Punjab-Haryana High Court
Kulbir Singh vs State Of Punjab on 12 December, 2008
Author: S.S. Saron
Bench: S.S. Saron, Rakesh Kumar Jain
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.86-DB of 2001
.....
Date of decision: 12.12.2008
Kulbir Singh
...Appellant
v.
State of Punjab
...Respondent
.....
Coram: Hon'ble Mr. Justice S.S. Saron
Hon'ble Mr. Justice Rakesh Kumar Jain
Present: Mrs. Baljit K. Mann, Advocate for the appellant.
Mr. S.S. Gill, Additional Advocate General, Punjab for
the respondent-State.
Mr. Hitesh Sood, Advocate for Mr. Harsh Aggarwal, Advocate
for the complainant.
......
(2) Criminal Revision No.636 of 2001
.....
Gurmail Singh
...Petitioner
v.
State of Punjab and another
...Respondents
....
Present: Mr. Hitesh Sood, Advocate for Mr. Harsh Aggarwal, Advocate
for the petitioner.
Mr. S.S. Gill, Additional Advocate General, Punjab for
the respondent-State.
Mrs. Baljit K. Mann, Advocate for the respondent No.2.
......
S.S. Saron, J.
This order will dispose of Criminal Appeal No.86-DB of 2001 Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [2] and Criminal Revision No.636 of 2001 as they arise out of the same judgment and order dated 22.12.2000 passed by the learned Additional Sessions Judge, Patiala.
Criminal Appeal No.86-DB of 2001 has been filed by the appellant Kulbir Singh praying for setting aside the impugned judgment and order dated 22.12.2000 passed by the learned Additional Sessions Judge, Patiala whereby the appellant has been held guilty and convicted for the offence under Section 302 Indian Penal Code (`IPC' - for short) and sentenced to undergo imprisonment for life besides to pay a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for one year.
By way of Criminal Revision No.636 of 2001, Gurmail Singh- complainant (PW-9) who is the son of Jang Singh (deceased) has prayed for enhancing the sentence of imprisonment of Kulbir Singh (respondent No.2) to death sentence as also for enhancement of the amount of fine that has been awarded and to pay the same to the petitioner/complainant.
The FIR (Ex.PL/2) has been registered on the statement (Ex.PL) of Gurmail Singh-complainant (PW-9) son of Jang Singh (deceased). It is stated by the complainant that his father Jang Singh (deceased) on 28.5.1997 went to Rajpura. At about 8.00 p.m. the complainant went to the Bus Stand, Jansla. His father Jang Singh (deceased) and Kulbir Singh alias Rinku (appellant) were taking liquor at the liquor vend. The complainant (PW9) asked his father to come home who, however, said that he should go and they would come. When they had not come home for a sufficient period, the complainant (PW9) along with Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [3] Raghbir Singh, Panch (PW4) and Pritam Singh son of Attar Singh searched for his father and Kulbir Singh (appellant) but they could not be traced and they did not meet them. On the date of lodging the report i.e. 29.5.1997 at about 9.00/10.00 a.m., the complainant was going towards the tube-well motor from his house and when he reached near the Primary School, Ramnagar near the bricks he saw a dead body lying there. He went near the place where the dead body was lying and noticed that the dead body was that of his father. Blood was oozing out from the head and nearby some brick pieces smeared with blood were lying. About 1½-2 months earlier to the occurrence, the father of the complainant had insulted the father of Kulbir Singh (appellant) namely Baldev Singh. Due to this grudge, Kulbir Singh (appellant) had murdered his father by causing injuries with bricks. The father of the complainant could not save himself as he does not have a left hand, which had been amputated. Kulbir Singh (appellant) took revenge of his father (Baldev Singh) by murdering Jang Singh. The complainant had left Pritam Singh to keep a watch on the dead body and he was going to the police station to inform the Police that Darshan Singh, SI/SHO, Police Station Banur (PW-13) met him and he got his statement (Ex.P2) recorded. The writing was sent by Darshan Singh, SI/SHO (PW-
13) to the police station for registration of a FIR. Sarabjit Singh, MHC on the basis of the writing that was received recorded the FIR (Ex.PL/2).
