Punjab-Haryana High Court
State Of Punjab vs Manjit Singh And Others on 28 May, 2010
Author: Jora Singh
Bench: Satish Kumar Mittal, Jora Singh
Crl.Appeal No.759-DBA of 2002 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Date of decision: 28.5.2010
(I)
Crl.Appeal No.759-DBA of 2002
State of Punjab
... Appellant
versus
Manjit Singh and others
... Respondents
(II)
Crl.Revision No.1808 of 2002
Manjit Singh son of Jagtar Singh
... Petitioner
versus
Manjit Singh and others
... Respondents
CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL.
HON'BLE MR. JUSTICE JORA SINGH.
Present: Ms.Gurveen H.Singh, Addl.AG, Punjab,
for the appellant in Crl.Appeal No.759-DBA of 2002.
Mr.J.S.Bhandohal, Advocate,
for the petitioner in Crl.Revision No.1808 of 2002.
Mr.S.P.S.Sidhu, Advocate,
for the respondents.
...
JORA SINGH, J.
Crl.Appeal No.759-DBA of 2002 by State of Punjab and Crl.Revision No.1808 of 2002 by Manjit Singh were filed to impugn the judgment dated 29.4.2002 passed by Additional Sessions Judge, Muktsar. By the said judgment, Manjit Singh, Atma Singh, Gulzar Singh, Satnam Singh, Kashmir Singh, Baldev Singh, Nishan Singh, Gurmukh Singh and Major Singh were acquitted of the charges levelled against them in FIR No.53 dated 4.8.1998, PS Kot Bhai, under Sections Crl.Appeal No.759-DBA of 2002 2 302/324/323/148/149/120-B IPC.
Prosecution story, in brief, is that Manjit Singh son of Jagtar Singh, complainant, is resident of Village Wadian. On 4.8.1998, he along with his brother Jaspal Singh and father Jagtar Singh was going to Village Aulakh on their tractor for its repair and at about 8.00 AM, when they were near the culvert of Shadi Ram, then sighted Atma Singh, armed with gandasa, Gulzar Singh, armed with gandhali, Manjit Singh, armed with gandasa, Gurmukh Singh, armed with dang, Kashmir Singh, armed with dang, Major Singh, armed with iron rod, Nishan Singh, armed with gandasa, Satnam Singh, armed with kasouli, Baldev Singh, armed with gandasa, and Pal Singh empty handed, while coming from the side of farm house of Nishan Singh. Pal Singh raised lalkara not to spare them because they had caused injuries to their men and also filed case in the High Court. Satnam Singh gave kasouli blow on the head of Manjit Singh. Major Singh gave rod blow on the right shoulder, right leg and private parts of Manjit Singh. Atma Singh gave gandasa blow on the left leg of Jagtar Singh. Manjit Singh gave gandasa blow on the right hand of Jagtar Singh. While raising raula, Manjit Singh and Jaspal Singh had fled away from the spot, when Gulzar Singh, Gurmukh Singh, Kashmir Singh, Major Singh, Nishan Singh and Baldev Singh were causing injuries. Later on, Manjit Singh came to know that his father Jagtar Singh was got admitted in Civil Hospital, Bathinda, by his brother Gurmit Singh. Manjit Singh had also reached Civil Hospital, Bathinda, where he was got admitted by his brother.
Police party headed by ASI Jarnail Singh was present in the area of Village Lundewala in connection with patrol duty, where he received information that in the fight, Jagtar Singh son of Ganga Singh Crl.Appeal No.759-DBA of 2002 3 received injuries and his condition is serious and his heirs are shifting him to Civil Hospital, Malout. ASI Jarnail Singh had gone to Civil Hospital, Malout, then came to know that Jagtar Singh was referred to Civil Hospital, Gidderbaha. After that, ASI Jarnail Singh with party had gone to Civil Hospital, Gidderbaha, but near Husner Chowk, ruqa was handed over to him by the Peon of Civil Hospital, Gidderbaha, to the effect that Jagtar Singh was referred to Civil Hospital, Bathinda. ASI Jarnail Singh with party had gone to Civil Hospital, Bathinda. Application was moved to seek opinion of the doctor regarding fitness of Jagtar Singh and Manjit Singh. Doctor reported that Jagtar Singh was unfit to make statement, but Manjit Singh was fit to make statement. After recording statement of Manjit Singh (Ex.PD) in Civil Hospital, Bathinda, same was sent to the Police Station after making endorsement (Ex.PD/1) at 7.40 PM for registration of FIR. On receipt of statement (Ex.PD), formal FIR (Ex.PD/2) was recorded at 10.00 PM. Special report was handed over to Ilaqa Magistrate on the next day, i.e. 5.8.1998, at 10.10 AM. ASI Jarnail Singh with party had gone to the spot along with Jaspal Singh. Simple earth and blood stained earth was lifted from the spot and was made into different sealed parcels. Parcels were taken into police possession vide memo (Ex.PF). Tractor from the spot was also taken into police possession vide separate memo. On the next day, rough site plan (Ex.PK) with its correct marginal notes was prepared. Through wireless, information was received regarding death of Jagtar Singh. Then ASI Jarnail Singh with party had gone to Civil Hospital, Bathinda. Inquest report (Ex.PL) was prepared. Dead body was handed over to the police officials for postmortem examination. After postmortem examination, dead body was handed over to the relatives of the deceased for Crl.Appeal No.759-DBA of 2002 4 cremation. Sealed parcel of clothes worn by the deceased was produced before ASI Jarnail Singh by HC Amrik Singh and same was taken into police possession vide memo (Ex.PM). Case property was deposited with the Incharge of Malkhana.
