Criminal Appeal No.371-DB of 1998 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.371-DB of 1998
Date of decision:September 17, 2008
Balwinder Singh
......appellant
Versus
State of Punjab
.......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mrs.Baljit Kaur Mann, Advocate,
for the appellant.
Mr.Rajesh Bhardwaj, DAG, Punjab.
****
JUDGMENT
SABINA, J.
Balwinder Singh has filed this appeal challenging his
conviction and sentence under Section 302 IPC vide impugned
judgment dated 27.7.1998 passed by learned Sessions Judge,
Hoshiarpur.
Prosecution story in brief is that Harjinder Singh @ Bittu,
younger brother of complainant Balwinder Singh @ Binder, was
running a shop as an electrician at Bus Stand Manak Dheri. Bittu
has good relations with Balwinder Singh son of Piara Singh, a truck
driver of village Manak Dheri. Bittu used to visit his house frequently.
Criminal Appeal No.371-DB of 1998 2
On 16.7.1996 at about 7.00 p.m. complainant went to meet his
brother Bittu at his shop. They discussed their domestic affairs and
consumed some liquor. When complainant was about to return back
to his village, Bittu suggested that they should stay at the house of
Balwinder Singh driver. At about 9.00 p.m. they reached the house
of Balwinder Singh driver. At that time he along with his wife were
taking meals in their room. An electric bulb was on in the room as
well as outside the courtyard. The complainant was following Bittu.
As soon as Bittu entered the room, Balwinder Singh driver took an
kulhari (axe) from underneath the iron petty (big box) and said “Aa
Gia Salia Ashika” and gave an kulhari blow on the head of Bittu,
which hit him near his left ear. Balwinder Singh gave another kulhari
blow on the right temple of Bittu. Bittu sat down and as a result
kulhari broke due to its striking against the floor. Balwinder Singh
picked up a kirpan and started giving blows on the person of Bittu.
Out of fear the complainant ran away from there and reached the
house of his maternal aunt (Massi) Gurbachan Kaur at village
Sohalpur. He narrated the entire occurrence to his aunt and
maternal uncle Kehar Singh. Then complainant along with Kehar
Singh met Sarpanch Amarjit Singh of village Manak Dheri. In the
morning they went to the house of the accused where the dead body
of deceased Bittu was lying in a pool of blood and after leaving
Kehar Singh at the house of the accused complainant informed the
police. Accused Balwinder Singh had suspicion that Bittu was having
Criminal Appeal No.371-DB of 1998 3
illicit relations with his wife and due to this reason the accused had
committed his murder.
On the basis of the statement of the complainant formal
FIR No.101 dated 17.7.1996 was registered by the police of police
Station Hariana District Hoshiarpur. FIR was concluded at 8.35 a.m.
SI Bakhshish Singh along with other police officials visited
the spot and prepared the rough site plan. He lifted blood lying near
the dead body. The place of occurrence was got photographed. He
prepared the inquest report with regard to dead body of Harjinder
Singh @ Bittu and the dead body was sent for postmortem
examination. Accused was arrested and on the basis of his
disclosure statement one kirpan, one handle of kulhari and blade of
kulhari were recovered from the disclosed place and were taken in
possession.
Dr. Gurbachan Singh conducted the postmortem
examination on the dead body of Harjinder Singh @ Bittu on
17.7.1996 at 5.15 p.m. and found following injuries on his person:-
1. An incised wound 9 cm x 2.5 cm lying just vertically in the
right temporal and parietal region. Its lower end was 2.5 cm
below and medial to the tragus of the right ear. Underlying
bone was cut and the brain matter was coming out of the
wound.
2. An incised wound 5 cm x 1.5 cm lying just transversally.
The pinna was cut (left ear). Its anterior angle was 1 cm
behind the tragus of left ear. The wound was muscle deep.
Criminal Appeal No.371-DB of 1998 4
3. An incised wound 11 cm x 5 cm on the right side of the
neck lying just transversally was present. Its anterior end
being 4 cm below and in front of the right angle of the
mandible. The right sterno-mastoid muscle was cut and the
internal juglar vein was cut. Blood clots were present in the
wound.
4. An incised wound 2 cm x 5 cm on the left pinna was
present, 2 cms above the injury No.2.
5. An incised wound 3 cm x 75 cm on the left side of neck
lying obliquely was present. Its lower and being 7cm to the
left of sternal notch.