The case was investigated by Darshan Singh, SHO, Police Station Banur (PW-13). He along with the complainant-Gurmail Singh (PW-9) went to the place of occurrence at Village Ramnagar which was Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [4] inspected. A rough site plan (Ex.PR) with correct marginal notes was prepared. From the place of occurrence two complete bricks on which words `SHB' were inscribed were lifted. The bricks were blood stained. Two pieces of bricks which were also blood stained were also taken in possession from the place of occurrence. A piece of brick on which hair was there was also lifted. Besides, one brickbat i.e. a brick gravel about the quarter size of a normal brick which was stained with blood was also lifted. The bricks were made into a sealed parcel with four seals. Darshan Singh used his seal bearing impression `DS'. Separate sample of seal was also prepared. Seal after use was handed over to ASI Hari Chand (PW-11). The parcel was taken in police possession vide recovery memo (Ex.PN) which was attested by Hari Chand, ASI (PW-11) and Malkiat Singh son of Gian Singh. A sealed parcel containing the bricks is Ex.PN/1 and it bears the seal of the Chemical Examiner. Blood stained earth was also taken from the place of occurrence and put in a plastic box and made into a sealed parcel. Seal bearing impression `DS' was used and after use was handed over to ASI Hari Chand (PW-11). The blood stained earth was taken in possession vide recovery memo (Ex.PM) which was attested by ASI Hari Chand (PW-
11) and Malkiat Singh aforesaid. A pair of `chappal' (Ex.PO/3) was also lifted from the place of occurrence. One seal/stamp (Ex.PO/2) of Sarpanch, Gram Panchayat, Ramnagar, one Turban (Ex.PO/4) of light pink colour and one HMT wrist watch (Ex.PO/1) on which Kulbir Singh was engraved in Punjabi were taken in possession vide recovery memo (Ex.PO) which was also attested by Hari Chand ASI (PW-11) and Malkiat Singh aforesaid. The Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [5] statements of the witnesses were recorded, besides, inquest report (Ex.PC) was prepared. The dead body of Jang Singh was sent by Hari Chand, ASI (PW-11) for post-mortem examination. After post-mortem examination, ASI Hari Chand (PW-11) produced before Darshan Singh, Sub Inspector (PW-13) a parcel containing the belongings of Jang Singh, besides one parcel containing viscera and one envelope addressed to the Chemical Examiner. The parcels were duly sealed bearing impression `IC'. These were sealed with 12 seals. These articles were taken in possession vide recovery memo (Ex.PP) which was attested by Hari Chand, ASI (PW-11). A search was made for the accused. The statements of the witnesses were recorded. On return to the police station, the case property was handed over to MHC Sarabjit Singh. On 31.5.1997, the Investigating Officer Darshan Singh, Sub Inspector (PW-13) along with Police officials were holding a barricade (Naka) at Kharar Chowk near Banur. At about 9.00 a.m. Rattan Singh (PW-12) along with Kulbir Singh (appellant) came to them. Rattan Singh (PW-12) produced Kulbir Singh (appellant) before the Investigating officer Darshan Singh (PW-13). He was arrested. The statement of Rattan Singh (PW-12) under Section 161 of the Code of Criminal Procedure (`Cr.P.C.' - for short) was recorded. The appellant was interrogated on 3.6.1997 in the presence of ASI Hari Chand (PW-11) and MC Gurmej Singh, Banur. On interrogation, he made a disclosure statement (Ex.PQ) that in a polythene bag he had kept concealed one multi-coloured T-shirt and one black colour Pant. The polythene bag had been concealed in a heap of straw towards the west side of the room of his well of which only he Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [6] knew about and could get the same recovered after pointing it out. Thereafter, the appellant led the Police party along with Gurmej Singh, MC to the disclosed place and got recovered a polythene bag from which one multi-colour T-shirt and one black colour Pant which seemed to be blood stained was there. The same were taken in possession vide recovery memo (Ex.PQ/1). The memo was attested by ASI Hari Chand and MC Gurmej Singh. A rough site plan (Ex.PQ/2) of the place of recovery with correct marginal notes was prepared. After completion of the investigation, charge- report (challan) was filed in the Court of the learned Judicial Magistrate Ist Class. The learned Magistrate in terms of order dated 14.8.1997 observed that on perusal of the report under Section 173 CrPC and in view of the documents attached offence under Section 302 IPC appeared to have been committed by the appellant which was exclusively triable by the Court of Session. Accordingly, he committed the case for trial to the said Court. The learned Additional Sessions Judge, Patiala, to whom the case was assigned, vide order dated 10.9.1997 charged the appellant on the allegation that the appellant during the intervening night of 28/29.5.1997 in the revenue limits of Village Ram Nagar, Police Station Banur, District Patiala committed murder by intentionally causing the death of Jang Singh and thereby committed an offence punishable under Section 302 IPC. The appellant pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined as many as 13 witnesses besides tendered documents in evidence. The learned trial Court after considering the evidence and material on record has convicted and sentenced the appellant Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [7] to life imprisonment besides ordered him to pay a fine of Rs.10,000/- and in default of payment of fine, to undergo rigorous imprisonment for one year. Aggrieved against the same, the appellant has preferred this appeal.
