Punjab-Haryana High Court
Dalbir Singh And Others vs State Of Punjab on 20 January, 2009
Author: Jora Singh
Bench: Jasbir Singh
Crl. Appeal No. 628-DB of 2005. 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl. Appeal No. 628-DB of 2005.
DECIDED ON : 20.1.2009
Dalbir Singh and others
Appellant.
VERSUS
State of Punjab
Respondent.
Crl. Appeal No. 184-DB of 2008.
DECIDED ON : 20.1.2009
Shinder Singh
Appellant.
VERSUS
State of Punjab
Respondent.
Crl. Revision No. 1286 of 2006.
DECIDED ON : 20.1.2009.
Kulwant Rai Sharma
Appellant.
VERSUS
State of Punjab and others
Respondents.
CORAM : HON'BLE MR. JUSTICE JASBIR SINGH.
HON'BLE MR. JUSTICE JORA SINGH
Crl. Appeal No. 628-DB of 2005. 2
Present: Mr. H.S.Gill, Sr. Advocate, with
Mr.Vivek Goel, Advocate for the
appellants.
Mr. Jagjit Singh, Advocate, for
the respondents
Ms. Manjuri Nehru Kaul, DAG(Punjab)
JORA SINGH,J.
Through this common judgment, we propose to dispose of Criminal Appeal No. 628-DB of 2005( Dalbir Singh and others Vs. State of Punjab) and Criminal Appeal No.184- DB of 2008 (Shinder Singh Vs. State of Punjab). Dalbir Singh etc have filed the present appeal to impugn the judgment/order dated 22.8.2005 in Sessions Case No. 12 of 2004, passed by learned Sessions Judge, Kapurthala, in First Information Report No. 37 dated 27.2.2004, under Sections 148, 302, 302/149, 326, 326/149, 324, 324/149, 449 and 382 of the Indian Penal Code, whereby the appellants- accused were convicted as under:-
Sr. Name of the convict Offence for Sentence awarded No. which convicted
1. Dalbir Singh, Jarnail 148 I.P.C. Rigorous Singh alias imprisonment for a Chaaudhary, Jarnail period of two years Singh son of Thoru each and two pay a Ram Joginder Singh, fine of Rs.1000/-
Bakshish Singh alias each in default of Chamikala Veer payment of fine to Singh, Bachittar further undergo RI Singh and Karnail for one month Singh son of Thoru each.
Ram
Crl. Appeal No. 628-DB of 2005. 3
Sr. Name of the convict Offence for Sentence awarded
No. which
convicted
Dalbir Singh, Jarnail 449 I.P.C. Rigorous
Singh alias imprisonment for a
Chaaudhary, Jarnail period of ten years
Singh son of Thoru each and two pay a
Ram Joginder Singh, fine of Rs.2000/-
Bakshish Singh alias each in default of
Chamikala Veer payment of fine to
Singh, Bachittar further undergo RI
Singh and Karnail for one month
Singh son of Thoru each.
2 Ram
Jarnail Singh 302 I.P.C Imprisonment for
Chaaudhary, and life each and to
Veer Singh pay a a fine of
2000/- each, in
default of payment
of fine to further
undergo RI for one
3 month each.
Dalbir Singh, Jarnail 302/149 Imprisonment for
Sing son of Thoru I.P.C. life each and to
Ram, Joginder Singh, pay a a fine of
Bakshish Singh alias 2000/- each, in
Chamikala Veer default of payment
Singh, Bachittar of fine to further
Singh and Karnail undergo RI for one
4 Singh month each.
Jarnial Singh son of 326 I.P.C. Rigorous
Thoru Ram imprisonment for
five years and to
pay a fine of
Rs.2000/-, in
default of payment
of fine to further
undergo RI for one
5 month.
Dalbir Singh, Jarnail 326/149 Rigorous
Sing son of Joginder I.P.C. imprisonment for
Singh, Joginder four years each
Singh, Bakshish and to pay a fine of
Singh alias Rs.1000/-each, in
Chamikala Veer default of payment
Singh alia Gela, of fine to further
Bachittar Singh and undergo RI for one
6 Karnail Singh month each.
Crl. Appeal No. 628-DB of 2005. 4
Sr. Name of the convict Offence for Sentence awarded
No. which
convicted
Dalbir Singh 324 I.P.C. Rigorous
imprisonment for
two years and to
pay a fine of
Rs.1000/-, in
default of payment
of fine to further
undergo RI for one
7 month.
