Punjab-Haryana High Court
Avtar Singh vs State Of Punjab on 12 September, 2008
Author: S.S. Saron
Bench: S.S. Saron, Mohinder Pal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
Crl. Appeal No. 521-DB of 2005
Date of decision: 12.9.2008
Avtar Singh
..... Appellant
Versus
State of Punjab
..... Respondent
CORAM : HON'BLE MR. JUSTICE S.S. SARON.
HON'BLE MR. JUSTICE MOHINDER PAL.
Present : Mr. Navdeep Singh, Advocate for the appellant.
Mr. S.S. Gill, Addl. A.G., Punjab.
S.S. SARON, J.
This appeal has been filed by the appellant Avtar Singh against the judgment and order dated 02.04.2005 passed by the learned Sessions Judge, Amritsar to the extent the appellant has been held guilty and convicted for the offence under Section 302 Indian Penal Code ("IPC" - for short) and sentenced to undergo life imprisonment; besides, to pay a fine of Rs.7,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of 2 years. By the same order dated 02.04.2005, Harwinder Kaur wife of the appellant (Avtar Singh) has been acquitted.
Pardeep Singh (PW3) son of Sucha Singh (deceased) made a statement (Ex.PA) in respect of the incident that occurred on 30.12.2001 at 3/3.30p.m. On the basis of the said statement, FIR (Ex.PA/3) was registered. It is stated by the complainant Pardeep Singh (PW-3) that he along with his father Sucha Singh (deceased) and his mother Balwinder Kaur (PW4) were cleaning the 'khal' (water course) for irrigating their Crl. Appeal No. 521-DB of 2005 -2- wheat crop. It was at about 3/3.30 p.m. that Avtar Singh (appellant) and his wife Harwinder Kaur (since acquitted) started demolishing the water course, which leads to their fields and is in the joint 'khata' (holdings). Then Sucha Singh (deceased) father of the complainant Pardeep Singh (PW-3) went to Avtar Singh (appellant) so as to stop him from demolishing the water course. Pardeep Singh-complainant (PW3) also accompanied him. On stopping the accused (Avtar Singh) from demolishing the water course, Harwinder Kaur (since acquitted) wife of Avtar Singh (appellant) raised an alarm saying that Sucha Singh (deceased) be caught hold of as he had no concern with their water course. In the meantime, Avtar Singh (appellant) aforesaid inflicted a spade (kahi) blow hitting on the forehead of Sucha Singh (father of the complainant). As a result of the injury, Sucha Singh fell on the ground. Avtar Singh (appellant) thereafter, sat on the chest of the father of the complainant while he was lying on the ground. He (Avtar Singh) caught hold of him (Sucha Singh) from his neck and took out a knife from the right pocket of his pant and inflicted knife blows on the chest and lip of the father of the complainant-Pardeep Singh (PW-3). Meanwhile, mother (Balwinder Kaur PW-4) of the complainant while raising a noise came there at the spot. Then Pardeep Singh complainant (PW-3) and his mother (Balwinder Kaur PW-4) raised a hue and cry of "don't kill don't kill". Thereafter, Avtar Singh (appellant) along with his wife Harwinder Kaur ran away from there with their weapons and hurled abuses. When Pardeep Singh -complainant (PW-3) and his mother (Balwinder Kaur PW4) reached near Sucha Singh, they found that he had succumbed to his injuries. Pardeep Singh complainant (PW-3) and his mother (Balwinder Kaur PW-4) had witnessed the entire occurrence. The complainant Pardeep Singh (PW-3) was going to the Police Station to give information. He left his mother to keep a watch on the dead body. The Police met him on the way. The motive of the crime was that Avtar Singh (appellant) wanted to demolish the water course of the joint 'khata' Crl. Appeal No. 521-DB of 2005 -3- (holdings) forcibly. On stopping him by the father of the complainant, Avtar Singh (appellant) and his wife Harwinder Kaur after conspiring with each other had murdered him (Sucha Singh-father of the complainant) by causing injuries. He had heard his statement and it was correct. The statement was attested by Wassan Singh, SI/SHO, Police Station Beas (PW-
10). The said SI/SHO Wassan Singh (PW-10) along with his gunman and ASI Kulwant Singh and other Police officials of Police Post Satiahala were present at the bus stand Sathiala when Pardeep Singh -complainant (PW-3) met them and got his aforesaid statement (Ex.PA) recorded. It was reduced into writing and read over and explained to him. After admitting it to be correct, the complainant signed it in Gurmukhi and Wassan Singh SI/SHO (PW-10) attested the same. From the said statement, offences under Section 302/34 IPC were made out. The writing was sent through constable Sawinder Singh to the Police Station for registration of a FIR. Jagtar Singh ASI on receipt of the writing registered the FIR, copy of which was sent to the spot