On 6.8.1998, investigation of the case was with SI Nek Singh. On 12.8.1998, he had recorded statements of Rupinder Pal Singh and Joginder Singh. On 13.8.1998, Manjit Singh, Atma Singh and Satnam Singh were produced before him by Karam Singh, Ex.Member Panchayat. Manjit Singh and Atma Singh had produced gandasas, whereas Satnam Singh had produced kasouli. Rough sketches of the weapons were prepared and the weapons were taken into police possession vide separate memos attested by the witnesses. On 3.9.1998, Gulzar Singh was arrested and on 6.9.1998, Nishan Singh was arrested. After the arrest of other accused and completion of investigation, challan was presented in Court.
Accused were charged under Sections 148/302/324/323/149/120-B IPC, to which they pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined ten witnesses.
PW1 Dr.K.S.Brar on 4.8.1998 at 5.45 PM had medico legally examined Manjit Singh, brought by his brother Gurmit Singh, and found the following injuries on his person:-
"1. Incised wound 4 x 1 /2 cm on the right parietal region, 8 cm from external border of right pinna. Clotted blood was present. X-ray was advised.Crl.Appeal No.759-DBA of 2002 5
2. Bruise 4 cm x 3 cm on the right shoulder joint swelling and tenderness were present. Advised X-ray.
3. Swelling and tenderness on the posterior aspect of right leg, 8 cm above the ankle joint. Advised X-ray.
4. Complaint of pain in the scrotal region."
PW2 Manjit Singh is the complainant and has reiterated the prosecution story disclosed to ASI Jarnail Singh in Civil Hospital, Bathinda, on 4.8.1998 at 7.40 PM.
PW3 Jaspal Singh has also supported the version of Manjit Singh, complainant.
PW4 Dr.I.B. Aggarwal on 5.8.1998 at 2.15 PM had conducted postmortem examination on the dead body of Jagtar Singh and noted the following injuries on his person:-
"1. A lacerated wound 3 x 1 cm present on the right leg anteriorly in its middle. Clotted blood was present.
2. Stitched wounds when opened found 3 x 1 cm lacerated present 3-1/2 cm below the injury No.1. Clotted blood was present.
3. Lacerated wound 5 x 1.5 cm present on the anterior surface, 5 cm above medial melleolus on the right leg.
Clotted blood was present. On dissection, the underlying bone was found fractured.
4. An abrasion 8 x 2-1/2 cm present below the right patella on the front of the right leg.
5. Lacerated wound 3-1/2 x 1 cm present, 6 cm on the medial melltolus on the medial side of the left leg. Clotted blood was present.
6. Lacerated wound 2.5 x 1 cm, 2 cm above the injury No.5. Clotted blood was present. On dissection, the underlying bone was found fractured. Crl.Appeal No.759-DBA of 2002 6
7. Lacerated wound 2-1/2 x 1 cm present, 1 cm above the injury No.6. Clotted blood was present.
8. Incised wound 5 x 2 cm present in the middle of the left leg anteriorly. On dissection, underlying bone was cut. Clotted blood was present.
9. An abrasion 6 cm x 1.5 cm present on the ventral surface of the medial side of the right forearm, 7 cm above the wrist joint.
10. Incised wound 2 x 1 cm present on the lateral surface of the right upper arm, 4 cm above the elbow joint.
11. Incised wound 6 x 1 cm present on the Palmer surface of the left hand placed on the second, third and fourth metacarpal phalangeal joints. On dissection, the underlying bone was fractured. Clotted blood was present."
Cause of death was due to shock and haemorrhage resulting from the injuries. All the injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature.
PW5 ASI Jarnail Singh had initially investigated the case. PW6 ASI Harjinder Singh had also partly investigated the case. He had arrested Major Singh, Gurmukh Singh and Baldev Singh. Weapons recovered from them were taken into police possession and on 30.8.1998, Kashmir Singh was arrested.
PW7 SI Nek Singh had investigated the case after ASI Jarnail Singh.
