Punjab-Haryana High Court
Gurmej Singh And Others vs State Of Punjab on 26 April, 2010
Author: Jaswant Singh
Bench: Hemant Gupta, Jaswant Singh
Crl.A.No.131-DB of 2002 #1#
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND
HARYANA AT CHANDIGARH
Date of decision: 26.04.2010
Crl.A.No.131-DB of 2002
Gurmej Singh and others
....Appellants
Versus
State of Punjab
....Respondent
Crl.A.No.265-DB of 2002 Amritpal Singh ....Appellant Versus State of Punjab ....Respondent Crl.R.No.1160 of 2002 Swinder Kaur ....Petitioner Versus State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON'BLE MR. JUSTICE JASWANT SINGH Present: Ms. Baljit Mann, Advocate for the appellants.
for the appellants (in Crl.A.No.131-DB of 2002). Mr. S.S. Virk, Advocate for the appellant.
(in Crl.A.No.265-DB of 2002) Mr. Daljit Singh, Advocate for the petitioner.
(in Crl.R.No.1160 of 2002) Mr. D.S. Brar, DAG Punjab.
JASWANT SINGH, J
1. This order shall dispose of aforesaid two appeals and criminal revision as these arise out of a judgment and order dated 7.2.2002, passed by learned Additional Sessions Judge, Amritsar.
Criminal Appeal No.131-DB of 2002 has been filed by 6 Crl.A.No.131-DB of 2002 #2# accused-appellants whereby they have been convicted under Sections 302/149 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.2000/- each for the murder of Mohinder Singh and in default of payment of fine, further rigorous imprisonment for six months each; all the appellants have been convicted and sentenced under Section 148 IPC to undergo rigorous imprisonment for one year each; all the accused have been convicted and sentenced under Section 450 IPC to undergo rigorous imprisonment for five years; accused-appellant Boor singh was convicted under Section 323 IPC while the remaining accused- appellants convicted under Sections 323/149 IPC and sentenced to undergo rigorous imprisonment for six months each for causing injuries to Savinder Kaur.
Amritpal Singh had inadvertently filed Crl.A.No.265-DB of 2002 challenging the judgment and order dated 7.2.2002 inspite of filing earlier appeal bearing Crl.A.No.131-DB of 2002. Criminal Revision No.1160 of 2002 has been filed by the complainant-injured Savinder Kaur praying for enhancement of sentence of the accused/appellants.
2. The prosecution case was set in motion on the statement (Ex.PJ) of complainant-Savinder Kaur (PW3), wife of the deceased in respect of the occurrence, which took place on 20.6.1999 at about 11.00 p.m in village Bhakna Khurd, recorded by SI-Jaswinder Singh (PW10) around T-point on the turning of Achint Kot on 21.6.1999 at 8.15 a.m. The statement reads as under:
"Stated that I am resident of village Bhakna Khurd. About 25/26 years ago, I was married to Mohinder Singh son of Tara Singh, R/o Bhakna Khurd. For the last 4/5 years, I, my husband along with our children are residing in a behak near the ganda nalla in Crl.A.No.131-DB of 2002 #3# the fields outside the village Abadi of Bhakna Khurd. I have four daughters and one son. Yesterday I, my husband and my elder daughter Lakhbir Kaur were present in our house/behak. It was about 11 p.m night that electric bulbs were emitting in our house. In the electric light while entering the house Gurmej Singh S/o Ajaib Singh, Jat, R/o Bhakna Khurd armed with gandasi raised lalkara that today they will teach a lesson to Mohinder Singh for taking a quarrel daily over the affixing of electric wires directly from the electric transformer. Thereafter Boor Singh S/o Ajaib Singh, Jat, R/o Bhakna Khurd armed with sua wali dang, Sukhman Singh S/o Boor Singh armed with Kirpan, Kala son of Gurmej Singh Jat R/o Bhakna Khurd armed with datar came from the backside of the house. They immediately over powered us on the cots. In the meantime, Savinder Singh S/o Gurmej Singh armed with hammer and kirpan and Amritpal Singh S/o Dayal Singh R/o Bhakna Khurd armed with sabbal (iron rod) came along the abovesaid Gurmej Singh. Sukhman Singh gave me slaps and caught me hold from my right arm and threatened me that in case I tried to raise raula he will kill me with his kirpan. In the meantime, Gurmej Singh gave a gandasi blow to my husband Mohinder Singh hitting on the palm of his left hand. Boor Singh gave sua blow from side, to my husband hitting on left side of his thigh. Then Sarwan Singh gave a kirpan blow to my husband hitting on the right leg Sahrang (lower portion from knee). My daughter