for delivering it to SI/SHO Wassan Singh (PW-10). Special Reports in favour of the higher Officers were issued through constable Ashok Kumar. Inspector Nirmaljit Singh (PW-5), as per the orders of the SSP Majitha took over investigation of the case. During the course of his investigation, he on 10.1.2002 found Harwinder Kaur (since acquitted) to be innocent. He had raided the house of Avtar Singh (appellant) from time to time and he was ultimately arrested on 17.01.2002. Avtar Singh (appellant) while in custody was interrogated by Inspector Nirmaljit Singh (PW-5) and he made a disclosure statement (Ex.P3) with regard to the concealment of a 'Kahi' (spade) and a knife near the cremation ground near Gopi Mohalla in the area of Village Sathiala. He offered to get the same recovered. The disclosure statement (Ex.PJ) of Avtar Singh was recorded which he signed and it was attested by Baldev Singh, Member Panchayat and HC Balwinder Singh. In pursuance of the said disclosure statement, Avtar Singh (appellant) led the Police to the Crl. Appeal No. 521-DB of 2005 -4- place disclosed by him and got recovered a 'kahi' (spade) and a knife which were in the bushes. Blood stains were there on the 'kahi' (spade) but there were no stains on the knife. Sketches of the 'kahi' (spade) and knife Exs. PJ/1 and PJ/2 were prepared. The same were taken in possession vide memo Ex.PJ/3 which was attested by Surat Singh and HC Balwinder Singh. Rough site plan Ex.PJ/4 of the place of recovery of the 'kahi' (spade) and knife was also prepared. Statements of the witnesses were recorded. On return to the Police Station, the 'kahi' (spade) and knife were deposited with the MHC with seals intact. The same were made into a parcel and sealed with the seal 'NS' of Nirmal Jit Singh Inspector (PW-5) at the place of recovery itself. Dr. Gurmanjit Rai, Lecturer, Forensic Medicines, Medical College, Amritsar (PW-1) conducted the post mortem examination on the dead body of Sucha Singh. The cause of death, in his opinion, was Haemorrhage and shock as a result of injury No.5 i.e. an incised stab wound 1 x 0.8 cm on the middle of front of the chest at the level of both nipples. It was obliquely placed. There were six injuries in all. All the injuries were opined to be ante mortem in nature. After completion of investigation, a charge report (challan) in terms of Section 173 of the Code of Criminal Procedure (CrPC - for short) was filed by the Police on 27.03.2002, in the court of the learned Sub Divisional Judicial Magistrate, Baba Bakala. The said learned Magistrate vide order dated 10.04.2002, in view of the case being under Section 302 IPC committed the same to the Court of Session. The learned Sessions Judge, Amritsar vide order dated 13.05.2002 found a prima facie case for the offence under Section 302 IPC to be made out. The appellant was accordingly charged on the allegation that on 31.12.2001 at about 3.30 p.m. in the area of Sathiala, he committed murder by intentionally or knowingly causing the death of Sucha Singh and thereby committed an offence under Section 302 IPC. The appellant pleaded not guilty to the charge and claimed trial. On 04.09.2002 Pardeep Singh was examined as PW1. After his examination Crl. Appeal No. 521-DB of 2005 -5- the other prosecution witnesses who were present, were discharged for the time being because an application in terms of Section 319 CrPC was submitted by the learned Public Prosecutor for summoning Harwinder Kaur (since acquitted) who had been kept in column No.2 of the chargesheet (challan). The learned Sessions Judge in terms of order dated 19.09.2002 summoned Harwinder Kaur. She surrendered in Court on 22.10.2002. The learned Sessions Judge, Amritsar in terms of order dated 22.10.2002 reframed the charges against Avtar Singh (appellant) and his wife Harwinder Kaur (since acquitted). It was alleged against Avtar Singh (appellant) that on 31.12.2001 in the area of village Sathiala in furtherance of the common intention of the co-accused Harwinder Kaur which was to commit murder of Sucha Singh, he (Avtar Singh) did commit murder by causing the death of Sucha Singh and thereby he (Avtar Singh) committed an offence punishable under Section 302 IPC and his co-accused Harwinder Kaur committed an offence punishable under Section 302 read with Section 34 IPC. Both the accused Avtar Singh (appellant) and his wife Harwinder Kaur pleaded not guilty to the charges and claimed trial. The prosecution in order to prove its case examined Dr. Gurmanjit Rai (PW-1) and the affidavit (Ex.PF) of HC Kulwinder Singh was tendered in evidence. Pardeep Singh who was earlier examined as PW-1 was again examined as PW-3. His earlier cross-examination had been deferred and he was