Jarnail Sing 324/149 Rigorous
Chaudhary, Jarnail I.P.C. imprisonment for
Singh son of Thoru one year each, and
Ram, Joginder Singh, to pay a fine of
Bakshish Singh alias Rs.1000/-each, in
Chamikala Veer default of payment
Singh alia Gela, of fine to further
Bachittar Singh and undergo RI for one
8 Karnail Singh month each.
Jarnail Singh son of 382 I.P.C. Rigorous
Thoru Ram and Imprisonment for
Karnail Singh son of five years each, and
Thoru Ram to pay a fine of
Rs.1000/-each, in
default of payment
of fine to further
undergo RI for one
9 month each.
Bakshish Singh alias 382 I.P.C. Rigorous
Chamikla Imprisonment for
five years each, and
to pay a fine of
Rs.1000/-each, in
default of payment
of fine to further
undergo RI for one
10 month each.
Jarnail Singh 382 I.P.C. Rigorous
Chaudhary Imprisonment for
five years each, and
to pay a fine of
Rs.1000/-each, in
default of payment
of fine to further
undergo RI for one
11 month each
All the substantive sentences were ordered to run Crl. Appeal No. 628-DB of 2005. 5 concurrently.
Shinder Singh (P.O) was tried separately and filed separate appeal to impugn the judgment/order dated 15.1.2008/16.1.2008 in Sessions Case No. 56 of 2006, bearing First Information Report No. 37 dated 27.2.2004, under Sections 302, 326, 450, 382, 379, 148/149 I.P.C., Police Station City, Kapaurthala, whereby the appellant- accused was convicted and sentenced as under:-
To undergo rigorous imprisonment for life and to pay a fine of Rs.10,000/- or in default of payment of fine to further undergo rigorous imprisonment for two years under Section 302 read with Section 149 I.P.C.
To undergo rigorous imprisonment for three years and to pay a fine of Rs.3000/- or in default of payment of fine to further undergo rigorous imprisonment for six months under Section 326 read with Section 149 I.P.C.
To undergo rigorous imprisonment for one year and to pay a fine of Rs.1,000/- or in default of payment of fine to further undergo rigorous imprisonment for two months under Section 324 read with Section 149 I.P.C.
To undergo rigorous imprisonment for five years and to pay a fine of Rs.5,000/- or in default of payment of fine to further undergo rigorous imprisonment for one year under Section 449 read with Section 149 I.P.C.
To undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- or in default of payment of fine Crl. Appeal No. 628-DB of 2005. 6 to further undergo rigorous imprisonment for one month under Section 148 I.P.C.
All the substantive sentences were ordered to run concurrently.
Criminal Revision No. 1286 of 2006 has been filed by Kulwant Rai Sharma with the request that sentence of the appellants-accused be enhanced. Fine be also increased and compensation to the Lrs of deceased Nirmal Kumar to the tune of Rs.5,00,000/- and Rs. 1,00,000/- each be awarded to each of the injured witnesses.
Prosecution story, in brief, is that Kulwant Rai Sharma complainant is the resident of Machhi Chowk, Kapurthala. He owned one truck. Nirmal Kumar, Mohan Lal brothers of the complainant and his nephews were also owning trucks and they had started Truck Union in the name of Local Mandi Truck Operators Union. The office of the Truck Union was in the shop of Rajinder Singh alias Pala. On 25.2.2004, there was special season of the rice. Drivers of the complainant were busy in the loading of rice in the trucks. Janta Truck Operator Union , Kapurthala was stopping the trucks/vehicles of the complainant and were creating obstruction in the loading of the rice. At 5.30 P.M., Kulwant Rai (complainant), his brother Nirmal Kumar, Balwinder Singh, Kans Raj, Gurnam Singh and Mangi alias Anil Kumar were present in the office. In the meantime, Jarnail Singh alias Chaudhary son of Joginder Singh armed Crl. Appeal No. 628-DB of 2005. 7 with a kirpan came in front of the office of Truck Union of the complainant and raised a lalkara that today is the chance, all persons are present, so they should not be spared and must be eliminated. After lalkara by Jarnail Singh alias Chaudhary, 8/9 persons armed with different weapons had attacked the complainant party. Jarnail Singh alias Chaudhary gave kirpan blow on the head of Nirmal Kumar. Veer Singh alias Geela gave a gandasi blow to Nirmal Kumar on his head. Nirmal Kumar fell down in the office, then Karnail Singh gave a datar blow on the head of complainant.Jarnail Singh son of Thoru Ram gave a barchha blow to the complainant on the back side of the right head. Balwinder Singh tried to come out side the office then Kala Ram gave a datar blow on the head of Balwinder Singh. On receipt of datar blow, Balwinder Singh fell down outside the office. Gurnam Singh tried to come outside the office. Shinder Singh appellant gave blow with iron rod on the forehead of Gurnam Singh. Bachittar Singh gave a gandasi blow on the head of the complainant. Bakshish Singh alias Chamkila gave a dang blow on the right shoulder of complainant. Jarnail Singh alias Chaudhary gave another kirpan blow on the head of Nirmal Kumar. Nirmal Kumar become unconscious and fell down on the ground. Joginder Singh gave gandasi blow to Balwinder Singh and Gurnam Singh. Accused had also given more blows to the complainant party. Mangi and Kans Raj raised an alarm. Bakshish Singh Crl. Appeal No. 628-DB of 2005. 