Punjab-Haryana High Court
Bachittar Singh And Anr vs State Of Punjab on 5 November, 2014
Author: Surinder Gupta
Bench: Rajive Bhalla, Surinder Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRIMINAL APEAL NO-D-854-DB-2009
DATE OF DECISION : 5th NOVEMBER, 2014
Bachittar Singh & another
.... Appellants
Versus
State of Punjab
.... Respondent
CORAM : HON'BLE MR. JUSTICE RAJIVE BHALLA
HON'BLE MR. JUSTICE SURINDER GUPTA
****
Present : Mr. Raj Kumar Gupta, Advocate for the appellants.
Mr. P.P.S.Thethi, Additional Advocate General, Punjab.
****
SURINDER GUPTA, J.
This is an appeal against the judgment dated 26.05.2009 passed in Sessions Case No.7 dated 19.12.2007/05.03.2008 by Additional Sessions Judge, Amritsar convicting and sentencing the appellants for offence punishable under Section 302 IPC.
The prosecution case, in brief, is that on 12.10.2007 at about 10.15 pm Kuldip Kumar, SHO, Police Station Ajnala, was present with his police party at the bridge Shakki in the area of Ajnala where complainant Kartar Singh met him and got recorded his statement Ex.PB, the English translation of which is as follows:
'I am the resident of village Barlas and do labour work. I have six children. My son Billa Singh aged about 28 years, who is married, lives with me in my house. Today about 6.30 pm Billa Singh has gone on cycle to the shop of Sher Singh in village Barlas to CRA-D-854-DB-2009 {2} purchase some goods. My daughter is also married in this village and was coming to my house with Billa Singh at about 7.15pm. Due to darkness I was going on kucha path towards village Barlas to take my son. Bachittar Singh and Balwinder Singh @ Binda sons of Kehar Singh, who have taken position in paddy filed by hiding themselves there, attacked Billa Singh when he came near them and threw him on the ground.
They torn his shirt and put it around his neck to strangulate him. Kashmir Kaur complainant's daughter started weeping and crying and ran towards her house. The complainant also raised alarm that my son has been killed at which both the assailants picked up Billa Singh towards their house. Hearing the alarm raised by complainant, a number of villager were attracted to the spot, at which Bachittar Singh and Balwinder Singh ran away, throwing the dead body of Billa Singh in their house. The motive for occurrence was that Bachittar Singh suspected illicit relation of his wife with Billa Singh and due to this reason both brothers have killed Billa Singh. I, after leaving my son Gurdip Singh and son-in-law Gajjan Singh near the dead body, was going to Police Station to give information that you met me on the way. Legal action be taken against the culprits.' After recording the statement of the complainant Ex.PB, SI Kuldip Kumar made endorsement on it Ex.PW-11/B and sent the same to Police Station Ajnala, whereupon formal FIR No.183 dated 12.10.2007 for offence punishable under Section 302 IPC, was recorded. CRA-D-854-DB-2009 {3} SI Kuldip Kumar reached the place of occurrence. The dead body of Billa Singh (later referred to as the deceased) lying on the ground, was identified by Gurdip Singh and Gajjan Singh. He prepared the inquest report Ex. PC, inspected the spot and took the sample of blood stained earth which was put into a plastic tin and converted into a parcel, which was sealed with seal 'KK' and taken in possession vide recovery memo Ex.PE. From the spot sugar mixed with soil and pair of chappals of deceased were also recovered and taken into possession vide memo Ex.PG.
A black colour cycle was taken into possession vide recovery memo Ex.PF.
He also prepared rough site plan of the place of occurrence Ex.PW-11/D. The dead body of deceased was sent to the Civil Hospital, Ajnala where the post-mortem examination was conducted by Dr.Satinder Pal Singh (wrongly mentioned as PW-1, in fact he is PW-2 as no witness has been mentioned as PW-2). On examination, he found following injuries on the person of the deceased:
"1. An abrasion about 4 cm x 1.5 cm right front of neck and was obliquely placed.
2. An abrasion about 5 cm x 1.5 cm on upper front of left shoulder joint.
3. An abrasion about 6 cm x 1.5 cm on front of left lower chest."
In the opinion of doctor the cause of death was due to asphyxia as a result of strangulation which was sufficient to cause death in normal course of nature. He prepared the post-mortem report Ex.PA with pictorial diagram Ex.PA/1. The clothes of the deceased, which were taken into possession after post-mortem, were sent to the Forensic Science CRA-D-854-DB-2009 {4} Laboratory and vide report Ex.PW/11/G these were found stained with human blood.