cross-examined as well. Besides, the prosecution examined Balwinder Kaur (PW-4) wife of Sucha Singh (deceased), Nirmaljit Singh, Inspector (PW-5), Rishi Ram, Draftsman (PW-6), Constable Surjit Singh (PW-7), Constable Sukhwinder Singh (PW-8) and Lakha Singh (PW-9). PW Baldev Singh was given up as having been won over and Constable Surinder Singh was given up as unnecessary. Wassan Singh, SI (PW-10) was also examined and documents including the Forensic Science Report (Ex.PR) were tendered in evidence. The statement of Avtar Singh (appellant) in terms of Section 313 CrPC was recorded in which it is stated that in fact Sucha Singh Crl. Appeal No. 521-DB of 2005 -6- (deceased) armed with gandasi and Kashmir Singh armed with 'dang' came to his filed. He (Avtar Singh -appellant) was working much away from the 'khal' (water course). They (Sucha Singh-deceased and Kashmir Singh) started abusing alleging that he (appellant) had abused them in the village in their absence. He (appellant) replied that the allegations were wrong. They opened assault on him and he (appellant) wielded his 'kahi' (spade) in self-defence. His (appellant's) 'kahi' (spade) fell down and he took out his pen knife while defending himself. The pen knife accidently hit Sucha Singh. The allegations that he (appellant) demolished any 'khal' (water course), it was stated, were wrong and made up. He appeared before the Police and he was taken in illegal custody. The statement of Harwinder Kaur (since acquitted) was also recorded and she stated that she was innocent and had been falsely implicated in the case at the instance of Pardeep Singh (PW-3) and others. In defence, the accused examined Dr. Lakwinder Singh Chahal (DW-1) who had medically examined the appellant (Avtar Singh). Besides, Vinod Kumar, Receipt Clerk, office of District and Sessions Judge, Amritsar (DW-2), Jatinder Kaur, Clerk, DC Office, Amritsar (DW-3), Harbhajan Singh, Senior TOA, CTO, Amritsar (DW-4), Constable Gurjit Singh office of SSP Majitha (DW-5) and Baldev Singh son of Garib Singh of village Jodhe (DW-6) were examined and the defence evidence was closed. The learned trial Court after considering the evidence and material on record has convicted the appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life; besides, to pay a fine of Rs.7,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of 2 years. Harwinder Kaur wife of the appellant (Avtar Singh) was acquitted. The said order to the extent Avtar Singh, has been convicted and sentenced, is assailed in this appeal.
Learned counsel appearing for the appellant has contended that the prosecution story is improbable and the same does not Crl. Appeal No. 521-DB of 2005 -7- establish the guilt of the appellant. A reference has been made to the site plan (Ex.PK) drawn by Rishi Ram, Draftsman (PW-6) to contend that the occurrence is said to have taken place near the 'khal' (water course) of the joint 'khata' (holdings) whereas the dead body is 25 'karams' (about 137 ft.) away from the 'khal' (water course). Therefore, it is submitted that the prosecution story is based merely on conjectures and surmises. It is also stated that the 'Khal' (water course) has not been demolished and is shown to be intact. It is further contended that the evidence of Dr. Lakhwinder Singh Chahal (DW-1) shows that Avtar Singh (appellant) had also suffered injuries. Therefore, the defence set up by the appellant is liable to be accepted, which is to the effect that Sucha Singh (deceased) armed with gandasi and Kashmir Singh armed with 'dang' came to his field and he was working much away from the 'khal' (water course). They started abusing him and alleged that he (appellant) had abused them in the village in their absence. The appellant stated that this was wrong. They then opened the assault on him and he wielded his 'kahi' (spade) in self-defence which fell down and then, he (appellant) took out his pen knife while defending himself and the pen knife accidentally hit Sucha Singh. Therefore, according to the learned counsel, it was a case of a mere accident.
In response, learned Additional Advocate General appearing for the State submits that the Prosecution has proved its case in all material aspects and there is no infirmity in the prosecution case. It is submitted that the learned trial Court has recorded a clear finding of guilt of the appellant and there is no infirmity in the judgment and order of the learned trial Court which would warrant any interference by this Court. It is submitted that the body was dragged to a far off corner of the field of Avtar Singh (appellant) so that he can raise a plea of self-defence. The defence, that has been set up, it is submitted, is highly improbable.