8 had snatched gold chain from the neck of the complainant. Jarnail Singh had also snatched gold chain from the neck of Nirmal Kumar. Jarnail Singh and Karnail Singh had removed Rs.8050/- from the cash box of the Union. On hearing raula, number of persons had collected from the locality. Accused had fled away from the spot with their respective weapons. Vehicles were arranged by Mangi alias Anil Kumar, Kans Raj and Sonu. All the injured were shifted to Civil Hospital, Kapurthala. Kulwant Rai and Nirmal Kumar were referred to Jalandhar, Hospital as their condition was serious. Occurrence was witnessed by Pappu, Mangi alias Anil Kumar, Kans Raj and Sonu.
Motive to commit the crime was that complainant party on their trucks was loading special rice. Accused party was stopping them to carry on the business of loading of special rice.
On 25.2.2004 from control room, Kapurthala, a message was given on telephone by Assistant Sub Inspector Prem Kumar regarding admission of Kulwant Rai and Nirmal Kumar in Vasal Hospital, Jalandhar. Head Constable Khazan Singh other constables had gone to Vasal Hospital, Jalandhar but the injured were declared unfit to make statement. Sucha Singh Sub Inspector and other police party had gone to Vasal Hospital, but doctor again declared the injured unfit to make their statements. Entry was made in the Roznamcha.Crl. Appeal No. 628-DB of 2005. 9
On 27.2.2004, Sub Inspector Sucha Singh along the police party had gone to Vasal Hospital, Jalandhar. Doctor opined that Kulwant Rai is fit to make statement but Nirmal Kumar was unfit to make his statement. Statement of Kulwant Rai was recorded. Kulwant Rai had signed the same in token of its correctness.
After making endorsement, statement was sent to the Police Station, on the basis of which, formal First Information Report was recorded under Sections 148, 302, 302/149, 326, 326/149, 449 and 382 of the Indian Penal Code at Police Station City Kapurthala.
Kulwant Rai injured had produced clothes stained with blood., Clothes were sealed with the seal bearing impression "SS". Sealed parcel was taken into police possession vide separate memo duly attested by the witnesses. Kulwant Rai had also produced the clothes worn by Nirmal Kumar and those clothes were also sealed. Sealed parcel was taken into police possession vide separate memo duly attested by the witnesses.
On 27.2.2004 Sucha Singh Sub Inspector with the police party had gone to the spot. Blood stained earth was lifted and the same was made into a parcel sealed with the seal bearing impression "SS" and parcel was taken into possession vide memo attested by witnesses. Rough site plan with its correct marginal notes was prepared.
On 28.2.2004, Dalbir Singh alias Kala was Crl. Appeal No. 628-DB of 2005. 10 produced before Sucha Singh Sub Inspector in Police Station, City Kapurthala. He was produced before the Illaqa Magistrate and was remanded to police custody. As per disclosure statement suffered by Dalbir Singh, datar was got recovered from the specified place. Sketch of the datar was prepared and was sealed and the sealed parcel was taken into police possession vide separate memo duly attested by witnesses.
On 8.3.2004, Jarnail Singh was produced before the Investigating Officer. Accused was produced in Court and was remanded to police custody. He was interrogated and on interrogation he suffered disclosure statement and in pursuance of that Jarnail Singh got recovered a barchhi and a sum of Rs.2000/- from the specified place. Recovered articles were taken into police possession vide separate memo duly attested by the witnesses. Jarnail Singh alias Chaudhary was also produced before the Investigating Officer by Harjinder Singh on 4.3.2004. While in police custody, Jarnail Singh alias Chaudhary, as per disclosure statement, got recovered a kirpan and a gold chain from the specified place. Recovered articles were taken into police possession vide separate memo attested by the witnesses.