PW8 ASI Paramjit Singh tendered his affidavit (Ex.PS). Crl.Appeal No.759-DBA of 2002 7 PW9 Constable Nazir Singh tendered his affidavit (Ex.PT). PW10 Ravinder Kumar, Patwari, prepared scaled site plan (Ex.PU).
After close of the prosecution evidence, statements of accused were recorded under Section 313 Cr.P.C. They denied all the prosecution allegations and pleaded to be innocent.
Defence version of the accused was that they were falsely implicated in this case. Jagtar Singh (deceased) had known and unknown enemies in the village and surrounding areas. They were falsely implicated due to party faction in the village.
In defence, Bagicha Singh appeared as DW1 and stated that he was residing in his fields. Three years and seven months earlier to the appearance in the Court, he along with his cousin was going from his farm house towards the fields. At 8.00/9.00 AM, they were near the culvert of Shadi Ram. Dilbagh Singh, Darbara Singh and one other person were seen while armed with gandasa and kasia. The unknown person was empty handed. Gursewak Singh and Jagtar Singh (deceased) armed with gandasa and kirpan were also present on the spot and both parties were fighting with each other. Jagtar Singh and Darbara Singh received injuries on their person. Gursewak Singh and unknown person accompanying Darbara Singh had fled away from the spot. Jagtar Singh tried to flee from the spot on his tractor but fell down. Dilbagh Singh and Darbara Singh had also started their tractor and ran over the legs of Jagtar Singh. Jagtar Singh requested him to shift him to hospital. Tractor was brought by him from his farm house and Jagtar Singh was shifted to Civil Hospital, Malout, from where he was referred to Civil Hospital, Gidderbaha. Jagtar Singh was Crl.Appeal No.759-DBA of 2002 8 brought to Civil Hospital, Gidderbaha, but after treatment for about 1/2 hour, he was referred to Civil Hospital, Bathinda. Ruqa (Ex.PJ) was sent by the doctor of Civil Hospital, Gidderbaha, duly signed by him. When Jagtar Singh was being shifted to Civil Hospital, Bathinda, then in the meantime, Gurmit Singh and his wife Balbir Kaur came there. Jagtar Singh was handed over to them. Then he came back to his house.
DW2 ASI Jarnail Singh brought record and proved copies of entries of different dates (Ex.DW2/A to Ex.DW2/E) in the register.
DW3 Constable Kashmir Singh, PS Kotbhai, also brought record and stated that FIR No.39 dated 24.1.1975 under the Punjab Excise Act, FIR No. 67 dated 30.9.1978 under the Punjab Excise Act and FIR No.74 dated 2.11.1991 under IPC were registered against Jagtar Singh son of Ganga Singh.
After hearing learned Public Prosecutor for the State, defence counsel for the accused and from the perusal of evidence on the file, accused were acquitted of the charge levelled against them.
Pal Singh had died during the pendency of trial.
Against the judgment of acquittal, appeal was preferred by the State of Punjab and revision by the complainant.
We have heard learned counsel for the State, revisionist, and defence counsel for the respondents-accused, and gone through the evidence on file.
Learned counsel for the State and revisionist argued that respondents were acquitted of the charge levelled against them on the allegation that there was a delay in lodging the FIR, but there was no delay. Occurrence is an admitted fact in view of the statement of Manjit Singh and Crl.Appeal No.759-DBA of 2002 9 copy of DDR No.17 (Ex.DC) recorded at the instance of Darbara Singh, but only dispute is whether occurrence had taken place in the manner stated by Manjit Singh or in the manner given by Darbara Singh. According to the version recorded in DDR (Ex.DC) at the instance of Darbara Singh, Manjit Singh and Jaspal Singh were present at the spot when Jagtar Singh received injuries, but their presence at the time of occurrence was doubted on the allegation that they are relations of the deceased and secondly, they did not try to intervene to save their father, namely, Jagtar Singh. After occurrence, no effort was made to shift Jagtar Singh to the nearest hospital for medical aid.
