Criminal Appeal No.411 DB of 2002 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.411 DB of 2002
Date of decision: 11.8.2008
Jaswinder Singh
......Appellant
Versus
State of Punjab
.......Respondent
CORAM: HON'BLE MR.JUSTICE K.S.GAREWAL
HON'BLE MRS. JUSTICE SABINA
Present: Mr.H.S.Bhullar, Advocate,
for the appellant.
Ms.Gurveen Singh, AAG, Punjab.
****
JUDGMENT
SABINA, J.
Vide this judgment Criminal Appeal No.411-DB of 2002
and Criminal Revision No.1724 of 2002 would be disposed of as both
have arisen out of judgment dated 10.5.2002 passed by Sessions
Judge, Gurdaspur whereby accused Jaswinder Singh was convicted
under Section 302 IPC and sentenced to undergo imprisonment for
life and fine of Rs.5,000/-. Accused Jarnail Singh, Bhupinder Singh
and Joginder Singh were acquitted of the charge framed against
them.
Prosecution story, in brief, is that complainant was
residing in village Jogowal Bedian for the last ten years after
Criminal Appeal No.411 DB of 2002 2
purchasing land in the said village. Land of Jarnail Singh adjoined
the land of the complainant and they had joint tubewell. Jarnail Singh
used to give trouble to the complainant party on earlier occasions
also. On 21.6.1997 at about 7/8 p.m. Satpal, servant of Jarnail
Singh, came to the house of complainant Sewa Singh and called for
his mother as “Aunty”. Mother of the complainant had already left for
her parental house a day before. Complainant and his father
Gurbachan Singh were present in the house. Gurbachan Singh told
Satpal that he should call by naming male members of the family. A
quarrel started between two of them and Gubachan Singh slapped
Satpal, who returned back to his dera (the house of Jarnail Singh
etc.). At about 9/9.30 P.M. Jarnail Singh along with his sons namely
Joginder Singh, Jaswinder Singh and Bhupinder Singh came to the
house of the complainant and started quarrelling with them. Joginder
Singh picked up a datar lying near their door and scuffled with his
father Gurbachan Singh. The complainant made requests and they
went back to their dera. Jaswant Singh and other respectable went
to the dera of Jarnail Singh and a compromise was effected.
Thereafter,the complainant returned back to his house along with his
father. He slept in the room, whereas, his father Gurbachan Singh
slept in the court yard. The complainant woke up around mid night
on hearing barking of the dog. The complainant saw that Jarnail
Singh had caught hold of Gurbachan Singh from his legs and
Bhupinder Singh had caught hold of him from his arms while he was
sleeping on a cot. Jarnail Singh gave a kahi blow on the left side of
neck of his father. Joginder Singh gave two datar blows on the
person of his father. Jaswinder Singh gave another kahi blow on the
Criminal Appeal No.411 DB of 2002 3
left shoulder of his father. Thereafter, they all ran away from the spot
with their respective weapons. Out of fear, complainant-Sewa Singh
remained inside. Later on he narrated the occurrence to his uncle
(Fufar) Santokh Singh.
On the basis of the statement of the complainant formal
FIR No.56 dated 22.6.1997 was recorded by the police of police
Station Kalanaur.
After completion of necessary formalities challan was
presented against Jarnail Singh, whereas, the remaining accused
were placed in column No.2. Thereafter, vide order dated
18.12.1997, Jaswinder Singh, Bhupinder Singh and Joginder Singh
were ordered to be summoned to face trial as accused. Charge
against them was framed under Section 302/34 IPC on 3.2.1998.
Accused did not plead guilty and claimed trial.
The material witnesses summoned by the prosecution at
trial were PW-6 Sewa Singh, PW-7 Santokh Singh, PW-8 S.I.Darbari
Lal, PW-9 DSP Rajinder Singh and PW-10 Dr.Kashmiri Lal. After the
close of prosecution evidence accused, when examined under
Section 313 Cr.P.C., prayed that they were innocent and have been
falsely involved in this case. The accused examined Swinder Singh
(DW-1), Harminder Singh (DW-2), Hans Raj (DW-3), Kawal Masih
(DW-4) and Darshanjit Singh Dhindsa (DW-5) as defence witnesses.