On 9.3.2004, Joginder Singh and Bakshish Singh were produced before the Station House Officer by Sucha Singh, President of Truck Union. While in police custody, Joginder Singh suffered disclosure statement and as per the Crl. Appeal No. 628-DB of 2005. 11 same, he got recovered a gandasi from the specified place. Recovered weapon was taken into police possession vide separate memo attested by the witnesses.
On 13.3.2004, Bakshish Singh alias Chamkila accused suffered disclosure statement and on that basis he too got recovered a dang from the specified place. Recovered weapon was sealed and the same was taken into police possession vide separate memo attested by the witnesses.
On 24.3.2004, Veer Singh and Bachittar Singh were produced before Satnam Singh Sub Inspector, Malkiat Singh son of Bhan Singh came to Satnam Singh. He had produced Karnail Singh son of Tharu Ram accused before him.
On 26.3.2004, Veer Singh appellant was interrogated and as per his disclosure statement, he got recovered a gandasi from the specified place. Bachittar Singh and Karnail Singh also suffered disclosure statement and on the basis of the same they got recovered gandasi and datar respectively from the specified place. Recovered weapons were taken into police possession vide separate memo attested by witnesses.
After the completion of investigation, eight accused were challaned. Shinder Singh appellant was declared a proclaimed offender.
After hearing learned Public Prosecutor for the State, defence counsel for the accused and perusing documents on the file, learned trial Court opined that a prima Crl. Appeal No. 628-DB of 2005. 12 facie case is made out to frame charge under Sections 148, 302, 302/149, 449, 326, 326/149, 324, 324/149 and 382 of the Indian penal Code. Charge was, accordingly, framed to which they did not plead guilty and claimed trial.
In order to substantiate the charge, prosecution examined as many as 19 witnesses:
PW1 Dr. Gurbachan Singh stated that on 5.3.2004 he was a member of Board of Medical Doctors. Board had conducted post-mortem examination on the dead body of Nirmal Kumar and found the following injuries on his person:-
1.Stitched wound on the right parieto-occipital region, U shaped starting 2 cm above the pinna of right ear. 10 cm long ending in the occipital area.
2. Stitched wound on the left tempo-parietal region starting just above and posterior to outer angle of left eye ending at the upper past of pinna of left ear, ending at the upper past of pinna of left ear, ending 2 cm posterior to it of 10 cm length.
3.Stitched wound in the left parietal region measuring 5cm long, outer end of the wound communicating with the injury No.2.
As per Board of the Doctors, cause of death was head injury, which was sufficient to cause death in ordinary course of nature. Injuries were found to be anti-mortem in Crl. Appeal No. 628-DB of 2005. 13 nature.
PW-2 Dr. Surinder Pal Singh stated that he had madico-legally examined injured Balwinder Singh son of Gurdeep Singh on 25.2.2004 at 7.10 P.M. and found the following injuries on his person:
1.Lacerated wound on right side of the forehead. 3.5 cm x 1 cm x bone deep. 6 cm below alterior hair line. Advised surgical specialist's opinion.
He further stated that on the same date at about 7.30 P.M., he had medico legally examined Gurnam Singh injured and found the following injuries on his person:-
1.Lacerated wound on the left side of the forehead temporal region 2.5 cm x .5. bone deep. 2.4 cm below anterior hair line. Advised surgical specialist's opinion.
2. Diffuse swelling on right lower leg (interior) 6 cm x 2cm, 10 cm below knee joint. Advised surgical specialist's opinion but no external mark of injury.
3. Complaint of pain on right shoulder joint but no external mark of injury. Advised Surgical specialist's opinion.
On 25.2.2004 at 7 P.M., he had also medico legally examined Jarnail Singh injured and found the following Crl. Appeal No. 628-DB of 2005. 14 injuries on his person:-
1.Lacerated wound on right side of the parietal occipital region 6 cm x 1 cm with bone deep. 8 cm away from the upper part of the right pinna. He was advised surgical specialist's opinion. Fresh bleeding was present on touch.
2. Diffuse swelling on below right elbow joint 4 cm x 2 cm in size. Advised surgical specialist's opinion.
PW-3 Dr. Kamaljit Singh stated that on 25.2.2004 as per request of police, Balwinder Singh and Gurnam Singh injured were declared unfit to make statement at abaout 10.20 P.M. PW-4 Dr. Pankaja Trivedi, stated that on 25.2.2004 at about 8.20 P.M. Nirmal Sharma was medico legally examined and he had found the following injuries on his person:-
1.Lacerated wound 5 cm long over left parietal region which compound comminuted fracture left parietal bone with comminuted fracture right parietal bone with left sided large parieto temporal extra-dural haemotoma along with right high parietal extra-dural haemotoma along with left frontal subar-chnoid bleed.Crl. Appeal No. 628-DB of 2005. 15
There were injuries six in number and they were dangerous to life caused with some hard object.
