Crl. Appeal No.771-DB of 2005 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Crl. Appeal No.771-DB of 2005
Date of decision : January 27, 2009
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Jarnail Singh and another
............Appellants
Versus
State of Punjab
...........Respondent
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CORAM: HON'BLE MR. JUSTICE JASBIR SINGH
HON'BLE MR. JUSTICE JORA SINGH
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Present: Mr. Gurcharan Dass, Advocate
with Mr. D.S Pheruman, Advocate for
the appellant Jarnail Singh.
Mr. Deepak Nayar, Advocate for the appellant
Sarbjot Singh.
Ms. Manjari Nehru Kaul, Deputy Advocate
General, Punjab.
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JORA SINGH, J.
Jarnail Singh, Sarpanch son of Fauja Singh and Sarbjot
Singh alias Sonu son of Joginder Singh by filing this appeal have
impugned the judgment/order dated 11.8.2005 in Sessions Case
No.63/2004/FTC FIR No. 17 dated 15.1.2004 registered under
Sections 302/34 IPC at Police Station Civil Lines, Amritsar passed by
Additional District and Sessions Judge, Amritsar, whereby, they were
Crl. Appeal No.771-DB of 2005 2
convicted under Section 302 IPC and were sentenced to undergo life
imprisonment and to pay a fine of Rs.2000/- in default of payment of
fine, to further undergo RI for two months.
Prosecution story, in brief, is that Sakal Dev, complainant
along with his brother, Kapil Dev and Raju was residing in the rented
room of Jarnail Singh for the last 1½ years. Nand Kishore and
Maheshwar Kumar were the cousins of the complainant and they
were also residing near the house of the complainant. They were
celebrating Lohri festival. Complainant, his brothers Kapil Dev and
Raju and cousin brothers, Nand Kishore and Maheshwar Kumar
were going to have their dinner. At 9:30 P.M, complainant sent Kapil
Dev to fetch water from the hand pump installed near the outer gate.
There is a STD/PCO shop of Sarabjot Singh near the gate. Sarabjot
Singh demanded tobacco from Kapil Dev. Kapil Dev replied that he
does not take tobacco. Sarabjot Singh started abusing Kapil Dev.
On hearing raula, they all had gone to the spot and the dispute was
settled. After closing the door from inside, the complainant-party
started having their dinner. Jarnail Singh, Sarpanch, Sukha and
Mithu were taking liquor. They had requested to open the door.
Sarabjot Singh was accompanying them. Out of fear, door was not
opened. Then accused gave push to the door and door was opened.
Accused started giving beatings to them and out of fear they
remained standing by the side of the wall. Accused caught hold of
Kapil Dev and started giving beatings to him. Kapil Dev was thrown
on the ground. Accused started jumping over Kapil Dev. Kapil Dev
had died on the spot. Accused had fled away from the spot. Matter
Crl. Appeal No.771-DB of 2005 3
was brought to the notice of Garib Dass, SI, SHO, Police Station Civil
Lines, Amritsar while present near Rattan Singh Chowk. Statement
of Sakal Dev was recorded. After making endorsement, statement
was sent tot he police station on the basis of which formal FIR was
recorded. Special report was sent to the Illaqa Magistrate.
Garib Dass, Investigating Officer along with party had
gone to the spot, where dead body was lying. Inquest report was
prepared. Dead body was sent to hospital for post mortem
examination. Rough site plan with correct marginal notes was
prepared. Statements of the witnesses were recorded. After post
mortem examination, dead body was handed over to the relations of
the deceased. Clothes worn by the deceased were produced by
Major Singh. They were put into a parcel and sealed. Sealed parcel
was taken into police possession vide separate memo attested by
the witnesses. Accused were arrested on 18.1.2004.
After the completion of investigation, challan was
presented against Jarnail Singh and Sarbjot Singh and Mithu (PO).
Case was committed to the Court of Session for trial.
After hearing learned Public Prosecutor for the State,
defence counsel for the accused and from the perusal of the
evidence on file, learned trial Court opined that a prima facie case is
made out to frame charge against both the accused under Sections
302 IPC. Charge was accordingly framed to which the accused did
not plead guilty and claimed trial
In order to substantiate the charge, prosecution examined
as many as six witnesses.