Mrs. Baljit K. Mann, Advocate, learned counsel appearing for the appellant has contended that the case of the prosecution is not based on cogent and convincing evidence so as to record a clear finding of guilt against the appellant. It is submitted that as per the statement of Gurmail Singh-complainant (PW-9), he had seen the dead body of his father on 29.5.1997 at 6.00 a.m. and the FIR was recorded at 9.00/10.00 a.m. Besides, the special report reached the Judicial Magistrate at 12.00 noon on the same day. This according to the learned counsel gave sufficient time to the prosecution to deliberate and rope in the appellant and make out a story of last seen by the complainant Gurmail Singh at the `Ahata' (liquor vend) on 28.5.1997. The story of last seen at the `Ahata' (liquor vend) according to the learned counsel is not cogent or convincing as many persons must have been available at the `Ahata', however, no independent witness from the `Ahata' has been examined or joined by the prosecution. It is also stated that Kulbir Singh (appellant) was aged 18 years and Jang Singh (deceased) aged 45 years and, therefore, it was unlikely for them to have liquor together. Besides, the story of Kulbir Singh (appellant) having liquor at the `Ahata' with Jang Singh (deceased) is not free from doubt, inasmuch as, in terms of post-mortem report after examination of viscera, no alcohol was found. It is also submitted that Bachan Singh (PW-10) is a close relative of Gurmail Singh (PW-9) and, therefore, the statements of both the witnesses Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [8] are highly doubtful. It is also submitted that there is no motive for the appellant to commit the murder of Jang Singh and there is nothing to show that there was any dispute between the deceased Jang Singh and Baldev Singh-father of Kulbir Singh-appellant. No dispute between them was reported to the Panchayat nor any record in this regard was produced. Lastly, it is submitted that the inquest report (Ex.PC) against the column regarding articles actually found near the dead body, it has been merely recorded; "as per memo taken into possession by the Police". This according to the learned counsel shows that the recoveries made near the dead body were later manipulated by recording that the articles recovered were as per recovery memo of police and it left it open to the prosecution to record whatever recoveries it wanted to show later in point of time and not to incorporate all the actual recoveries in the inquest reports (Ex.PC). Therefore, it is submitted that the case of the prosecution is full of discrepancies which would warrant the setting aside of the impugned judgment and order and would also warrant the acquittal of the appellant.
