Punjab-Haryana High Court
Jagdev Singh And Another vs State Of Punjab on 25 July, 2013
Author: Naresh Kumar Sanghi
Bench: Naresh Kumar Sanghi
CRA No. 455-SB of 2000. 1
In the High Court of Punjab and Haryana at
Chandigarh.
CRA No. 455-SB of 2000
Date of Decision:- 25.07.2013
Jagdev Singh and another
...Appellants
Vs.
State of Punjab
...Respondent.
CORAM : HON'BLE MR.JUSTICE NARESH KUMAR SANGHI.
Present: - Mr. H.S.Gill, Sr. Advocate, with
Mr. Vivek Goyal, Advocate,
for the appellants.
Mr. Sandeep Chhabra, DAG, Punjab.
NARESH KUMAR SANGHI,J.
The present appeal has been filed by appellants Jagdev Singh and Kulwant Singh challenging the judgment of conviction dated 15.05.2000 and the order of sentence dated 16.05.2000 whereby they were held guilty by the learned Sessions Judge, Bathinda, for the offences punishable under Sections 304 Part-I read with Section 34 and 304 Part-I IPC, respectively, and awarded the following sentences:-
Appellant-Jagdev Singh Under Sections Sentence (RI) Fine (in `) In default (RI) 304 Part-I/34, Ten years 1000/- Six months IPC Appellant-Kulwant Singh Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 2 Under Sections Sentence (RI) Fine (in `) In default (RI) 304 Part-I,IPC Ten years 1000/- Six months Brief facts of the case are that Mohinder Singh, son of Sher Singh, (not examined as prosecution witness), in his statement recorded at 7.30 P.M. on 24.07.1993 by Head Constable Surjant Singh (PW6), stated that Joginder Singh (deceased) and Baljinder Singh were his younger brothers. On 23.07.1993 at about 7.30 P.M., Joginder Singh (deceased) and Mohinder Singh (complainant) were talking with each other while standing outside their cattle-shed. Jagdev Singh (appellant No.1) and Kulwant Singh (appellant No.2) armed with dangs reached there. Jagdev Singh exhorted that they be taught a lesson for stopping them from using unmetalled road (Pagdandi).
Thereafter, Jagdev Singh inflicted a dang blow which hit on the right arm of Mohinder Singh. Joginder Singh came to rescue him then Kulwant Singh inflicted a dang blow which landed on the abdomen of Joginder Singh and as a result thereof, Joginder Singh fell down. Naib Singh (PW4) and Sachiar Kaur (PW5) reached on the spot and on seeing them, the appellants took to their heels with their respective weapons. Naib Singh arranged for a tractor- trolly and got admitted Mohinder Singh and Joginder Singh at the Civil Hospital, Bathinda.
On the basis of the statement of Mohinder Singh, a report was entered in the daily diary register of the police station, since the matter appeared to be suspicious. However, on 03.08.1993, FIR No. 39 for the offences punishable under Sections Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 3 323, 325 read with Section 34, IPC, was registered at Police Station, Nehianwala. During investigation, it emerged on police file that Bikkar Singh, Gurcharan Singh and Rajinder Singh (since acquitted) were also involved in the incident. Joginder Singh died on 04.08.1993 during his admission at Garg Nursing Home, Bathinda. Later on, offence under Section 302, IPC was added. The appellants and their co-accused were arrested and after completion of investigation, the charge-sheet (report under Section 173, Cr.P.C.) was presented. The case was committed to the court of Session after supplying the copies of the charge- sheet etc. to the accused persons.
Initially, all the accused were charge-sheeted for the offence under section 148, IPC, Kulwant Singh for Section 302, IPC while the remaining accused for the offences punishable under Sections 302 read with Section 149, IPC. The said charge-sheet was amended and the appellants and their co-accused were charge-sheeted in the following manner:-
(i) Jagdev Singh, Kulwant Singh, Bikkar Singh, Gurcharan Singh and Rajinder Silngh, under Section148, IPC;
(ii) (a) Kulwant Singh under Section 302, IPC;
(b) Jagdev Singh, Bikkar Singh, Gurcharan Singh and Rajinder Singh under Section 302/149, IPC;
(iii) (a) Jagdev Singh under Section 325, IPC; and
(b) Kulwant Singh, Bikkar Singh, Gurcharan Singh Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 4 and Rajinder Singh under Section 325/149, IPC.
The appellants and their co-accused did not plead guilty and claimed trial.
In order to substantiate its allegations, the prosecution examined the following witnesses:-
PW1:- Dr. Savinder Kumar Bansal, Bansal Medical Officer.