We have given our thoughtful consideration to the Crl. Appeal No. 521-DB of 2005 -8- contentions of the learned counsel appearing for the parties and with their assistance gone through the records of the case. It may be noticed that Pardeep Singh initially appeared as (PW1) and his statement was recorded in Court on 04.09.2002. He supported the version as was given by him in his statement (Ex PA) before the police on the basis of which FIR (Ex.PA/3) has been registered. It is stated by Pardeep Singh that on 30.12.2001, he, his father Sucha Singh and mother Balwinder Kaur had come to their fields at 2.30 p.m. to clean the 'khal' (water course) for irrigating their field. While they were cleaning the 'khal' (water course), the appellant (Avtar Singh) and his wife Harwinder Kaur started demolishing that 'khal' (water course) from the portion which was coming from their filed. His father Sucha Singh went to the field of the accused (appellant) to request him not to demolish the 'khal' (water course). Pardeep Singh followed his father. Harwinder Kaur wife of the accused raised a lalkara saying that who were they to stop him and on that lalkara Avtar Singh (appellant) gave a blow with his 'kahi' (spade) which hit on the forehead of Sucha Singh and he (Sucha Singh) fell down. Avtar Singh (appellant) then sat on the chest of his father while he was lying on the ground and caused injuries on the chest and lips of his father with some instrument which he took out from his pant pocket and it resembled a knife. Hue and cry was raised by the complainant Pardeep Singh (PW-3) and his mother (Balwinder Kaur). Thereafter, Avtar Singh and his wife Harwinder Kaur fled away and he took away the weapons used by him in the crime. His (complainant's) father died there and then. On the said statement of Pardeep Singh (PW-1), the learned Public Prosecutor moved an application for summoning Harwinder Kaur (wife of the appellant) who had been kept in Column No.2 of the Charge Report (challan) filed by the Police in terms of Section 173 CrPC. The cross-examination of the witness was deferred. Thereafter, Pardeep Singh appeared as PW-3 and his statement was recorded on 30.1.2003 in which he reiterated the version as was earlier given by him on 04.09.2002 Crl. Appeal No. 521-DB of 2005 -9- and also in the FIR (Ex.PA/3). It was stated by Pardeep Singh (PW3) that on 30.12.2001 he along with his father Sucha Singh (deceased) and his mother Balwinder Kaur (PW4) had gone to their fields at about 2.30 p.m. to clear the 'khal' (water course) for irrigating their land. While they were cleaning the 'Khal' (water course), the accused Avtar Singh (appellant) and Harwinder Kaur started demolishing the 'khal' (water course) in their fields. The father of the complainant Pardeep Singh (PW3) went to the place in the field where the accused had started demolishing the 'khal' (water course). The said place was at a distance of just 1/2 or 3/4 'killas' (measurement in acres). The father of the complainant Pardeep Singh (PW3) requested the accused not to demolish the 'khal' (water course) because it was a common one. Harwinder Kaur accused raised a lalkara saying to catch them and who were they to stop them. On raising the lalkara, Avtar Singh (appellant) gave a 'kahi' (spade) blow on the forehead of Sucha Singh-father of the complainant Pardeep Singh (PW3). Sucha Singh fell down. While Sucha Singh, father of the complainant Pardeep Singh (PW3) lay on the ground, Avtar Singh (appellant) sat on his chest and after taking out a knife from his pocket gave two blows one on the lips and other on the chest of Sucha Singh. A hue and cry was raised by Pardeep Singh (PW3) and his mother (Balwinder Kaur). Both the accused then fled away from the spot along with the knife and kahi (spade). Sucha Singh - the father of the complainant died at the spot. The complainant after leaving his mother to guard the dead body of his father, went to the Police Station where his statement (Ex.PG) and also exhibited as Ex.PA was recorded. The Police then accompanied Pardeep Singh (PW3) to the place of occurrence. Inquest proceedings regarding the dead body of Sucha Singh, father of the complainant Pardeep Singh (PW3), was prepared there. Blood-stained earth was taken from the spot. Pardeep Singh (PW3) was cross-examined by the defence. In his cross-examination, it is stated by the complainant (PW3) that his father had died at the place where the Crl. Appeal No. 521-DB of 2005 -10- injury on the forehead with 'Kahi' (spade) was allegedly given. It is stated by the complainant (PW3) that his father had fallen just near the 'khal' (water course) and the blood was lifted from that very place by the Police. His father had not taken the 'Kahi' (spade) with him when he had gone inside the fields of the accused from there. The accused had started demolishing the 'khal' (water course). He denied the suggestion that actually his (complainant's) father armed with 'gandasi' and Kashmir Singh armed with 'dang' went to the fields of Avtar Singh-appellant where he was working on the 'watt' (a small raised hump boundary between the fields) and much away from the 'khal' (water course). He denied the suggestion that his father and Kashmir Singh started saying that Avtar Singh (appellant) had abused them in the village in their absence and that he replied that he never did so. He also denied the suggestion that his father and Kashmir Singh opened the assault on Avtar Singh in self-defence. He also denied the suggestion that 'Kahi' (spade) of Avtar Singh fell down and to avoid further assault he used his pen knife in his self-defence and in that process accidentally injury was caused on his father. It was stated as incorrect to suggest that he had not seen the occurrence; besides, the accused persons had never demolished any 'khal' (water course) as alleged by him. Balwinder Kaur (PW-4) wife of Sucha Singh (deceased) also deposed in Court on the same lines as stated by Pardeep Singh (PW-
3). She was cross-examined.
Dr Gurmanjit Rai, Lecturer,Forensic Medicines, Medical College, Amritsar (PW-1) conducted the post mortem on the dead body of Sucha Singh. He found the following injuries on the person of Sucha Singh :-
1. Vertically placed reddish brown abrasion was present on the right side of the forehead. 4.5 x 0.5 cms incised and 0.5 cms above middle of the eye brow. Injury No.2 Crl. Appeal No. 521-DB of 2005 -11-
2. Lacerated wound 1 x 0.5 cms obliquely placed on middle of the right eye brow, clotted blood was present.
3. Lacerated wound 2.5 x 1 cms on right side of the upper lip and wound was present through in through of the lip and was obliquely placed.
4. 0.5 x 0.75 cms reddish brown abrasion on the right side of the lower lip.