On 25.2.2004 at 8.20 P.M. Kulwant Rai was medico legally examined and found the following injuries on his person:-
1.One lacerated wound over right frontal region around 6 cm long.
2. Lacerated wound around 5 cm long over left parietal region.
3.Compound fracture right 5th metacarpal right hand bone.
PW-5 Kulwant Rai and PW-6 Gurnam Singh are the injured eye witnesses. They have supported the prosecution story by saying that accused party had caused injuries to them and deceased on 25.2.2004 at 5/5.30 P.M. PW-7 Kans Raj is the eye witness. He has also supported the version of Kulwant Rai and Gurnam Singh.
PW-8 Jagat Singh had prepared the scaled site plan Ex.PAA.
PW-9 Constable No. 499 Manjit Singh was present with Station House Officer Satnam Singh and stated that in his presence, Darbara Singh alias Dara had got recovered a datar from the specified place.
PW-10 Constable No. 1328 Manjit Singh had delivered special report to the Illaqa Magistrate.
PW-11 Constable Amrik Singh was deputed Crl. Appeal No. 628-DB of 2005. 16 forgetting the post mortem conducted on the dead body of Nirmal Kumar.
PW-12 Constable Surinder Singh had deposited sealed parcel in the office of Forensic Science Laboratory, Chandigarh.
PW-13 Mohinder Singh Assistant Sub Inspector on receipt of Ruqa Ex.PV, had recorded formal First Information Report Ex.PEE.
PW-14 Sub Inspector/ Station House Officer Suca Singh is the Investigating Officer, who had recorded the statement of the complainant and had recovered weapons from different accused.
PW-15 Head Constable Khajan Singh,PW-16 Constable Mangal Singh and PW-17 Head Constable Lakhbir Singh are the formal witnesses.
PW-18 Constable Gurnam Singh was with the party of Suca Singh SI, when the case in hand was investigated.
PW-19 Sub Inspector Satnam Singh had partly investigated the case after Sub-Inspector Sucha Singh.
After the close of prosecution evidence, statement of the accused were recorded under Section 313 Cr.P.C. wherein they denied all the allegations of the prosecution and pleaded to be innocent.
In defence, Ashwani Kumar was examined who on oath stated that 25.2.2004 at about 6.15 P.M. he was near the gate of old grain market, Kapurthala. Jarnial Singh alias Crl. Appeal No. 628-DB of 2005. 17 Chaudhary came from the side of Janta Truck Union on a scooter. Anil Kumar alias Mang and another stopped him. Jarnail Singh alias Chaudhary was slapped. Anil Kumar alias Mangi had caught hold of Jarnail Singh. Mohan Lal was present there. Mohan Lal exhorted by abusing that Jarnail Singh alias Chaudhary should not be spared. Kulwant Rai gave a gandasi blow on the head of Jarnail Singh. Nirmal Kumar gave a dang to Jarnail Singh while Gurnam Singh gave a gandasi blow to Jarnail Singh. Lalkara was raised then 40 to 50 persons came to the spot. Those persons had grappled with Kulwant Rai, Nirmal Kumar, Gurnam Singh and Mohan Lal and gave kick blows to Jarnail Singh lying on the spot. Jarnail Singh was shifted to Civil Hospital, Kapurthala by him, along with Bachittar Singh and Dalbir Singh.
Shinder Singh was later on arrested.
Supplementary challan was presented. Case was committed to the Court of Sessions. Charge under Sections 302, 326, 324, 449 read with section 149 of the Indian Penal Code was framed to which the accused pleaded not guilty and claimed trial. Number of witnesses were produced by the prosecution.
After the close prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. Accused denied all the allegations of the prosecution and pleaded to be innocent. Two Dws namely Thakur Dass and Gurbachan Singh were produced in defence.
Crl. Appeal No. 628-DB of 2005. 18
After hearing Public Prosecutor for the State and defence counsel, the appellants-accused were convicted and sentenced as stated above, in the earlier part of the judgment.
