. In this case, Gulab Khan and Bagha Khan had performed this job. They were formal witnesses, SACHIN MEHTA 2014.11.28 13:58 as there is no dispute about the identity of dead body of deceased. Under I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -14- these circumstances, we are of considered opinion that non-examination of these witnesses, in no manner, affect the prosecution case.
It has been argued by learned amicus curiae that 'Takua' Ex.P5 was not in sealed parcel when produced at the time of statement of Geba Khan and the group of the blood found on 'Takua' was not got matched with blood group of deceased. He has tried to impress upon the points that firstly 'Takua' produced in Court was not the same which was allegedly recovered on the basis of disclosure statement of appellant and secondly, this weapon cannot be connected with the weapon used in the crime. The 'Takua' Ex.P5 was first produced on 28.01.2002 when statement of Dr. Tejinderpal Singh Rekhi was recorded. At that time, it was in sealed parcel with seals of Serologist intact. The parcel was opened under orders of the Court and a note to this effect was given in the midst of statement of Dr. Tejinderpal Singh Rekhi. The statement of Geba Khan was recorded on 15.03.2002 and that is why 'Takua' was not in a sealed parcel but even at that time, it was having a chit bearing the inscription 365/2001/FSL. The report number of FSL is 365/2001/FSL. This connects the 'Takua' produced at the time of testimony of Dr. Tejinderpal Singh Rekhi and Geba Khan with 'Takua' recovered in this case. This 'Takua' was found blood stained but further investigation to find the group of blood on the 'Takua' was not conducted. In case, further investigation had been conducted, it would have been helpful for the prosecution but in view of direct and reliable evidence on file, the fact that group of blood found on the 'Takua' was not ascertained, is not a material fact, to any assistance for the appellant.
SACHIN MEHTA 2014.11.28 13:58
Learned amicus curiae has argued that the testimony of Geba I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -15- Khan, PW2 and his son Jagga Khan, PW3 in the absence of independent corroboration, is not reliable. On scrutinising statement of all the prosecution witnesses and documents on file, we find the argument advanced by learned amicus curiae without any substance. The place of occurrence as depicted in the site plan Ex.PH and Ex.PN, was the side of 'Sem' drain away from village abadi. It was evening time and only the fields having cotton and other crops were nearby. In these circumstances, there could not be an independent corroboration to the statement of complainant and his sons. The mere fact that they are father and brother of the deceased, is no reason either to create doubt about their statements or to disbelieve them. This law is now well settled that the testimony of relative witnesses cannot be discarded, provided the same is reliable. In this case, the motive for causing injuries to deceased was strongly alleged and proved; the weapon of offence was recovered on the disclosure statement of appellant, which was blood stained; motive or reason for the false implication of the appellant against the complainant and the eyewitness is not proved; and place of occurrence is duly established; taking into account all these facts as discussed above and on perusal of the judgment of the trial Court, we feel no hesitation to reach the conclusion that the prosecution has duly proved the charge framed against the appellant and the trial Court has committed no error of law and fact while convicting and sentencing him.
This appeal has no merits. The same is hereby dismissed and the conviction and sentence of the appellant for offence punishable under Section 302 IPC, as recorded by the trial Court, is maintained. The sentence SACHIN MEHTA 2014.11.28 13:58 of the appellant was suspended vide order dated 10.07.2007. The bail bond I attest to the accuracy and authenticity of this document Chandigarh CRA-D-52-DB of 2003 -16- and surety bond furnished by the appellant in pursuance to the order dated 10.07.2007 are cancelled. He be taken into custody and sent to jail to undergo remaining sentence awarded to him.
( RAJIVE BHALLA) ( SURINDER GUPTA )
JUDGE JUDGE
October 31, 2014.
Sachin M.
SACHIN MEHTA
2014.11.28 13:58
I attest to the accuracy and
authenticity of this document
Chandigarh