Punjab-Haryana High Court
Cra No. 1176 Db Of 2010 (O&M) vs State Of Punjab on 17 December, 2012
Author: Rekha Mittal
Bench: Rajive Bhalla, Rekha Mittal
CRA No. 1176 DB of 2010and connected appeal 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
-.-
Date of decision: 17.12.2012
1. CRA No. 1176 DB of 2010 (O&M)
Gurwinder Singh alias Sonu ....Appellant
Versus
State of Punjab ....Respondent
2. CRA No. 1222 DB of 2010 (O&M)
Satnam Singh ....Appellant
Versus
State of Punjab ....Respondent
Coram: Hon'ble Mr. Justice Rajive Bhalla
Hon'ble Mrs. Justice Rekha Mittal
-.-
Present: Mr. Sanjeev Manrai, Advocate for
Mr. Sanjeev Gupta, Advocate
for the appellants
Mr. Ashwani Talwar, Additional, A G, Punjab
for the respondent state
-.-
1. Whether Reporters of local papers may be
allowed to see the judgment?
2. To be referred to the Reporter or not?
3. Whether the judgment should be reported in
the Digest?
Rekha Mittal, J.
By way of this judgment, we shall dispose of two criminal appeals i.e. CRA No. 1176 DB of 2010 and CRA No. 1222 DB of 2010, as they have arisen out of the same judgment of conviction/order of sentence passed by the trial Court. However, for facility of reference, the facts are being taken from CRA No. 1176 DB of 2010.
The appellants lay challenge to the judgment of conviction and CRA No. 1176 DB of 2010and connected appeal 2 order of sentence dated 17.09.2010, passed by the Sessions Judge, Jalandhar (in short 'the trial Court') in sessions' case No. 16 of 2008 relating to FIR No. 178 dated 07.11.2007, registered at Police Station Kartarpur, Jalandhar under Sections 302/34 Indian Penal Code (in short 'IPC'), whereby the appellants, namely, Gurwinder Singh alias Sonu son of Satnam Singh and his father Stanam Singh son of Nazar Singh, resident of village Rahim Pur, District Jalandhar have been convicted and sentenced as detailed hereinbelow:-
Sr. Name of the For Sentence awarded In default of
No. accused/con offence payment of fine
vict under
Section
1 Gurwinder 302 IPC To undergo life To further
Singh imprisonment and undergo RI for
also to pay fine of one year
Rs.10,000/-
2 Satnam 302/34 To undergo life To further
Singh IPC imprisonment and undergo RI for
also to pay fine of one year
Rs.10,000/-
The case, in hand, pertains to the murder of one Harbhajan Singh, father of the complainant Sukhwinder Singh. The occurrence, in question, took place on 02.11.2007 at about 4.00 pm in village Rahimpur, Tehsil Kartarpur, District Jalandhar in the area of Police Station Kartarpur. The complainant-Sukhwinder Singh narrated an eye witness account of the occurrence which led to registration of formal FIR, Ex.PF/2 on 07.11.2007, for an offence punishable under section 307 IPC. The offence under Section 302 IPC was added later as injured Harbhajan Singh died on 01.12.2007. The accused Gurwinder Singh surrendered before the Court on 10.11.2007 and was formally arrested on 12.11.2007. During interrogation, he suffered a disclosure statement on 13.11.2007, which led to recovery of a CRA No. 1176 DB of 2010and connected appeal 3 kulhari, the incriminating weapon of offence, whereas, accused Satnam Singh was arrested on 03.12.2007.
As Harbhajan Singh died on 01.12.2007, inquest proceedings were conducted, dead body was sent for post mortem examination and the wearing apparel of the deceased were taken into police possession. On completion of investigation, report under Section 173 Cr.P.C. was submitted in the Court of Illaqa Magistrate, for commencement of the trial.
The case was committed to the Court of Sessions, after necessary compliance of the provisions of Section 207 Cr.P.C. Both accused were charge sheeted for commission of offence punishable under Section 302 read with Section 34 IPC, to which, they did not plead guilty and claimed trial.