Defence counsel for the appellants-accused argued that there is a delay in lodging the First Information Report. Occurrence was on 25.2.2006 at about 5.30 P.M. Gurnam Singh, Balwinder Singh, Nirmal Kumar and Kulwant Rai were shifted to Civil Hospital, Kapurthala. Kulwant Rai and Nirmal Kumar were shifted to Jalandhar. Injured were medico legally examined at about 7.10 and 7.30 P.M. Injured remained conscious. Injuries on the persons of Balwinder Singh and Gurnam Singh were found to be simple in nature. Some injuries on the person of complainant were found to be simple in nature. Only injury which was not on the vital part, was found to be grievous. Occurrence was witnessed by Kans Raj, Sonu and Anil Kumar eye witnesses, who had gone to hospital with the injured. Investigating Officer was also in the hospital at 12.30 P.M. during the night time on 25.2.2004, but report was lodged on 27.2.2004 at 5.20 P.M. No explanation why delay. Delay is fatal to the prosecution case. Presence of witnesses at the time of occurrence is unnatural. Kans Raj had gone to hospital at Kapurthala and Jalandhar. He was in Civil Hospital at Kapurthala on 26.2.2004 at 2.30 P.M. Investigating Officer was also present in hospital on 26.2.2004. Family members and other Crl. Appeal No. 628-DB of 2005. 19 employees of Truck Union had also accompanied the injured to the hospital but no report. DW1- Ashwani Kumar was cross- examined. Suggestion was given to witness by the learned Public Prosecutor that there was a free fight. Gensis of the offence was suppressed by the prosecution. Injuries were also noted on the person of Jarnail Singh but the same were not explained. On receipt of first injury, Jarnail Singh fell down. After that, he was not in a position to give injury to any one. Failure to explain injuries on the person of Jarnail Singh shows that story is not natural one. In fact, Jarnail Singh was near old grain market, Kapurathala, when Nirmal Kumar, Gurnam Singh, Balwinder Singh, Mohan Lal and Kulwant Rai came. They had assaulted Jarnail Singh. Number of persons had collected on the spot. They had given injuries to Jarnial Singh. 40/50 persons had collected at the spot on hearing raula and those persons had grappled with Kulwant Rai, Nirmal Kumar, Gurnam Singh and Mohan Lal but trial Court did not appreciate the legal and factual position.
Learned counsel for the State argued that delay was fully explained. Accused fully armed came to the office of complainant party and had caused injuries with their respective weapons. Injured were shifted to different hospitals. Delay itself is not sufficient for acquittal of the accused, particularly, when injuries on the head of the deceased were not self suffered and self inflicted. Crl. Appeal No. 628-DB of 2005. 20 Appellants-accused simply stated that they are innocent. Case was registered against Kulwant Rai and others but they were acquitted of the charge framed against them. Against the judgment dated 22.8.2005, there is no appeal or revision. As per cross version of Jarnail Singh alias Chaudhary, DW1 was not the eye witness. Evidence on the file was minutely scrutinized.
First submission of learned defence counsel was that there is a delay in lodging the First Information Report and delay is fatal, but submission of learned defence counsel for the appellants and revisionist seems to be without any force. Occurrence was on 25.2.2004 at about 5.30 P.M. Kulwant Rai, Gurnam Singh and Nirmal Kumar had received injuries at the hands of the appellants-accused. Injured were shifted to Civil Hospital, Kapurthala. Condition of Nirmal Kumar and Kulwant Rai injured was serious. They were referred to Vasal Hospital, Jalandhar. Dr. Pankaj Trivedi PW- 4 stated that Nirmal Kumar and Kulwant Rai were brought to hospital at about 10.20 P.M., but they were unfit to make statement. Dr. Kamljit Singh PW-3 stated that Balwinder Singh and Gurnam Singh were unfit to make statement on 25.2.2004. At about 10.20 P.M., Head Constable Khajan Singh-PW15 had gone to Vasal Hospital, Jalandhar, but injured were not fit to make statement. So he came back. Sucha Singh Sub Inspector had also gone to Vasal Hospital, but injured were unfit to make statement on 27.2.2004 Crl. Appeal No. 628-DB of 2005. 21 Kulwant Rai was fit to make statement, then his statement was recorded. No doubt, Gurnam Singh, Balwinder Singh were medico-legally examined by Dr. Surinder Pal Singh PW- 2 on 25.2.2004 and they were conscious . Statement of Gurnam Singh and Balwinder Singh could easily be recorded, but occurrence is an admitted fact as per statement of DW-1 Ashwani Kumar. According to defence version, occurrence was near old grain market at about 6.15 P.M. Anil Kumar, Mohan Lal, Kulwant Rai, Nirmal Kumar and Gurnam singh were fully armed. They stopped Jarnail Singh alias Chaudhary and slapped him. On hearing raula, 40/50 persons had collected at the spot and those persons had grappled . Injuries were caused to Jarnail Singh alias Chaudhary. Jarnail Singh alias Chaudhary was also examined by Dr. Surinder Pal Singh PW-2 at 7 P.M. So, delay is not fatal. Cross case was registered against the complainant party, but in that case, complainant party was acquitted. In case, there is a delay, then delay itself is not sufficient for acquittal of the accused. Delay is one of the suspicious circumstance to scrutinise the evidence with great care and caution.