Lakhbir Kaur stepped ahead to rescue her father but Boor Singh gave a thrust wise blow with his spear which struck against her left shoulder as a result of which she fell down and became unconscious. Then Kala S/o Gurmej Singh gave a datar Crl.A.No.131-DB of 2002 #4# blow to my husband hitting on the lower portion of his right knee. Amritpal Singh gave a blow with his iron rod to my husband hitting on his right arm, rightwrist backside of his right hand on the back side of his waist. Sarwan Singh gave hammer blow to my husband hitting him on the right hand thumb, middle finger and right knee. Gurmej Singh accused caught hold from long hairs of my husband and dragged him to the bank of Ganda Nalla from our house all the accused remained waiting him with their respective weapons. I and my daughter raised alarm saying 'Mar Ditta' 'Mar Ditta' upon which Baldev Singh and Sukhwinder Singh both sons of Tara Singh who reside in the nearby behak came to the spot. Thereafter the accused Gurmej Singh, Boor Singh, Sarwan Singh, Kala, Sarwan Singh, and Amritpal Singh with their respective weapons ran away along with drain side. I and Baldev Singh picked up him and put on a cot. We tried to drink him water but found my husband Mohinder Singh was dead. We remained afraided due to the fear of assailants. On the sun rise now leaving my daughter Lakhbir Kaur and Sukhwinder Singh S/o Tara Singh with the dead body of my husband Mohinder Singh, I along with Baldev Singh was going to Police Station that you have met us here. I am complainant. Action be taken."
On the basis of the statement (Ex.PJ), a formalized FIR (Ex.PJ/2) was registered at Police Station Gharinda, 04 miles away from the place of occurrence, at 8.30 a.m on 21.6.1999. Special report reached JMIC, Amritsar at 12.30 p.m, the same afternoon. Rough site plan was prepared by SI/SHO Jaswinder Singh (PW10). He prepared inquest proceedings (Ex.PF) of the dead body of Mohinder Singh and sent the same Crl.A.No.131-DB of 2002 #5# for post mortem. Post mortem was conducted by Dr. Gurmanjit Rai (PW1) at Medical College, Amritsar at 2.50 p.m on 21.6.1999. Investigating Officer took into possession one bloodstained chaddar found on the dead body of Mohinder Singh vide recovery memo Ex.PX. Bloodstained clothes of deceased Mohinder Singh after post mortem were also taken into possession vide recovery memo Ex.PY. Savinder Kaur-complainant (PW3) and Lakhbir Kaur (PW5-A)-injured were medicolegally examined by Dr. Bikramjit Singh (PW5) at PHC Attari on 21.6.1999 at 12.10 p.m and 12.40 p.m respectively. Report of the Forensic Science Laboratory, Punjab is Ex.PSS and as per report, human blood was found only on the chaddar of the deceased. No blood could be detected from the weapon of offence of the accused persons. Report of the chemical examiner on the viscera of deceased is Ex.PB.
4. Accused Boor Singh, Balbir Singh and Amritpal Singh were arrested on 24.6.1999. Accused Sukhman Singh was arrested on 2.7.1999. Accused Sarwan Singh and Gurmej Singh surrendered in the Court and were formally arrested on 5.7.1999. Accused Balbir Singh upon interrogation and in pursuance of his disclosure statement (Ex.PZ) got recovered one bloodstained Dattar vide recovery memo Ex.PZ/2 in he presence of witness Hira Singh. Accused Boor Singh upon interrogation and in pursuance of his disclosure statement (Ex.PAA) got recovered one dang fitted with sua (spear), rough sketch of which is Ex.PAA/1 in the presence of witness Hira Singh. Accused Amritpal Singh upon interrogation and in pursuance of his disclosure statement (Ex.PBB) got recovered iron sabbal (iron rod) in the presence of witness Hira Singh, rough sketch of which is Ex.PBB/1. Accused Sukhman Singh upon Crl.A.No.131-DB of 2002 #6# interrogation and in pursuance of his disclosure statement (Ex.PFF) got recovered kirpan in the presence of witness Amrik Singh vide recovery memo Ex.PFF/2, rough sketch of which is Ex.PFF/1. Accused Sarwan Singh upon interrogation and in pursuance of his disclosure statement (Ex.PHH) got recovered one kirpan and one hathora (hammer) in the presence of witness Amrik Singh vide recovery memo Ex.PHH/2, rough sketch of which is Ex.PHH/1. Accused Gurmej Singh upon interrogation and in pursuance of his disclosure statement (Ex.PJJ) got recovered gandasi in the presence of witness Amrik Singh vide recovery memo Ex.PLL/2, rough sketch of which is Ex.PLL/1.
