Punjab-Haryana High Court
Sukhwinder Singh Alias Binder vs State Of Punjab on 22 October, 2008
Author: S.S. Saron
Bench: S.S. Saron, Sabina
In the High Court of Punjab and Haryana at Chandigarh
......
Criminal Appeal No.99-DB of 2005
.....
Date of decision:22.10.2008
Sukhwinder Singh alias Binder
...Appellant
v.
State of Punjab
...Respondent
.....
Coram: Hon'ble Mr. Justice S.S. Saron
Hon'ble Mrs. Justice Sabina
Present: Mrs. Vandana Malhotra, Advocate for the appellant.
Mr. S.S. Gill, Additional Advocate General, Punjab for the
respondent-State.
Mr. S.S. Rangi, Advocate for the complainant.
.....
S.S. Saron, J.
This appeal has been filed by the appellant-Sukhwinder Singh alias Binder against the judgment and order dated 28.10.2004 whereby the appellant has been convicted for the offence under Section 302 Indian Penal Code (`IPC' - for short) and sentenced to undergo imprisonment for life besides to pay a fine of Rs.5,000/- and in default of payment of fine to undergo further rigorous imprisonment for two years. Out of the fine, if recovered, a sum of Rs.4,000/- has been ordered to be paid to Budh Ram, complainant (PW-6).
The FIR (Ex.PF/2) has been registered with respect to the incident that occurred on 13.12.2002 at 1.00/1.30 p.m. It has been registered on the basis of the statement (Ex.PF) of Budh Ram, complainant Cr. Appeal No.99-DB of 2005 [2] (PW-6). It is stated by the complainant that he is a resident of Village Bahal, Police Station Sadar, Patiala and does the work of an electrician. About nine months earlier he was running RMP (Registered Medical Practitioner) shop at the Bus Stand, Bahal which he had taken on rent from Dharam Singh son of Jagir Singh. Adjoining the said shop Sukhwinder Singh alias Binder (appellant) son of Jagir Singh used to carry on the work of cycle repair. The complainant was on visiting and eating terms with said Sukhwinder Singh (appellant). The complainant then left the work of doctor (registered medical practitioner) and started to learn the work of an electrician at Patiala. He started work at the shop of M/s Shiv Electronics, Dharampura Bazar, Patiala. He started residing at Patiala even. After 2/4 days he used to come home at village Bahal. His wife Renu Bala (deceased) and his children resided at village Bahal only. About six months ago when his wife (deceased) was alone in the house, then one day in the evening Sukhwinder Singh (appellant) after scaling the wall entered their house. He showed a knife to his wife who had just finished taking a bath and asked her to have coitus with him. He also took photographs of his wife. On this Sarpanch Karnail Singh (DW-1) and his relatives after calling Sukhwinder Singh (appellant) at the house asked him. Sukhwinder Singh (appellant) then apologized. On this an oral compromise was entered into between them. On the date of occurrence i.e. 13.12.2002 it was about 1.00/1.30 p.m., Renu Bala (deceased) wife of the complainant and his daughter Kajal aged five years had gone to the house of Satish Kumar to take `Lassi' (butter milk). When they did not return for 15-20 minutes, the complainant went behind to see them. At that time, Sukhwinder Singh (appellant) was going Cr. Appeal No.99-DB of 2005 [3] ahead of him in the street. The wife of the complainant Budh Ram (PW-6) was coming from his front after taking `Lassi'. When Sukhwinder Singh (appellant) saw the wife of the complainant, he took out a dagger and raised a `Lalkara' at the wife of the complainant and said that today he would teach her a lesson for defaming him. At this the wife of the complainant ran and entered the cattle house of Karam Singh and Sukhwinder Singh (appellant) ran behind her. The complainant and his daughter also went running behind them. When they reached near, Sukhwinder Singh (appellant) within the sight of the complainant caught hold of the arm of his wife and inflicted 5-6 dagger blows on her chest. She fell down at the spot. On an alarm being raised by the complainant, Sukhwinder Singh (appellant) fled away along with his dagger from the spot. When the complainant saw his wife, she had already died. The cause of the grudge was that the wife of the complainant had complained against Sukhwinder Singh about six months ago. The complainant leaving his brother Suresh Kumar near the dead body was going to lodge a report with the Police that Sarabjit Singh, ASI, In-charge, Police Post, Bhunar Heri (PW-10) met him and he recorded his statement (Ex.PF). It was read over and heard by the complainant and was