Bachittar Singh appellant was arrested on 18.10.2007. During investigation appellant Balwinder Singh was found innocent and after completion of investigation, final report under Section 173(2) Cr.P.C. against the appellant Bachittar Singh was presented in Court.
Sub-Divisional Judicial Magistrate, Ajnala vide order dated 22.02.2008 committed the case to the court of sessions which was entrusted to Court of Additional Sessions Judge, Amritsar for trial. Finding a prima facie case for offence under Section 302 IPC, Bachittar Singh appellant was chargesheeted to which he pleaded not guilty and claimed trial.
In support of its case, the prosecution examined Kartar Singh- complainant as PW-1. The court vide order dated 22.04.2008 summoned Balwinder Singh under Section 319 Cr.P.C. to face trial for offence punishable under Section 302 IPC. Balwinder Singh surrendered in Court. The chargesheet was amended on 08.09.2008 and both the appellants were chargesheeted for offence punishable under Section 302 IPC to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution examined Dr. Satinder Pal Singh Medical Officer, Civil Hospital, Ajnala, who had conducted post-mortem examination of the deceased as PW-1 (PW-2). Complainant Kartar Singh, his daughter Kashmir Kaur, both eye witnesses, appeared as PW-1 and PW-3 respectively. Gajjan Singh and Sarwan Singh, who had reached the spot after the occurrence, appeared as PW-4 and PW-5. SI Kabul Singh PW-6, HC Surjit Singh PW-7 were members of the police CRA-D-854-DB-2009 {5} party of SI Kuldip Kumar PW-11 and are witnesses of investigation conducted at the spot. Rishi Ram draftsman PW-13 had prepared the scaled site plan of the place of occurrence Ex. PW-13/A. Head Constable Baldev Raj PW-8; Head Constable Jatinder Singh, PW-9; Head Constable Harpal Singh, PW-10; are the formal witnesses. PW-12-SI Norang Singh was posted as SHO, Police Station, Ajnala at the relevant time and presented the final report under Section 173(2) Cr.P.C. in Court.
On conclusion of prosecution evidence, the statements of appellants were recorded under Section 313 Cr.P.C. Appellant Bachittar Singh denied the incriminating evidence appearing against him and pleaded his false implication. He stated that the recovery of dead body from his house has been wrongly shown. Balwinder Singh appellant stated in his defence as follows:
"I have no dealing with my brother Bachitar Singh. Moreover, I had not invited him at the marriage of my daughter and I have been falsely implicated at the instance of complainant. Moreover, during enquiry, I was found innocent by the police."
The appellant examined Tilak Raj, DSP as DW-1.
Learned counsel for the appellant has argued that Kartar Singh-complainant had made three statements in this case one before the police and two in this Court, stating different facts. In his statement to police he had stated that the T-shirt, which the deceased was wearing, was torn by the appellants and they strangulated the deceased with the T-Shirt. While appearing as PW-1, before summoning of the appellant Balwinder CRA-D-854-DB-2009 {6} Singh under Section 319 Cr.P.C., he (complainant) had stated that the appellant took off the shirt worn by his son and with that shirt tried to strangulate him. Again on appearing as PW-1 after summoning of Balwinder Singh, he reverted to his earlier statement that both the appellants had torn-apart the T-Shirt, which the deceased was wearing and strangulated him with the torn T-shirt. The statements create a doubt about the veracity of the statement of this witness and his presence at the spot. Kashmir Kaur had run away from the spot, as such, she was not an eye witness. While appearing as PW-3, Kashmir Kaur has stated that when the assailants tore the T-shirt of her brother and strangulated him, she ran towards her house to inform her husband. The case of the prosecution that the deceased was strangulated with a torn piece of T-shirt is not proved by any medical or expert evidence. The doctor, who conducted the post- mortem, has not opined that strangulation was with a piece of cloth. The colour of the T-shirt, mentioned in the post-mortem report Ex.PA, is pink- grey. While complainant has described the colour of the T-shirt as blue and Kashmir Kaur as 'Biscuty' (Kasmela). In his statement, recorded on 09.04.2008, before appellant Balwinder Singh was summoned to face trial, Kartar Singh could not tell the colour of the shirt/T-shirt stating that his eye sight was weak. The above discrepancies create a shadow of doubt about the presence of both the eye witnesses at the spot and veracity of their statements.