After completion of investigation, accused-appellants were charged under Sections148/302/450/323/149 IPC to which they pleaded not guilty and claimed trial.
5. Prosecution in order to prove its case examined ten witnesses and tendered documentary evidence from Ex.PA to PZ. Accused-appellants in their statements recorded under Section 313 Cr.P.C denied the allegations and stated that they have been falsely implicated in the case.
6. During the trial, both the aforesaid independent witnesses of recovery of weapon of offence from the accused Hira Singh and Amrik Singh were given up by ld. P.P as having won over by the accused. Prosecution witness Sukhwinder Singh was also given up as having won over by the accused.
7. Learned trial Court on the basis of analysis of evidence produced on record convicted the accused-appellants and sentenced them as aforesaid.
8. Learned counsel for the appellants have argued that there is Crl.A.No.131-DB of 2002 #7# inordinate delay in lodging the FIR and the time has been utilized to implicate both the brothers Gurmej Singh and Boor Singh and the male members of their families along with Amritpal Singh, the servant of the family of Boor Singh because accused Boor Singh was earlier involved with the deceased in a case under Section 326 IPC. It was next contended that the occular testimonies of Savinder Kaur (PW3) and Lakhbir Kaur (PW5-A) are not reliable and trustworthy as the description of injuries on the deceased Mohinder Singh and on their own persons were not supported by the medical evidence. Even the place of occurrence could not be established on the basis of evidence on record thus establishing that they are introduced witnesses. It was next contended that the independent witnesses qua recoveries of weapons of offence had not supported the prosecution case and further as per the FSL report (Ex.PSS), no blood was detected on any of the weapon of offence recovered and, therefore, the recoveries could not connect accused/appellants with the offence.
Learned counsel appearing for the State supported the reasoning adopted by the learned trial Court.
9. We have heard learned counsel for the parties and perused the record very carefully with their able assistance.
Case of the prosecution is based on the eye witness account of injured complainant-PW3 Savinder Kaur (wife of the deceased) and injured Lakhbir Kaur (PW5-A) (daughter of the deceased) supported and corroborated by medical evidence of Dr. Gurmanjit Rai (PW1), who conducted the post mortem on the dead body and the evidence of PW5-Dr. Bikramjit Singh, who medicolegally examined both the injured Savinder Kaur and Lakhbir Kaur regarding their injuries and further supported by the Crl.A.No.131-DB of 2002 #8# evidence of Investigating Officer-Sub Inspector Jaswinder Singh (PW10), who has proved the recoveries of weapon of offence.
10. Before we proceed to analyze the evidence, it would be advantageous to tabulate the prosecution version (as per FIR) with regard to the weapons with which the accused-appellants were armed and the situs/place of injuries inflicted by them on the person of the deceased and the injured Savinder Kaur (PW3) or daughter Lakhbir Kaur (PW5-A).
Name of Name Injuries inflicted Injuries Injuries
appellants with of on deceased inflicted on inflicted on
Age weapon Mohinder Singh Savinder Lakhbir Kaur
of Kaur W/o D/o deceased
offence deceased (PW5-A)
-complainant
(PW3)
Appellant No.1 Gandasi Left palm, dragged
Gurmej Singh S/o raised from hair
Ajaib Singh, aged lalkara
77 Years
Appellant No.2 Sua wali Left side of thigh Thrust wise
Boor Singh S/o dang blow on left
Ajaib Singh, aged (spear) shoulder, she
75 years became
unconscious
Appellant No.3 Kirpan She was given
Sukhman Singh slaps, caught
S/o Boor Singh, right hand and
aged 19 years threatened to
kill
Appellant No.4 Dattar Lower portion of
Balbir Singh S/o right knee
Gurmej Singh,
aged 23 years
Appellant No.5 Kirpan Right leg Sahrang
Sarwan Singh S/o (lower portion from
Gurmej Singh, knee)
aged 22 years
right hand, thumb,
Hammer middle finger and
right knee
Appellant No.6 Sabbal Right arm, right
Amritpal Singh (iron rod) wrist back side of
S/o Dial Singh, right hand and back
aged 24 years side of waist
Crl.A.No.131-DB of 2002 #9#
11. We may first examine the medical evidence qua the injuries found on the person of deceased as per post mortem report and both the injured eye witnesses Savinder Kaur (PW3) and daugher Lakhbir Kaur (PW5-A) as per medicolegal reports.