To substantiate the charge, the prosecution examined as many as nine witnesses, namely, Dr. M.B. Bali, Medical Officer, Civil Hospital, Jalandhar (PW1), Dr. Neelam Joshi, Medical Superintendent, Joshi Hospital, Jalandhar (PW2), Balkar Singh HC (PW3), Dr. Sudhir Sood, Neuro Surgeon, Joshi Hospital (PW4), Sukhjit Singh, ASI (PW5), Sukhwinder Singh, complainant and author of the FIR (PW6), Sandeep Singh (PW7), Dr. Ashish Kalra, Radiologist KAP Scan and Diagnostic Centre Jalandhar (PW8) and Tarlochan Singh MHC (PW9).
After evidence of the prosecution was closed, both the accused were separately examined in terms of Section 313 Cr.P.C. They denied all the incriminating circumstances appearing in the evidence against them and pleaded their innocence and false implication. They examined Dr. Mohinder Jit Singh, Medical officer, CHC, Kartarpur (DW1) and Kuldeep Kaur, mother of accused Gurwinder Singh and wife of accused Satnam Singh as CRA No. 1176 DB of 2010and connected appeal 4 DW's, in defence.
The trial court, after appraisal of the evidence adduced by the prosecution and the accused, held in favour of the prosecution and convicted both the accused for committing the murder of Harbhajan Singh in furtherance of their common intention.
Counsel for the appellants submits that the prosecution case primarily, depends upon the version brought forth by the complainant- Sukhwinder Singh, alleged to be an eye witness of the occurrence. It is argued that the complainant-Sukhwinder Singh was not present at the spot and has been introduced as a witness later on to indict the accused in the crime. According to counsel, admittedly, there is a land dispute between parties i.e. Harbhajan Singh and accused Satnam Singh, who are real brothers. It is contended that father of Harbhajan Singh etc. had purchased land by using funds earned by Satnam Singh in a foreign country and Harbhajan Singh and his family had been asking for a share out of the said land as a part of the land was purchased in the name of Harbhajan Singh etc. It is further contended that the accused refused to part with their land in favour of Harbhajan Singh and his family. On the day of occurrence, i.e 02.11.2007, at about 4.00 pm, Harbhajan Singh under influence of alcohol along with his son Kamalpreet Singh, Ranjit Singh, Surinder Kaur and some unidentified persons armed with weapons came to the place of occurrence and caused injuries to Satnam Singh and Gurwinder Singh. Harbhajan Singh received injury at the hands of Mithu, an agricultural servant of the accused, with an iron rod snatched by Mithu from Ranjit Singh, in exercise of right of private defence of the accused.
Counsel for the appellants has raised another submission that CRA No. 1176 DB of 2010and connected appeal 5 version of complainant-Sukhwinder Singh in respect of injury to Harbhajan Singh with a kulhari is inconsistent with the medical evidence as the injury on the person of Harbhajan Singh has been stated to be a lacerated wound by Dr. Mohinderjit Singh (DW1) and Dr. M. B. Bali (PW1), who has also admitted that possibility of the injury having been suffered as the result of a blunt weapon, cannot be ruled out. It is argued with vehemence that as this contradiction in the case of prosecution has not been explained much less satisfactorily, the benefit thereof is liable to be extended to the accused.
Another plea urged by the appellants is that there is a delay of five days in lodging the FIR. Further dilating, it is submitted that Sukhwinder Singh did not inform the police for five days as he knew that the complainant party is the aggressor and had caused injuries to the accused. It is next submitted that it was only after due deliberation that this false case has been registered against the accused as a measure of vengeance due to the land dispute between real brothers.
Counsel for the State, on the other hand, places implicit reliance upon the reasoning and conclusions drawn by the trial Court. It is submitted that no fault can be found with the judgment of the trial Court which is based upon a correct and thorough appreciation of the evidence led on record by examining it in the light of the settled principles of criminal jurisprudence. To refute the contentions of counsel for the appellants, it is argued that the appellants have failed to raise a categoric plea of self defence and have failed to adduce any evidence to substantiate their plea.
We have heard counsel for the parties, perused the records and the judgment of the trial Court.