Learned counsel for the respondents argued that trial Court rightly opined that there was a delay in lodging the FIR and delay was not explained. Delay was fatal. Delay was used to consult and concoct the story. Initially, FIR was registered under Section 307 IPC, but special report was not sent to the Ilaqa Magistrate. There was no idea to wait that after death, offence is to be converted under Section 302 IPC and after that, special report is to be sent. Occurrence was at 8.00 AM on 4.8.1998, statement of Manjit Singh was recorded at 7.40 PM, whereas special report was handed over to the Ilaqa Magistrate on the next day at 10.10 AM. Jaspal Singh was SPO and was serving as Gunman to the S.P. He had the knowledge as to what is the effect of delay in lodging the FIR. Some of the injuries noted on the person of Manjit Singh were superficial in nature. Injuries were possible by fall. When there is a possibility of injuries being self suffered or self inflicted then to show the presence of Jaspal Singh on the spot, injuries were manipulated by the doctor. In case Manjit Singh and Jaspal Singh had witnessed the occurrence, then they should have made an Crl.Appeal No.759-DBA of 2002 10 effort to save their father. There was no idea to hide themselves in the crop of jawar for about two hours. When the accused had fled away from the spot, then there was no idea to hide in the fields. They should have shifted the injured to the nearest hospital for medical aid. If out of fear, they had fled away from the spot and had concealed themselves for about two hours in the crop of jawar, then after the accused had left the place of occurrence, they should have gone to the house for help from family members. Accused were ten in number. One of them was empty handed and the others were armed with deadly weapons. If intention of the accused was to murder, then there was no idea to spare Jaspal Singh. Injuries should have been on the non vital parts also. According to the prosecution story, complainant party had gone on their tractor for its repair. Accused party had no knowledge that on a particular date, complainant is to meet near the culvert of Shadi Ram, then they are to attack. No evidence on the file that in routine, daily the complainant party used to cross the culvert of Shadi Ram. Number of cases were registered against the complainant party as well as against the accused party. There was a party faction in the village. Due to party faction, respondents-accused were named in the FIR. In fact, occurrence had taken place in view of the version of Darbara Singh. When there are two versions, then the version favourable to the accused is to be accepted. When accused are acquitted by the trial Court, then to reverse the judgment, appellate Court is expected to be very much cautious to scrutinize the evidence with great care and caution. When there is an acquittal, then there is double presumption in favour of the accused.
One of the accused, namely, Pal Singh had died during the pendency of trial, whereas Manjit Singh and Nishan Singh have died after Crl.Appeal No.759-DBA of 2002 11 acquittal as per counsel for the parties.
First submission of learned counsel for the State and revisionist was that the respondents-accused were acquitted on the allegation that there was a delay in lodging the FIR, but delay was fully explained. After going through the evidence on file, we are of the view that submission of learned State counsel and the revisionist seems to be reasonable one. According to the prosecution story, occurrence was at about 8.00 AM on 4.8.1998; statement of Manjit Singh (Ex.PD) was recorded at about 7.40 PM in Civil Hospital, Bathinda, and after making endorsement, statement was sent to Police Station Kot Bhai, on the basis of which, formal FIR was recorded at 10.00 PM on the same day. Initially, FIR was recorded under Sections 307/324/323/148/149 IPC. Jagtar Singh (deceased) was got admitted by Gurmit Singh in Civil Hospital, Bathinda, at 4.25 PM. Manjit Singh, injured, was also medico legally examined in the hospital. ASI Jarnail Singh on coming to know about the occurrence at 5.15 PM, had gone to Civil Hospital, Malout, from where he came to know that patient was referred to Civil Hospital, Gidderbaha. Then he had gone to Civil Hospital, Gidderbaha. Keeping in view the critical condition of Jagtar Singh, he was referred to Civil Hospital, Bathinda. After visiting Civil Hospital, Giddarbaha, ASI Jarnail Singh came to know that patient was referred to Civil Hospital, Bathinda, then he went to Civil Hospital, Bathinda. Investigating Officer moved application for obtaining opinion of the doctor regarding fitness of the injured. Manjit Singh was declared fit to make statement. Statement of Manjit Singh was recorded at 7.40 PM. Jagtar Singh was declared unfit to make statement and due to this reason, his statement was not recorded. Death of Jagtar Singh was at 4.00 AM on Crl.Appeal No.759-DBA of 2002 12 5.8.1998. Then offence punishable under Section 302 IPC was added as per information received from Civil Hospital, Bathinda. Special report was handed over to Ilaqa Magistrate at 10.10 AM on 5.8.1998. Suggestion was given to Manjit Singh that in the same occurrence, Darbara Singh also received injuries. In view of the statement of Darbara Singh, DDR No.17 (Ex.DC) was recorded on 5.8.1998, whereas his statement was recorded on 4.8.1998 at 8.00 PM. In defence, Bagicha Singh appeared and stated that occurrence was at 8.00-9.00 AM and in the occurrence, Jagtar Singh and Darbara Singh received injuries but according to DDR No.17 (Ex.DC), Darbara Singh, Manjit Singh and Kashmir Singh received injuries. That means, occurrence is an admitted fact. The only dispute is whether occurrence had taken place as per prosecution story or as per DDR (Ex.DC). Manjit Singh, injured eye witness, and Jaspal Singh while appearing in Court stated that in their presence at about 8.00-9.00 AM, accused party had caused the injuries when they were present near the culvert of Shadi Ram. Out of fear, they had fled away from the spot and concealed themselves in the field of jawar at a distance of 10 killas. After that, they had gone to Civil Hospital, Malout, Civil Hospital, Gidarbaha, and ultimately, Civil Hospital, Bathinda, when they came to know that their father Jagtar Singh was shifted to Civil Hospital, Bathinda by their third brother Gurmit Singh. 11 injuries were noticed on the person of Jagtar Singh and 4 on the person of Manjit Singh. Injured was in Civil Hospital, Gidarbaha, at about 2.30- 2.40 PM. Gidarbaha is at a distance of 10-15 kms from the place of occurrence. When number of injuries are caused and condition of the patient is critical, then first priority of the attendants is to shift the injured to the nearest hospital for medical aid. Manjit Singh, complainant, had also Crl.Appeal No.759-DBA of 2002 13 received injuries in the same occurrence. Manjit Singh along with Jaspal Singh had gone to Civil Hospital, Gidarbaha. No injury was on the person of Jaspal Singh. Both the brothers were after their father Jagtar Singh, who was being shifted from one hospital to another. All this shows that there is no delay but if we presume that there is a delay, then delay has been explained. Delay is not fatal because occurrence at about 8.00-9.00 AM on 4.8.1998 near the culvert of Shadi Ram is an admitted fact.
