Punjab-Haryana High Court
Kashmir Singh And Others vs Punjab State on 8 February, 2011
Author: Satish Kumar Mittal
Bench: Satish Kumar Mittal
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl.Appeal No.592-DB of 2003
DATE OF DECISION: February 08, 2011
Kashmir Singh and others
.....Appellants
versus
Punjab State
......Respondent
CORAM:- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL
HON'BLE MR. JUSTICE M. JEYAPAUL
Present: Mr.APS Randhawa, Advocate for the appellants.
Mr.H.S.Brar, Addl.A.G., Punjab.
..
M.Jeyapaul, J.
Aggrieved by the conviction recorded and sentence imposed by the Sessions Court, Amritsar, first accused Kashmir Singh, second accused Palwinder Singh and fourth accused Bachittar Singh alongwith the third accused Manjit Singh, who was sentenced by the Juvenile Justice Board on finding him guilty by the Sessions Court, Amritsar, have preferred the present appeal. The details of conviction recorded and sentence imposed on the accused are as follows:
Sr.No Name of Conviction Sentence
the
accused
1 Kashmir 302/34 of To undergo imprisonment for life
Singh, the Indian and to pay a fine of ` 1,000/- each,
Palwinder Penal Code in default of payment of fine to
Singh, further undergo rigorous
Bachittar imprisonment for six months.
Singh
2. Kashmir 324/34 of To undergo rigorous imprisonment Singh and the Indian for a period of one and half years.
Bachittar Penal Code
Singh
3 Palwinder 324 of the To undergo rigorous imprisonment
Singh Indian for a period of two years.
Penal Code
The third accused Manjit Singh, who was a minor, was found guilty for the offences under Sections 302/324/34 of the Indian Penal Code. he was thereafter directed to be produced before the Juvenile Justice Board for passing order of sentence. The third accused Manjit Singh was ordered to be sent to the Juvenile Home for six months to perform community service for eight hours per day. It was further ordered that after completing the said period, he was be set at liberty.
2. Case, in brief, of the prosecution:
a) PW12 Maan Singh, is the father of the deceased Balraj Bir Singh. PW13 Gurdev Singh is the brother of PW12 Maan Singh. There was a land dispute between the family of PW12 Maan Singh and the accused. Balraj Bir Singh was serving in the Army.
He had come down to his village Alkere on leave for 15 days. PW12 Maan Singh was in search of his son Balraj Bir Singh in the morning, on 27.3.2000. He was later on informed that his son had been to the jungle for cutting wood for using the same in Gurdwara.
b) Balraj Bir Singh met his father PW12 Maan Singh Crl.Appeal No.592-DB of 2003 -3- near the house of PW13 Gurdev Singh and informed him that he had to go back to resume his duty in the Army.
c) At about 10.30 a.m. on the said day, when Balraj Bir Singh was proceeding to his house, all the four accused came from their house and started chasing Balraj Bir Singh. The first accused Kashmir Singh was armed with an axe, the second accused Palwinder Singh was armed with Kirpan, the third accused Manjit Singh was armed with dagger and the fourth accused Bachittar Singh was empty handed
d) The fourth accused Bachittar Singh exhorted the other co-accused that Balraj Bir Singh be taught a lesson. So saying, the fourth accused caught hold of Balraj Bir Singh by his long hair and threw him on the ground. When Balraj Bir Singh was in the process of getting up from the ground, the first accused Kashmir Singh gave him axe blow on his head. The second accused Palwinder Singh gave a kirpan blow on the right wrist of Balraj Bir Singh. The third accused Manjit Singh delivered three dagger blows to Balraj Bir Singh on the back side of his left shoulder, right side back of his shoulder and on his right arm. PW12 Maan Singh made an attempt to intervene with a view to save Balraj Bir Singh. The second accused Palwinder Singh gave him two Kirpan blows which hit him on his left wrist and on the left temple. When PW12 Maan Singh tried to caught hold of the third accused Manjit Singh, he gave him a dagger blow which hit him on the thumb of right hand. He raised hue and cry. Upon which, Gurdev Singh, PW13 and Balwinder Singh were attracted to the place of occurrence. The Crl.Appeal No.592-DB of 2003 -4- injured Balraj Bir Singh was taken to Hospital by PW12 and PW13. PW2 Dr.Navdeep Singh, Medical Officer attached to the Civil Hospital, Kathunangal having examined Balraj Bir Singh at about 10.40 a.m. on 27.3.2000 declared him as dead.