From a perusal of the evidence, adduced by the prosecution as CRA No. 1176 DB of 2010and connected appeal 6 well as the plea raised by the accused, it becomes apparent that there is hardly any dispute with regard to the date, time and place of occurrence. It is also admitted that Harbhajan Singh sustained a head injury during the occrrence, though, there is a dispute with respect of the weapon used for causing that injury and the person who dealt the blow which actually proved fatal to Harbhajan Singh Before we proceed to address rival submissions, it is necessary to briefly deal with the evidence of material witnesses of the case, namely, Dr. M B Bali (PW1), Dr. Neelam Joshi (PW2), Dr. Sudhir Sood (PW4), Sukhjit Singh ASI (PW5), Sukhwinder Singh, complainant and author of FIR (PW6) and Sandeep Singh (PW7).
Dr. M B Bali (PW1) conducted post mortem examination on the dead body of Harbhajan Singh on 02.12.2007 and found the following injury:-
"Old stitched wound 8 cms in length on the right parietal region of the skull.
On dissection: Multiple fractures right front temporal and temporo parietal region infarct in the right fronto temporo parietal region of the brain. Heamorrhagic contusions in bilateral temporal region and right parietal region.
As per his opinion, death was due to neurogenic shock caused by the head injury which is sufficient to cause death in the ordinary course of nature. He has proved the post mortem report Ex.PA.
Dr. Neelam Joshi (PW2) has deposed that Harbhajan Singh was admitted in Joshi Hospital, Jalandhar on 02.11.2007. She declared him unfit to make a statement, vide endorsement Ex. PB on an application submitted by ASI Sukhjit Singh. She also gave an opinion, vide her report Ex.PC that injury on the person of Harbhajan Singh was dangerous to life.CRA No. 1176 DB of 2010and connected appeal 7
Dr. Sudhir Sood, Neuro Surgeon, Joshi Hospital, Jalandhar (PW4) has proved the injury statement in respect of Harbhajan Singh, prepared by him. He found the following injuries on the person of Harbhajan Singh:-
1. An incised wound 5 x 2 cm on the right fronto parietal scalp area.
2. Multiple skull fractures under the incised wounds.
3. Right black eye.
4. Abrasion on the left forearm.
He has further deposed that the patient was admitted in the Hospital on 02.11.2007 and was operated by him but died on 01.12.2007. He has stated that he has seen the kulhari (Axe) with a wooden handle in the Court and injuries to the person of the patient could have been the result of this Axe, had the blow been given with reasonable force.
The complainant-Sukhwinder Singh, star witness of the prosecution, has narrated the entire occurrence in detail. A material part of his testimony reads as follows:-
"My father is an agriculturist. He has four brothers and he is eldest one. Satnam Singh is the younger brother and is residing in this village separately from my father. My other two parental uncles, Avtar Singh and Surjit Singh, are residing abroad. Land of their share is being cultivated by my parental uncle Satnam Singh. They wanted that their land be cultivated by my father Harbhajan Singh. They used to be disclosed that the land was joint. Efforts were made through Panchayat but those disputes were never settled. Some day before the occurrence, Satnam Singh's dog was lost. He had been accusing my father that he was instrumental in the loss of that dog. On 02.11.2007 at about 4.00 pm, a gathering was collected at our lands. I myself, my father, Satnam Singh and CRA No. 1176 DB of 2010and connected appeal 8 his son Gurwinder Singh alias Sonu, Sandeep Singh son of Gurdip Singh, Makhan Singh son of Sardar Singh were also present in that gathering. Talks were going on when Satnam Singh started quarreling orally with Harbhajan Singh. Satnam Singh raised lalkara that Harbhajan Singh be caught hold and taught a lesson for partition of the land. In the meanwhile, Gurwinder Singh brought a kulhari from the room built on the well. Satnam Singh caught hold my father by his arms from back side and Gurwinder Singh gave blow from the sharp side of kulhari on the head of my father with an intention to kill him. We raised alarm 'mar ditta mar ditta'. The people who were working in the adjoining fields started collecting at the spot. Seeing that persons were collecting, both the accused Satnam Singh and Gurwinder Singh ran away from the spot alongwith kulhari.