Next submission of the learned derfence counsel was that presence of the injured eye witness is doubtful. Injuries on the person of Jarnail Singh alias Chaudhary were not explained, but submission of learned defence counsel carries little weight. Jarnail Singh alias Chaudhary was examined at 7 P.M. on 25.2.2004. Two injuries were noted. Crl. Appeal No. 628-DB of 2005. 22 One was declared grievous, but the injury was not on the vital part. As discussed earlier, Kulwant Rai, Nirmal Kumar (deceased), Gurnam Singh injured, Mohan Lal and Anil Kumar were present at the time of occurrence. But only two injuries were noted on the person of Jarnail Singh alias Chaudhary. Four injured were from the side of the complainant party and only one appellant-accused from the side of opposite side i.e. Jarnail Singh alias Chaudhary. Complainant party had no dispute with the villagers. In case, there was a raula, 40/50 persons had assembled on the spot, then why they had grappled with the complainant party. Injuries on the person of Kulwant Rai, Nirmal Kumar, Gurnam Singh and Balwinder Singh were not possible at the hands of Jarnail Singh alias Chaudhary. No case of the appellants-accused that villagers were from the party of Jarnail Singh alias Chaudhary and to save Jarnail Singh alias Chaudhary, Villagers had caused injuries to Kulwant Rai, Nirmal Kumar, Gurnam Singh, Balwinder Singh. DW1 Ashwani Kumar stated that Kulwant Rai was armed with a lathi, Nirmal Kumar was armed with dang, Gurnam Singh was armed with gandasi. Lalkara was raised by Mohan Lal and Anil Kumar and others had stopped Jarnail Singh alias Chaudhary near old grain market, but only two injuries were noted on the persons of Jarnial Singh. Prosecution was not required to explain injuries on the person of Jarnail Singh, when the occurrence was not as stated by Ashwani Crl. Appeal No. 628-DB of 2005. 23 Kumar DW1. No independent witness came forward to state that when Jarnail Singh alias Chaudhary was stopped by the complainant party, then public had grappled with the complainant party. Injuries were caused to Nirmal Kumar, Kulwant Rai and Gurnam Singh. One injury was noted on the person of Balwinder Singh, but Ashwani Kumar specifically stated that Balwinder Singh was also present with Kulwant Rai and others. Balwinder Singh was not produced by the prosecution and if he did not suffer injury, as alleged by the prosecution, then he could be produced in defence. So, presence of injured eye witnesses was natural. If injuries on the person of Jarnail Singh alias Chaudhary were not explained then story is not to be ignored.
Next submission of the learned defence counsel was that there was a free fight as per suggestion to Ashwani Kumar DW1 by Public Prosecutor. Appellants-accused had no intention to murder so all the appellants were liable independently by their own acts.
We agree that suggestion was put to Ashwani Kumar DW-1 by Public Prosecutor that there was a free fight, but suggestion was given against the prosecution story. Sometime, without going through the file, suggestions are given by the defence counsel or by the Public Prosecutor. No suggestion to the injured eye witnesses that there was a free fight, so one line in cross examination of DW1 is not sufficient to opine that there was a free fight. Defence Crl. Appeal No. 628-DB of 2005. 24 counsel further argued that occurrence was also witnessed by Balwinder Singh and Mangi alias Anil Kumar and they were not examined.Story is not genuine,but with the non- appearance of Balwinder Singh and Anil Kumar PWs, story of prosecution is not to be ignored. There were four injured. One of the injured namely,Nirmal Kumar had succumbed to his injuries while lying admitted in Vasal Hospital, Jalandhar. Out of remaining three injured, two appeared i.e.Kulwant Rai and Gurnam Singh. Kans Raj also appeared as PW7.When there are number of injured and eye witnesses, then all are not to be examined by the prosecution. Quality of evidence is to be seen, not quantity of evidence.In case, the Court is not to believe Kulwant Rai and Gurnam Singh injured, then prosecution story is not to be upheld in view of the statement of Balwinder Singh and Anil Kumar alias Mangi, particularly, when defence version of the appellants-accused was that they were innocent and not a word was stated by Jarnail Singh alias Chaudhary appellant-accused that he was near old grain market at 6.15 P.M. Complainant party came and he was stopped and slapped.On hearing raula, 40/50 persons came to the spot and they had grappled and had caused injuries. No suggestion to the witnesses that Jarnail Singh alias Chaudhary was near grain market at 6.15 P.M., then complainant party had stopped and slapped him. On hearing lalkara, 40/50 persons had collected at the spot and they had grappled and had caused injuries. That means defence Crl. Appeal No. 628-DB of 2005. 25 version is an after thought.