In 1978(4) SSC 371, Ganesh Bhavan Patel and another vs. State of Maharashtra, there was a delay of 7 days in lodging the FIR and delay of 2-1/2 hours in carrying the special report to the Ilaqa Magistrate. Delay was held to be fatal.
But facts of the present case differ from the facts of above cited case because in the present case, complainant had also received injuries in the same occurrence as per DDR (Ex.DC) and if we presume that there was a delay, then delay itself was not sufficient for acquittal of the accused. Delay is one of the suspicious circumstances to scrutinize the evidence with great care and caution.
Next submission of learned State counsel was that trial Court wrongly opined that there was a motive for false implication but approach of trial Court is not correct one because motive is a double edged weapon. When there is previous enmity amongst the parties, then there is a motive to commit the crime. On the other hand also, motive is to falsely implicate the opposite party. Submission of learned State counsel seems to be reasonable one. Evidence on the file shows that number of cases were registered against the complainant party. Similarly, number of cases were registered against the accused party. FIR No.36 was registered against the complainant Crl.Appeal No.759-DBA of 2002 14 party and in that case, Baldev Singh, Gurdev Singh and Pal Singh were the prosecution witnesses. In cross case, complainant party was the prosecution witnesses. FIR No.80 was registered against the accused party. That means, before present occurrence, parties were not having cordial relations. There was also party faction in the village. But the occurrence was during day time at about 8.00-9.00 AM. As per defence version, occurrence was witnessed by Darbara Singh and Bagicha Singh. As discussed earlier, number of injuries were noted on the person of Jagtar Singh, who was shifted to the hospital by Bagicha Singh (DW1). Manjit Singh, complainant, had also received injuries. He had also gone to Civil Hospital, Malout and ultimately, Civil Hospital, Bathinda. Condition of Jagtar Singh was serious. According to defence version, Darbara Singh, Dilbagh Singh and Kashmir Singh had caused injuries, but Dilbagh Singh and Darbara Singh were not named by Manjit Singh, complainant. If intention of the complainant party was to implicate the respondents-accused, then Manjit Singh was also expected to name Darbara Singh and Dilbagh Singh. No evidence on the file that complainant party was inimical towards another person. When occurrence was during day time and accused party was inimical towards the complainant party, then accused party had the motive to commit the crime. If some body else had caused injuries, then there was no idea to leave the real culprits and name the accused party. Motive is always in the heart of the accused. As per FIR, motive to cause injuries was that the complainant party had caused injuries to the men of accused party and secondly, case was filed in the High Court. As per DDR (Ex.DC), complainant party had caused injuries to Darbara Singh because Jagtar Singh (deceased), Manjit Singh and his brother were suspecting that Darbara Singh and others were Crl.Appeal No.759-DBA of 2002 15 helping Satnam Singh, who was inimical towards Jagtar Singh (deceased) and others. Motive is a double edged weapon. Due to previous enmity, accused party had the motive to cause injuries. Complainant party can also have the motive to implicate the opposite party, but there was no reason to leave the real culprits. When there is a direct evidence, then motive looses significance. Motive assumes importance when case is based on circumstantial evidence. When Manjit Singh, present at the time of occurrence, had caused injuries to Darbara Singh and Darbara Singh had caused injuries to Manjit Singh, then we can safely infer that there was a motive to commit the crime. If no cogent and convincing evidence qua motive, then in the absence of evidence qua motive, entire prosecution story is not to be brushed aside. But trial Court did not appreciate the evidence on the file and wrongly observed that there was no motive to commit the crime.