While being posted at Civil Hospital, Bathinda, he had medico-legally examined Mohinder Singh and found that there was pain, tenderness, swelling and unnatural movements of the right forearm. The underline bone was fractured. The said injury was grievous in nature.
On the same day, he medico-legally examined Joginder Singh and found that the injured was complaining of pain in the abdomen area and neck region and the same were kept under observation. The injuries were simple in nature.
The witness informed the police with regard to the admission of the injured in the hospital. In the cross examination, he admitted that Joginder Singh was discharged at 5.15 P.M. on 27.07.1993 in conscious state. It was also admitted that X-ray examination of Mohinder Singh was not conducted. It was also admitted that no internal or external injury on the person of Joginder Singh was found during his Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 5 admission in the hospital.
PW2:- Dr. Mohan Lal Garg deposed that on 27.07.1993 Joginder Singh was admitted in his hospital in a state unconscious state on account of head injury. Joginder Singh remained in hospital up to 04.08.1993, till he expired at 3.00 A.M. In cross- examination, the witness admitted that Joginder Singh was suffering from hypertension and chest infection and he was treated for the same. There was no external injury on his person. He also admitted that if a person had old hypertension, cerebral vascular episodes (accident) could occur and cause death.
PW-3:- Dr. K.L. Dhuna, Dhuna Medical Officer, Civil Hospital, Bathinda, conducted autopsy on the dead body of Joginder Singh on 04.08.1993 and found that the death, in his opinion, occurred due to occlusion of blood supplied to the right side of the brain through middle cerebral vessels. The same was ante-mortem in nature and sufficient to cause death in ordinary course of nature. It was also opined that death was caused by the disease process in due course. In cross- examination, the witness admitted that Joginder Singh injured was patient of high blood pressure. The occlusion of cerebral vessels in that case was one of the complication of hypertension. On account of Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 6 hypertension, pain occurs in the head and neck. There was no injury mark or scar on the abdomen, neck, head or any other part of the body. It was also admitted that disease process causing occlusion on cerebral vessels in the present case was due to age and hypertension.
PW4:- Naib Singh claimed himself to be an eye witness and deposed that Joginder Singh (his father) and Mohinder Singh were standing in the court-yard of their house then all the accused armed with 'dangs' (sticks) came near them. Appellant Jagdev Singh exhorted that they would pass through the passage and, thereafter, he (Jagdev Singh) gave a 'dang' blow on the right arm of Mohinder Singh, as a result thereof, he fell down. Naib Singh and Sachiar Kaur reached the spot to save Mohinder Singh then appellant Kulwant Singh inflicted a 'dang' blow on the stomach and another blow on the head of Joginder Slingh. Joginder Singh fell down. The other accused kept on raising exhortation to the effect that Joginder Singh be not saved that day. Thereafter, all the accused ran away. The injured were shifted to Civil Hospital, Bathinda, where they were medico-legally examined. He reported the matter to the police, on the basis of which, an entry (Ex.PK) was recorded in the Daily Diary Register. After death Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 7 of Joginder Singh, inquest report (Ex.PG) was prepared. In cross examination, the witness admitted that when he reached the place of occurrence, the same had already taken place. He also admitted that the police had met him next day at 8.00 A.M. but he did not suffer any statement at that time and made statement to the police after about six to seven days of the occurrence, i.e. a day prior to the death of his father. PW5:- Sachiar Kaur deposed that four years and seven months ago at about 07.30 P.M., she was present at her house. Her husband (Mohinder Singh) and his younger brother were standing and talking to each other in their court-yard. The accused armed with 'dangs' reached there, exhorted for teaching a lesson to Mohinder Singh and Joginder Singh and, thereafter, appellant Jagdev Singh inflicted a 'dang' blow on the right arm of Mohinder Singh. Appellant Jagdev Singh inflicted dang blows on the stomach and head of Joginder Singh. Except her no other person had witnessed the occurrence. In cross-examination, she admitted that the police had visited the place of occurrence after the death of Joginder Singh. It was further admitted that she did not meet the police in connection with this case.
