High Court Punjab-Haryana High Court

Balwinder Singh vs State Of Punjab on 17 September, 2008

Punjab-Haryana High Court
Balwinder Singh vs State Of Punjab on 17 September, 2008
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
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