Crl.Appeal No.545-DB of 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH.
Crl.Appeal No.545-DB of 2005
Date of Decision: December 19, 2008
Kulbir Singh .......Appellant
Versus
State of Haryana .......Respondent
CORAM:- HON'BLE MR.JUSTICE K. S. GAREWAL
HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr.Sunil Panwar, Advocate for appellant Kulbir Singh
(in Crl.Appeal No.545-DB of 2005) & for appellants No.1 to 3
(in Crl.Appeal No.576-DB of 2005).
Mr.Narinder Hooda, Advocate for appellant No.2-Ishwar Singh
(in Crl.Appeal No.576-DB of 2005).
Mr.S.S.Randhawa, Deputy Advocate General, Haryana.
---
JITENDRA CHAUHAN, J.
1. This judgment shall dispose of two Criminal Appeals bearing
Nos. 545-DB of 2005 and 576-DB of 2005 as these have arisen out of the
same judgment.
2. On 6.6.2003, accused Raj Singh, Kulbir Singh, Anil, Tharmos
and Ishwar Singh were charged for the offences punishable under Sections
148, 323, 302 325, 452 and 506 read with Section 149 of the Indian Penal
Code by the Additional Sessions Judge (I), Bhiwani.
3. On application under Section 319 of the Code of Criminal
Crl.Appeal No.545-DB of 2005 2
Procedure, accused Partap Singh, Mubarik Singh, Smt. Birma Devi, Balwan
and Jasbir Singh were also summoned and charged for the same offences.
All the accused pleaded not guilty and claimed trial.
4. The trial Court noticed the facts of the present case in para no.
1 of the judgment dated 12.7.2005, which are as under:
“Prosecution case is that on 4.2.03 ASI Miya Singh
PW9 with HC Anil Kumar and EHC Jagbir Singh on receiving
a telephonic message in Police Station Sadar Bhiwani,
regarding a quarrel in village Kaluwas and that injured persons
were taken to General Hospital, Bhiwani, reached the hospital.
ASI Miya Singh collected medical Ruqas Exts. PQ and PR
from the attending doctor M.K.Garg PW5. Medical Ruqa
Ex.PQ was regarding admission of injured Rohtas PW8 and his
wife Smt.Birma Devi (given up as unnecessary). Medical Ruqa
Ex.PR was regarding bringing Pawan Kumar (since deceased)
by his son Anil Kumar PW7. On his applications Exts.PM and
PN, Dr.M.K.Garg PW5 gave his opinions Exts.PM/1 and PN/1
that injured Rohtas and Birma Devi, respectively, were unfit to
give their statements. ASI Miya Singh then met Anil Kumar
PW7 son of Pawan Kumar deceased, at the outer gate of the
hospital where at about 7.10 PM ASI Miya Singh recorded his
statement Ex.PU. It is to the effect that he is resident of village
Kaluwas. He is working as driver in a private bus. He was
eldest among three brothers. Pawan Kumar deceased and Sajya
were younger to him. Both were in Army. Pawan Kumar
(since deceased) had come from Army on 5.1.03 on leave of
one month. On that day, dated 4.2.03, at about 4.30 PM when
he came to his house after his duty, he saw that accused Partap
armed with Jaili, Mubarik Singh, Raj Singh, Tharmosh, Ishwar
and Balwan armed with Lathis, Kulbir armed with hockey, Anil
and Jasbir armed with kulharas and accused Birma Devi armed
with Dang were giving injuries to his brother Pawan Kumar,
mother Birma Devi and father Rohtas PW8 after entering into
Crl.Appeal No.545-DB of 2005 3his house, with their respective weapons, after sharing their
common intention. They were saying that they be finished on
that date to teach them a lesson for putting earth and stones in
the street. His parents and brother were raising hue and cry.
Meanwhile on hearing the noise his cousins Ashok son of Deep
Chand and Sunil son of Banarsi (both of them were also given
up as unnecessary) reached there. All of them also raised hue
and cries whereupon all the accused persons ran away with
their respective weapons. Motive for the crime was that house
of accused Ishwar is in front of their house. There is a ‘Kacha’
street in between their house. Usually water collect in it.