I took my father to the Civil Hospital, kartarpur on account of serious condition. I removed him to Joshi Hospital, Jalandhar after obtaining first aid from the said Hospital. I admitted my father in Joshi Hospital, Jalandhar. He remained under treatment in the Hospital and our talks have been going on with the accused. Talks were regarding compromise, so the police was not informed. Talks of compromise failed. Police met me on 07.11.2007. My statement, Ex. PF got recorded by the Police."
Sandeep Singh (PW7) is another eye witness to the occurrence. He has corroborated the version set up by Sukhwinder Singh (PW6), in its material particulars.
Satnam Singh has raised a plea in defence that prior to the occurrence, he (Satnam Singh) had gone to Libya and sent huge amount of money to his father Nazar Singh and with that money his father had purchased 9 acres of land in village Faridpur, out of which, 5 ½ acres was CRA No. 1176 DB of 2010and connected appeal 9 registered in his name and 9 kanals each in the names of his other brothers. When he came back from Libya, he demanded his land from his brothers, but they refused to give his land. His father gave him 2 ½ acres of land. On account of this reason, his brother started nursing a grudge against him. On 02.11.2007 at about 4.00 p.m., when he was present at his tubewell, Harbhajan Singh came in drunken condition, armed with a kirpan along with Kamalpreet Singh, armed with a kirpan, Surinder Kaur and Ranjit Singh, armed with saria and some unidentified persons attacked him and his son and gave head injuries to them with a kirpan. His wife raised alarm. Mithu, his servant, who was working nearby, snatched a saria and gave a saria blow to Harbhajan Singh (deceased) to save their lives in the exercise of their right to self defence. They gave beatings to our servant. They were medically examined in Civil Hospital, Kartarpur.
A perusal of the defence plea raised by the accused makes it apparent that the accused have admitted the occurrence in question, but have come up with a cross version accusing the complainant party of being aggressors and alleging that the injury to Harbhajan Singh was caused by their servant in the exercise of their right to self defence of person.
Admittedly, Harbhajan Singh (since deceased) and accused Satnam Singh are real brothers. Sukhwinder Singh (PW6) has satisfactorily explained as to why the report was not lodged with the police uptill 07.11.2007. Dr. Mohinderjit Singh, Medical Officer, CHC Kartarpur (DW1) has stated that medico legal examination of Harbhajan Singh was not done on the written request of his son Sukhwinder Singh. Dr. Mohinderjit Singh (DW1) also examined accused Satnam Singh and CRA No. 1176 DB of 2010and connected appeal 10 Gurwinder Singh (wrongly mentioned as Dalvinder Singh) on the same day i.e. 02.11.2007, and Satnam Singh and Gurwinder Singh also did not get their medico legal examination done. The fact that both parties did not ask for medico legal report in respect of their injuries, implicitly proves that parties intended to settle the matter by way of compromise, being close relatives. In this view of matter, the delay in lodging the FIR is of no avail to give benefit to the accused.