affirmed as correct. Sarabjit Singh, ASI (PW-10) recorded police proceedings (Ex.PF/1) to the effect that on 13.12.2002 he along with other Police officials was present at the Bus Stand Panjeta in connection with patrolling that Budh Ram (PW-6) got his statement (Ex.PF) recorded with him, which was written and read out to him who admitting it to be correct put his signatures in Punjabi below it which were attested by ASI Sarabjit Singh (PW.10). From the said statement a case for the offence under Section 302 Cr. Appeal No.99-DB of 2005 [4] IPC was found to be made out. The statement was sent through Constable Harnek Singh to the Police Station for registration of a case (FIR) against Sukhwinder Singh (appellant) for the aforesaid offence. The case number was asked to be intimated besides higher Police officers were asked to be informed. On the basis of the FIR (Ex.PF/2) that was registered Sarabjit Singh ASI (PW-10) investigated the case. He along with the complainant and other Police officials went to the place of occurrence. At the place of occurrence inquest proceedings (Ex.PK) were conducted. The statement of Raj Kumar and Rattan Chand for inquest purpose in terms of Section 175 of the Code of Criminal Procedure (`Cr.P.C.' - for short) were recorded. Sarabjit Singh, ASI (PW-10) prepared the rough site plan (Ex.PL) of the place of occurrence. The same was prepared at the instance of complainant Budh Ram (PW-6). From the place of occurrence near the dead body some broken pieces of bangles were recovered which were taken into possession vide memo (Ex.PM). The blood stained earth was lifted and put in a tin box and taken in possession vide memo (Ex.PN). The place of occurrence was got photographed. Then the dead body of Renu Bala was sent for post- mortem examination through HC Mohan Singh and HC Yadwinder Singh vide his request memo (Ex.PJ). The statements of witnesses in terms of Section 161 Cr.P.C. were recorded. Thereafter, Shamsher Singh, SI/SHO and DSP came at the spot. Then from a wall of Village Bahal near the Bus Stand a hand-written letter (Ex.PG) was taken into possession vide recovery memo (Ex.PO). The mode of proof of the hand-written letter (Ex.PG) was objected to. On return to the Police Station, the case property was deposited with the MHC (Moharrir Head Constable) and then Sarabjit Singh, ASI Cr. Appeal No.99-DB of 2005 [5] (PW-10) returned back to the Police Post, Bhunerheri. The post-mortem on the dead body of Renu Bala was conducted on 14.12.2002 at Rajindra Hospital, Patiala by Dr. Harjinder Singh, Junior Resident in the Department of Forensic Medicine, Government Medical College, Rajindra Hospital, Patiala (PW-9). The belongings of the deceased and the clothes of the deceased were taken in possession by the Police on 14.12.2002 vide recovery memos (Ex.PQ) and (Ex.PR) respectively. The appellant was arrested in the case on 15.12.2002. He was produced by Sarpanch, Harlal Singh. Personal search of Sukhwinder alias Binder (appellant) was conducted. However, no article was recovered nor was taken in possession. The appellant was produced before the Illaqa Magistrate on 16.12.2002 and his Police remand was taken. While in Police custody the appellant on 17.12.2002 suffered a disclosure statement to the effect that he had kept concealed a `Chhura' on the Patiala-Devigarh road near Village Bahal under the bridge of canal minor and only he knew about it and could get the same recovered. The statement (Ex.PT) in this regard was reduced into writing, which was thumb marked by the appellant and signed by the witnesses. Then the appellant led the Police party to the place of recovery along with independent witness Amandeep Singh who had been joined. At the disclosed place, the appellant got recovered a `Chhura' from the place pointed out by him. A sketch (Ex.PU) of the `Chhura' was prepared which was signed by the witness and then the same was taken in possession vide recovery memo Ex.PV. The photographs and negatives were taken in possession vide memo Ex.PC/1. Then scaled site plan was got prepared from a draftsman. The statement of Gurdip Singh (PW-8) from whom the Cr. Appeal No.99-DB of 2005 [6] accused had got written the letter (Ex.PG) was recorded. The appellant is stated to have proclaimed that he had done the act (that is of murder) as the lady (Renu Bala-deceased) had made wrong allegations against him. This letter, it is stated, was scribed by Gurdip Singh (PW-8). After completion of investigation, charge-report (challan) was filed in