While acquitting the accused, trial Court observed that presence of Manjit Singh, complainant, and his brother Jaspal Singh was doubtful because they did not intervene to save their father Jagtar Singh. They had concealed themselves in the crop of jawar at a distance of 10 killas and after the accused had fled away from the spot, then failed to return to the place of occurrence to shift Jagtar Singh to the nearest hospital. They had not gone to their village to inform other family members. Once presence of Manjit Singh and Jaspal Singh was held to be doubtful, then entire prosecution story becomes doubtful. Benefit of doubt was given to the accused by acquitting them from the charges levelled against them, but from the evidence on the file, we are of the opinion that presence of Manjit Singh and Jaspal Singh at the time of occurrence was natural. According to Crl.Appeal No.759-DBA of 2002 16 the FIR, Jagtar Singh and his sons Manjit Singh and Jaspal Singh on the tractor for its repair were going to Village Aulukh. They were near the culvert of Shadi Ram. Opposite party fully armed came and had caused injuries to Manjit Singh and Jagtar Singh. There was no third eye witness. Manjit Singh and Jaspal Singh appeared as PWs and supported the prosecution story by saying that in their presence, accused party had caused injuries to their father Jagtar Singh.
Ex.DC is the copy of DDR No.17 recorded in view of statement of Darbara Singh. Allegation of Darbara Singh was that he along with Kashmir Singh and Dilbagh Singh at 9.00 AM on a tractor was present near the fields of Sardool Singh, then sighted Jagtar Singh armed with gandasa, Manjit Singh armed with kapa, Jaspal Singh armed with kirpan and Gursewak Singh armed with gandasa. They had raised a lalkara to teach them a lesson for helping Satnam Singh. According to the version of Darbara Singh, Satnam Singh was the accused for causing injuries to the complainant party. Then Manjit Singh gave kapa blow hitting left leg of Darbara Singh. Gursewak Singh gave gandasa blow hitting Darbara Singh on his right leg, Jaspal Singh gave kirpan blow to Kashmir Singh. After that, they tried to flee away from the spot with the tractor but in that process, Jagtar Singh fell down from the tractor and was run over by the tractor. Then he and Kashmir Singh were shifted to Civil Hospital, Gidarbaha by Gurmukh Singh. So, as per Ex.DC, there were two injured persons on one side and two on the other side, i.e., Darbara Singh and Kashmir Singh on one side and Jagtar Singh and Manjit Singh on the other side. Ex.DC nowhere shows that occurrence at 9.00 AM, near the culvert of Shadi Ram was witnessed by Bagicha Singh and his cousin. Darbara Singh Crl.Appeal No.759-DBA of 2002 17 or Kashmir Singh failed to appear in support of defence version as per Ex.DC. Darbara Singh and Kashmir Singh were shifted to Civil Hospital, Gidarbaha, by Gurmukh Singh, but he was not examined in defence. In defence, no MLR of Darbara Singh is on the file to show that he had received injuries in the same occurrence. Last allegation as per Ex.DC by Darbara Singh was that when Jagtar Singh tried to flee away from the spot on the tractor, then he had a fall from the tractor and was run over by the tractor. Postmortem report of Jagtar Singh is on the file but no crush injury was noticed.
Darbara Singh and Kashmir Singh had received injuries as per Ex.DC and they were shifted to Civil Hospital, Gidarbaha, but no MLR on the file. In case, occurrence had taken place as per Ex.DC, then respondents- accused should have examined Gurmukh Singh. He should have produced copies of MLR of Darbara Singh and Kashmir Singh. If motive to cause injuries to Darbara Singh was that Darbara Singh's party was helping Satnam Singh, then Jagtar Singh and others had no idea to cause injuries to Darbara Singh or Kashmir Singh. If Satnam Singh had caused injuries to the complainant party or their supporters, then Jagtar Singh and others had no motive or reason to cause injuries to Darbara Singh or Kashmir Singh. They should have caused injuries to Satnam Singh.
Darbara Singh, Dilbagh Singh or Gurmukh Singh were not examined in defence by the respondents-accused, but DW1 Bagicha Singh was produced in defence, who stated that on 4.8.1998 at about 8.00/9.00 AM, he along with his cousin brother was present near the culvert of Shadi Ram, then had seen Darbara Singh, Dilbagh Singh and one unknown person on the tractor. From the other side, Jagtar Singh and Gursewak Singh were Crl.Appeal No.759-DBA of 2002 18 present on the tractor. Both parties were fighting and in that fight, Jagtar Singh and Darbara Singh received injuries. Gursewak Singh and unknown person had fled away from the spot. Jagtar Singh tried to flee on the tractor but fell down. He was run over by the tractor of Darbara Singh and Dilbagh Singh. After occurrence, he (Bagicha Singh) had brought his tractor and had shifted Jagtar Singh to Civil Hospital, Malout. From Civil Hospital, Malout, patient was shifted to Civil Hospital, Gidarbaha, and from there to Civil Hospital, Bathinda. Then Gurmit Singh son of Jagtar Singh and his wife Balbir Kaur had met him. After that, Jagtar Singh was handed over to them and he came back to his house. DW1 Bagicha Singh did not state a word that Manjit Singh and Jaspal Singh were also present with their father Jagtar Singh and brother Gursewak Singh. He has not stated a word that in the occurrence, Kashmir Singh and Manjit Singh had also received injuries. As per Bagicha Singh, only Jagtar Singh and Darbara Singh had received injuries, whereas as per Ex.DC, at the instance of Darbara Singh, besides Jagtar Singh and Darbara Singh, Manjit Singh and Kashmir Singh had also received injuries. So, as per defence version, occurrence had not taken place as per DDR No.17 (Ex.DC) or the statement of Bagicha Singh (DW1).