e) PW12 Maan Singh gave a statement, Ex.PR, to PW15 Sub Inspector Sandeep Kumar. A formal First Information
Report Ex.PR/3 was recorded by ASI Angrej Singh. Thereafter, PW15, Sandeep Kumar rushed to the Civil Hospital, Kathunangal alongwith PW12 Maan Singh. He prepared inquest report Ex.PF, injury statement Ex.PE and sent the dead body of Balraj Bir Singh for post mortem examination.
f) PW15 Sub Inspector-Sandeep Kumar visited the scene of crime at village Alkere. He prepared rough site plan Ex.PV. He lifted blood stained earth from the spot and parcelled the same under the recovery memo Ex.PS.
g) PW3 Dr. Ashok Channa, Assistant Professor, Forensic Medicine and Toxicology Department, Govt. Medical College, Amritsar received the dead body alongwith the inquest report Ex.PF on 28.3.2000, at about 10.45 a.m. He commenced post mortem examination at 11.00 a.m. on the said day. He found the following injuries on the dead body of Balraj Bir Singh:
"1. A chopped wound 6 x 2 cms with clotted blood and underlying bone fractured was present on the back and right side of head over occipital region. The underlying bone was fractured. It was obliquely placed. Clotted blood was present at the site.
2. An oblique incised wound 4 x 2.4 c.m, skin deep Crl.Appeal No.592-DB of 2003 -5- with clotted blood was present, on the front of right wrist.
3. An oblique incised wound 5 x 1 cms skin deep with clotted blood, was present on the postero medical aspect of left forearm in its centre.
4. An oblique incised wound oval in shape with clotted blood, 2.5 cms x 1 cm was present on the left infera scapular region of the chest xx xxx xxxx
5. A linear reddish brown abrasion horizontally placed 9 x 2 cms was present on the right infera scapular region of the chest.
6. A dark reddish bruise 5 x 3 cms was present in the muscles of the chest, on its front centre and left aspects.
7. An oblique reddish brown abrasion 3 x 0.2 cm was present on the front of right wrist, 1 cm above and away from injury No.2.
8. An oblique reddish brown abrasion 3 x 0.6 cm was present on the inner aspect of right upper arm in its centre.
9. A vertical reddish brown abrasion 7 x 0.4 cm was present on the outer aspect of right upper arm in its centre.
10. A dark reddish bruise 9 x 5 cms was present on the outer aspect of left upper arm, in its centre."
He found all the injuries were ante mortem in nature. In his opinion, the perforation found in the heart of the deceased was sufficient to cause his death in the ordinary course of nature. He further opined Crl.Appeal No.592-DB of 2003 -6- that death would have occurred instantaneously about 12 to 24 hours prior to the post mortem examination. The post mortem report submitted by him was marked as PG.
h) PW12 Maan Singh was admitted to GND Hospital, Amritsar on 28.3.2000 at about 11.50 a.m. As he had to perform the last rites of his son, he got discharged from hospital without getting himself medico legally examined. On 26.4.2000, at about 8.30 a.m., as per the directions of the Judicial Magistrate, Amritsar, PW12 Maan Singh was medico legally examined by PW1 Dr.Gurmanjit Rai. He found the following injuries:
"1. 2.5 x 0.2 cms semi circular linear scar on the left side of face, 4 cms in front of tragus of ear, 3 stitch marks were present in the scar. Scar was brownish pink coloured. It was tender and was raised above the surface of face.