PW1-Dr. Gurmanjit Rai has deposed that he conducted the post mortem on the dead body of Mohinder Singh at 2.50 p.m at Medical College, Amritsar and found following injuries:
"1. Reddish brown abrasion 2 x 1 cm on top of right shoulder 1 cm from tip of shoulder.
2. Reddish brown abrasion 1 x 1 cm on front of right shoulder 2 cm laternal to injury No.1.
3. 4 x 3.5 cm obliquely placed reddish blue bruise on fron tof middle one third of right upper arm.
4. Reddish blue bruise 4 x 2 cm on back of right wrist obliquely placed.
On dissection of injuries No.3 and 4 infilteration of blood was present in the underlying tissues.
5. 2 x 1 , reddish brown abrasion on back of right hand in its middle pealing of skin was present.
6. 5 x 1 cm lacerated wound present on back of distal phalynx of right middle finger and underlying bone was found crushed alongwith nail. Clotted blood present.
7. Reddish brown abrasion with pealing of skin 2 x 1 cm on back of right thumb.
8. 2.5 x 1 cm reddish brown abrasion on front and outer aspect of right knee.
Crl.A.No.131-DB of 2002 #10#
9. 2 x 0.5 cm incised wound on front of right leg on tibial tuberosity. Horizentally placed Skin deep Clotted blood present.
10. 8 x 0.3 cm obliquely placed reddish brown linear abrasion on front of right leg in its middle.
11. 4 x 0.5 cm lacerated wound libliquely placed on middle of front of right leg. Skin deep Clotted blood was present.
12. Lacerated wound 2.8 x 2.5 cm on medial maleolous of right leg underlying bone was found intact. Clotted blood was present.
13. Incised wound 4 x 0.5 cm on palmer aspect of left hand in between thumb and inded finger. Irwas skin and muscle deep. Clotted blood present.
14. Multiple (six) reddish brown abrasions in an area of 8.7 cm back of left hand with peeling of kin.
15. 1.5 x 0.5 cm lacerated stab wound on front of left thigh 3 cm below anterior superior iliac spine. On dissection it was muscle deep and clotted blood was present.
16. A reddish brown abrasion 2 x 0.5 cm was present on left patella.
17. Lacerated wound 2.5 cm x 0.5 cm horizentally placed on front of upper part of left knee. It was skin deep. Clotted blood present.
18. 2.5 cm x 0.5 cm lacerated wound in front of left leg in its middle. Skin deep clootted blood present.
Crl.A.No.131-DB of 2002 #11#
19. Reddish brown abrasion three in number present on doresum of left foot and left ankle on its lateral aspect 2.5 x 1 cm. To 2 x 1 cm in size.
20. 10 x 3.5 cm reddish blue bruise present on right side of abdomen. 26 cm below posterior axillary fold.
21. Reddish blue bruise 4 x 3.5 cm present on left side of back of front in the renal region.
22. 8 x 4 cm reddish blue bruise present on right side of abdomen 9 cm above injury No.20 Obliquely placed.
On dissection of injuries No.20 to 22 right lob of liber was found having laceration 6 x 2 cm on its antero lateral aspect and 8th and 9th rib were found fractured on right side about 250 cc of fluid blood was present in peritoneal cavity and infilteration of blood was present in soft tissue under injury No.22.
On dissection of neck and chest trachea was found having aspirated contents of stomach which was semi digested Chapati and Dal pieces. These contents were also found in the large bronchi of both lungs.
On dissection of abdomen stomach contained about 300 cc of semi digested fluid food mixed with Chapati and Dal pieces and was smelling of alcohol.