Learned trial Judge convicted and sentenced accused
Jaswinder Singh under Section 302 IPC, whereas, remaining
accused were acquitted of the charge framed against them vide
impugned judgment. Aggrieved by the same accused Jaswinder
Singh has filed the present appeal and the complainant has filed a
Criminal Appeal No.411 DB of 2002 4
revision petition challenging the acquittal of accused Jarnail Singh,
Bhupinder Singh and Joginder Singh.
Learned counsel for the appellant-Jaswinder Singh has
argued that the sole eye witness of the occurrence, Sewa Singh
(PW-6), was not a reliable witness. As per this witness there were
five injuries on the person of deceased Gurbachan Singh, whereas,
as per medical evidence there were only three injuries on the person
of the deceased. There was delay in lodging the FIR and the same
had been lodged after due deliberation and confabulation. The story
put forth by the complainant was not believable as there was no
need to hold a sleeping man. Rather this would have disturbed the
deceased and he would have raised the alarm. Two criminal cases
had been registered against the deceased and, thus, he was not
having a good record.
Learned State counsel, on the other hand, has argued
that the prosecution had been successful in proving its case against
the accused. The parties were having strained relations and there
had been quarrel between them on earlier occasions also. The
statement of the complainant was trustworthy. Weapon of offence
had been recovered on the basis of disclosure statements suffered
by the accused. The delay in lodging the FIR had been duly
explained.
Present case rests on an eye witness account.
Complainant is the son of the deceased and his presence in the
house i.e. place of occurrence cannot be doubted. The complainant,
while appearing in the witness box as PW-6, has deposed as per his
statement in the FIR except with regard to injuries. He has deposed
Criminal Appeal No.411 DB of 2002 5
that Jaswinder Singh had inflicted injury with a kahi on the left side of
the neck of his father and Joginder Singh inflicted a datar blow on
the left side of the neck of his father. Jaswinder Singh gave another
kahi blow with its blunt side on the neck of his father. Thus, while
appearing in the witness box, the complainant has deposed with
regard to infliction of three injuries on the person of Gurbachan Singh
instead of four injuries stated by him in his statement before the
police. However, the testimony of the complainant can not be
outrightly rejected. The said witness was woken up by the barking of
the dog and must have been in a trauma and panic when he saw his
father being murdered. The occurrence had taken place at about
mid-night and the matter was reported to the police in the morning at
about 7.a.m. Special report reached the Magistrate at about 10.20
a.m. The complainant has stated that he had first informed his uncle
about the occurrence and, thereafter, the matter was reported to the
police. Since there were strained relations between the parties, the
possibility that some of the accused have been falsely introduced in
this case can not be ruled out. The role attributed to accused
Bhupinder Singh and Jarnail Singh is that they had caught hold of
arms and legs of Gurbachan Singh. Apparently both these accused
have been named by the complainant with a view to involve them
also in this case especially when there was no occasion for these
persons to restrain a sleeping man.
At this stage, it would be appropriate to refer to medical
evidence. Dr. Kishori Lal (PW-10) deposed that he conducted the
Criminal Appeal No.411 DB of 2002 6
post mortem examination on the dead body of Gurbachan Singh on
22.6.1997 at 12.30 p.m. and found following injuries on his person:-
“1. An incised would 8cm x 4cm present on the left side of
the neck. Underlying muscles, vessels as well as other
structures were cut. This injury was just below the lower
part of the left pinna and was also soiled with clay. Would
was not bleeding at the time of post mortem, but clothes
were wet with blood.
2. An incised would 6cm x 3cm present on the left side of
neck just below the left lower part of the left pinna. This
injury had cut all the muscles and vessels along with the
structure underlying it. This injury was also extending
deep into the trachea which was also cut. Marked
bleeding was present which was estimated from the
injuries.