2. Linear oblique pinkish brown coloured scar 3 cm x 0.2 cm on front and lateral aspect of left forearm, 2 cms proximal to wrist. 2 stitch marks were present. The scar was tender on touch.
3. Raised irregular pinkish brown coloured scar 2 x 0.3 cm was present on back of middle of right thumb, 3 cms proximal to tip of thumb."
Copy of the MLR submitted by him was marked as Ex.PA.
i) Thereafter the investigation was transferred to PW16 Inspector Salwinder Singh, CIA Staff, Amritsar. On 30.3.2000, he arrested the second accused Palwinder Singh and the fourth accused Bachittar Singh on being produced by Sarpanch Gurmel Crl.Appeal No.592-DB of 2003 -7- Singh. On the basis of disclosure statement Ex.PX/1 given by the second accused Palwinder Singh on 1.4.2000 a Kirpan was recovered from the box in his room. The very same Sarpanch produced other two accused Kashmir Singh and Manjit Singh before PW16 Inspector Salwinder Singh. On 2.4.2000, they were also arrested by PW16. On the basis of disclosure statement, Ex.PY, given by the first accused Kashmir Singh, an axe was recovered from the fodder kept in the room of his house. On the basis of recovery statement, Ex.PZ given by the third accused Manjit Singh, a dagger was recovered from a room in his house. All the accused were produced before the Judicial Magistrate for remand. After completion of investigation, final report was filed against the accused.
It is reported in the background of the death certificate that the first accused Kashmir Singh had died on 1.8.2003 after preferring the appeal alongwith the other co accused. As the first accused Kashmir Singh had died during the pendency of appeal, the appeal qua Kashmir Singh abates.
Statement of accused:-
3. The incriminating circumstances spoken to by the witnesses examined on the side of the prosecution were put to the accused during the course of examination under Section 313 of the Code of Criminal Procedure. They simply responded that they were innocent and a false case was foisted upon them.
Appellants' submission:-
4. The learned counsel appearing for the appellants would vehemently submit that PW12 Maan Singh and PW13 Gurdev Singh could not have been eye witnesses to the occurrence. A blind Crl.Appeal No.592-DB of 2003 -8- murder committed has been projected, as though it was committed under the very nose of PW12 Maan Singh and PW13 Gurdev Singh.
The motive projected by the prosecution is found to be very weak. The special report has reached the Judicial Magistrate with an inordinate delay. No explanation was forthcoming from the side of prosecution as to why the dead body was taken to the Police Station as spoken to by PW12 Maan Singh and PW13 Gurdev Singh. The very fact that PW12 Maan Singh was not admitted immediately for treatment would go to show that the prosecution has projected a concocted version that he was an injured eye witness. The common intention allegedly harboured by the accused was not established before the trial Court. Therefore, it is his submission that the accused were entitled to acquittal.
Submission on the side of the State:-
5. The learned Public Prosecutor for the State would submit that there is an unassailable ocular testimony available on record.
The injured eye witness has spoken to the occurrence. Minor discrepancies found in the prosecution case cannot be blown out of proportion by the defence side. The very fact that all the accused had played equally major role in the occurrence would go to show that in fact all the accused shared the common intention attracting the penal provision under Section 34 of the Indian Penal Code. Therefore, it is his submission that the trial Court has rightly recorded conviction as against the accused.
Discussion:
6. The occurrence had unfolded during day time at about 10.30 a.m. on 27.3.2000 in the village setting. It is the evidence of Crl.Appeal No.592-DB of 2003 -9- PW12 that he was in search of Balraj Bir Singh near the house of his brother PW13 Gurdev Singh. The occurrence had taken place in between the house of PW12 Maan Singh and PW13 Gurdev Singh.