Rest of the organs of the cheat and abdomen were normal. "
In the opinion of the Doctor, all the injuries were ante mortem in nature. Viscera of the dead body was sent for chemical Crl.A.No.131-DB of 2002 #12# examination and the cause of death after receipt of the report of Chemical Examined (Ex.PB) was opined as "aspiration of stomach contents into respiratory passage leading to asphyxia as a result of injury to abdomen No.20 and 22 which were sufficient to cause death in the ordinary course of nature. The time elapsed between injuries and death was within about few minutes to an hour."
PW5-Bikramjit Singh on 21.6.1999 examined Savinder Kaur (PW3) at 12.10 p.m at PHC, Attari and found following injuries on her person:
"1. A reddish contusion 6 x 1 cm on the back of right side of trunk, tranversely placed 8 cm below the costal margins.
2. A reddish contusion 6.2 cm on the left side of the front of the abdomen, 6 cm below the costal margin on the anterior axillary line.
3. A reddish abrasion 3 cm on the left side of the front of the abdomen, 7 cm from the unblicus, a cut in the Kamij present, 9 cm below and medial to injury No.2.
4. A defused reddish swelling on the anterior aspect of right fore-arm on its lower 1/3rd (size 8 x 6 cm)
5. A defused reddish swelling on the anterior aspect of left fore-arm on the lower 1/3rd (size 10 x 6 cm)."
Apart from injuries No.2 and 3, rest were declared as simple in nature whereas no opinion could be given qua injuries No.2 and 3 as these were to be kept under observation and PW3 had refused admission.
Crl.A.No.131-DB of 2002 #13# PW5-Dr. Bikramjit Singh also examined Lakhbir Kaur (PW5-A) same day at 12.40 p.m and found the sole injury on her person:
"1. Reddish abrasion 3 x 0.5 cm on the upper part of back of left shoulder joint. Transversely placed 6 cm inner to the tip of the shoulder."
Injury was declared as simple. PW5 further opined that the possibility of the injuries on the person of Savinder Kaur being caused with friendly hand were comparatively less whereas injury on the person of Lakhbir Kaur could be caused by friendly hand.
12. Let us now examine the testimonies of two eye witnesses PW3-Savinder Kaur and Lakhbir Kaur (PW5-A) to find out as to whether they were actually present at the spot at the time of occurrence.
PW3 has deposed that she was married with deceased Mohinder Singh for the last 25-26 years and they had their residence at the behak near Ganda Nalla (drain) for the last 4-5 years, where they were residing along with their daughters. On the fateful day at around 11.00 p.m, when she, her daughter Lakhbir Kaur and her husband Mohinder Singh were lying down on their cots at their residence and electric bulb was on, Gurmej Singh armed with gandasi entered and gave lalkara that he (Mohinder Singh) will be taught a lesson for taking wires from the transformer. Then accused Boor Singh having sua wali dang (spear), Sukhman Singh armed with sword and Balbir @ Kala armed with Dattar entered their house from the back side and Crl.A.No.131-DB of 2002 #14# nabbed them on their cot. Gurmej Singh gave gandasi blow to Mohinder Singh on left hand and Boor Singh gave sua wali dang blow on his left thigh. Sarwan Singh gave hathora blow to Mohinder Singh on his right leg. Accused Amripal and Sarwan Singh armed with iron rod and hammer respectively also entered their house. Accused Sarwan Singh gave blow with hammer and kirpan while Amrit Pal gave iron rod blow o Mohinder Singh on his knees and his arms. Accused Sukhman Singh gave slaps on her face and kicked her. Then accused took Mohinder Singh on the bank of Ganda nalla near their house, where they all gave injuries to Mohinder Singh with their respective weapons. She along with her daughter saw the occurrence. Her daughter also received injuries given by Boor Singh inside the house when she tried to rescue her father. She and her daughter raised raula outside the house, then Baldev Singh and Sukhwinder Singh (brothers of the deceased) came there. Thereafter, all the accused ran away with their respective weapons. They found Mohinder Singh dead. Then dead body was brought inside the house.