In his opinion the cause of death was due to shock and
haemorrhage due to injuries to the brain and right internal juglar vein
which was sufficient to cause death in the ordinary course of nature
and injuries were ante mortem in nature. Time between injuries and
death was immediate and between death and postmortem was within
24 hours.
After completion of investigation and necessary
formalities accused was sent up for trial. Charge against the
accused was framed under Section 302 IPC on 11.10.1996, to which
he did not plead guilty and claimed trial.
The material witnesses examined by the prosecution at
the trial were Dr.Gurbachan Singh (PW-1), Complainant Balwinder
Singh (PW-7), Kehar Singh (PW-8), ASI Surinder Singh (PW-10),
Criminal Appeal No.371-DB of 1998 5
Satpal Singh (PW-13) and SI Bakhshish Singh (PW-14).
After close of prosecution evidence accused, when
examined under Section 313 Cr.P.C. pleaded as under:-
“I am innocent, on the fateful day, the deceased came
armed with a kirpan in drunken condition and caught hold
of my wife and tried to outrage her modesty. Then my
wife and children raised alarm. I was present in the
chobara of my house. The resident of the village on
hearing raula, came with whatever they could lay their
hands and on seeing the deceased molesting my wife,
caused injuries to him. I informed the Sarpanch of the
village, who informed the police and the police came early
in the morning and later on at noon time, the brother of
the deceased was called from the village and he made a
false statement against me. I did not cause any injury to
the deceased nor I made any disclosure statement, nor I
got anything recovered in pursuance of that statement.”
In his defence the accused examined Amarjit Singh
(DW-1) and Sharanjit Kaur (DW-2).
Learned trial Judge believed the prosecution version and
convicted the accused under Section 302 IPC and sentenced him to
undergo imprisonment for life and a fine of Rs.2,000/-.
In appeal, learned counsel for the appellant has argued
that the prosecution had failed to prove its case. There was
Criminal Appeal No.371-DB of 1998 6
unexplained delay in lodging of the FIR and its reaching the Special
Magistrate. The presence of the eye witness at the spot could not be
believed as his behaviour was most unnatural in the circumstances
of this case. The complainant had no occasion to be present in the
village Manak Dheri late in the evening. The deceased had come to
the house of the accused in his absence and tried to outrage the
modesty of the wife of the accused. He had been inflicted injuries by
the wife of the accused in self defence and other persons, who had
gathered at the spot.
Learned State counsel, on the other hand, has argued
that the dead body of the deceased was recovered from the house of
the accused, who had inflicted injuries on the person of the deceased
with an intention to murder him as he suspected that the deceased
was having illicit relations with his wife.
Present case rests on an eye witness account. The dead
body of the deceased was recovered from the house of the accused.
The complainant, who is brother of the deceased, has deposed to the
effect that the deceased had been inflicted injuries by the accused
with the help of kulhari and kirpan, whereas, the defence version is
that the deceased had come to the house of the accused in a
drunken condition and had tried to outrage the modesty of wife of the
accused, who, in order to save herself, had inflicted injury on the
person of the deceased and other persons gathered at the spot had
also inflicted injuries on his person.
Criminal Appeal No.371-DB of 1998 7
Complainant, while appearing in the witness box at the
trial, has deposed as per the contents of the FIR. The said witness
had come to meet his brother at his shop at about 7.00 p.m.
Thereafter, at the instance of deceased Harjinder Singh,
complainant went with him to the house of the accused. As per the
FIR complainant and his brother had consumed liquor. Presence of
alcohol was detected by the Chemical Examiner in the stomach, liver,
spleen, kidney and intestines of the deceased. It is possible that the
deceased might have been under the impression that the accused,
who was a truck driver, was not at home. However, when the
complainant and deceased went to the house of accused, they found
him present there. Apparently, accused was not happy with regard
to the visit of the deceased and the complainant to his house at 9.00
p.m. Probably some verbal altercation might have taken place
between the parties which provoked the accused to inflict injuries on
the person of the deceased. As per the complainant, accused
inflicted kulhari blows on the person of the deceased and when
handle of the kulhari broke, the accused picked up a kirpan. Out of
fear the complainant fled away from the spot and went to the house
of his uncle in village Sohalpur. Thereafter, he reported the matter to
Sarpanch of village Manak Dheri along with his uncle Kehar Singh.
However, FIR in this case was concluded at 8.35 p.m. on 17.7.1996.
Every person who witnesses an assault/murder reacts in
his own way. Some become speechless and stand rooted to the
Criminal Appeal No.371-DB of 1998 8
spot, whereas, some become hysteric and start screaming. Some
start shouting for help, whereas, some run away to keep themselves
as far removed from the spot as possible. Some may rush to rescue
the victim, even make an attempt to counter attack the assailant.