After all the deceased Balraj Bir Singh had planned to get back to his station to join duty after availing leave on the fateful day. The deceased had requested his father PW12 to be present in the house so that he would drop him at the Bus Stand. The presence of PW12, therefore, is found to be very very natural. The occurrence had taken place near the house of PW13. PW12 Maan Singh had emerged out of his house hearing hue and cry outside his house. It has been established by the prosecution that PW12 sustained injuries in the occurrence. PW1 Dr.Gurmanjit Rai has spoken to the fact that he found the scars of the three injuries on the person of PW12 when he examined him on 26.4.2000, one month after the occurrence. PW1 has very scrupulously noted down from the bed head ticket brought by PW12 that he was already admitted in GND Hospital, Amritsar on 28.3.2000 at about 11.50 a.m. vide CRO No.86872 and PW12 but without subjecting himself for medico legal examination he had left the hospital in order to perform the last rites of his son.
7. The evidence on record would disclose that PW12 was blessed with the only son deceased Balraj Bir Singh. The pain and agony of the father who lost his only son is quite understandable. The injuries sustained by him would have paled into insignificance in the face of the murder of his son. Further he had to perform the last rites of his only son who was done to death under his very nose. Therefore, it is not surprising that he, having minded not the injuries sustained by him, got discharged from the hospital at Amritsar and Crl.Appeal No.592-DB of 2003 -10- participated in the last rites of his only son. It is not an unsustainable submission that the injuries found on PW12 were faked by the prosecution in order to strengthen the case. In the above facts and circumstances, we come to the conclusion that PW12 had in fact sustained injuries in the occurrence. Therefore, his testimony as eye witness will have to be given much weight by the Court of law.
8. PW12 Maan Singh, who sustained as many as three injuries on his person, has cogently spoken to the head injury caused by the first accused with an axe on the person of the deceased, the second accused with Kirpan on the right wrist of the deceased and the third accused with dagger on the back side of the left shoulder, right shoulder and the left arm. The fourth accused on his part had in fact exhorted the other accused to teach a lesson to Balraj Bir Singh as his family had started cultivating their lands. He had also caught hold of the deceased by his long hair and threw him on the ground.
9. PW13 Gurdev Singh has also spoken to the occurrence he has witnessed and corroborated all material particulars found in the evidence of PW12 Maan Singh who sustained injuries in the occurrence. There is no reason to disbelieve the evidence of natural witnesses PW12 and PW13.
10. PW12 and PW13 have deposed before the Court that the second accused Palwinder Singh attacked PW12 on his left wrist with Kirpan and the third accused Manjit Singh attacked him with dagger on his right hand.
11. The exchange of land and dis-satisfaction with such an arrangement, have given rise to the present occurrence. In a village Crl.Appeal No.592-DB of 2003 -11- setting, such a grievance snowballs into a deeper motive even to kill the adversary. A person who looses his lawful possession of the land is afflicted with a having feeling that he has lost his livelihood itself. Therefore, motive is harboured by a villager to eliminate his opponent. In view of the above, we are not in a position to subscribe to the view expressed by the learned counsel for the appellants that the motive projected by the prosecution was weak in nature.
12. The dead body was handed over by PW16 Inspector Salwinder Singh, CIA Staff, Amritsar to PW11 Constable Rashpal Singh only on 28.3.2000. On the same day, the dead body was handed over by PW11 Constable Rashpal Singh to PW3 Dr.Ashok Chanana who conducted the post mortem examination at about 11.00 a.m. on the said day.
13. It is true that PW12 Maan Singh and PW13 Gurdev Singh deposed before the trial Court that the dead body was taken to the police station and was kept there on 27.3.2000. PW15 Sandeep Kumar Investigating Officer denied the fact that the dead body was taken to the police station. The fact remains that post mortem examination of the deceased was not conducted in the hospital at Kathunangal. It was in fact conducted only at the hospital in Amritsar. As dead body was transported by the police, quite probably PW12 Maan Singh and PW13 Gurdev Singh would have been under the impression that the dead body was transported to the police station. Even assuming for the sake of argument that the dead body was taken to the police station, we find that there could have been no tampering with the dead body. The post mortem report would show that all the injuries found on the dead body of the deceased Crl.Appeal No.592-DB of 2003 -12- were ante mortem in nature. No post mortem injury was found on the dead body. Inasmuch as, the dead body was not tampered with the presence of the dead body at the police station on 27.3.2000 does not go to the root of the matter.