On dissection of the injury Numbers 1 and 2, both the injuries were scalp deep, brain and its membranes and skull were normal. Injury No.5 is as follows:-
5. Incised stab wound 1 x 0.8 cms was present on the middle of front of the chest at the level of both nipple. It was obliquely placed.
On dissection of the injury No.5, sternum was found cut fractured in its middle. Pericarbial sac was found full of fluid blood and was having stab injury and right ventrical of heart was found having stab injury. About 21 hundred CC of fluid blood was present on the throscic cavity.
6. Reddish brown abrasion 3 x 1 cms was present on the frontal of the neck in its middle.
On dissection of chest and abdomen, both lungs, liver, spleen and kidneys were found pale on cut sections and stomach was Crl. Appeal No. 521-DB of 2005 -12- having about 80 CC of fluid. Rest of the organs were found normal.
All these injuries were ante mortem in nature. The cause of death in this case in my opinion was haemorrhage and shock, as a result of injury No.5 to heart (vital organ), which was sufficient to cause death in the ordinary course of nature."
In cross-examination, it is stated that except for injury No.5 all other injuries were simple in nature. Besides, possibility of this injury being caused by a fall could not be ruled out.
The investigation of the case was conducted by Inspector Nirmaljit Singh (PW-5) who had taken over the investigation of the case as per the orders of the SSP, Majitha. He had found Harwinder Kaur (wife of the accused) to be innocent. On the basis of interrogation conducted by him, Avtar Singh made a disclosure statement and got recovered the 'Kahi' (spade) and knife, the sketches of which Ex.PJ and Ex.PJ/2 respectively were prepared. Memo of recovery of 'kahi' (spade) and knife (Ex.PJ/3) was prepared, which was attested by Surat Singh and HC Balwinder Singh. Rough site plan (Ex.PJ/4) of the place of recovery of knife and 'Kahi' (spade) was also prepared. Statements of the witnesses were recorded. 'Kahi' (spade) and Knife were deposited with the MHC with seals intact. Investigation in the case was also conducted by Gurmej Singh, DSP. In the cross-examination it is stated that during investigation, it was also revealed that Avtar Singh (appellant) had sustained some injuries at the time of occurrence. He (appellant) was got medically examined. He (Nirmaljit Singh, Inspector PW-5) denied the suggestion that Avtar Singh was in the illegal custody of the Police since 30.12.2001. He did not know if any telegrams were sent by the father of Avtar Singh to the higher authorities to the effect that the Police was not recording the version of Crl. Appeal No. 521-DB of 2005 -13- Avtar Singh and was illegally detaining him and was not getting him medically examined. Accused, as per the Police report, was arrested on 17.01.2002. He was interrogated at the turning of Baba Bakala immediately after his arrest. Nirmaljit Singh, Inspector (PW5) denied the suggestion that no disclosure statement was made by the accused and no recovery was got effected.
Rishi Ram, Draftsman, District Courts, Amritsar (PW6) stated that on 15.1.2002 he had gone to the spot at the asking of the Police. He prepared site plan (Ex.PK) at the pointing of Pardeep Singh (PW3). The scale used was 1 inch x 37 feet. In cross-examination, it is stated that the water course was at a distance of 74 feet from point A & B of the site plan. Besides, as per plan the water course had not been shown going to the fields of Sucha Singh.
Wassan Singh SI, CIA Staff Pathankot (PW-10) was examined who stated that on 30.12.2001, he was posted as SHO Police Station Beas. On that day he (Wassan Singh PW-10) along with other Police officials happened to be present at the Bus Stand Sathiala. Pardeep Singh complainant (PW-3) met him and made his statement (Ex.PA), which was recorded by him. The contents of the said statement were read over and explained to Pardeep Singh - complainant (PW-3) who after admitting the same to be correct, had signed thereon. He (Wassan Singh (PW-10) made his endorsement (Ex.PA/2) on that statement and sent the same to the Police Station for registration of a case through Constable Sawinder Singh. Formal FIR (Ex.PA/3) was recorded on the basis of Ex.PA by Jagtar Singh, ASI whose signatures were identified. Inquest Report (Ex.PB) regarding the dead body of Sucha Singh was prepared. The dead body was identified by Nirmal Singh and Major Singh. Blood stained earth was also lifted from that place and the same was made into a parcel which was sealed with his seal bearing initials 'WS' and taken in possession vide memo of Ex. PH. Statements of witnesses were recorded. A rough site Crl. Appeal No. 521-DB of 2005 -14- plan (Ex.PO) of the place of occurrence was prepared with correct marginal notes at the pointing out of Pardeep Singh, complainant (PW3). The dead body was sent for post-mortem examination through Constable Surjit Singh and Constable Sawinder Singh along with the request (Ex.PA/1). He was cross-examined by the learned Defence counsel. It is stated that inquest proceeding site plan was also prepared. The dead body, it is stated, was lying at a distance of 25/30 karams from the 'khal' (water course) in the field and that field belongs to Avtar Singh. They had reached the place of occurrence at about 8.00 p.m. Some other persons were also joined in the investigation. It was heard from certain persons that Avtar Singh (appellant) had also received injuries at the time of occurrence but Avtar Singh himself had never met him and apprised him of the injuries. He denied the suggestion that Avtar Singh had been kept in illegal custody. He also denied the suggestion that the statement of Pardeep Singh- complainant (PW-3) was recorded at the place of occurrence and it was ante timed and wrongly shown to have been recorded at some other place.