Crl. Appeal No.771-DB of 2005 4
PW-1, Dr. Gurmanjit Rai had conducted post mortem
examination on the dead body of Kapil Dev and found the following
injuries on his person:
1. A reddish brown abraded bruise present on
right side of upper lip and micoza of upper
lip on its inner aspect.
2. Reddish blue bruise was present on inner
aspect of lower lip.
3. A reddish brown abrasion was present of
knuckle of right middle finger.
4. Reddish brown abrasion 0.3 x 0.3 cm
present on apigastric region of abdomen,
bruising of internal aspect of anterior
abdominal wall present, left lop of liver was
found lacerted. Peritonial cavity contained
about 1750 cc of fluid blood.
5. Reddish brown abrasion 2 x 1 cm present
on front of left thigh on its middle 1/3rd.
6. Reddish brown abrasion 3 x 2.5 cm on
inner aspect of left forearm 3 cm below
elbow tip.
7. 1 x 0.5 reddish brown abrasion present on
inner aspect of left forearm 2 cm below and
medial tip of elbow tip.
8. On dissection of skull 7 x 6 cm extracranial
hamotoma present under scalp in the
Crl. Appeal No.771-DB of 2005 5region of occipital region of back of head.
On removing skull cap brown was found
oedematus and membrane was found
tense.
Death was due to shock and haemorrhage. Injuries
were ante mortem in nature and sufficient to cause
death in the ordinary course of nature.
PW-2, Sakal Dev, complainant supported the prosecution
story by saying that accused had caused injuries to the complainant-
party. Kapil Dev was caught hold by the accused and was given
injuries. Kapil Dev was thrown on the ground and then the accused
had started jumping over his body.
PW-3, Raju and PW-6, Maheshwar Kumar are the eye
witnesses. They have supported the version of Sakal Dev,
complainant by saying that Kapil Dev was murdered by the accused.
PW-4, Head Constable, Major Singh was deputed for
getting the post mortem examination conducted on the dead body of
Kapil Dev.
PW-5, Kuldip Singh, Head Constable had delivered
specail Report tot he Illaqa Magistrate.
PW-7, Garib Dass is the Investigating Officer. He had
recorded statement of the complainant and had completed the
remaining formalities.
After the close of prosecution evidence, statements of the
accused were recorded under Section 313 Cr.P.C. Accused denied
all the allegations of the prosecution and pleaded to be innocent.
Crl. Appeal No.771-DB of 2005 6
In defence, Harmanbir Singh, DW-1 and Raj Kumar, DW-
2 appeared.
After hearing learned Public Prosecutor for the State,
defence counsel for the accused and from the perusal of the
evidence on file, learned Additional District and Sessions Judge,
Amrtisar had convicted the accused under Sections 302 IPC and
they were sentenced to undergo imprisonment as stated above.
Defence counsel argued that according to the prosecution
story, occurrence had taken place at about 9:30 P.M on 14.1.2004.
At about 12:10 A.M, report was lodged with the police. Police came
to the spot. Inquest report was prepared on the intervening night of
14/15.1.2004. At about 12:15 A.M., body was sent to hospital and
the same was received in the hospital at 12:30 A.M on 15.1.2004.
But evidence is contrary to the prosecution story. Investigating
Officer stated that on 15.1.2004 at 12:30 P.M, during day time,
statement of the complainant was recorded. After preparing the
inquest report, body was sent to hospital for post mortem
examination. Witnesses can be expected to tell lie but documents
cannot. Documentary evidence is to be given preference over the
oral evidence. Complainant-party was five in number, whereas the
accused were four in number. As per one witness, namely,
Maheshwar Kumar, Jarnail Singh sat on the neck of Kapil Dev
whereas, Sarabjot Singh started jumping on the chest of Kapil Dev
when brought outside in the veranda. Maheshwar Kumar and Raju
did not state a word that accused had also given injuries to the other
members of the complainant-party. Whereas Sakal Dev stated that
Crl. Appeal No.771-DB of 2005 7
they were also given beatings but there is no MLR on the file.
Witnesses are very much clear that during night time police party
came to the spot. Either the witnesses are not telling the truth or
documents are forged. There is no rent note on the record that the
complainant-party was staying on rent. Complainant-party was
tenant of Jarnail Singh. There was no dispute qua payment of rent.