Court of the Additional Chief Judicial Magistrate, Patiala, who in terms of order dated 23.4.2003 came to the conclusion that there existed a prima facie case for trial of the accused Sukhwinder Singh for the offence under Section 302 IPC, which was exclusively triable by the Court of Session. Accordingly, the learned Magistrate committed the case to the said Court for trial. The learned Sessions Judge, Patiala on 23.5.2003 charged the appellant on the allegation that on 13.12.2002 at about 1.30 p.m. in the area of Village Bahal he committed the murder by intentionally causing the death of Renu Bala and thereby committed an offence punishable under Section 302 IPC. The appellant pleaded not guilty to the charge and claimed trial.
The prosecution in order to prove its case examined as many as ten witnesses; besides, tendered documents in evidence. The statement of the accused-appellant in terms of Section 313 Cr.P.C. was recorded in which the substance of the evidence appearing against him was put to him. He took the plea that he was innocent and had been falsely involved in the case. He never misbehaved with Renu Bala. She received injuries under mysterious circumstances from some unidentified persons. Later on, the complainant in connivance with the Police had falsely implicated him in the case. In defence, the appellant examined Karnail Singh (DW-1) who was Sarpanch of Village Bahal in the year 2002. It is stated by Karnail Singh that Renu Bala (deceased) had never complained to him against Sukhwinder Cr. Appeal No.99-DB of 2005 [7] Singh regarding Sukhwinder Singh (appellant) misbehaving with her. He had never settled any dispute between Renu Bala and Sukhwinder Singh- accused. Besides, on 23.12.2002, he had not seen any letter pasted at the Bus Stand of Village Bahal. He had never been joined by the Police during the investigation of the case. His statement was not recorded by the Police in this case and he never got effected any compromise between Renu Bala and Sukhwinder Singh (appellant). The learned trial Court after considering the evidence and material, as already noticed, convicted the appellant for the offense under Section 302 IPC and sentenced him to imprisonment for life besides payment of fine of Rs.5,000/-. The appellant aggrieved against the same has filed the present appeal.
Mrs. Vandana Malhotra, Advocate, learned counsel appearing for the appellant has submitted that the case against the appellant is absolutely false. It is submitted that the complainant-Budh Ram (PW-6) has been introduced as a witness, inasmuch as, he was not present at the time of the occurrence and had he been present he would have intervened in the occurrence and would not have allowed his wife to be stabbed in the manner as has been alleged. It is submitted in the site plan (Ex.PD) the distance between the place where injuries were inflicted and Budh Ram (PW-6) was standing that is between A to B has been mentioned as 17 feet. This, it is submitted, could easily have been covered by the complainant Budh Ram (PW-6) who would have intervened and saved his wife. It is further submitted that in the site plan (Ex.PL) distance between A and B has been mentioned as 5-6 `Kadam' (steps) which would mean that it is about 25-30 feet. It is further submitted that the presence of Kajal, minor daughter of Budh Ram-complainant (PW-6) has not been depicted in the site plan Cr. Appeal No.99-DB of 2005 [8] (Ex.PL) even though she is stated to be present at the time of occurrence. It is also submitted that there is alleged to be a scuffle at the spot and bangles were broken, yet the complainant did not interfere. According to learned counsel not much reliance can be placed on the writing (Ex.PG) which is stated to have been written by Gurdip Singh (PW-8) on the dictation of the appellant and which was allegedly found pasted on the wall near the Bus Stand, Bahal as the same has been introduced by the Police. It is also stated that there is considerable delay in the registration of FIR, inasmuch as, the incident had occurred between 1.00/1.30 p.m. on 13.12.2002 whereas the Police was contacted at 3.30 p.m. and the report was made at 5.25 p.m. Besides, no independent witness was joined even though 60-70 persons are stated to have gathered at the place of occurrence. The clothes of the accused which must have been smeared with blood had he been present were not taken in possession. Besides, the injuries are stated to have been caused by two weapons and both the injuries had a deep size.