PW6:- Head Constable Surjant Singh-
Singh He deposed that Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 8 on 24.07.1993 after obtaining opinion (Ex.PD/1) of the doctor, he recorded statement (Ex.PL) of Mohinder Singh and sent the same to the police station vide endorsement (Ex.PL/1) On 04.08.1993, the dead body of Joginder Singh was handed over to him for getting the post-mortem examination conducted and after doing the needful, he produced the parcel containing clothes of the deceased before Assistant Sub Inspector, Gurtej Singh (PW7), which were taken into police possession vide memo (Ex. PN). On 10.08.1993, the accused were produced before Assistant Sub Inspector Gurtej Singh. Appellant Jagdev Singh produced 'soti' and the same was taken into police possession vide recovery memo (Ex.PQ). Appellant Kulwant Singh produced 'dang' and the same was also taken into police possession vide recovery memo (Ex.PQ). In his cross-examination, he admitted that endorsement on the statement (Ex.PL) of Mohinder Singh was correctly made to the effect that the matter was suspicious on account of the party faction and as such the case was not registered and an entry was made in the Daily Diary Register. The case was registered on 03.08.1993. He further admitted in cross-examination that for the first time he visited the place on occurrence on 03.08.1993 at 8.30 A.M. Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 9 PW7:- Assistant Sub Inspector Gurtej Singh had taken over the investigation of this case on 03.08.1993 and after its completion handed over the same to Sub Inspector Kulwant Singh for presentation of the challan. During cross-examination, he admitted that he reached the spot at about 6.00/6.45 P.M. on 03.08.1993.
PW8:- Constable Bhura Singh.
Singh He had tendered his affidavit (Ex.PS) into his evidence.
PW9:-Head Constable Balwinder Singh has also tendered his affidavit (Ex.PT) in his evidence. After completion of the prosecution evidence, the statements of the appellants Jagdev Singh and Kulwant Singh and their co-accused were recorded in terms of Section 313, Cr.P.C. They denied the incriminating material emerging against them and pleaded false implication.
No evidence in defence was led.
After hearing learned counsel for the parties, the learned trial court acquitted the three co-accused of the appellants for all the charges levelled against them and the appellants were acquitted of the charges under Sections 148, 302, 325 read with Section 149, IPC, but appellant No.1, Jagdev Singh, was held guilty for the offences punishable under Sections 304 Part-I read with Section 34, IPC, and appellant No.2, Kulwant Singh, for the offence punishable under Section 304 Part-I, IPC, and awarded the Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 10 sentence as has been mentioned in the initial part of this judgment.
Learned Senior counsel raised the following submissions:-
(i) There was un-explained delay in reporting the matter to the police and thereafter huge delay in registration of the FIR;
(ii) There was no motive on the part of the appellants to have caused the injuries on the persons of Mohinder Singh and Jagdev Singh;
(iii) Mohinder Singh injured was deliberately withheld by the prosecution from the witness box;
(iv) The medical evidence does not support the ocular version;
(v) There were material contradictions in the statements of Naib Singh (PW4) and Sachiar Kaur (PW5) who were disbelieved by the learned trial court on material particulars, therefore, while relying upon the same, the appellants should not have been convicted and sentenced;
(vi) That both the eye-witnesses, namely, Naib Singh and Sachiar Kaur, were thickly related with Mohinder Singh and Jagdev Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 11 Singh;
(vii) That the police itself found the statement (Ex.PL) Mohinder Singh to be suspicious, therefore, the present case had been registered after due deliberations.
On the basis of the above submissions, the learned Senior counsel prayed for acceptance of the appeal and acquittal of the appellants.
Learned counsel for the State vehemently refuted the submissions made by learned Senior counsel for the appellants and submitted that the statements of the prosecution witnesses were consistent, natural and believable, therefore, the learned trial court had rightly held the appellants guilty and awarded the suitable sentence in the facts and circumstances of the case.
I have heard learned counsel for the parties and with their able assistance gone through the material available on record.
Un-explained and unusual delay in reporting the matter to the police in a criminal case is usually considered fatal for the prosecution. However, the delay, if explained, may not be serious in every case. It depends upon facts of each case. In the present case, the incident alleged to have taken place at 7.30 P.M. on 23.07.1993 and the injured Joginder Singh and Mohinder Singh were shifted to Civil Hospital, Bathinda, at about 11.55 P.M. where they were medico legally examined. In spite of the said fact, the Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 12 matter was reported to the police at 7.30 P.M. on 24.07.1993 by Mohinder Singh when his statement (Ex.PL) was recorded by Head Constable Surjant Singh (PW6). There is no explanation as to why so much of time was consumed by the witnesses in supplying information to the police with regard to the present occurrence. It is apposite to mention here that according to the prosecution, two more witnesses, namely, Naib Singh (PW4) and Sachiar Kaur (PW5), had also witnessed the occurrence. Even if it is assumed that Mohinder Singh and Joginder Singh were not in a position to go to the Police Station on account of the alleged injuries sustained by them then there was no difficulty for Naib Singh (PW4) and Suchair Kaur (PW5) to lodge the report. It is apposite to mention here that even on recording the statement after about 24 hours of the occurrence, the police had found the allegations to be suspicious as is apparent from the police proceedings/endorsement made by PW6 beneath the statement of Mohinder Singh. Still further, the FIR was registered on 03.08.1993, i.e. approximately 10 days of the occurrence. The delay in reporting the matter to the police gives rise to the following circumstances:-
(i) That the occurrence had not taken place in the manner as alleged by the prosecution;
(ii) That the complainant side was gaining time to implicate as many Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 13 person as it liked;
(iii) That the complainant side was not aware of the identity of the assailants-
accused persons; and
(iv) that the complainant side was gaining time to introduce the witnesses as per its convenience.