When there was no motive to commit the crime then story is doubtful.
If appellants-accused had the intention to commit the crime then they
could easily bring weapons to cause injuries. There was no idea to
jump over the chest of Kapil Dev. Delay in lodging the FIR is also
fatal.
Learned counsel for the State argued that no doubt there
was delay in lodging the FIR but appellants-accused had no enmity
with the complainant-party. Therefore, there was no idea to implicate
the appellants-accused by leaving the real culprits. Case of the
complainant is that they were occupying the room on rent owned by
Jarnail Singh. Appellants-accused had the motive to commit the
crime so that complainant-party is forced to vacate the room.
Nothing to disbelieve PWs.
First submission of the defence counsel was that there is
delay in lodging the FIR. Delay was not fully explained. We agree
with this submission of learned defence counsel. Occurrence had
taken place on 14.1.2004 at 9:30 P.M during night time. As per
prosecution, report was lodged on 15.1.2004 at about 12:10 P.M.
Place of occurrence was at a distance of 1½ Kilometers from the
police station. No explanation as to why there was so much delay in
Crl. Appeal No.771-DB of 2005 8
lodging the FIR. Five persons were from the complainant side but
injuries were caused to only Kapil Dev. Complainant, Raju,
Maheshwar Kumar and Nand Kishore had witnessed the occurrence.
Death was on the spot. Then anyone could easily approach the
police station at arout 9:30 P.M, particularly, when the locality was
within the residential area of Amritsar. No case of the prosecution
that place of occurrence was at a distance of 40/50 kilometers in the
village and there was no bus service or vehicle to approach the
police station during night time or that the eye witnesses were also
injured and their condition was serious. Distance of about 1 ½
kilometers at 9:30 P.M could easily be covered within one hour on
foot. Accused were not armed. Accused simply jumped over the
body of Kapil Dev by throwing him on the ground. Therefore, the
complainant-party cannot argued that out of fear during night time
they were not in a position to approach the police station. Delay of
about 15 hours was not explained. But delay itself is not sufficient for
the acquittal of the accused.
Next submission of the defence counsel was that there
are two versions. First version is whether report was lodged during
night time or report was lodged during day time. As discussed
earlier, occurrence was at about 9:30 P.M on the night of 14.1.2004.
Distance of the place of occurrence from the police station was only
1 ½ kilometers. Complainant stated that police remained at the spot
up to morning. Signatures of his brother was taken at 2:00 A.M that
means during night time police came to spot. Raju, PW-3 stated that
police came at 10:00 P.M but his statement was not recorded by the
Crl. Appeal No.771-DB of 2005 9
police. Maheshwar Kumar PW-6 stated that police had met them at
about 12:00 during night time. Up to 12:30 A.M police came to the
spot. At 7:00/8:00 A.M body was removed to hospital but Garib
Dass, IO stated that on 15.1.2004 at 10:00 P.M, complainant had
met him. Statement of the complainant was got recorded at 12:00
noon. Party was on the spot at 12:15 A.M. Lastly stated that dead
body was sent at 5:00 A.M. Party stayed at the spot up to 5:00 A.M.
To clarify the dispute as to whether statement of the complainant was
recorded during night time at 12:10 A.M i.e on the intervening night of
14/15.1.20004 or the statement was recorded at 12:10 P.M during
day time on 15.1.2004. Original daily diary register and FIR register
was summoned from the concerned police station, Civil Lines,
Amritsar. Tarsem Lal, SHO of Police station, Civil Lines, Amritsar
had brought original roznamcha and FIR register. He had produced
the attested copies of Rapat No. 16, 19, 10 and 44 dated 15.1.2004.
As per entry no.10 of the roznamcha, Garib Dass, IO had left the
police station at 12:25 A.M on 15.1.2004 for patrol duty and to
apprehend anti-social elements. Vide rapat no. 16 dated 15.1.2004,
IO had recorded the statement of complainant at 12:30 P.M i.e during
day time. As per rapat no.19 dated 15.1.2004 on receipt of
statement in the police station FIR was recorded at 1:40 P.M. After
investigation, IO with the party came back to the police station and
entry was made at serial no.44 at about 11:00 P.M during night time
on 15.1.2004. After reaching the place of occurrence, inquest report
was prepared at 12:10 A.M on 15.1.2004 i.e during night time. Post
mortem report shows that dead body was brought to hospital at
Crl. Appeal No.771-DB of 2005 10
12:30 P.M on 15.1.2004. Papers were received at about 2:00 P.M.