In response, Mr. S.S. Gill, learned Additional Advocate General, Punjab appearing for the State and Mr. S.S. Rangi, Advocate appearing for the complainant have submitted that the case against the appellant stands proved from the evidence and material on record beyond shadow of reasonable doubt and there is nothing on record so as to acquit the appellant. The discrepancies pointed out by the learned counsel for the appellant, it is submitted, are too trivial in nature which do not cast any doubt as to the veracity of the prosecution case. Therefore, according to the learned counsel, the appeal is liable to be dismissed.
We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance have gone Cr. Appeal No.99-DB of 2005 [9] through the records of the case. As per prosecution case, ASI Sarabjit Singh, In-charge, Police Post, Bhunerheri (PW-10) along with other Police officials was present at the Bus Stand of Village Panjeta on routine patrol duty. At that time Budh Ram (complainant) (PW-6) made a statement regarding the murder of his wife Renu Bala by the appellant Sukhwinder Singh. It is alleged by the complainant that Sukhwinder Singh (appellant) had entered his house after scaling over the wall and while his wife had just taken a bath, he took her photographs and by showing a knife asked her to have coitus with him. The appellant was called by Karnail Singh, Sarpanch (DW-1) and relatives of the complainant. However, he begged pardon because of which an oral compromise had taken place between him and the complainant. Thereafter, on 13.12.2002 at about 1.00/1.30 p.m., Renu Bala (deceased) had gone to the house of Satish Kumar along with her minor daughter Kajal to get `Lassi' (butter milk). When she did not return for 15/20 minutes, the complainant Budh Ram (PW-6) followed them to the house of Satish Kumar. Sukhwinder Singh (appellant) was going ahead of him and from the opposite side his wife and daughter Kajal were seen coming. When they came near Sukhwinder Singh (appellant) in presence of Budh Ram (PW-6) took out a knife and gave dagger blows to Renu Bala. Budh Ram, complainant (PW-6) has reiterated his version (Ex.PF) while appearing in Court in the witness box and has supported the prosecution case regarding the appellant stabbing his wife Renu Bala.
The contention of the learned counsel for the appellant is that Budh Ram (PW-6) has been introduced as a witness as despite the fact that the distance between the place where injuries are said to have been inflicted by the appellant and where Budh Ram (PW-6) was standing was not much Cr. Appeal No.99-DB of 2005 [10] and he could have intervened. The distance between them is depicted in the site plan (Ex.PD) as also in the site plan (Ex.PL), which it is submitted, is not such where the appellant could not have intervened. According to the learned counsel in the scaled site plan (Ex.PD) the distance between the place where Renu Bala was stabbed and Budh Ram complainant was standing is mentioned as 17 feet and in the site plan (Ex.PL) prepared by Sarabjit Singh ASI (PW-10) it is mentioned as 5-6 `Karam' (steps) i.e. about 27-33 feet. It is submitted that there was a scuffle at the spot as dust and chaff was found entangled in the head of Renu Bala (deceased) and there were broken bangles as well and yet the complainant who was so nearby did not intervene. This according to the learned counsel shows that he had been introduced later on. It may, however, be noticed that Budh Ram, complainant (PW-6) has no reason to falsely implicate the appellant unless the complainant was sure that he had caused the injuries. It would rather be the earnest effort of the complainant to ensure that the person who actually caused the injuries, which resulted in the death of Renu Bala is convicted and sentenced rather than an innocent person being falsely implicated. Renu Bala (deceased) had received as many as six incised injuries as is evident from the deposition of Dr. Harjinder Singh (PW-9) who conducted the post-mortem examination on the dead body of Renu Bala. He found the following injuries on her person:-
"1. Incised wound 4 x 1 cm. present horizontally present on the right side chest, 4 cm. above the right nipple in mid claviculer line. On exploration right 2nd intercostal space was pierced and lacerating the pleura and lang of the right side and right side chest cavity was full of liquid blood.