In her cross examination, PW3 has admitted that her husband had four brothers out of which two were employed in the police department. Baldev Singh and Sukhwinder Singh, whose behaks was near to their behaks, were real brothers of her husband. She also admitted that prior to the present occurrence, Boor Singh accused had given injuries to her husband and his brothers and a case under Section 326 IPC was falsely made against her husband and her Crl.A.No.131-DB of 2002 #15# brothers by Boor Singh and the same was pending. She further stated that her husband was teetotaler and he never took any liquor. She further stated that deceased was given injuries while he was lying on the cot (without bedding) and blood oozed from the injuries of her husband on the cot and on the ground. She further admitted that no bleeding was found on the cot, then volunteered to explain that there was rain after the occurrence. She also stated that her husband was dragged to the embankment of drain and blood had oozed during this process on the way to embankment of the drain. He was given injuries thereafter by the accused and blood oozed at that place also. She further admitted that during the night Sukhwinder Singh and Baldev Singh, brothers of the deceased did not visit the police station nor they summoned any person from adjoining behaks. She was confronted with her statement (Ex.PJ), where it is not recorded that she had been given kick blows by Sukhman nor it is recorded that there was rain after the occurrence. She denied the suggestion that she did not witness the occurrence and had falsely implicated the accused after deliberations and consultations.
PW5-A has deposed that on 20.6.1999, she along with her father and mother was present and at about 11.00 p.m, when electric bulb in their house was lit, Gurmej Singh accused came to their house and raised a lalkara that Mohinder Singh should be taught a lesson for taking wire from transformer. He was armed with a gandasi. Accused Boor Singh was armed with dang fitted with sua. Sarwan Singh was Crl.A.No.131-DB of 2002 #16# armed with hammer and kirpan. Sukhman Singh was also armed with Kirpan. Balbir Singh @ Kala was armed with Dattar. Amrit Pal was armed with iron pipe/iron sabbal. Gurmej Singh gave a gandasi blow on the left hand of her father. Boor Singh gave blow on the left thigh of her father with dang fitted with sua. Balbir @ Kala gave dattar blow on the left knee of her father. She came forward to rescue her father and Boor Singh gave blow from his weapon on her left shoulder. Gurmej Singh dragged her father outside the house after catching hold from his hairs. He was taken towards ganda nalla. All the accused gave injuries with their respective weapons to her father. Sukhman Singh accused caught hold of her mother from her arms and gave kick blows and threatened to kill her in case she raised a noise. They raised noise, which attracted her uncle Sukhwinder Singh and Baldev Singh. She fell down after receiving the injuries at the hands of Boor Singh after feeling giddiness. She regained consciousness. Accused left the spot with respective weapons, when her uncle came. Then they brought her father inside and tried to give him water but he died before taking water. Out of fear, they did not go anywhere during the night. In her cross examination, she was confronted with her statement (Ex.DA) where factum of giving kick blows to her mother by Sukhman Singh is not recorded. She has stated that the police had not taken into possession bloodstained earth from ganda nalla or from their house. She denied the suggestion that she did not see the occurrence and was deposing falsely.
Crl.A.No.131-DB of 2002 #17# It would be relevant at this point to mention the cross examination of the Investigating Officer Jaswinder Singh (PW10), who has in his cross examination stated that he did not find any blood on the bank of the drain, where the deceased has been allegedly given injuries nor did he find any dragging marks or blood stains. He further stated that the dead body was lying in the house on a cot. He also admitted that he did not prepare any injury statement of any of the injured witnesses. He admitted that he did not show in the rough site plan (Ex.PV) the place, where the eye witnesses were sleeping in the house of the deceased and he did not take into possession the cot or bedding of the deceased but only the chaddar of the deceased was taken into possession. He denied the suggestion that the injuries on the injured prosecution witnesses (PW3 and PW5-A) were got fabricated. He also denied the suggestion that the place of occurrence was bank of the drain and that the same was shifted inside the house so as to introduce eye witnesses.
13. In our analysis after carefully examining the aforesaid evidence on record, we find that there emerges a serious conflict between the occular and medical version apart from other attending circumstances, which render the eye witness account to be highly doubtful.
Both the eye witnesses i.e PW3 and PW5-A have given a vivid description of the sharp edged and deadly weapons with which all the accused attackers except Amrit Pal were armed, and the injuries Crl.A.No.131-DB of 2002 #18# caused by each of them to the person of the deceased Mohinder Singh and both the eye witnesses. However, neither the nature of injuries nor the injuries, which contributed to the cause of death of the deceased as per medical evidence, are explained by the occular version. PW1-Dr. Gurmanjit Rai, who proved the post mortem report of the deceased, has deposed that out of 22 injuries only 2 i.e injuries No.9 and 13 were incised wounds and that too skin/muscle deep. It is evident that the rest of the injuries are either abrasions or caused by blunt weapons whereas the accused-appellants allegedly inflicting those injuries are armed with sharp and deadly weapons. It was not deposed that the sharp edged weapons of the accused were used from the reverse side. Further injuries No.20 & 22 on the abdomen of the deceased, which caused aspiration of stomach content into respiratory passage leading to 'asphyxia' and proved fatal, are not described or attributed to any accused in the occular version of PW3 and PW5-A, which otherwise describes/attributes injuries with mathematical precision. We are aware that in regard to the nature of attack, the injuries suffered by the deceased and the individual overt act of the accused persons, there is a possibility of some discrepancy, which should not in the normal course affect the prosecution case, but in the present case the aforesaid discrepancy is glaring and serious, which cannot be ignored. It gives rise to a legitimate inference that the injuries, which were visible on the body of the deceased were described in the occular version, thus making the FIR inquest oriented.