DSP Tilak Raj had also reached the spot when SI Kuldip Kumar was investigating the case. In his enquiry report Ex.D-1, he found CRA-D-854-DB-2009 {7} the appellant Balwinder Singh innocent. In his enquiry, he found that Bachittar Singh and Balwinder Singh were not on talking terms and about six months before the occurrence there was a marriage of the daughter of Balwinder Singh, in which he had not invited Bachittar Singh. Moreover, it is an admitted fact that he was living separately from Bachittar Singh and had no motive to be a party with Bachittar Singh over the dispute of illicit relation of his wife with the deceased.
Learned State counsel has argued that the case of the prosecution is based on an eye witness account of the occurrence divulged by PW-1 Kartar Singh and PW-3 Kashmir Kaur. Despite being relations of the deceased they had no motive to falsely implicate the appellant and to spare the real culprit. The discrepancy about the colour of the T-Shirt which the deceased was wearing at the time of occurrence, is insignificant. The dead body was recovered from the house of Bachittar Singh. Even the appellants are admitting that the deceased had an illicit relation with the wife of Bachittar Singh. A suggestion was given to Kartar Singh that the deceased was murdered due to his illicit relations with the wife of Bachittar Singh. The report of Tilak Raj, DSP based on enquiry in which Kartar Singh PW-1 was never associated, carries no value in the eyes of law. Balwinder Singh, the real brother of Bachittar Singh, was a party to the crime as otherwise it was not possible for one person to tame deceased who was a young boy and murder him by strangulation.
CRA-D-854-DB-2009 {8} We have considered the submissions of learned counsel for the appellant and learned State counsel and carefully gone through the record of the case.
The prosecution has produced direct and circumstantial evidence to prove the charges framed against the appellants, which are enumerated as follows:
(i) The dead body of the deceased was recovered from the house of Bachittar Singh.
(ii) In his statement to the police and also while appearing as PW-
1, Kartar Singh-complainant has stated that the motive behind the occurrence was suspicion of Bachittar Singh, that the deceased was having illicit relations with his wife.
(iii) The occurrence took place near the field and house of appellant Bachittar Singh.
(iv) Even the enquiry report Ex.D1 relied by appellants points to Bachittar Singh as the main accused who committed the crime of murdering the deceased.
(v) Blood Stained earth, sugar mixed with earth and cycle of deceased were recovered from the spot.
Firstly, we look into the evidence and circumstances appearing against appellant Balwinder Singh. It is admitted that Bachittar Singh has three brothers who are residing separately. There is no evidence that Balwinder Singh had any special affinity with Bachittar Singh so as to participate in committing murder of the son of the complainant. Balwinder CRA-D-854-DB-2009 {9} Singh has alleged his strained relation with Bachittar Singh over a land dispute. Both Kartar Singh-complainant and his daughter Kashmir Kaur PW-3 have spelled out the presence of Bachittar Singh and Balwinder Singh at the spot while strangulating the deceased, but he was found innocent by the police during investigation and not challaned. The trial court did not believe the argument about the absence of appellant- Balwinder Singh at the spot on the ground that the deceased was a young boy of 28 years and could not be overpowered by a single person.
On evaluation of the entire evidence led by the prosecution we find that the prosecution has not been able to prove beyond a shadow of doubt the role of appellant Balwinder Singh, in the commission of crime. While arriving at this conclusion we are not relying solely on the fact that during investigation Balwinder Singh was found innocent by the enquiry report Ex.D1 given by Tilak Raj, DSP (DW-1) exonerating Balwinder Singh, but various other relevant facts. The fact that he was living separate from Bachittar Singh and has not been attributed any specific role or motive for the commission of crime, are factors which create suspicion. As per the complainant-Kartar Singh, two persons from the paddy field pounced upon the deceased, tore his T-shirt and strangulated him. The occurrence took place near house of Bachittar Singh in front of the field of Chanan Singh and Bachittar Singh. The dead body was recovered from the house of Bachittar Singh. No doubt that the deceased was 28 years of age but Bachittar Singh was also a young man of 30 years of age. To say that a person of the age of 28 years cannot be overpowered by a single person, is CRA-D-854-DB-2009 { 10 } a bit exaggeration and running away from reality. The physique, alertness, status of mind and various other factors weigh when two persons are fighting. Some time even a person who is not equal in physique, overpowers a healthy person because of his better art and alertness. As projected by the prosecution, the deceased was taken unaware when he was pounced upon by accused/appellant. In these circumstances, the conclusion drawn by the trial court that he could not be over-powered by a single person is inappropriate and not based on any material on file. The prosecution has also not produced any evidence to show that Balwinder Singh, at any point of time before the occurrence had associated Bachittar Singh in the matter of deceased having illicit relations with his (Bachittar Singh's) wife or given any threat to the deceased and his family.