Cr. Appeal No.99-DB of 2005 [11]
2. Incised wound 1.5 x ½ cm. obliquely present on the left side chest (front). 3 cm. below the left clavical in its middle. On exploration 3rd intercostals space was pierced and lacerating the left pleura, lung and also lacerating the heart. Left chest cavity and pericardial sag were full of liquid blood.
3. Incised wound 2.5 x ½ cm., 1 x ½ cm., 2 cm. a part present on the left Axilla.
4. Incised wound 6 x ½ cm. obliquely present on left deltoid region exposing the underneath muscle and bone.
5. Punctured 1 x ½ cm. present on the front of right arm in its middle.
6. Incised wound 3 x ½ cm. present on the left interior axillary fold in its middle, walls, ribs and cartilage and pleurae and right and left lungs alongwith heart were described. Shirt was blood- stained and showing cuts correspondingly to the injuries. Peritoneum, small and large intestine, liver, spleen and kidneys were pale. Walls, mouth, pharynx and Esophagus and stomach and urinary bladder were NAD.
The cause of death in this case in my opinion was haemorrhage shock due to injuries which were ante-mortem in nature and sufficient to cause death in routine course of nature."
In the circumstances, admittedly the death of Renu Bala had occurred on account of the incised injuries as per the medical evidence. The contention of the learned counsel for the appellant that the complainant has been introduced later is untenable. It may in fact be noticed that different Cr. Appeal No.99-DB of 2005 [12] persons react differently to a particular situation and the fact that the wife of the complainant (PW-6) was being stabbed may have left him dumb- founded and immobilized and in such a position where he was unable to react. The complainant as has come in evidence had been a registered Medical Practitioner and thereafter he started learning the work of an electrician. He is not a rustic villager who would have intervened when he saw his wife being stabbed. As such the possibility that he had not intervened is not such a circumstance so as to rule out his presence at the time of occurrence or, in any manner, discredit his testimony as deposed by him on oath in Court. The fact that broken bangles were lying at the spot which were recovered and, therefore, there was dust and chaff entangled in the hair of the deceased would not mean that the scuffle had taken substantial time. In the scuffle the bangles could have broken even at the spur of the moment and on account of the fact that Renu Bala fell on the floor and dust and chaff was entangled in her hair. In the site plan (Ex.PD) point-A is depicted as the place where the dead body of Renu Bala was lying and Sukhwinder Singh alias Binder accused had stabbed her. Point-B is the place where Budh Ram-complainant (PW-6) had seen the appellant stabbing his wife Renu Bala. The distance between `A to B' is 17 feet. Even the distance of 17 feet between the place where Budh Ram (PW-6) saw the incident and the appellant stabbed his wife, would not be too small for him to cover as the incident would have occurred suddenly for him to react even. As already noticed, he was a registered medical practitioner which practice he had left and had started to learn the work of an electrician. In cross-examination, Budh Ram (PW-6) states that he was working with Cr. Appeal No.99-DB of 2005 [13] Shiva Electricals and was receiving Rs.2,000 per month as salary. They used to go to the Banks for fitting computers. Therefore, from the nature of work it is quite possible that he did not intervene when he saw his wife being stabbed. Besides, it was quite natural for him to be at home when his wife Renu Bala (deceased) had gone along with their daughter Kajal to the house of Satish Kumar to get `Lassi'. It is when they did not return for some time that he followed them. In the street he saw that Sukhwinder Singh (appellant) was going ahead of him and his wife was coming from the opposite side. On the day of occurrence