Thus, there cannot be a set rule of natural reaction of an eye witness.
In this case, the complainant out of fear ran away to the
house of his relative in the nearby village. Hence, the statement of
the eye-witness cannot be discarded merely because he ran away
from the spot and lodged the FIR in the morning. Kehar Singh has
corroborated the statement of the complainant to the effect that he
had come to his house at 11.00 p.m. Complainant has stated in his
cross-examination that his another maternal uncle also resided in
village Sohalpur and was having a tractor but complainant did not go
to the house of the said uncle. Apparently, the complainant may not
be having cordial relations with his other maternal uncle and went to
the house of Kehar Singh (PW-8) as he must have felt that he (Kehar
Singh) would come to his help.
Recording of the FIR was concluded at 8.35 p.m. on
17.7.1996, whereas, special report reached the Magistrate at 3.20
p.m., although the distance between police station Hariana and the
Court premises, Hoshiarpur was only about 15 k.m. It has been held
by the Apex Court in the case of Shiv Ram v. State of Uttar
Pradesh 1998 (1) RCR 778 that delay in sending special report to
Magistrate would not demolish the other positive and credible
Criminal Appeal No.371-DB of 1998 9
evidence on record. This would only show that the investigating
agency was not careful and prompt as it ought to be.
It has been held by the Apex Court in the case of State
of Uttar Pradesh v. Gokaran and others AIR 1985 Supreme
Court 131 that it was not as if every delay in sending special report
to the District Magistrate would necessarily lead to the inference that
the FIR had not been lodged at the time stated or had been
antetimed or antedated or that the investigation was not fair and
forthright.
Although in the present case the special report reached
the Magistrate after delay but this in itself is not sufficient to
demolish the prosecution case. It only shows that the investigation in
this case has not been carried out in a prompt and careful manner.
However, the statement of the eye witness cannot be brushed aside
on account of this lapse on the part of the investigating agency.
The dead body of deceased Harjinder Singh was
recovered from the house of the accused. The explanation offered
by the accused and his wife when examined as defence witness, is
that the deceased had come to their house and had tried to outrage
the modesty of Sharanjit Kaur. She inflicted a kulhari blow on the
person of the deceased and other neighbours, who had gathered at
the spot also inflicted injuries on the person of the deceased. Had
this been a fact, the accused or his wife would have informed the
police regarding the occurrence. The neighbours present at the spot
Criminal Appeal No.371-DB of 1998 10
would have informed the police. Hence, the defence version that the
injuries on the person of the deceased were not inflicted by the
accused fails to inspire confidence. Accused has admitted his
presence in the house when examined under Section 313 Cr.P.C.
Amajit Singh (DW-1) was given up by the prosecution as
having been won over and, thereafter, he was examined by the
accused in his defence. The statement of this witness, however, fails
to inspire confidence because this witness had not made any
application regarding false implication of the accused being
Sarpanch of the village nor any resolution in this regard was passed
by the Panchyat. It appears that with a view to help the accused he
has not supported the prosecution case.
Kulhari, its handle and kirpan were recovered on the
basis of the disclosure statement suffered by the accused. As per
the report of the Chemical Examiner, kirpan and kulhari dasta were
found to be stained with blood, whereas, the blood stains on fal
kulhari were disintegrated and their origin could not be determined.
Thus, the ocular version is corroborated by the medical evidence with
regard to injuries on the person of the deceased.
After going through the evidence on record we are of the
opinion that the accused had no intention to commit the murder of
the deceased but got provoked by the visit of the deceased in a
drunken condition at an odd hour to his house and inflicted injuries
on his person. The accused, however, had the knowledge that the
Criminal Appeal No.371-DB of 1998 11
injuries inflicted by him could cause the death of deceased Harjinder
Singh @ Bittu because as many as five injuries were inflicted on the
person of the deceased but he had no intention to commit murder of
deceased.
Keeping in view the totality of circumstances in mind, we
are of the opinion that the present case falls within the purview of
Section 304 (II) IPC and not under Section 302 IPC.
Accordingly, this appeal is partly allowed and conviction
of the accused is converted from Section 302 IPC to Section 304 (II)
IPC and his sentence is reduced to the imprisonment already
undergone by him.
(SABINA)
JUDGE
(JASBIR SINGH)
JUDGE
September 17, 2008
anita