In response, Mr. S.S. Gill, learned Additional Advocate General, Punjab appearing for the State and Mr. Hitesh Sood, Advocate for the complainant have submitted that the prosecution has proved its case beyond shadow of reasonable doubt and the learned trial Court having convicted and sentenced the accused on the basis of sound evidence and material on record would not warrant any interference by this Court or warrant the acquittal of the appellant. It is submitted that the case is one of honour killing, where the appellant was wanting to take a revenge for the Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [9] insult of his father Baldev Singh by Jang Singh (deceased). Therefore, there was a strong motive in the back of the mind of the appellant. It is also submitted that the discrepancies pointed out by the learned counsel for the appellant are quite insignificant. According to the learned counsel there is no delay in the lodging of FIR. Besides, the circumstances and evidence of last seen go to establish the guilt of the appellant beyond shadow of reasonable doubt. The fact that no independent witness from the `Ahata' (liquor vend) was produced, it is submitted that the witnesses are generally reluctant to support the prosecution case of this nature. As regards the difference of age between Kulbir Singh (appellant) and Jang Singh (deceased) so as for them not to be together, it is submitted that it is insignificant as people of different age groups are known to take drinks together. Death of Jang Singh was caused by hurling bricks and blood stained bricks were recovered from near the place of occurrence. The Chemical Examiner's report (Ex.PT) has found blood on Ex. (I) earth etc. and Ex. (II). Itt rore (brick gravel). Therefore, according to the learned counsel for the State and the learned counsel for the complainant, the prosecution case stands established on all counts. Learned counsel for the complainant has further contended that in fact the sentence that has been imposed is inadequate and sentence of death is liable to be imposed on the appellant. Besides, compensation is also liable to be awarded to the complainant who is the son of deceased Jang Singh.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [10] the records of the case. The FIR (Ex.PL/1) has been registered on the statement of Gurmail Singh (PW-9). A day earlier to the dead body being seen by Gurmail Singh i.e. on 28.5.1997 he had gone to Rajpura. At about 8.00 p.m. he went to Bus Stand of Village Jansla where his father Jang Singh (deceased) and Kulbir Singh alias Rinku (appellant) were having drinks together. He told his father to come home but his father said that he would come on his own. As his father did not return, the complainant along with Raghbir Singh, Panch (PW-4) and Pritam Singh son of Attar Singh searched for Jang Singh (deceased) and Kulbir Singh (appellant). On 29.5.1997 at about 6.00 a.m. when he was going from his house to the tube- well motor, he saw a dead body lying near the Primary School, Ram Nagar and he went towards the dead body and noticed that it was that of his father Jang Singh. Many brick pieces stained with blood were lying there. About two months earlier to the occurrence Jang Singh (deceased), father of the complainant, had insulted Baldev Singh, father of Kulbir Singh (appellant). Due to the said grudge, it was alleged that Kulbir Singh (appellant) had killed Jang Singh-father of the complainant. Gurmail Singh, complainant (PW-9) in his deposition in Court has reiterated the version as recorded in his statement (Ex.PL) before the police on the basis of which FIR (Ex.PL/2) was registered. Gurmail Singh complainant (PW9) was cross-examined by the defence counsel. However, nothing could be brought out which would, in any manner, dislodge his testimony regarding his having last seen his father Jang Singh with the appellant Kulbir Singh. The testimony of Gurmail Singh (PW9) is supported by the deposition of Bachan Singh (PW-
Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [11]
10). According to Bachan Singh (PW10) on 28.5.1997, he had gone to Village Rampur Khurd for domestic work. When he returned to Village Ramnagar at about 9.00-9.30 p.m. on his cycle and reached near the school of the village, he found Jang Singh (deceased) and Kulbir Singh (appellant) under the influence of liquor. He knew Kulbir Singh (appellant) because he was his neighbour. He had been seeing him on some occasions at the liquor vend. Kulbir Singh was telling Jang Singh that the latter had insulted his father and by doing so he had not done a proper thing. Bachan Singh (PW-