Budh Ram (PW-6) had not gone for work and in cross-examination it is stated he had suffered an injury on his foot and he was at home and had not gone to his work place. It is also stated by Budh Ram (PW-6) that when the accused (appellant) was inflicting knife blows then he raised a hue and cry. The case of the appellant is that some unidentified persons had caused the injuries. However, it may be noticed that there was motive for the appellant to commit the murder as he had gone to the house of Budh Ram-PW-6) and when his wife had just finished taking a bath he had threatened her with a knife to have sex with him. This matter was got orally compromised and the appellant had apologized. However, Karnail Singh (DW-1) who was stated to have got the compromise effected completely denied that any such compromise was effected. The learned trial Court has observed that so far as the appearance of Karnail Singh, Ex-sarpanch of the village as DW-1 is concerned, it does not make any difference because the said witness had already been given-up by the prosecution as having been won over. Moreover, even if for the sake of argument there is absence of motive in Cr. Appeal No.99-DB of 2005 [14] that case also there is nothing to suggest that Budh Ram (PW-6) and other witnesses were to derive any benefit from the false implication of the accused (appellant). It was also observed that Budh Ram-complainant (PW-
6) and the accused (appellant) are of the same village and they were also working at one place i.e. at the Bus Stand of Village Bahal where Budh Ram was running his shop as a registered medical practitioner while the appellant was running his cycle repair shop. Therefore, the fact that Karnail Singh Ex-sarpanch of the village appeared as a defence witness as DW-1, the motive is not obliterated as he was not examined by the prosecution on account of the fact that he was won over and, in any case, no benefit is to be derived by the prosecution witnesses for falsely implicating the appellant. The fact that the matter regarding the incident of the appellant showing the knife to the wife of the complainant Budh Ram having been orally compromised is quite natural as the complainant Budh Ram would not want to make a public issue of the fact that an attempt of sexual assault or a demand for having sex was made on his wife by showing a knife to her.
It may also be noticed that Ex.PG is a writing which has been scribed by Gurdip Singh (PW-8), which it is stated was dictated by the appellant. In the said writing the appellant had proclaimed that he had done the act (i.e. of murder) as the lady (Renu Bala-deceased) had made wrong allegations against him which he had challenged. It is stated that he had promised that he would be the son of a sweeper if he had not done this work. He had done this work and he had taken revenge from her regarding this matter. He could not tolerate the insult and the complainant himself was responsible for this. He had called him home for apologizing. It may be Cr. Appeal No.99-DB of 2005 [15] noticed that the allegations against the appellant are that he had visited the wife of the complainant while she had finished taking a bath and had taken her photograph. Besides, he had asked for sexual favours. By way of the writing (Ex.PG) he proclaims to have done the act of murder and the writing is proved by Gurdip Singh (PW-8) who has not shown to be, in any manner, an interested witness. Gurdip Singh (PW-8) was cross-examined, however, nothing could be brought out which would, in any manner, show that he was deposing falsely or had any enmity against the appellant. It was not even suggested to the witness that he had not written the letter. Therefore, the testimony of Gurdip Singh (PW-8) is convincing and reliable. There is no reason whatsoever to doubt the said testimony which is otherwise cogent and convincing and nothing has been attributed to Gurdip Singh (PW-8) as to why he would falsely implicate the appellant.