Lastly, defence counsel argued that Jarnail Singh alias Chaudhary was armed with kirpan. He had given blows to the deceased. Veer Singh alias Gela who was armed with gandasi, gave blow to the deceased. They had not caused injuries to other persons. Dalbir Singh was armed with datar and gave only one injury to Balwinder Singh. Balwinder Singh was not examined. Other accused namely, Bakshish Singh, Bachittar Singh, Jarnail Singh son of Thoru Ram and Shinder Singh had caused injuries to Kulwant Rai. Injuries were found to be simple in nature. Most of the injuries were from the reverse side of the weapons. In case, they had the intention to murder, then they could easily cause injuries to Nirmal Kumar deceased. They had no common intention to murder. All the accused are liable independently for their own acts. Submission by the learned defence counsel seems to be reasonable one. Jarnail Singh alias Chaudhary was armed with kirpan. He had also raised lalkara. Two blows were given to Nirmal Kumar( deceased). Veer Singh was also armed with gandasi. He gave blow on the head of the deceased. Dalbir Singh was armed with datar and gave blow to Balwinder Singh. Balwinder Singh was not examined as PW. Jarnail Singh armed with a barchi gave blow on the back side of the right arm of Kulwant Rai and injury was found to be grievous. Joginder Singh as per First Information Report had not given blow to any one, but in Crl. Appeal No. 628-DB of 2005. 26 Court evidence given that he gave blows to Gurnam Singh but both the injuries were found to be simple in nature. Bakshish Singh was armed with dang and gave blow on the right shoulder of Kulwant Rai. Injury was not found to be grievous in nature. Bachitter Singh armed with gandasi gave blow from reverse side to Kulwant Rai but the injury was found to be simple in nature. Karnail Singh armed with datar gave blow to Kulwant Rai. Shinder armed with iron rod gave blow to Gurnam Singh but the injury was found to be simple in nature. Weapon was not recovered. Three injuries were noted on the person of deceased. Two were caused by Jarnail Singh alias Chaudhary and one by Veer Singh. Six injuries were noted on the person of Kulwant Rai. One injury was noted on the person of Joginder Singh and three injuries were noted on the person of Gurnam Singh, but injuries were found to be simple in nature. If except Jarnail Singh alias Chaudhary and Veer Singh, other accused had the intention to murder, then they should have caused injuries from the right side of the weapon and not from the reverse side of the weapon. Secondly, they were also expected to have caused injuries to the deceased. In Court, Kulwant Rai did not state a word that Jarnail Singh son of Thoru Ram and Joginder Singh had also caused injuries to any one. When there was no intention to commit the crime then we are of the opinion that Jarnail Singh alias Chaudhary and veer Singh alias Gela are liable for punishment under Section 302 of the Indian Crl. Appeal No. 628-DB of 2005. 27 Penal Code. Other appellants-accused are not liable to undergo imprisonment for the offence punishable under Sections 302/149 I.P.C. Except Jarnail Singh alias Chaudhary and Veer Singh other appellants-accused are liable under Sections 148, 449, 326, 324 and 382 of the Indian Penal Code.
In view of all discussed above, impugned judgment/ order dated 22.8.2005 is modified. Appeal by Jarnail Singh alias Chaudhary and Veer Singh alias Gela is dismissed. Appeal filed by remaining accused namely Dalbir Singh, Jarnail Singh son of Thoru Ram, Joginder Singh, Bakshish Singh alias Chamkila, Bachittar Singh Shinda and Karnail Singh is partly accepted. They are acquitted under Section 302/149 of the Indian Penal Code but are directed to undergo imprisonment as already undergone for the offences punishable under Sections 148, 449, 326, 324 and 382 of the Indian Penal Code. Appellants-accused are further directed to pay Rs.20,000/- each as fine. Rs.20,000/- recovered from each of the appellants-accused is to be paid as compensation to the widow of Nirmal Kumar deceased.
Criminal Appeals No. 628-DB of 2005 and 184-DB of 2006 and Criminal Revision No. 1286 of 2006 are hereby dismissed with some modification as above noted.
( JORA SINGH )
JUDGE
20.01.2009
Anoop ( JASBIR SINGH )
JUDGE
Crl. Appeal No. 628-DB of 2005. 28