The accused have raised a plea that the complainant party, consisting of Harbhajan Singh and his associates, armed with weapons, attacked the accused and caused injuries to them. As per the statement of Dr. Mohinderjit Singh (DW1), two incised wounds, one on the frontal region and other on the left frontal region were found on the person of Satnam Singh. On the person of Gurwinder Singh, he found three injuries, i.e. an incised wound on the right temporal parietal region, abrasion on the right side of frontal region and lacerated wound on the forearm. He also examined Mithu son of Sadir, who is stated to be servant of accused Satnam Singh, but did not find any visible injury on his person. The accused did not lodge any first information report with the police, complaining against the conduct of Harbhajan Singh and his companions, as raised in their defence. The accused filed a private complaint after about six months of the occurrence (to be precise on 29.04.2008). Counsel for the appellants has admitted that the criminal proceedings initiated by the accused have been dismissed by the Court and no proceedings in respect thereof are pending in any court. Sukhwinder Singh (PW6) has explained as to how Satnam Singh and Gurwinder Singh sustained injuries. He has stated that he caused one injury each to Satnam Singh and Gurwinder Singh when they had given CRA No. 1176 DB of 2010and connected appeal 11 injury to his father Harbhajan Singh. He has further deposed that injuries were caused by him with Banguri (an instrument meant for cutting the branches of tree and leaves of sugarcane). There is no challenge to the statement of Sukhwinder Singh (PW6) that he caused injury to Satnam Singh and Gurwinder Singh. Keeping in view the nature of injuries sustained by the accused alongwith the fact that criminal proceedings initiated by them have been dismissed after examination and scrutiny by a Court of law, the version of the accused that the complainant party is the aggressor or Harbhajan Singh was caused injury by Mithu, in exercise of right of self defence stands demoilshed. The delayed version raised by the accused, in our considered opinion, is the result of due deliberation in order to counter the case of the prosecution. Mithu has not been examined as a witness in defence, therefore, we find it difficult to agree with the contention of the appellants that Harbhajan Singh accompanied by his associates attacked the accused and caused injuries to them. Sukhwinder Singh (PW6) has explained as to why Harbhajan Singh was smelling of alcohol when he was examined by Dr. Mohinderjit Singh (DW1). He has stated that as Harbhajan Singh was suffering from severe pain due to head injury, he gave some liquor to Harbhajan Singh so that he whould be relieved of his pain. The version of Sukhwinder Singh (PW6) has negated the plea of the accused that Harbhajan Singh came to the spot in a drunken condition to attack the accused.
The complainant Sukhwinder Singh (PW6) was the person, who was present with his father in Civil Hospital, Kartarpur. The occurrence, in question took place at 4.00 p.m. Harbhajan Singh was shifted at once to the Hospital and was examined by Dr. Mohinderjit Singh CRA No. 1176 DB of 2010and connected appeal 12 (DW1) at about 4.40 p.m. Dr. Mohinderjit Singh (DW1) has stated that no medico legal examination was done due to the written request of Sukhwinder Singh son of Harbhajan Singh. Had Sukhwinder Singh not been present at the spot, there was hardly any possibility of his being available with his father just within 40 minutes of the occurrence. Further more, had another son of Harbhajan Singh, namely, Kamalpreet Singh been present at the spot, as stated by the accused, he (Kamalpreet Singh) would have carried his father to the Hospital. There is no mention of the presence of Kamalpreet Singh as per the medical record of Civil Hospital, Kartarpur, which casts a doubt as to the version of the accused. Sukhwinder Singh (PW6) was cross examined at length by the defence counsel. Nothing tangible, material and useful could be elicited to create suspicion in respect of his presence at the spot or the manner of occurrence in question. His testimony finds corroboration from Sandeep Singh (PW7). Sukhwinder Singh (PW6) and Sandeep Singh (PW7) are quite firm and consistent in their testimonies with respect to the date, time and manner of the occurrence. The accused have failed to substantiate their plea in respect of presence of Kamalpreet Singh, Surinder Kaur and Ranjit Singh at the spot as no defence evidence in this regard is available on record.
As regards the plea of contradiction in ocular version and medical evidence in respect of the injury to Harbhajan Singh. The settled position of law is that, if there is any inconsistency/contradiction in the medical evidence and eye witness account, it is the eye witness account which should get primacy over opinion evidence. The statement of Sukhwinder Singh (PW6) is worthy of credence and reliance. Dr. Mohinderjit Singh (DW1) has described the wound, on the right temporal CRA No. 1176 DB of 2010and connected appeal 13 parietal region of Harbhajan Singh as a lacerated wound. However, Dr. Sudhir Sood (PW4) has described it as incised wound resulting in multiple skull fractures. The weapon of offence was shown to Dr. Sudhir Sood who deposed that injury on the person of the victim could have been the result of a blow of the Axe (kulhari) which was got recovered by the accused. Dr. Sudhir Sood has specifically opined that the Axe shown to him in court could have caused this injury if the blow is given with reasonable force. In this view of the matter, there is no merit in the contention of the accused that either there is any contradiction in the case of the prosecution or that the said contradiction can be used to the benefit of the accused.