Jasbir Kaur (PW-7) was also examined by the prosecution. She has stated that on 13.12.2002 i.e. the date of the incident she had reached Village Bahal at about 2.00 p.m. by bus. When she was going to the house of her maternal uncle after getting down from the bus, she saw Sukhwinder Singh (appellant) coming from the side of his house and he had a blood stained knife in his hand. He was saying that he had taken revenge. The appellant was coming towards the bus stand whereas she was going towards the house of her maternal uncle. When she reached home, her maternal uncle was not in the house. Her aunt told her that some happening had taken place, therefore, her younger maternal uncle had been called by the elder maternal uncle and he had gone to his house. Thereafter, she came to know that her maternal aunt had been killed by the appellant. This was Cr. Appeal No.99-DB of 2005 [16] objected to by the defence counsel during her deposition. In any case, Jasbir Kaur (PW-7) had seen the appellant carrying the blood stained knife soon after the occurrence. The blood stained knife was recovered from the appellant on the basis of his disclosure statement (Ex.PT). The appellant during interrogation disclosed that he had concealed the dagger, with which he murdered Renu Bala, on the Patiala Devigarh road some distance before Village Bahal on the road side under the pulley which only he knew and could get the same recovered. The dagger was got recovered by the appellant by leading the Police party to the Patiala Devigarh road from the road side below the small bridge (pulley). The dagger that had been concealed was taken out and produced which was taken in possession vide memo (Ex.PV). A rough sketch (Ex.PU) of the dagger was prepared and was sealed in a parcel with the seal bearing impression `SS'. The parcel i.e. parcel-A containing soil alleged to be stained with blood, parcel-B containing `Kameej' alleged to be stained with blood and parcel-C containing `Chhura' alleged to be stained with blood were sent to the Forensic Science Laboratory, Punjab, Chandigarh for analysis. As per result of the examination, the exhibits contained in parcels-A, B and C aforesaid were stained with human blood of Group-B. The FSL report (Ex.PX) in this regard is on record. Therefore, the eye witness account and the chain of circumstances is complete so as to point to the guilt of the accused. The presence of Budh Ram-complainant (PW-6) at the time of incident is indeed established and from his cross-examination nothing could be brought out so as to dislodge his presence at the time of incident. Besides, the learned trial Court has also found him to be present at the time of incident and there is Cr. Appeal No.99-DB of 2005 [17] no reason to disagree with the findings and conclusions reached at by the leaned trial Court. The writing (Ex.PG) is not shown to be in any manner doubtful.
The other contention of the learned counsel for the appellant is that there has been delay in registration of the FIR. In this regard, it may be noticed that prompt lodging of a FIR is not an unmistakable guarantee of its truthful version and neither is delay always fatal. The incident in the present case had occurred between 1.00/1.30 p.m. on 13.12.2002. The Police was contacted at 3.30 p.m. and the time of report vide DDR No.28 dated 13.12.2002 (Ex.D.1) is mentioned as 5.45 p.m. The recording of the report was completed vide DDR No.33 at 6.40 p.m. It was received by the Judicial Magistrate on 13.12.2002 at 10.00 p.m. as per the endorsement on the FIR (Ex.PF/2). The learned trial Court has noticed that after the occurrence, the complainant Budh Ram (PW-6) had started for lodging a report with the Police and according to him when he reached the Bus Stand of Village Panjeta, ASI Sarabjit Singh (PW-10) met him and he recorded his statement (Ex.PF). It was observed that it can well be judged that in the circumstances one could not keep an account of the time of events when the wife of a person is lying dead before his eyes. He would not be in a position even to reconcile with himself. Delay in such a situation, it was observed, is bound to occur. It was also observed that Budh Ram (PW-6) must have taken some time at the spot, while looking after his wife and composing himself before leaving his brother at the spot and starting for lodging a report with the Police. The delay in the given circumstances, it was observed, is immaterial. Besides, the delay in sending the special report has no effect as the death of Renu Bala had occurred on account of the injuries Cr. Appeal No.99-DB of 2005 [18] caused to her. In the circumstances, it may be noticed that the present is not a case from which it can be said that the recording of the FIR has been delayed by the prosecution so as to deliberate and implicate other accused. Normally allegations regarding delay in lodging the FIR are made, when it is said that the prosecution has carried out deliberations so as to falsely implicate other accused who were not involved in the crime. The present is a case of one single accused who the complainant Budh Ram (PW-6) had seen inflicting injuries on his wife Renu Bala. There is no other accused in the case. Therefore, the delay in the facts and circumstances of the case is indeed inconsequential and the conclusions reached at by the learned trial Court are just and proper.
As regards the fact that 60-70 persons are said to have gathered at the spot at the time of incident but no independent person was joined, it may be noticed that in such incidents independent witnesses of the village are normally reluctant to join the investigation for fear of having continuous enmity with one of the parties i.e. the party other than in whose favour they appear. It is unlikely that any independent witness would join the investigation to say that he had seen the occurrence and thereby have enmity with the accused-appellant. Therefore, for the failure to join an independent witness is not such a circumstance which would, in any manner, affect the case of the prosecution or make it unreliable.