14. In the post mortem examination, injuries No.5 to 10 were noted abrasions and bruises. It is contended by the learned counsel appearing for the appellants that the injuries No.5 to 10 detailed in the post mortem report were not properly accounted by the prosecution. The ocular version would establish that the fourth accused having caught hold of the deceased by his hair threw him forcibly on the ground. Balraj Bir Singh made an attempt to rise up but unfortunately he received lethal injuries at the hands of the accused. Abrasions and bruises could be caused not only with the blunt objects but also when a person comes into contact with a rough surface. Therefore, the opinion expressed by the doctor during the course of cross examination that the injury Nos.5 to 10 would have been caused by blunt weapon, does not cut the very root of the prosecution. In our considered view the deceased would have sustained the injury Nos.5 to 10, as detailed in the post mortem report, when he was thrown forcibly to the ground by the fourth accused and also when he fell down again unable to resist the onslaught of the accused with lethal weapons. Injuries 5 to 10 could not be accounted by PW12 Maan Singh and PW13 Gurdev Singh as they had not witnessed the accused causing such nature of injuries on the deceased.
15. The occurrence took place at 10.30 a.m. on 27.3.2000. Balraj Bir Singh was declared dead by PW2 Navdeep Singh at 10.40 Crl.Appeal No.592-DB of 2003 -13- a.m on the said day. PW12 Maan Singh the complainant in this case had also sustained injuries in the occurrence. He lost his only son in the occurrence. The First Information Report was lodged by him at 1.00 p.m. on 27.3.2000. PW5 Constable Baljit Singh was entrusted with the special report for the purpose of handing over the same to the learned Judicial Magistrate. He has deposed before the trial Court that on 27.3.2000 itself he delivered the special report to the learned Judicial Magistrate but unfortunately the special report received by the learned judicial Magistrate bears the date 28.3.2000 and the time 11.30 a.m. The learned Judicial Magistrate has originally referred as "pm" but later on he had corrected it with over- writing as "am". It may be a case where the learned Judicial Magistrate instead of referring to the date 27.3.2000 would have jotted down as 28.3.2000 by sheer inadvertence. We assume so as there is a conspicuous alteration of "pm" into "am". Further our assumption is strengthened by the evidence of PW5 Constable Baljit Singh to the effect that he had handed over the Special Report to the learned Judicial Magistrate on 27.3.2000 itself. Therefore, in all probability the Special Report would have reached the door steps of Judicial Magistrate on 27.3.2000 itself. Even assuming for the sake of arguments that the Special Report has not reached the Judicial Magistrate with some delay, that by itself would not upset the case of the prosecution founded on the injured eye witness and another ocular witness account.
16. The records would establish that the investigation has commenced at 1.00 p.m. on 27.3.2000, the moment the first information report was registered. The inquest was thereafter Crl.Appeal No.592-DB of 2003 -14- conducted. The injuries found on the dead body were scrupulously noted down by PW1 Dr.Gurmanjit Rai. The Investigating Officer having reached the scene of occurrence had meticulously prepared the site plan. He had also recovered the blood stained earth from the scene of occurrence. The prosecution has come out with ocular testimony to support its case. There was no occasion for the investigating agency to fabricate anything to support its case. Therefore, even assuming for the sake of arguments that there has been a delay in despatching the special report to the learned Judicial Magistrate, inasmuch as there was no scope for fabrication and concoction of the records, the delay by itself would not have any adverse impact on the case of the prosecution.