In case IO with the party had left the police station at 10:25 A.M on
15.1.2004 then question is how the inquest report was prepared
during night time at 12:10 A.M on the intervening night of
14/15.1.2004. As per evidence, the police party had reached the
place of occurrence at 10:00 P.M and signature of the brother of the
complainant were obtained at 2:00 A.M and police party remained on
the spot up to 12:15 A.M when the body was sent to hospital at 5:00
A.M. That means the prosecution is not clear whether during night
time investigation was completed or during day time on 15.1.2004.
According to the inquest report and evidence on the file, occurrence
took place at 9:30 P.M on 14.1.2004, police party was informed and
came to spot at 10:00 P.M. Inquest report was prepared at 12:10
A.M. Statement of the complainant was also recorded during night
time. Dead body was sent to hospital at 5:00 A.M. When there are
two versions, then version favourable to the accused is to be
accepted. Prosecution is not in a position to explain how the inquest
report was prepared during night time at 12:10 A.M when IO had left
the police station at 10:25 A.M.
Next submission of the defence counsel was that
according to the complainant, accused had also given injuries to
other members of the complainant-party. Complainant specifically
stated that other members of the complainant-party were also given
beatings but there is no MLR on the file. Other PWs have not stated
a word that accused had also given beatings to the other members of
the complainant-party. Presence of complainant and the eye
Crl. Appeal No.771-DB of 2005 11
witnesses is not natural. Submission of the defence counsel seems
to be correct one. As per FIR, accused party was taking liquor.
Sarabjot Singh had demanded tobacco from Kapil Dev. When Kapil
Dev failed to oblige Sarabjot Singh, he became annoyed.
Complainant-party was going to have dinner. Door was closed.
Accused party had opened the door by giving a push and gave
beatings. Kapil Dev was caught hold and was given beatings. He
was thrown on the ground then accused party had started jumping
over the body of Kapil Dev. But there is no MLR either of the
complainant or any other eye witness. Complainant is definite that
he was also given beatings. But Raju and Maheshwar Kumar stated
that accused did not give beatings to anyone else. Complainant-
party was five in number whereas the accused were four in number.
Statement of Raju was recorded by the police. Raju did not state a
word that accused had also given injuries to him. Maheshwar Kumar
stated that Jarnail Singh had sat on the neck of Kapil Dev then
Sarabjot Singh started jumping over the chest of Kapil Dev. But
statements of the PWs are contrary to the FIR and medical evidence.
Only one injury was noted on the abdomen. Complainant-party was
occupying the room on rent owned by Jarnail Singh. There is no
receipt regarding payment of rent. Sarabjot Singh had demanded
only tobacco from the deceased. Sarabjot Singh had some
altercation with Kapil Dev But with the intervention of complainant,
his brothers and cousins, dispute was settled. Kapil Dev came inside
the room. After that if appellants-accused had the intention to
commit the crime, they could easily bring some weapons.
Crl. Appeal No.771-DB of 2005 12
Appellants-accused were not armed with any weapon. It is very
strange that one accused namely, Jarnail Singh sat on the neck of
Kapil Dev and another accused started jumping over his body,
particularly, when four brothers of Kapil Dev were very much present
there. Complainant-party could easily intervene to save Kapil Dev.
Particularly, when accused were not armed with deadly weapons.
The story of causing injuries to the deceased seems to be not natural
one. All these facts pointed out by the defence counsel were not
taken into consideration by the trial Court.
No other submission was put forward. Impugned
judgment/order of the trial Court suffers from infirmity and illegality
and the same is set aside. Benefit of doubt is given to the
appellants-accused and they are acquitted of the charge levelled
against them.
Appeal is accepted.
( JASBIR SINGH ) ( JORA SINGH )
JUDGE JUDGE
January 27, 2009
ritu
Crl. Appeal No.771-DB of 2005 13