The fact that the clothes of the deceased smeared with blood were not taken in possession, it may be noticed that the same is at the most a defect or an irregularity in the investigation process of the Police and, in any case, is not such a circumstance to hold that the prosecution case is not established.
Cr. Appeal No.99-DB of 2005 [19] Dr. Harjinder Singh (PW-9) who conducted post-mortem examination in his cross-examination has stated that the injury on the body of the deceased may be the result of two weapons. According to the learned counsel for the appellant the injuries are stated to have been caused by two weapons and both injuries had a deep size. Therefore, the liability for the alleged murder of Renu Bala cannot be fastened on the appellant.
It may be noticed that Dr. Harjinder Singh (PW-9) in his cross- examination has stated that the Police never showed him the weapon of offence during investigation of the case for seeking his opinion regarding the causing of injuries with that weapon on the body of the deceased. The suggestion that in case of incised wound caused by a sharp edged weapon, the length of the blade would be in excess than the length of the injury received by that weapon depending upon the tone of the muscle involved was accepted as correct. The penetrating wound it is stated by Dr. Harjinder Singh (PW-9) that it can occur by sharp pointed weapon. Knife, pork and dagger can cause stab wound if given by thrust. It is stated that he did not probe the injuries, therefore, he had not given the depth of injuries. It is stated that injuries on the body of the deceased may be the result of two weapons, possibility cannot be ruled out. It may be noticed that the said opinion is based on non-examination of the weapon but it is not disputed that the death had occurred due to the six incised injuries which were found on the dead body of Renu Bala during her post-mortem examination and in the opinion of Dr. Harjinder Singh (PW-9) the cause of death was haemorrhage shock due to injuries which were ante-mortem in nature and sufficient to cause death in routine course of nature. The medical evidence Cr. Appeal No.99-DB of 2005 [20] is only corroborative in nature.
In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, it was observed by the Supreme Court that ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however, the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witnesses, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence.
In Kamaljit Singh v. State of Punjab, AIR 2004 SC 69, it was held that where there is sufficient material produced to prove presence of the accused as well as eye witnesses at the place and time of occurrence, minor variation between medical evidence and ocular evidence would not be relevant. The testimony of eye witness would be preferable to medical evidence unless the medical evidence completely rules out the version of eye witness. In the present case, medical evidence does not rule out the eye witness account. Therefore, when there is a direct evidence of Budh Ram (PW-6) seeing the appellant causing the injuries and thereafter the knife with which the injuries are caused being recovered from the appellant, which was found to contain human blood as per FSL report (Ex.PX) there can be no doubt that the injuries that were inflicted by the appellant had resulted in the death of Renu Bala. Therefore, the mere fact that the doctor has stated that the injuries on the body of the deceased may be result of two Cr. Appeal No.99-DB of 2005 [21] weapons and that the possibility of the same cannot be ruled out is of no significance and is inconsequential.
In the circumstances, it may be noticed that complainant Budh Ram (PW-6) has not been introduced as a witness and he was present at the time of occurrence. The mere fact that he did not intervene when his wife Renu Bala was being stabbed is inconsequential. The delay in lodging the FIR is inconsequential as it is a case of single accused. The fact that no independent witness has been joined is of no significance as people generally are reluctant to be witness to such crimes. The fact that the clothes of the accused must have been smeared with blood were not taken in possession is at the most an irregularity which does not affect the prosecution case which is established by direct evidence. The fact that Dr. Harjinder Singh (PW-9) has stated that injury could be caused by two weapons is also inconsequential as medical evidence cannot rule out the cogent and convincing eye witness account.
For the foregoing reasons, there is no merit in this appeal the and same is accordingly dismissed.
(S.S. Saron) Judge October 22, 2008. (Sabina) Judge *hsp* NOTE: Whether to be referred to the Reporter or not:Yes/No