Criminal Appeal No.156-DB of 1998 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.156-DB of 1998
Date of decision:September 16, 2008
Jasbir Singh and another
......Appellants
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 appellants.
Mr.Rajesh Bhardwaj, DAG, Punjab.
****
JUDGMENT
SABINA, J.
Jasbir Singh and Dalbir Singh, by way of this appeal,
have challenged the judgment dated 11.3.1998 passed by learned
Additional Sessions Judge, Amritsar, whereby they were convicted
and sentenced under Section 302 IPC.
Prosecution case was set in motion on the basis of
statement made by Nazir Singh. Complainant stated in his statement
that on 16.9.1995 at about 9.30 p.m. he was present at his tubewell
along with his brother Charan Singh. His another brother Balkar
Singh had switched on his tubewell, which was at a distance of 2
Criminal Appeal No.156-DB of 1998 2
killas from their tubewell and was coming towards their tubewell for
turning the outlet. When Balkar Singh reached near the dera of
Jasbir Singh@ Ghulla, complainant saw that Jasbir Singh @ Ghulla
armed with a barchhi (spear), Dalbir Singh armed with a spear, Kabal
Singh and Ajit Singh armed with sua and Gurjant Singh @ Sona
armed with a dang (stick) came out of the dera of Jasbir Singh. At
that time electric bulb of Jasbir Singh’s dera was on. Jasbir Singh
raised a lalkara exhorting his companions to be brave and to catch
hold of Balkar Singh and further that Balkar Singh be not allowed to
go alive and should be taught a lesson for irrigating the land. Jasbir
Singh gave a spear blow which hit Balkar Singh in the middle of his
chest. Dalbir Singh gave a spear blow which hit him on his left flank.
Balkar Singh raised alarm and fell on the ground. Then all the
assailants gave injuries on the person of Balkar Singh with their
respective weapons on the left elbow, left thigh, left leg, knee, left
side of waist, middle finger of the left hand and on other parts of the
body. Complainant and his brother Charan Singh raised alarm and
all the assailants fled away from the spot with their respective
weapons. Balkar Singh succumbed to his injuries at the spot. The
motive behind occurrence was that there was a common water
course which was being used for irrigation and the turns for irrigation
had been fixed but Jasbir Singh and his brothers harboured a grudge
qua the same.
On the basis of the statement of the complainant formal
Criminal Appeal No.156-DB of 1998 3
FIR No.126 dated 16.9.1995 was recorded by the police of Police
Station Chhehartta.
SI Gajinder Singh then visited the spot along with other
police officials and lifted blood stained earth from the spot. He also
lifted juti from the spot. He prepared inquest report with regard to
dead body of Balkar Singh and the dead body was sent for
postmortem examination.
Dr.A.S.Thind conducted the postmortem examination on
the dead body of Balkar Singh on 17.9.1995 at 12.30 p.m. and found
the following injuries on his person:-
“1. Reddish brown abrasion 5 cm x 0.2 cm obliquely
placed, 4 cm above and 5 cm lateral to the umbilicus on
right side.
2. Reddish brown abrasion 3 x 0.2 cm, 1 cm below the
proceeding injury on right side.
3. Reddish brown abrasion 1 x 0.2 cm, 4 cm below and 1
cm lateral to the umbilicus.
4. Stab wound 4 cm x 2 cm, 4 cm above and 11 cm
medial to the right nipple. On dissection skin
subcutaneous tissues, Muscles, sternum, mediastinal
vessels, pleura, right lung shows injuries, right chest
cavity contained blood, clotted blood was present.
5. Stab wound 4 cm x 2cm, 18 cm below and 3 cm lateral
to the left nipple. On dissection skin subcutaneous
Criminal Appeal No.156-DB of 1998 4tissues, muscles, greater omentum were damaged.
Clotted blood was present.
6. Stab wound 4 cm x 2 cm, 18 cm below the enterior,
superior iliac spine on left side. On dissection skin
subcutaneous tissue, muscle were damaged, clotted
blood was present.
7. Abrasion reddish brown in colour, 1.5 x 0.5 cm, 10cm
above and left knee joint.
8. Stabbed wound 4 cm x 1.5 cm on the posterior aspect
of left elbow joint. Clotted blood was present.