Crl.A.No.131-DB of 2002 #19# Still further the medical evidence does not support the eye witness account of PW3-Savinder Kaur and PW5-A Lakhbir Kaur qua the injuries stated to be inflicted on them. In the first version before the police, from the tabulated hereinabove, it is clear that Sukhman was alleged to have given slaps to PW3 and caught hold of her from her right hand while threatening to kill her in case she raised noise, whereas Boor Singh is stated to have inflicted a thrustwise blow from his sua wali dang (spear) on the left shoulder of PW5 causing her to become unconscious. PW5-Dr. Bikramjit Singh deposed that there were five injuries found on the person of PW3 including one on the right side of trunk, two in the left side of front abdominal and one one the right fore-arm and one on the left forearm. Injuries No.1,4 & 5 were declared to be simple in nature whereas no final opinion can be construed in regard to injuries No.2 & 3. PW5 qua injuries on Lakhbir Kaur(PW5-A) found that there was only one injury (abrasion) on the upper part of back of left shoulder, which was simple in nature instead of any lacerated or punctured wound, which should have been found keeping in view the alleged injury in the occular version. PW5-Dr. Bikramjit Singh admitted in his cross examination that the injuries being inflicted by a friendly hand could not be ruled out. PW3 in her testimony before the Court made an improvement, when she deposed that Sukhman also gave her kick blows. She was duly confronted with her statement before the police where it is not so recorded. This omission in the first version before the police and the improvement in Crl.A.No.131-DB of 2002 #20# the testimony is of vital significance as PW3 has tried to cover the lacuna in the occular version vis-a-vis medical evidence qua the injuries on her person. It was not expected from PW3 not to disclose before the Investigating Officer the kick blows on her person by Sukhman, therefore, the omission, which is not trivial in nature, can safely be said to be in material particulars. It is well settled that when the version given by the witness in the court is different in material particulars from that disclosed in his earlier statements, the case of the prosecution becomes doubtful. Thus, in our view, it is quite probable that the injuries examined qua PW3 and PW5-A after 13 hours of the occurrence were set up by the prosecution to introduce them as stamped eye witnesses.
Therefore, in our considered opinion, the occular version is not supported by the medical evidence, thus rendering prosecution case doubtful.
14. We further find that apart from the conflict in the occular and medical version there are other attending circumstances, which are very crucial and fatal to the prosecution case such as :
a) No evidence of blood on the cot, where deceased Mohinder Singh was initially attacked nor any such evidence at the bank of ganda nalla, where the victim was dragged by his hairs and subsequently inflicted injuries. There is also no evidence of any dragging of the victim from the house to the embankment of the ganda nalla on the body of the victim or the floor of the house or near the Crl.A.No.131-DB of 2002 #21# embankment of the drain. PW3 in her cross examination has specifically said that blood oozed from the injuries of her husband on the cot and on the ground as also when he was dragged to the embankment of drain. She further stated that blood also oozed at the place on the embankment of the drain, where her husband was subsequently inflicted injuries. However, the Investigating Officer Jaswinder Singh (PW10) in his cross examination has admitted that he did not find any blood on the bank of the drain nor did he find any dragging marks or any blood stains. It appears that is why no blood stains were lifted. Although PW5-A Lakhbir Kaur in her cross examination has stated that the police had not taken into possession the bloodstained earth from the ganda nalla or from their house but in the admitted fact that two of the brothers of the deceased are in the Punjab Police and one is of the rank of Assistant Sub Inspector (as admitted by PW3 in her cross examination) and the other two brothers Sukhwinder and Baldev were present during the investigation, it is highly improbable that the I.O deliberately omitted to lift the blood stains nor was it suggested to Investigating Officer (PW10) by the defence. It is highly improbable that in view of two incised wounds and six lacerated wounds where clotted blood was found (as per medical evidence of PW5), no blood would be wound at the place of occurrence or on the clothes of any of the witnesses, who brought the deceased from ganda nalla to the house. PW3 however in her cross examination has tried to explain lack of blood stains by stating that there was rain in the night Crl.A.No.131-DB of 2002 #22# after the occurrence. She was duly confronted with her statement before the police, where it is not so recorded. No other witness has said anything about the rain after the occurrence either before the police or before the court. It is highly improbable that the mention of rain after the occurrence would not have come earlier because the same would have provided a reason for the complainant party to stay at home the whole night and lodge the FIR the next morning and thus explain the delay in lodging the FIR. Therefore, the material improvement sought to be made by PW3 contrary to the prosecution case set up is liable to be ignored. Hence, it is amply clear that the genesis of the occurrence has been suppressed by the prosecution raising serious doubts about the case set up with regard to the place of occurrence.