3. An abrasion 2cm x ½cm present on the left side of the
left supra clavicalar region.”
In his opinion the cause of death was haemorrhage and
shock due to injuries described above, which were sufficient to cause
death in the ordinary course of nature. All the injuries were ante
mortem in nature. Probably time between injuries and death was
immediate and between death and post mortem was within 12 hours.
In his cross-examination, he deposed that injury No.3 was simple in
nature. As per Exhibit PR/1 doctor opined that injuries mentioned by
him in the post mortem report could be caused with a kahi. Thus, no
Criminal Appeal No.411 DB of 2002 7
injury mentioned in the post mortem report has been caused with
dattar. Hence, from the medical evidence and ocular version given
by the complainant it appears that the injuries had been caused on
the person of Gurbachan Singh by Jaswinder Singh, who was armed
with kahi at the time of occurrence. As such, Joginder Singh appears
to have been falsely involved in this case. Gurbachan Singh was
sleeping at the time of occurrence. He could not offer any
resistance. As such, injuries could have caused on his person by a
single person.
DSP Rajinder Singh (PW-9) has partly investigated the
case. He had allegedly recovered kahi on the basis of disclosure
statement suffered by accused Jarnail Singh. He had arrested only
accused Jarnail Singh and remaining accused were placed by him in
column No.2 as he found them innocent on the basis of his
investigation. It appears that the Investigating Officer with a view to
shield the real culprit Jaswinder Singh has shown the recovery of
kahi from accused Jarnail Singh, whereas, as per the complainant
accused Jaswinder Singh was armed with kahi and not accused
Jarnail Singh. As per the age mentioned in the charge sheet, Jarnail
Singh accused was 70 years old at the time of framing of charge in
the year 1998, whereas, accused Jaswinder Singh was 31 years old.
The Investigating Officer had apparently tried to help the accused
and as per his investigation, he arrayed Jarnail Singh as an accused
and placed the other accused i.e. sons of Jarnail Singh in column
No.2.
Although complainant-Sewa Singh (PW-6) has tried to
Criminal Appeal No.411 DB of 2002 8
involve Jarnail Singh and his three sons in this case yet his
statement cannot be rejected altogether. So far as the involvement of
accused Jaswinder Singh is concerned, the statement of complainant
Sewa Singh, who is the sole eye witness, can be relied upon. The
ocular version of the complainant is duly corroborated by the medical
evidence. Since Jaswinder Singh was armed with kahi, the
complainant out of fear at the relevant time may not have come out
to save his father. Jaswinder Singh after causing injuries had fled
away from the spot. After the occurrence the complainant had gone
to the house of his uncle Santokh Singh and brought him to his dera.
Jaswant Singh, whose house was also nearby, also came there.
Puran Singh was also called to dera. Thereafter, complainant Sewa
Singh along with Santokh Singh and Puran Singh reported the matter
to the police. This fact is duly corroborated by Santokh Singh (PW-7).
So far as registration of FIRs under the NDPS Act against
Gurbachan Singh are concerned, the same fail to advance the case
of the appellant regarding his innocence because the said FIRs were
never got registered by the accused.
Kewal Masih (DW-4) fails to advance the case of the
appellant regarding his innocence as the said witness never gave
anything in writing to the police nor the matter was moved before the
Panchayat by him regarding false involvement of Jaswinder Singh in
the case.
After going through the entire evidence on record, we are
of the opinion that the prosecution has been successful in proving its
case against appellant Jaswinder Singh and his conviction and
Criminal Appeal No.411 DB of 2002 9
sentence are liable to be upheld. Accused Jarnail Singh, Bhupinder
Singh and Joginder Singh have been rightly acquitted by the trial
Court as their false involvement in this case cannot be ruled out. The
impugned judgment of the trial Court, thus, does not call for any
interference. Accordingly, both the appeal as well as the revision are
dismissed.
(SABINA)
JUDGE
(K.S.GAREWAL)
JUDGE
August 11, 2008
anita