Counsel for the appellants submits in the alternative that as no injury has been attributed to Satnam Singh, he may be acquitted giving him benefit of doubt and conviction of other accused Gurwinder Singh deserves to be converted into an offence of culpable homicide not amounting to murder. To bring home his contention, counsel has argued that accused Satnam Singh has only been attributed lalkara and holding the victim from his arms which is even otherwise false. Satnam Singh is a senior citizen being more than 60 years of age. With regard to accused Gurwinder Singh, it is submitted that only one blow was attributed to him, with a weapon which he allegedly picked up from the spot. According to counsel, these facts are sufficient to hold that accused Gurwinder Singh had no intention to kill Harbhajan Singh and even otherwise, Harbhajan Singh remained alive for almost one month after sustaining the head injury. In support of his contention, he has placed reliance upon 'Daya Shankar v. State of M.P.' 2009 (11)SCC 492, 'Gurmukh Singh v. State of Haryana' 2009(15)SCC 635, 'Javed Alam v. State of Chhattisgarh and another' 2009(3) AICLR CRA No. 1176 DB of 2010and connected appeal 14 333, 'Buddu Khan v. State of Uttarakhan' 2009(12) SCC 260 and 'Ranjitham vs. Basavaraj and others' 2012 (1) R.C.R. (Criminal) 117 (SC).
We have already mentioned that the accused have failed to bring home their plea that the complainant party is the aggressor or injury to Harbhajan Singh was caused by Mithu, a servant of the accused party, in the exercise of right of self defence of the accused. Satnam Singh raised a lalkara and exhorted his son Gurwinder Singh to teach a lesson to Harbhajan Singh for asking for his share of the land. Immediately thereafter, Gurwinder Singh picked up a kulhari, lying in the kotha of the tubewell and gave a kulhari blow from its sharp side on the head of Harbhajan Singh (deceased). Sukhwinder Singh (PW6) has categorically stated that Satnam Singh caught the arms of Harbhajan Singh while standing behind him (Harbhajan Singh) and Gurwinder Singh dealt a kulhari blow on the head of the victim with an intention to kill him. No two criminal cases can have identical facts as observations made in a particular case either against or in favour of an accused would to a large extent depend upon the facts of that case. Counsel for the appellants has relied upon certain judgments of the Hon'ble Supreme Court but all these cases were decided by the Court keeping in view the peculiar facts and circumstances of each case. Counsel for the appellants has failed to draw up such a decree of similarity on the facts involved, to enable us to rely upon these cases. In this view of the matter, the appellants cannot seek any aid from what has been held in these cases cited before us. Keeping in view the role attributed to accused Satnam Singh, he cannot escape from his liability under Section 34 IPC. Gurwinder Singh dealt kulhari blow from its sharp side on the head of Harbhajan Singh. Dr. Sudhir Sood (PW4) has stated that the injury CRA No. 1176 DB of 2010and connected appeal 15 on the person of Harbhajan Singh could have been the result of the Axe, shown to him in the Court, had the blow been given with a reasonable force. The opinion of the doctor, corroborates the version of Sukhwinder Singh (PW6) that the injury was given with kulhari which was recovered from accused Gurwinder Singh, who dealt kulhari blow with a reasonable force on the vital part of Harbhajan Singh, which indicates his intention to kill Harbhajan Singh. The mere fact that Harbhajan Singh remained alive for a period of about one month after sustaining injury is not sufficient to hold in favour of accused Gurwinder Singh that he is not guilty of offence under Section 302 IPC i.e. culpable homicide amounting to murder.
Counsel for the appellants has failed to convince this Court that the judgment of the trial Court suffers from any error, infirmity much less illegality as would call for interference.
In view of what has been discussed hereinabove, finding no merit in these appeals, the same are dismissed. The judgment of conviction and order of sentence passed by the trial Court are affirmed. The appellants, if on bail, be taken into custody to undergo the remaining sentence awarded to them. Trial Court record be sent back, forthwith.
(Rekha Mittal) Judge (Rajive Bhalla) Judge 17.12.2012 mohan