Manjit Singh and his brother Jaspal Singh, while appearing in the Court, categorically stated that when they along with their father Jagtar Singh on a tractor were present near the culvert of Shadi Ram, then opposite party came. Satnam Singh armed with kasouli gave blow to Manjit Singh on his head, and Major Singh gave rod blow hitting on the right shoulder, left leg and private parts of Manjit Singh. After that, Atma Singh gave gandasa blow on the left leg of Jagtar Singh. Manjit Singh gave gandasa blow on the right hand of Jagtar Singh. Both the witnesses have not stated a Crl.Appeal No.759-DBA of 2002 19 word that Gulzar Singh, Kashmir Singh, Baldev Singh, Nishan Singh or Gurmukh Singh had caused injuries either to Manjit Singh or Jagtar Singh (deceased).
11 injuries were noted on the person of Jagtar Singh and 4 injuries on the person of Manjit Singh. Manjit Singh and Jaspal Singh while appearing in the Court stated that when accused party had caused injuries to them, then out of fear, they had fled away from the spot and had concealed themselves in the field of jawar at a distance of 10 killas. After sitting there for about 1-1/2-2 hours, they had gone to Civil Hospital, Gidarbaha, on foot. When injuries are caused to the father in the presence of sons, then sons are expected to interfere and to save the father, but when there are number of accused armed with deadly weapons, then, if no effort to save close relation, then presence of witnesses is not to be doubted. Nothing on the file that Manjit Singh and Jaspal Singh or Jagtar Singh were also armed and they had caused injuries to Darbara Singh, who was not examined by the accused party. After sitting 1-1/2-2 hours in the field of Jawar, Manjit Singh was shifted to Civil Hospital, Gidarbaha, by Jaspal Singh. Then they came to know that their father was referred to Civil Hospital, Bathinda. They followed their father, who received number of injuries. If Manjit Singh and Jaspal Singh did not visit to their house to inform other family members or did not try to visit the place of occurrence to shift their father to the nearest hospital, then on that short ground, their presence is not to be doubted because all depends upon the circumstances of the case as to how the witnesses present on the spot react when injuries are being caused with sharp edged weapons, particularly when their presence on the spot is very much clear as per Ex.DC.
Crl.Appeal No.759-DBA of 2002 20
In 2002(3) RCR (Crl.) 625, Mathura Yadav @ Mathura Mahato and others vs. State of Bihar, Hon'ble the Supreme Court held that when all the eye witnesses are related to the deceased, and independent witnesses are not examined, then presence of related witnesses is doubtful but above cited authority is not helpful to the respondents-accused in the present case because presence of both the eye witnesses is clear in view of Ex.DC. According to the prosecution, there was no other eye witness. According to defence version, occurrence was witnessed by Dabara Singh, Dilbagh Singh and Kashmir Singh, but they were not examined as DWs. Bagicha Singh (DW1) stated that his cousin brother was also present and had witnessed the occurrence, but he did not disclose the name of his cousin brother. Cousin was also not examined as DW. As per Ex.DC, Bagicha Singh and his cousin had not witnessed the occurrence. No doubt, when there is an acquittal, then evidence on the file is to be scrutinized with great care and caution.
In 2007(2) RCR (Crl.) 92, Chandrappa and others vs. State of Karnataka, Hon'ble the Supreme Court observed that when there is appeal against acquittal, then High Court has full power to re-appreciate, review and reconsider the evidence on the file and the material on which order of acquittal is based. Both questions of law and fact are open for determination. There is double presumption in favour of the accused party. Every person shall be presumed to be innocent unless he is proved guilty. But in the present case, evidence on the file was not scrutinized as per law. Evidence was misread that Manjit Singh and Jaspal Singh were not present at the time of occurrence, whereas evidence on the file clearly shows presence of Manjit Singh and Jaspal Singh at the time of occurrence. Manjit Crl.Appeal No.759-DBA of 2002 21 Singh had also received injuries and was medico legally examined by Dr. K.S.Brar at 5.45 PM. After occurrence at about 8.00/9.00 AM, both the eye witnesses stayed in the crop of jawar for about 1-1/2-2 hours. Then on foot, they had gone to Civil Hospital, Gidarbaha. Distance was about 10-15 kms. Ultimately, injured was got admitted in Civil Hospital, Bathinda, in the evening. Initially, the deceased was shifted to Civil Hospital, Malout, and from Civil Hospital, Malout, to Civil Hospital, Gidarbaha by Bagicha Singh. When Jagtar Singh was being shifted from Civil Hospital, Gidarbaha, to Civil Hospital, Bathinda, then on the way, Gurmit Singh son of Jagtar Singh and his wife had met Bagicha Singh. After that, Jagtar Singh was handed over to them and he came back to his house. Then no reason to doubt the prosecution story.