9. Stab wound 4 cm x 1.5 cm on the posterior aspect of
left elbow joint. Clotted blood was present. On
dissection, injuries No. 8 and 9 were communicating
with each other and were perpendicular, skin
subcutaneous tissues were damaged.
10. Abrasion reddish brown, 1 cm x 0.5 cm present on the
dorsum of the left hand, wrist joint.
11. Lacerated wound 1 cm x 0.3 cm in the middle of first
phalynx on middle finger of left hand. Clotted blood
was present.”
In his opinion the cause of death was shock and
haemorrhage as a result of injuries, which were ante mortem in
nature and sufficient to cause death in the ordinary course of nature.
All the accused were arrested on 23.9.1995. On
Criminal Appeal No.156-DB of 1998 5
24.9.1995 Gurjant Singh suffered a disclosure statement during
interrogation and on the basis of the same he got recovered a dang
from the disclosed place which was taken in possession. Accused
Jasbir Singh during interrogation suffered a disclosure statement and
on the basis of the same he got recovered a spear from the disclosed
place, which was also taken in possession.
On 26.9.1995 accused Dalbir Singh during interrogation
suffered a disclosure statement and on the basis of the same he got
recovered a spear from the disclosed place, which was taken in
possession. On the same day Ajit Singh, during interrogation,
suffered a disclosure statement and on the basis of the same, he got
recovered a sua from the disclosed place, which was also taken in
possession. Kabal Singh also suffered a disclosure statement during
interrogation and on the basis of the same he got recovered a sua
from the disclosed place, which was taken in possession. On return
to the police station, case property was deposited with the MHC.
After completion of investigation and necessary
formalities accused were sent up for trial. Charge against the
accused was framed under Section 302 IPC on 13.6.1996 to which
they did not plead guilty and claimed trial.
Thereafter, vide order dated 7.11.1996, learned trial
Judge separated the trial of accused Gurjant Singh and sent him for
trial before the Juvenile Justice Court at Gurdaspur.
Prosecution in order to prove its case at the trial
Criminal Appeal No.156-DB of 1998 6
examined as many as ten witnesses. After close of prosecution
evidence accused, when examined under Section 313 Cr.P.C.,
prayed that they had been falsely involved in this case and were
innocent.
Learned trial Judge believed the prosecution version so
far as accused Jasbir Singh and Dalbir Singh were concerned and
convicted them under Section 302 IPC and sentenced them to
undergo imprisonment for life and fine of Rs.2,000/- each. Accused
Kabal Singh and Ajit Singh were acquitted of the charge framed
against them by giving them benefit of doubt. Hence, the present
appeal.
In appeal it has been argued that it was a case of blind
murder. The eye witnesses were not present at the spot. The dead
body was recovered from the fields of Sukha Singh in the morning.
FIR was ante timed, which was recorded after due deliberation and
the appellants were falsely involved in this case. The presence of
Charan Singh at the spot was doubtful as he did not have his land
near the place of occurrence. Appellant Dalbir Singh had no
grievance or motive to commit the murder of deceased Balkar Singh.
The land of Dalbir Singh was not near the place of occurrence. The
spear alleged to have been recovered from him was not sent for
chemical examination.
Learned State counsel, on the other hand, has submitted
that the presence of eye witnesses at the spot was natural as they
Criminal Appeal No.156-DB of 1998 7
were present near the tubewell of complainant. The eye witnesses
have witnessed the occurrence from a distance of 50 feet in the light
of the electric bulb glowing in the dera of appellant Jasbir Singh.
The complainant, while appearing in the witness box, has
deposed as per the contents of the FIR. The manner of occurrence
as deposed by the complainant is duly corroborated by his brother
Charan Singh (PW-5). Presence of the eye witnesses at the spot
appears to be natural.
Exhibit PF is the site plan with regard to place of
occurrence. We have carefully perused it and a perusal of the same
reveals that the eye witnesses had witnessed the occurrence from a
distance of about 50 feet. There is a passage in between the fields
of Balkar Singh deceased and Sukha Singh. The house of Jasbir
Singh is near the place of occurrence and at point ‘D’, shown in the
site plan, an electric bulb was glowing. The tubewell of Nazir Singh
is also near the house of Jasbir Singh on one side and fields of
Balkar Singh on the other side. Complainant Nazir Singh has
categorically deposed that he had gone with his brother Charan
Singh at his tubewell at 9.30 p.m. It is not unnatural for Charan
Singh to accompany his brother Nazir Singh at his tubewell. From
the site plan it become clear that the eye witnesses could have
easily witnessed the occurrence from the place where they were
standing. The dead body was recovered from the fields of Sukha
Singh, which is adjacent to the house of Jasbir Singh accused and
Criminal Appeal No.156-DB of 1998 8
fields of Balkar Singh deceased. Hence, there is no force in the
contention raised by learned counsel for the appellants that the eye
witnesses were not present at the spot or could not have witnessed
the occurrence as it was night time.