Keeping in view the facts that Balwinder Singh had no motive to kill the deceased, has not been attributed any specific role in the occurrence, was found innocent during investigation, is living separately from his brother Bachittar Singh and the motive for the occurrence being very personal to Bachittar Singh, we find statement of the complainant and Kashmir Kaur involving Balwinder Singh in killing the deceased, unworthy of reliance.
Now the next question which confronts us is that if we partly discard the testimony of complainant and his daughter, who are eye witnesses, whether the same can be relied qua appellant Bachittar Singh to prove the commission of crime of murder of the deceased. CRA-D-854-DB-2009 { 11 } The doctrine of 'Falsus in uno falsus in omnibus' is not applicable in our criminal justice system. We have usually observed a tendency to furnish exaggerated versions of an occurrence and an attempt is made by the complainant/victim to implicate as many persons as accused, so as to exert maximum pressure on the accused party.
In case Ranjit Singh vs. State of Madhya Pradesh (2011) 4 SCC 336, Hon'ble the Supreme Court while discussing the application of doctrine 'falsus in uno, falsus in omnibus' has observed in para Nos.15 and 16 as follows :-
"15. This position of law has been reiterated by this Court in Prem Singh & Ors. v. State of Haryana, (2009) 14 SCC 494, wherein the Court clearly held as under:
"It is now a well-settled principle of law that the doctrine "falsus in uno, falsus in omnibus" has no application in India."
16. In view of the above, the law can be summarised to the effect that the aforesaid legal maxim is not applicable in India and the court has to assess to what extent the deposition of a witness can be relied upon. The court has to separate the falsehood from the truth and it is only in exceptional circumstances when it is not possible to separate the grain from the chaff because they are inextricably mixed up, that the whole evidence of such a witness can be discarded."
To prove the charge framed against appellant Bachittar Singh, the testimony of prosecution witnesses finds corroboration from the other evidence that has come on file. Firstly, the motive as discussed above is not disputed and is a very strong piece of evidence against appellant CRA-D-854-DB-2009 { 12 } Bachittar Singh. Secondly, the occurrence took place near the fields of Bachittar Singh. Thirdly, the dead body was found in the house of Bachittar Singh. Fourthly, the blood stained earth was recovered from the spot. Fifthly, the sugar lying on the earth, chappals and cycle of the deceased were found from the spot. Sixthly, the appellant Bachittar Singh has not disputed the enquiry report Ex.D1, which attributes the entire motive for murder of Billa Singh to him. All these factors when read together with the statements of complainant Kartar Singh PW-1 and Kashmir Kaur PW-3, prove the prosecution case against Bachittar Singh. The fact that there are some discrepancies regarding the colour of the shirt/T-shirt, are insignificant. Kashmir Kaur has stated that she ran away when her brother was strangulated with his torn T-shirt. She has described the occurrence and had seen the assailant. Her testimony, so far as the role of Bachittar Singh, is concerned, is reliable. The prosecution has been successful in placing onus upon Bachittar Singh to explain as to how the dead body of deceased was found in his house. A suggestion during cross- examination of Kartar Singh was given that the deceased was murdered due to his illicit relation with the wife of appellant Bachittar Singh. In defence it has been stated by Bachittar Singh that the dead body of deceased was falsely shown to have been recovered from his house. The statements of complainant, his daughter Kashmir Kaur PW-3, investigating officer Kuldip Kumar PW-11, Gajjan Singh PW-4, Sarwan Singh PW-5, who have stated that the dead body of deceased was found in the house of appellant Bachittar Singh, have not been rebutted and controverted.
CRA-D-854-DB-2009 { 13 } On perusal of the statement of complainant, eye witness Kashmir Kaur and corroborating evidence on file, we have no hesitation to reach a conclusion that the prosecution has successfully proved the charge of murder of deceased by Bachittar Singh appellant.
As a sequel of our above discussion this appeal is partly accepted. The judgment of the trial court convicting and sentencing appellant Balwinder Singh is set aside. He be set at liberty forthwith.
The conviction of Bachittar Singh under Section 302 IPC and the sentence awarded to him by the trial court is upheld. The appeal filed by him is dismissed.
(RAJIVE BHALLA) (SURINDER GUPTA)
JUDGE JUDGE
5th November, 2014
'raj'
RAJ KUMAR
2014.11.13 10:12
I attest to the accuracy and
integrity of this document
Chandigarh