10) had seen Kulbir Singh and Jang Singh from a distance of about 5-6 feet. There was an electric light in the nearby water tank. Thereafter, he came back to his house. On 29.5.1997, he came to Patiala for some private work. In the evening when he went back he came to know that Jang Singh had been murdered. On 30.5.1997, he made a statement in this regard before the Sub Inspector of Police. In cross-examination, Bachan Singh (PW-10) has stated that he did not remember if his statement was made to the Police on 30.5.1997. He had stated that he had spotted the accused Kulbir Singh and Jang Singh from a distance of 5-6 feet and there was electric light on the water tank. He was confronted with his statement (Ex.DA) wherein it was not so stated. It is also accepted by him to be correct that he had two maternal uncles, namely, Joginder Singh and Atma Singh. Paramjit Kaur is the daughter of his maternal uncle Joginder Singh and she was married to Gurmail Singh, complainant (PW-9). Apart from the evidence of last seen, Dr. I.C. Taneja, Medical Officer, A.P. Jain Hospital, Rajpura (PW-1) conducted the post-mortem examination on the Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [12] dead body of Jang Singh (deceased). Dr. Sanjiv Aggarwal (PW2) was also with him at the time of conducting the post-mortem examination. The dead body was brought by ASI Hari Chand (PW-11) and SPO Jaswinder Singh. It was inter alia observed that the forehead at the level of glabella and nose was depressed. Whole of the face and forehead was stained with blood. Rigor mortis and post-mortem stains were present. There was an old and healed amputation of the left forearm at the level of 18 cms. below the left elbow joint. Multiple multicised contusions and abrasions all over the face and scalp with the depressed area of the size of 6 cm. x 3 cm. at the glabella was noticed. On opening the scalp including face there was fracture of both the frontal bones. Both the temporal bones and the occipital bone were also affected. There were fractures of nasal and both the mandible bones. There was subdural and extra dural collection of the blood which was present in both the temporal frontal and occipital area of the scalp. CSF was also full of blood and there was laceration of right and left middle menigeal vessels. The viscera was sent to the Chemical Examiner. In the opinion of the doctor all the injuries were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. Death in the present case was due to haemorrhage and shock due to injury i.e. fracture of both the frontal bones, both the temporal bones and occipital bone etc. To rule out any intoxication prior to death it was mentioned that it would be given after the report of the Chemical Examiner, Patiala. The probable time that elapsed between the injuries and death was immediate and between death and post- mortem was within 24 hours. Carbon copy of the post-mortem report is Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [13] Ex.PA. The inquest report (Ex.PC) also bears the signatures of Dr. I.C. Taneja (PW-1). In cross-examination, it is stated by Dr. I.C. Taneja (PW-1) that he started examination (of the dead body) at 3.15 p.m. on 29.5.1997. It is accepted as correct that in order to determine the time between death and post-mortem examination rigor mortis is the criteria. He had mentioned the existence of a rigor mortis but he had not mentioned the extent. The possibility of suffering of the injuries by the deceased by fall on a hard surface repeatedly could not be ruled out.
Dr. Sanjiv Aggarwal, Medical Officer, A.P. Jain Hospital, Rajpura (PW-2) was examined. He had joined Dr. I.C. Taneja (PW-1) in conducting the post-mortem on the dead body of Jang Singh (deceased). Besides, he medically examined Kulbir Singh (appellant) on 31.5.1997 at 2.30 p.m. He found the following injuries on the person of Kulbir Singh (appellant):-
"1. Healed abrasion 3 cm. x .2 cm. on the centre of forehead slightly extending to the left side about 5 cm. above glabella. Reddish brown scab was present.
2. Healed abrasion 2 cm. x 1 cm. on right side of forehead about 3 cm. above right eyebrow. Reddish brown scab was present.
3. Healed abrasion 3 cm. x 2 cm. on right temporal region about 4 cm. in front of right tragus reddish brown scab was present.
Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [14]
4. Healed abrasion 3 cm. x 2 cm. on the posterior surface of right elbow joint. Reddish brown scab was present."
The nature of injuries was stated as simple. The probable duration of injuries was about two to three days. The kind of weapon used was blunt. Ex.PD was the correct carbon copy of the MLR of Kulbir Singh, original of which he had brought in Court. He had examined the accused (Kulbir Singh) present in Court and had seen mark of identification from which he could say that he was the same person whom he had examined. In cross- examination, it is stated that all the injuries on the person of Kulbir Singh were superficial in nature. It was incorrect to suggest that the injuries on the person of Kulbir Singh would be suffered due to third degree methods adopted by the Police. It was accepted as correct that brownish type of injuries remain present for about five to seven days. The possibility that the injuries were suffered between five to seven days could not be ruled out because these were brownish scabs. It was incorrect to suggest that there was no injury on the person of accused. It was also incorrect to suggest that he had prepared a false report at the instance of the Police and the complainant. To a Court question, he stated that the injuries were of reddish brown colour. Therefore, he gave the opinion that these could be suffered from two to three days. In further cross-examination, it is stated as correct that reddish brown scabs present are the last words in the case of each injury as mentioned in the MLR. It is further stated as incorrect that he added these words at the instance of the Police or the complainant party after the examination of the appellant.
Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [15] The present is a case of circumstantial evidence and the parameters for establishing guilt of an accused in a case of circumstantial evidence have been well delineated. In State of Rajasthan v. Raja Ram, 2003 (4) RCR (Cr.) 238 (SC) it was observed that circumstances from which an inference of guilt is to be drawn should be cogently and firmly established, the said circumstances should have a clear tendency pointing to the guilt of the accused, besides circumstances if taken cumulatively should form a complete chain that there is no escape from the conclusion that within human probability the crime was committed by the accused and none else and the circumstantial evidence in order to sustain conviction must be incapable of explanation of any other hypothesis except that of guilt of the accused and should be in-consistent with his innocence.
In the present case, as has already been noticed, the evidence of last seen by Gurmail Singh (PW-9) and Bachan Singh (PW-10) is there, the medical evidence of the death of Jang Singh being caused due to injuries is also there. Besides, there is motive for the appellant to commit the murder. Moreover, there is the deposition of Dr. Sanjiv Aggarwal, Medical Officer, AP Jain Hospital Rajpura (PW2) who medically examined Kulbir Singh (appellant) on 31.5.1997 and found injuries on his person, which according to the said doctor (PW2), these had been suffered 2 to 3 days earlier from 31.5.1997. The incident in the case had occurred on 28.5.1997 at about 8.00 p.m. and the appellant had suffered injuries at that time.
The contention of the learned counsel for the appellant that the body of the deceased Jang Singh was seen by Gurmail Singh (PW-9) at 6.00 a.m. and the FIR was registered between 9.00-10.00 a.m., besides, the Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [16] special report reached the Magistrate at 12.00 noon are not such circumstances which may in any manner discredit the prosecution version. As is well known prompt lodging of a FIR is not an unmistakable guarantee of its truthful version nor delay in lodging the same is always fatal. It has come in the affidavit (Ex.PK) of Constable Mewa Singh (PW-8) that he handed over the special report to the Illaqa Magistrate at 12.00 noon and thereafter to the concerned officers. A reading of the affidavit (Ex.PK) shows that on 29.5.1997 MHC Sarabjit Singh handed over the special report to him and directed him to hand over the same to the concerned officers and the Special Magistrate which he handed over to the Special Magistrate at 12.00 noon. Mewa Singh (PW-8) was cross-examined and it was stated as incorrect to suggest that he had filed false affidavit and had deposed falsely. No cross-examination was put to Mewa Singh, Constable (PW-8) as regards the time when the special report was handed over to him by MHC Sarabjit Singh and as to how much time he took to reach the Court of the Special Magistrate. Besides, nothing was put to the Constable as to what is the distance from the police station to the Court. A party is liable to put its case to a witness while he is under cross-examination and failure to do so on a particular aspect mentioned in the examination-in-chief would be an admission of the same. Besides, it may be noticed that the FIR has been registered vide DDR No.7 of 29.5.1997 at 9.00-10.00 a.m. Gurmail Singh (PW-9) had seen the dead body of his father in the morning of 29.5.1997 at about 6.00 a.m. Gurmail Singh (PW-9) was walking when he saw the dead body. Therefore, it must have taken him time to reach the police station to Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [17] report the matter. It is stated in cross-examination of Gurmail Singh, complainant (PW9) that the distance between Ram Nagar and Rajpura is 10 Kms. For the complainant to compose himself on seeing the dead body of his father and then go to the police station to report the matter must have taken time in the normal course of events. Thereafter, the Police to prepare and record the statement Ex.PL and then send the same to the police station for recording the FIR (Ex.PL/2) must have also taken some time and the pace at which the Police works, the reaching of the special report at 12.00 noon with Illaqa Magistrate in the facts and circumstances is not so fatal a delay so as to hold that there has been delay in the registration of FIR, which would vitiate the prosecution case.