On the basis of the evidence and material on record, it may be noticed that the occurrence in the case is admitted inasmuch as the case of the appellant is that Sucha Singh armed with 'gandasi' and Kashmir Singh armed with 'dang' came to his field while he was working much away from the 'khal' (water course). The said Sucha Singh and Kashmir Singh started abusing the appellant alleging that he had in their absence abused them in the village. To the said allegations, the appellant had replied that these were wrong. Thereafter, Sucha Singh and Kashmir Singh, it is alleged, assaulted the appellant and he wielded his 'kahi' (spade) in self-defence. His 'kahi' (spade) fell down and he took out his pen knife while defending himself. The said pen knife, it is alleged, accidentally hit Sucha Singh (deceased) on account of which he died. The allegations that he demolished any 'khal' (water course), it is stated, were wrong and made up. He appeared before the police and was taken in Crl. Appeal No. 521-DB of 2005 -15- illegal custody.
Therefore, the question to be seen is as to whether the dead body is at some distance from the 'khal' (water course) and if so its effect; besides, whether the 'khal' (water course) was not demolished and if so its effect.
It is submitted by SI Wassan Singh (PW-10) that the dead body was lying at a distance 25-30 karams from the 'khal' (water course) in the field. This according to the learned counsel for the appellant shows that the 'khal' (water course) was not being demolished by the appellant, which is the case set up by the prosecution. It may, however, be noticed that the blood stained earth in terms of the recovery memo Ex.PH was recovered from the place of occurrence and put in a small plastic bags duly sealed with the seal bearing letters 'WS'. It was taken in possession by the Police vide recovery memo (Ex.PH). Therefore, in terms of the recovery memo of blood-stained earth, it is simply mentioned that the blood-stained earth was recovered from the place of occurrence and the place of occurrence has not been depicted. Rishi Ram, Draftsman (PW6) had prepared the site plan (Ex.PK). Wassan Singh SI/SHO (PW-10) also prepared the site plan (Ex.PO) which tallies with the site plan (EX.PK) prepared by Rishi Ram, Draftsman (PW6). Both the maps were prepared on the pointing of Pardeep Singh (PW3) The place where the dead body was found and the blood-stained earth was lifted are depicted in the same manner and are at a distance from the water course. Rishi Ram, Draftsman (PW6), in his cross examination, stated that the water course was at a distance of 74 feet from Point 'A' and 'B'. Point 'A' & 'B' in the site plan (Ex.PK) prepared by Rishi Ram, Draftsman (PW6) are those places from where the dead body of Sucha Singh was found and from where the blood-stained earth was taken. Point 'C' is the place from where Pardeep Singh-complainant (PW3) had seen the occurrence. The distance between 'A' to 'C' has been mentioned as 75 feet. Point 'D' is the place where Crl. Appeal No. 521-DB of 2005 -16- Balwinder Kaur (PW4) wife of the deceased Sucha Singh had seen the occurrence and distance between 'A' to 'D' is 50 feet. The dead body it may be noticed was a distance 74 feet from the 'khal' (water course) in terms of the deposition of Rishi Ram, Draftsman (PW-6) and 25/30 karams in terms of the deposition of Wassan Singh, SI/SHO (PW-10) who prepared the rough site plan (Ex PO). The recovery memo of blood-stained earth Ex.PH does not mention the fact that the blood-stained earth was lifted from the 'khal' (water course). It only mentions that blood-stained earth was taken from the place of occurrence. The place where blood-stained earth was lifted is shown as Point 'B' in the site plan (Ex.PK) prepared by Rishi Ram, Draftsman (PW-6). Point 'B' is quite near to Point 'A' where the dead body was found and both are at almost the same distance from the 'khal' (water course). Therefore, the contention of the learned counsel for the appellant that the occurrence had taken place at a considerable length i.e. 25-30 karams from the 'khal' (water course) is hardly of any significance so as to rule out the prosecution case in its entirety or hold that Avtar Singh (appellant) had caused injuries in self-defence. In fact the site plan (Ex.PK) has been prepared by Rishi Ram, Draftsman (PW6) as per scale and he has given the scale as 1 inch equal to 37 feet. The scaled site plan (Ex.PK) depicts that distance from point 'A' where the dead body of Sucha Singh was lying, which as per scale is about 74 feet from the 'khal' (water course). In fact even in the cross-examination Rishi Ram, Draftsman (PW6) has stated that the 'khal' (water course) is at a distance of 74 feet from point 'A' and point 'B". The site plan (Ex.PO) prepared by Wassan Singh, SI/SHO (PW10) is by approximation and is a rough site plan and the statement that he made that dead body was 25-30 karams from the 'khal' (water course) is also by approximation. The side in which the dead body was lying in both the site plans i.e. Ex.PK and Ex.PO is the same. Therefore, the distance at which the dead body was lying from the 'khal' (water course) was 74 feet and this fact was got clarified by the Crl. Appeal No. 521-DB of 2005 -17- defence itself by cross-examining Rishi Ram, Draftsman (PW6) in this regard who stated that the 'khal' (water course) was at a distance of 74 feet from point 'A' to point 'B' i.e. where the dead body was lying and the blood-stained earth was lifted. This is also depicted by the scale of the site plan (Ex PK), which is 1-inch equal to 37 feet. In the circumstances, the dead body was not at such a distance i.e. 25-30 karams from the 'khal' (water course) from which it can be inferred that Sucha Singh and Kashmir Singh had attacked the appellant (Avtar Singh) and he in self-defence caused the injuries.