b) It has been stated in the FIR itself that two brothers of the deceased namely Baldev Singh and Sukhwinder, who reside in their nearby behaks had come at the place of occurrence on hearing the raula and then the assailants had fled away. PW3 in her cross examination has admitted that both the aforesaid brothers did not visit the police station nor they summoned any person from the adjoining behaks and Baldev Singh accompanied complainant PW3 the next morning of 21.6.1999 at 8.00 a.m to the police station, located at a distance of four miles, to lodge the FIR after a delay of 9 hours. This conduct of the complainant party, when admittedly two of the brothers of the deceased are in the punjab police, gives rise to an inference that the possibility of deliberations before/in lodging the FIR cannot be Crl.A.No.131-DB of 2002 #23# ruled out.
c) Complainant-Savinder Kaur (PW3) in her cross examination has admitted that on a prior occasion accused Boor Singh had inflicted injuries to her husband (since deceased) and his brothers and to the contrary a case under Section 326 IPC was got registered by Boor Singh against her husband and his brothers and the same was pending. The motive for falsely implicating all the male members of Boor Singh and his brother Gurmej Singh thus cannot be ruled out.
d) PW3 in her cross examination has stated that her husband was teetotaler and he never took any liquor whereas in the viscera of the deceased husband collected at the time of post mortem by PW1-Dr. Gurmanjit Rai and sent for chemical examination/FSL report it is clearly stated that there was alcohol present in the abdominal of the deceased thus discrediting PW3.
e) Sukhwinder Singh, brother of the deceased did not support the prosecution case as he was given up 'as having won-over' and the other brother Baldev Singh was withheld by the prosecution.
15. In view of the discussion in paras 13 & 14, we are compelled to ignore the testimony of both the alleged eye witnesses Savinder Kaur(PW3) and Lakhbir Kaur(PW5-A) as being unreliable and untrustworthy, which does not inspire confidence at all.
16. The other evidence of recovery of the weapon of offence from all the accused cannot be treated to be proved by the testimony of the I.O-Jaswinder Singh (PW10) alone as both the independent Crl.A.No.131-DB of 2002 #24# witnesses, namely, Hira Singh and Amrik Singh of the alleged recoveries have not supported the prosecution, as also no blood was detected from any of the recovered weapons (despite two incised & six lacerated wounds) as per FSL Report (Ex.PSS).
Since the prosecution case was based on the eye witness account and once that portion of evidence in our considered view is found to be not worth believing and liable to be discarded in toto because it is not feasible to separate truth from falsehood due to inextricably mixed up evidence,therefore, the prosecution has no legs to stand as there are serious doubts emerging from the evidence. Therefore, we find that the prosecution has miserably failed to establish the guilt of the accused-appellants as charged beyond shadow of doubt, and hence we extend the benefit of doubt to all the appellants and accordingly set aside the judgment/order 7.2.2002 passed by ld. Additional Sessions Judge, Amritsar and acquit them of the charges.
Accordingly, Crl.A.No.131-DB of 2002 is allowed and the second appeal bearing Crl.A.No.265-DB of 2002 inadvertently filed by Amrit Pal is rendered infructuous. Criminal Revision No.1160 of 2002 filed by the complainant is dismissed.
( HEMANT GUPTA) (JASWANT SINGH)
JUDGE JUDGE
April 26,2010
manoj