17. Hon'ble Supreme Court of India in State of UP v. Gokaran and others AIR 1985 Supreme Court 131 has held as follows:
"As regards the last circumstance, it is true that the special report was received by the District Magistrate on 29th March but it is not as if every delay in sending such a delayed special report to the District Magistrate under S.157 CrPC would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante timed or antedated or that the investigation is not fair and forthright. As has been pointed out by this Court in Pala Singh v. State of Punjab (1973) 1 SCR 964; (AIR 1972 SC 2679) the relevant provision contained in S.157 CrPC is really designed to keep the Magistrate informed of the investigation of a cognizable offence so as to be able to control the investigation and Crl.Appeal No.592-DB of 2003 -15- if necessary to give appropriate direction under S.159 CrPC; but if in a case it is found that the FIR was recorded without delay and the investigation started on that FIR then however improper or objectionable the delayed receipt of the report by the Magistrate concerned that cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupprotable......."
Applying the above observation made by the Hon'ble Supreme Court and in the special facts and circumstances of the case, we hold that delay, if any, in despatching the special report to the learned Judicial Magistrate would not cause a dent.
18. It is submitted by the learned counsel appearing for the appellants that the common intention harboured by the accused was not established. All the accused are related to each other. They had a grievance over the exchange of lands between the family of the accused and the deceased. A1 to A3 were armed with lethal weapons at the time of occurrence. They had been chasing the deceased before ever the fourth accused could caught hold of Balraj Bir Singh. A1 to A3 had delivered blows with the weapons they held. The vital part was aimed at by minor Manjit Singh, third accused. The fourth accused having caught hold the deceased had thrown him to the ground, facilitating the other accused to rain blows. The above motive established by the prosecution, the chase given by the accused to the deceased before ever he was done to death, the deadly weapons armed by A1 to A3, the indiscriminate blows rained by the accused A1 to A3 and the contribution made by the fourth Crl.Appeal No.592-DB of 2003 -16- accused facilitating the attack would all speak to the common intention shared by all the accused in doing away with the life of Balraj Bir Singh and also in causing injury to PW12 Maan Singh who made an attempt to save the life of his son.
19. The learned counsel appearing for the appellants cited a decision of the Hon'ble Supreme Court in Mohinder Singh and another v. State of Delhi 1975 Crl. L.J. 1320. That was a case where the main accused Umed Singh hit the deceased with a brick and also with the back side of the axe. As a result of the said attack, the skull of the deceased cracked and consequently the deceased succumbed to the injuries. The Hon'ble Supreme Court made an observation in the above circumstances that the other accused Mohinder Singh could not be convicted under Section 302 read with Section 34 of the Indian Penal Code as he would not have had any intention to kill the deceased Daya Nand, for the main accused Umed Singh had attacked the deceased Daya Nand with a brick and also with back side of an axe. Had the main accused and the co accused Mohinder Singh had shared the common intention to murder the deceased Daya Nand, the main accused would have used the sharp edged portion of the axe and not back side of the axe it was observed. Therefore, it was held therein that the common intention was not shared by the co accused Mohinder Singh.
20. With due respect to the learned counsel appearing for the appellants, we may observe that the fact situation of the case dealt with by the Hon'ble Supreme Court would fit in the facts and circumstances of this case. The facts detailed above, in the instant Crl.Appeal No.592-DB of 2003 -17- case, would go to show that all the accused had in fact shared the common intention not only to cause the death of the deceased but also to cause injury to the person of PW12 Maan Singh. Conclusion:
21. In view of the above, we find that the judgment of Sessions Court, Amritsar and order of the Juvenile Justice Board, impugned hereunder, do not call for interference. Therefore, the appeal fails and stands dismissed. If the second and fourth accused are on bail, their bail bonds, shall stand cancelled. They are directed to surrender themselves before the jail authorities immediately for completing remainder of sentence, failing which the concerned authority shall proceed against them in accordance with law.
( M.Jeyapaul)
Judge
February 08 , 2011 (Satish Kumar Mittal)
KD Judge
1 The judgment be circulated for printing in law journal.