The evidence of last seen is not the only evidence on the basis of which the conviction has been based. The evidence of last seen by Gurmail Singh (PW-9) and Bachan Singh (PW-10) is there in which they have both stated that they had seen the appellant with Jang Singh (deceased) at the village `Ahata' (liquor vend) taking liquor. As regards the contention of learned counsel for the appellant that other independent witnesses from the `Ahata' (liquor vend) were not examined is not such a circumstance to hold that the prosecution case has not been established. It may be noticed that the `Ahata' where Jang Singh (deceased) and Kulbir Singh (appellant) were taking liquor is at the Bus Stand of Village Jansla. There may be other residents of Village Ram Nagar to which the appellant and the deceased belong at the 'Ahata' (liquor vend). However, the fact that other persons who may have known the deceased and the appellant have not been Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [18] examined in the facts and circumstances of the case is quite inconsequential. As already noticed, people in general are quite reluctant to be witnesses in criminal cases like the present case as it leads to continuing enmity with the accused in the villages. Even the fact that Kulbir Singh (appellant) is stated to be aged 18 years while Jang Singh (deceased) was aged 45 years is not such a circumstance to hold that they would not be taking liquor together. Having drinks together by persons of various age groups is quite common and both could have gone to have a drink as Kulbir Singh (appellant) must have enticed Jang Singh (deceased) to have a drink with him so as to remove the rancour that they had of Jang Singh insulting Baldev Singh, the father of the appellant. Therefore, the difference in age group is inconsequential for them not to be drinking together.
The Chemical Examiner's report (Ex.PT) has observed blood to be found on Exs.No.I (earth etc.) and (II). Itt's rore (brick gravel) with hair, which were sent to Serologist Govt. of India. Besides, stains as indicated on the sketches were found on Exhibits-III (A) Kamiz, III(B) Pajama, III(C) Banian (vest), III(D) underwear, IV (A) T-shirt and IV(B) Pant and those marked were tested and found to be of blood and pieces therefrom were sent to the Serologist Govt. of India. In terms of the Chemical Examiner's report (Ex.PT/1) as regards the viscera it was observed that no poison was detected in the contents of Exhibits No.I, II, III and IV which were sealed bottle said to contain: I- stomach, part of small intestine and part of large intestine; II- sealed bottle said to contain part of Liver, part of Spleen, part of Kidney and part of Lung; III- sealed bottle said to contain sample of blood and IV-
Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [19] sealed bottle said to contain sample of saline respectively. In terms of the Serologist's report (Ex.PT/2) it has been opined that items No.23 Itt's rore (brick gravel) with hair, 24 (Kamiz), 26 (Banian), 28 (T-shirt) and 29 (Pant) were stained with human blood. The blood stains on items No.22 (earth etc.), 25 (Pajama) and 27 (underwear) were disintegrated and their origin could not be determined.
The contention that there was no alcohol as per post-mortem report is inconsequential. In fact, the consumption of alcohol must have been such which had no smell by the time the post mortem examination was conducted. In Modi's Medical Jurisprudence & Toxicology (22nd Edition at page 312) it is observed that alcohol cannot be stored in the body but it liberates energy on oxidation, about 7 calories per gram which can be utilized as any other food. The time between the injuries and death is stated to be immediate and between death and post-mortem within 24 hours. The post-mortem was conducted on 29.5.1997 at 3.15 p.m. and death could be any time after 8.00 p.m. on 28.5.1997. Therefore, the fact that the smell of alcohol was not found is quite inconsequential.
The other contention that Bachan Singh (PW-10) is not a reliable witness as he is related to the deceased is also inconsequential. It is deposed by Bachan Singh (PW10) that on 28.5.1997 he had gone to village Rampur Khurd for his domestic work. He returned to village Ramnagar i.e. the village of the complainant Gurmail Singh (PW9) and Jang Singh (deceased) on his cycle at about 9.00-9.30 p.m. He reached near the school and saw Jang Singh (deceased) and Kulbir Singh (appellant) under the influence of liquor. It is stated by Bachan Singh (PW10) that Kulbir Singh Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [20] (appellant) was present in Court and that he knows Kulbir Singh (appellant) because he was his neighbour. He had heard Kulbir Singh (appellant) telling Jang Singh (deceased) that the latter had insulted his father and by doing so he had not done a proper thing. It is also stated that he had spotted Kulbir Singh (appellant) and Jang Singh (deceased) from a distance of 5-6 feet. There was electric light at the nearby water tank. Thereafter, he came back to his house. On 29.5.1997 he had come to Patiala for some private work. When he went back he found that Jang Singh had been murdered. He made his statement before the Sub-Inspector of Police on 30.5.1997. In cross-examination it is stated that he did not remember that if in his statement made to the Police on 30.5.1997, he had stated that he spotted the accused Kulbir Singh (appellant) from a distance of 5-6 feet and there was electric light on the water tank. He was confronted with his statement (Ex.DA) where it was not so stated but was found in the statement dated 20.7.1997. It is also stated that he had two maternal uncle namely Joginder Singh and Atma Singh. Paramjit Kaur, it is stated, is the daughter of Joginder Singh and she is married to Gurmail Singh, complainant (PW9). It is primarily from the said statement of Bachan Singh (PW10) that his maternal uncle's daughter Paramjit Kaur is married to the complainant Gurmail Singh (PW-9) that the learned counsel for the appellant has contended that due to the said relationship, Bachan Singh (PW10) is not a reliable witness. It may, however, be noticed that the statement of Bachan Singh (PW10) is only corroborative in nature that he had seen Kulbir Singh (appellant) and Jang Singh (deceased) together and had heard that Kulbir Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [21] Singh (appellant) was saying that Jang Singh (deceased) had insulted his father. They could have been seen by someone who knew them. The fact that he (Bachan Singh PW-10) did not interfere could be that he felt that they were clearing their misunderstandings. In the circumstances, the mere fact that Bachan Singh (PW10) is related to the complainant is not such a circumstance to hold that he is not a reliable witness.