Manjit Singh armed with gandasa and Atma Singh armed with Gandasa had caused injuries to Jagtar Singh. Satnam Singh armed with kasouli and Major Singh armed with iron rod had caused injuries to Manjit Singh. According to prosecution story, other accused, namely, Gulzar Singh, Kashmir Singh, Baldev Singh, Nishan Singh and Gurmukh Singh, were also armed but they did not cause any injury either to the deceased or the complainant. Out of 4 injuries noted on the person of complainant, one injury, i.e., injury No.4, was of complain of pain, injury No.1 was attributed to Satnam Singh, whereas injury Nos.2 and 3 were attributed to Major Singh. As per Dr.K.S.Brar, injury No.1 was skin deep and no depth was noted. It was possible by a friendly hand by means of a razor or shaving blade. In case of injury Nos. 3 and 4, there was no external mark and possibility of being self suffered or self inflicted. But in our opinion, these injuries cannot be self inflicted.
Crl.Appeal No.759-DBA of 2002 22
According to postmortem report, 11 injuries were noted on the person of Jagtar Singh, out of them, 6 injuries were lacerated wound, 2 were abrasions and 3 were incised wounds. No crush injury was noticed. Except injury Nos.3, 6, 8 and 11, remaining injuries were found to be simple in nature. Injuries Nos.4, 5, 7, 9 and 10 were found superficial in nature. All the injuries were possible with kasiya if used from its sharp and blunt side. Injuries were on the non-vital parts. No individual injury was sufficient to cause death.
Earlier to the occurrence, complainant party and accused party had litigation. Number of cases were registered against both the parties. Writ petition was also instituted by the complainant party. So, there was a possibility of false implication of Gulzar Singh, Kashmir Singh, Baldev Singh, Nishan Singh and Gurmukh Singh. When they were armed, then they should have caused injuries. There was no idea to allow only 4 accused to cause injuries to Manjit Singh and Jagtar Singh. Pal Singh was also named on the allegation that he was present empty handed, but he raised lalkara exhorting the accused to cause injuries. So, presence of Gulzar Singh, Kashmir Singh, Baldev Singh, Nishan Singh and Gurmukh Singh at the time of occurrence is doubtful and thus are acquitted of the charges levelled against them. In fact, only Atma Singh, Satnam Singh, Manjit Singh and Major Singh were present on the spot and had caused injuries to Manjit Singh and Jagtar Singh.
11 injuries were noted on the person of Jagtar Singh, but all the injuries were on non-vital parts of the body. Atma Singh and Manjit Singh were armed with gandasa and if they had intention to murder, then why no injury on the vital part. Satnam Singh was armed with kasouli and Major Crl.Appeal No.759-DBA of 2002 23 Singh with an iron rod, but the injuries caused by them were also found to be simple in nature. Occurrence was at about 8.00/9.00 AM. At about 2.30 PM, injured was shifted to Civil Hospital, Malout, but no first aid. After that, he was shifted to Civil Hospital, Gidarbaha, but again no medial aid. Only ruqa was sent through a Peon. Peon had handed over ruqa to the Investigating Officer while present near Husner Chowk. In the evening at about 4.55 PM, Jagtar Singh was admitted in Civil Hospital, Bathinda. Dr. I.B.Aggarwal in cross-examination admitted that it is correct that in this case if the deceased had remained unattended for six hours, then lot of blood must have been lost and that could also be a reason for deterioration of condition of the deceased. Had the first aid been provided immediately, then deceased might have survived. When accused party was inimical towards the complainant party and the accused armed with deadly weapons did not cause injuries on the vital parts and had only caused injuries on the non-vital parts, then we are of the opinion that accused, namely, Manjit Singh, Atma Singh, Satnam Singh and Major Singh had committed an offence of culpable homicide not amounting to murder. For that offence, they are liable to be punished under Section 304 Part-I IPC.
Hence, appeal and revision are partly allowed.
Notice be issued to respondents-accused Manjit Singh, Atma Singh, Satnam Singh and Major Singh for 2.7.2010, to hear on the point of sentence for committing offence punishable under Section 304 Part-I IPC.
( JORA SINGH )
JUDGE
28.5.2010 ( SATISH KUMAR MITTAL )
Crl.Appeal No.759-DBA of 2002 24
pk JUDGE