The fact that the 'khal' (water course) is not shown to be demolished as contended by the learned counsel for the appellant is also not of much significance. It may be noticed that Pardeep Singh- complainant (PW-3) in his statement (Ex.PA) before the Police on the basis of which FIR (Ex.PA/3) was registered has stated that Avtar Singh and his wife Harwinder Kaur had started demolishing the water course from the joint 'khata' (holdings) which leads to their field. Then Sucha Singh (deceased) father of the complainant went to Avtar Singh (appellant) for preventing him from demolishing the water course. Pardeep Singh while appearing as PW1 on 04.09.2002 had again stated that Avtar Singh and his wife Harwinder Kaur had started demolishing the 'khal' (water course) from the portion which was coming from their field and his father Sucha Singh went to the field of the accused person to request them not to demolish the 'khal' (water course). Thereafter, Pardeep Singh while appearing as PW3 on 30.01.2003 has stated that Avtar Singh (appellant) and Harwinder Kaur (since acquitted) started demolishing the 'khal' (water course) in their fields and his father went to that place in the field of the accused persons from where they had started demolishing the 'khal' (water course). There is no variance in the statements of Pardeep Singh (PW-3) that has been recorded on different occasions. Therefore, it is evident that the case of the prosecution is that Avtar Singh (appellant) had started to demolish the Crl. Appeal No. 521-DB of 2005 -18- 'khal' (water course) in his field so as to stop the flow of water coming to the filed of Sucha Singh (deceased). The learned trial court has observed that there was no denial of the fact that no demolished water course had been shown in the Rough Site Plan or the map but merely on the statement made by Pardeep Singh -complainant (PW-3) which had been corroborated by Balwinder Kaur (PW-4) and cannot be doubted. It was observed that their statements regarding demolition of the water course were not to be disbelieved merely on the ground that no part of the water course in the Rough Site Plan and the Map had been shown as demolished and the prosecution was not to suffer for any omission on the part of the Investigating Officer. The said reasoning of the learned trial Court is sound. Therefore, the demolition of 'khal' (water course) had started and as such the demolished 'khal' (water course) could not be seen so as to make a mention of the same in the site plan and map, however, it is evident that there was a clear intention on the part of the appellant Avtar Singh to stop the flow of water and had started demolishing the 'khal' (water course) which resulted in the occurrence. As such the fact that there was no demolition of the 'khal' (water course) is quite insignificant and it is evident that while Sucha Singh was cleaning the 'khal' (water course) for irrigating his field that Avtar Singh (appellant) had started to demolish the 'khal' (water course).
The question that the appellant suffered injury is also of not any significance. Dr. Lakhwinder Singh Chahal (DW-1) who examined the appellant on 18.1.2002 found the following injuries on the person of Avtar Singh:-
"1. 4 cms x ½ cm old heal wound in the parietal region. The wound was obliquely placed and was on both sides of the mid line. The wound was 10 cms from the Pinna of the right ear.Crl. Appeal No. 521-DB of 2005 -19-
2. Patient was complaining of pain in the left lumber region. But there was no sign of any injury in that area.
3. The fifth metacarpo phallangeal joint was swollen. The movements of the joint were painful and restricted.
4. 1 cm x 1/4 cm of a CM old healed abrasion on the lateral aspect of left leg in the middle 1/3rd.
5. 3/4 and 1/2 cm old healed abrasion on the medical aspect of right leg in the middle 1/3rd.
All the injuries were simple in nature.
Kind of weapon used was blunt. Injuries were about 8 to 12 days old. The injured was brought to the hospital by Nirmaljit Singh. Inspector belt No.376 J. I have seen Avtar Singh accused present in the Court today and he is the same person who was examined by me. I have brought the original medico legal report with me which is in my hand and bears my signatures. The photostat copy of the same is Ex.DA. The duration of these injuries can be of more than 12 days also."