As per the medical evidence the injuries No. 4, 5, 6, 8 and
9 were result of sharp and pierce weapon. The doctor further opined
that the possibility of the same having been caused with one and the
same weapon could not be ruled out. The remaining injuries were
opined to be with blunt weapon. Stab wound was always incised
wound and could be caused with a sharp pointed edged weapon.
Thus, there are five injuries on the person of the deceased which
had been caused with a sharp and pierce weapon, whereas, the
remaining injuries have been caused with the blunt weapon. Both
the appellants were carrying spears. Depending on their use, spears
can cause sharp as well as blunt injury. Hence, the ocular version is
duly corroborated by the medical version. Since both the appellants
were carrying spears and had inflicted injuries on the person of the
deceased with their respective weapons, it is not possible to hold that
five stab wounds had been caused by only one person as has been
suggested by the doctor. The opinion of the doctor is based on
dimensions of injuries No.4,5,6,8 and 9. Since the weapons carried
by the appellants were similar, the dimensions of injuries would have
also been the same.
The motive attributed to the accused in this case is with
Criminal Appeal No.156-DB of 1998 9
regard to water channel. The accused party was dissatisfied with the
turn of water. At the time of occurrence the deceased, after
switching on his tubewell, was proceeding towards the outlet for
turning the water and due to this reason he was attacked by the
appellants. Although Dalbir Singh was not having a joint land with
the accused Jasbir Singh and was having a separate residence yet
his presence at the spot cannot be doubted because he must have
come to the spot in order to help his real brother Jasbir Singh to
achieve his object. In a case of an eye witness account motive more
or less loses its significance, although in the present case the
prosecution has been able to establish motive.
Occurrence in this case had taken place at about 9.30
p.m on 16.9.1995. The matter was reported to the police and the FIR
was recorded at 11.40 p.m. The special report, however, reached
the Magistrate at 9.30 a.m. on 17.9.1995. Devinder Singh (PW-10)
has been examined in this regard, who has stated in his affidavit that
on 16.9.1995 MHC of Police Station had handed over to him special
report. On that day Area Magistrate was on leave and he could not
locate the residence of Sh. U.S.Gera, Judicial Magistrate (Ist class),
Amritsar and handed over the special report to the said Magistrate at
9.30 a.m. on 17.9.1995. From this it is evident that the special report
could not be handed over to the Magistrate forthwith as the
Constable on duty could not locate house of the other Magistrate as
the Duty Magistrate was on leave. It can be said that the Constable
Criminal Appeal No.156-DB of 1998 10
had not acted in a prompt manner but in the facts of the present case
it cannot be said that the delay in sending the special report to the
Magistrate had been mis-utilised. 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 evidence on record. This
would only show that the investigating agency was not careful and
prompt as it ought to be.
It has further 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 that 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.
In the present case the investigation started immediately
on receipt of the information regarding the occurrence. FIR was
promptly recorded and the Investigating Officer immediately visited
the spot. As such, the delay in sending the special report to the
Magistrate fails to demolish the prosecution case, which is otherwise
duly established from the ocular and medical evidence on record and
it cannot be held in the present case that the FIR was ante timed.
The barchi recovered on the basis of disclosure statement suffered
by accused Dalbir Singh was not sent for chemical examination as it
Criminal Appeal No.156-DB of 1998 11
was not blood stained. It must have been cleaned by the accused
and hidden at the disclosed place.
We have carefully examined the entire evidence on
record and find that there is no reason to differ with the view taken by
the learned trial Judge in convicting and sentencing the appellants
under Section 302 IPC.
Accordingly, this appeal is dismissed.
(SABINA)
JUDGE
(JASBIR SINGH)
JUDGE
September 16, 2008
anita