It may be noticed that the present is a case of strong motive in which Jang Singh (deceased) had abused Baldev Singh, father of Kulbir Singh (appellant). That by itself would have impelled the appellant to murder the person who had insulted his father. Besides, it may be noticed that Dr. Sanjiv Aggarwal, Medical Officer, A.P. Jain Hospital, Rajpura (PW-2) has found as many as four injuries on the person of Kulbir Singh (appellant). His medical examination was conducted on 31.5.1997 at 2.00 p.m. and the injuries on his person were two-three days earlier which would be at the point of time when he was with Jang Singh (deceased). The fact that the injuries were simple in nature is not of much significance. In any case the injuries go to show that these were there on the person of the appellant and must have been caused while Jang Singh was defending himself. It may be noticed that the left hand of Jang Singh was amputated and, therefore, he was not in such a position to effectively defend and save himself but the resistance that he had put up would show that the appellant did suffer as many as four injuries. There is explanation as to how the appellant suffered the said injuries about two-three days earlier to his examination by Dr. Sanjiv Aggarwal (PW-2) on 31.5.1997. It is in reply to Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [22] the Court question that Dr. Sanjiv Aggarwal (PW2) has stated that the injuries were reddish brown in colour. Therefore, he gave the opinion that these could be suffered from 2 to 3 days. This indeed is also a strong circumstance which points to the guilt of the appellant. In fact, there is no reason for the complainant to falsely implicate someone who was not involved in the murder of his father. Rather, the endeavour of the complainant would be to ensure that the real and actual culprit is brought to book rather than an innocent person being convicted. Learned counsel for the appellant has also contended that the evidence of last seen by itself is not such a circumstance on the basis of which a firm finding of conviction can be recorded. Indeed the evidence of last seen is circumstantial in nature and in respect of circumstantial evidence as has already been noticed in order to record a conviction on its basis, the same must be complete and incapable of explanation other than the guilt of the accused. In the present case, the evidence of last seen is coupled with the injuries on the person of Jang Singh (deceased) which injuries have not been explained and were at the time when the incident had occurred. Therefore, the stand of the learned counsel for the State and the learned counsel for the complainant that it is a case of honour killing where the accused (appellant) was wanting to take revenge for the insult of his father cannot be discarded and has considerable merit.
In the facts and circumstances, the guilt of the appellant stands established beyond reasonable doubt and there is nothing to dislodge the findings and conclusions reached at by the learned trial Court. As regards Cr. Appeal No.86-DB of 2001 & Cr. Revision No.636/2001 [23] the criminal revision filed by the appellant, no case is made out for enhancing the sentence of imprisonment for life to that of sentence of death. The present is not a case which can be said to be amongst the rarest of the rare cases. As regards the compensation payable, there is no material with the Court on the basis of which any assessment can be made with regard to the loss of dependency suffered by the complainant (petitioner in the revision petition).
In view of the above, there is no merit in this appeal and the same is accordingly dismissed.
In the light of the above, the criminal revision is also dismissed.
(S.S. Saron) Judge December 12, 2008. (Rakesh Kumar Jain) Judge *hsp*/amit NOTE: Whether to be referred to the Reporter or not: Yes/No