It may be noticed that the above injuries were simple in nature and were about 8 to 12 days old. It is stated by Dr. Lakhwinder Singh Chahal (DW-1) that the duration of the injuries could be of more than 12 days old. The nature of injuries being simple in nature would not have any effect as regards the explanation to the same as admittedly it is Crl. Appeal No. 521-DB of 2005 -20- a case of fight in which the appellant has taken the stand that he had acted in self defence and the injuries on the person of the deceased were caused by an accident. Therefore, the injuries on the person Avtar Singh (appellant) are explained. The defence set up by him is improbable for the reason that the injuries were not disclosed by the appellant soon after the occurrence on 30.12.2001. He was arrested in the case on 17.1.2002 and was medically examined by Dr Lakhwinder Singh Chahal (DW1). The injuries were opined to be 8 to 12 days old. The delay is sought to be explained by the appellant by taking the stand that he was arrested by the Police on 30.12.2001 i.e. the date of the incident, but was kept in illegal custody. In this regard, Baldev Singh (DW6) - father of Harwinder Kaur (since acquitted) and father-in-law of Avtar Singh (appellant) was examined in defence. It is stated by him that on 30.12.2001, he came to know during the night that a dispute had taken place between Avtar Singh and Sucha Singh and others. Besides, he came to know that he had been arrested and taken away by the Police. On the next day in the morning, he along with 4-5 persons, went to Police Station, Beas. Avtar Singh was present there. His clothes were sealed (sic. Soiled) with blood and there were injuries on his head and other parts of the body. He requested the Police that he wanted to get treatment for his injuries, but the Police did not accede to his request. On the 5th, he sent letters through the Post Office to DIG and others about the custody of the accused. He obtained copies of those letters which have been placed on record. One of the certified copies is exhibited. It is stated that the accused (appellant) were produced in Court on 18.1.2002 at Baba Bakala. During this period, he (appellant) remained in custody of the Police. After collecting the Panchayats of 2-3 villages, he appeared before the SSP, who ordered an inquiry. Besides, Vinod Kumar, Receipt Clerk, office of District & Sessions Judge Amritsar (DW2), Jatinder Kaur, Clerk, DC Office, Amritsar (DW3), Harbhajan Singh, Senior TOA, CTO, Amritsar (DW4) and Constable Gurjit Crl. Appeal No. 521-DB of 2005 -21- Singh (DW5) were examined, in order to show that a telegram was sent by Baldev Singh (DW6), which was received in the office of District & Sessions Judge on 7.1.2002, which was ordered to be sent to SSP Majitha. Jatinder Kaur (DW3) stated that the telegram was received in the DC Office from Baldev Singh (DW6) which was forwarded to SSP Majitha. Harbhajan Singh, Senior TOA, CTO Amritsar (DW4) stated that he had not brought the summoned telegram as records pertaining to telegrams are destroyed after every three months. Constable Gurjit Singh (DW5) stated that the telegram sent by Baldev Si ngh (DW6) was received in the SSP Office from the office of DC Amritsar on 7.1.2002. The telegram was investigated by Lakha Singh DSP. Another telegram from Baldev Singh (DW6) was received directly on 6.1.2002.
The said defence does not establish that Avtar Singh (appellant) was in illegal custody after the incident on 30.12.2001 till he was arrested on 17.1.2002 and produced in Court on 18.1.2002. The same could have been sent even to create a defence. In any case, the injuries on the person of the appellant are duly explained and they relate to the point of time when the incident had occurred on 30.12.2001. As such, the defence version is improbable and it does not in any manner, render the prosecution case improbable.
The other contention of the learned counsel for the appellant is that the Investigating Officer has stated that the knife was not stained with blood, whereas the Forensic Science Laboratory report has found blood on the same. It may be noticed that the same is also not of much significance. The FSL conducted an examination of the knife and found human blood on the 'chaku' (knife). The said fact does not, in any manner, help the appellant (Avtar Singh) and would rather help the prosecution as the fact of injury being caused with the knife, which has been found to be stained with human blood in the FSL report would stand established. Besides, in view of the condition of the knife that was recovered, the Crl. Appeal No. 521-DB of 2005 -22- Investigating Officer may not have noticed the blood-stains which were deciphered by the Forensic Science Laboratory on examination.
There was a dispute over 'khal' (water course) for irrigating the lands. The 'kahi' (spade) and knife were recovered which were found to be stained with human blood in the FSL report. The land of Pardeep Singh-complainant and that of Avtar Singh adjoin each other which is irrigated by water course between the boundaries of the field. It is from the water course that the fields of the respective owners are irrigated. On account of Avtar Singh (appellant) starting to demolish the 'khal' (water course) and Sucha Singh (deceased), asking him not to demolish the 'khal' (water course), the fight ensued. Even otherwise, in the face of direct evidence with regard to the nature of injuries caused and the resultant death of Sucha Singh, the prosecution case cannot be doubted especially when it is corroborated by the medical evidence on record.
For the foregoing reasons, there is no merit in the appeal and the same is, accordingly, dismissed.
(S.S. SARON) JUDGE (MOHINDER PAL) JUDGE September 12, 2008 amit