In the present case, learned trial court came to the definite conclusion that out of the five accused, three were innocent and acquitted them of all the charges levelled against them.
The argument raised by the learned Senior counsel for the appellant that there was no motive on the part of the appellants to cause injuries to the injured persons might not have been attached any credence for the reason that in an injury case where eye witnesses support the prosecution version, in that eventuality, the motive pales into insignificance. However, the position would be altogether different when the motive is alleged and not proved or disproved.
In the present case, while reporting the matter to the police, Mohinder Singh stated that Jagdev Singh (appellant) exhorted that they would teach them a lesson for stopping them from using a 'Pagdandi' but it was nowhere made clear as to where the said 'Pagdandi' was leading to and what for the appellants wanted to use the same. In the cross-examination, Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 14 Naib Singh (PW4) admitted that he was not holding any land towards the side of the appellants and he further admitted that even his uncle, Mohinder Singh, did not own any land towards the field of the appellants. In this way, the prosecution though alleged that the appellants had caused injuries to Mohinder Singh and Joginder Singh for denying them access to the 'Pagdandi' but failed to prove as to why the appellants wanted to use the same, therefore, the prosecution in the present case has miserably failed to prove that the appellants had any motive on their part to cause the injuries. In support of his contention, learned Senior counsel has placed reliance on the following judgments:-
(a) Ram Narain Versus State of Punjab, AIR 1975 SC 1975;
(b) Mohd. Shafique Pahalwan and others Versus State of M.P. 2001 Crl. L.J. 1528.
The next argument of the learned Senior counsel that Mohinder Singh, the star witness of the prosecution, has not been produced during trial and his non-examination as witness goes to the root of the case. There is no explanation as to why such an important witness has been withheld from the witness box, therefore, on this count also, an adverse inference has been drawn against the prosecution.
Learned Senior counsel further contended that the deposition of Dr. Mohan Lal Garg (PW2 ), who treated the injured Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 15 and Dr. K.L.Dhuna (PW3) who conducted the autopsy on the dead body of Joginder Singh clearly ruled out that there were injuries on the person of Joginder Singh (since deceased). Their depositions have already been discussed in the initial part of the judgment. It is suffice to mention here that the crux of their depositions is that Joginder Singh was suffering from hypertension and he had died of that ailment.
It is the conceded position that Naib Singh (PW4) and Sachiar Kaur (PW5) are thickly related with the injured, Mohinder Singh, and Jagdev Singh (deceased). This Court is conscious while dealing with this proposition that the case of the prosecution cannot be discarded merely on the premise that the eye witnesses to the occurrence are related and interested to the aggrieved persons. However, such principle would be applicable only when the evidence of such witnesses is acceptable beyond the shadow of reasonable doubt. In the case in hand, the learned trial court has disbelieved the deposition of these two witnesses with regard to the participation of the three co-accused of the appellants. There is no gainsaying in discussing that it is the prime duty of the Court to separate the grain from the chaff while scanning the evidence and the material available on record to find out as to who had actually committed the offence amongst the several persons put to trial. The said fact has to be analysed in view of the totality of the facts and circumstances of each case.
Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh CRA No. 455-SB of 2000. 16
In the present case, there is a delay of approximately 24 hours in reporting the matter to the police; the motive though alleged could not be substantiated; the medical evidence does not support the ocular version; and the alleged eye-witnesses had suppressed the true genesis of the alleged occurrence, therefore, as a matter of abundant caution, the benefit of doubt can be extended to the appellants. Accordingly, the present appeal is accepted. Appellants Jagdev Singh and Kulwant Singh are acquitted of the charges levelled against them. The amount of fine imposed by the learned trial court, if deposited by the appellants, shall be refunded to them in accordance with the rules on the subject.
(NARESH KUMAR SANGHI) JUDGE 25.07.2013 Anoop Aggarwal Anoop Kumar 2013.09.16 16:26 I attest to the accuracy and integrity of this document High court Chandigarh