Accused Ishwar has put sufficient earth in front of his house,
but whenever they try to put earth, then the accused persons
abuse them. On that day, his brother and his parents were
assaulted on this score. When the accused persons had run
away, then he along with his cousins viz: Ashok and Sunil,
brought injured Pawan Kumar, Rohtas and Birma Devi in the
hospital where they were admitted, but Pawan Kumar
succumbed to his injuries. Rohtas and Smt.Birma Devi were
still under medical treatment. When he was going to inform the
police, he met them there; hence, this report.”5. Ashok and Sunil moved the injured Pawan Kumar, Rohtas and
Birma Devi to the hospital. Pawan Kumar succumbed to his injuries.
6. On receipt of information regarding the incident, ASI Miya
Singh reached the hospital and collected medical ruqas Exhibits PQ and PR
from Dr.M.K.Garg. He recorded the statement of Anil Kumar son of the
deceased, on the basis of which, formal FIR was registered by PW-11, SI
Ajaib Singh. The special report reached to the Illaqa Magistrate at 9.15
p.m.
7. PW-11, SI/SHO Ajaib Singh reached the General Hospital,
Bhiwani and conducted inquest proceedings on the dead body of Pawan
Crl.Appeal No.545-DB of 2005 4Kumar. The statements of the eye witnesses Ashok and Sunil were recorded.
The place of occurrence was visited by SI Ajaib Singh on 5.2.2003. The
site plan was prepared and the blood stained earth was lifted from the spot.
8. PW-4 Dr.K.K.Girdhar conducted the post-mortem examination
on the dead body of Pawan Kumar on 5.2.2003 at 9.30 a.m. The doctor
noticed the following injuries on the dead body:-
1. Swelling with bluish contusion of 3×3 cms present lateral to
left eye brow and front of left ear.2. Swelling of 3×4 cms with bluish contusion present lateral to
right eye brow and front of right ear.3. A swelling of 2×2 cms present on occipital area of scalp.
On dissection, clotted blood was found present
underneath the skin and on skull bone. There were multiple
fractures on skull bones, specifically, in frontal and parietal
bones. On further dissection, there were extradural haemotoma
of 4×4 cms in frontal region and 2×1.5 cms in occipital region.
On further dissection, there were subdural haemotoma of 3×3
cms and 1.5 and 1.5 cms in frontal and occipital areas. About
100 cc of fluid and clotted blood was found on the basis of the
skull. Stomach was found containing semi-digested food.In the opinion of the doctor, cause of death of Pawan
Kumar was injuries to brain which were ante-mortem and
sufficient to cause death in natural course of time and events.
Probable time duration in between the injuries and death was
within a few minutes and between death and post-mortem 24
hours.”9. PW-5, Dr. M.K.Garg, on 4.2.2003 at about 5.30 p.m., medico
legally examined Rohtas (PW8) and noted the the following injuries:
1. Lacerated wound of 3 x .5 cm on right side of scalp in frontal
area. Advised x-ray.2. Swelling of 4 x 5 cms. on left fore-arm and tenderness was
Crl.Appeal No.545-DB of 2005 5present. Advised x-ray and Ortho. Surgeon opinion.
3. Swelling of 4 x 2 cms on back of left wrist. Advised x-ray
and Ortho. Surgeon opinion.4. Swelling of 4 x 2 cms on back of left hand. Advised x-ray
and Ortho. Surgeon opinion.5. Abrasion of 1 x 1 cm on back of right hand and swelling of
right hand. Advised x-ray.6. Contusion of 8 x 2 cms on left side of back on dorsal area.
Advised x-ray.7. Contusion of 6 x 2 cms on right side of back. Advised x-ray.
8. Contusion of 6 x 4 cms on left side of back on lumber area.
Advised x-ray.9. Contusion of 4 x 2 cms on right shoulder. Advised x-ray.
10.Contusion of 6 x 4 cms on left shoulder. Advised x-ray.
10. On the same day, PW-5, Dr. M.K.Garg at about 6.00 p.m.
medico-legally examined Birma Devi wife of Rohtas and noticed the
following injuries:
1. Lacerated wound of 1.5 x .5 cm on left side of nose.
Advised x-ray.2. Lacerated wound of 1.5 x .5 cm on left lower eye lid.
Advised Eye Surgeon opinion.3. Swelling of 2 x 2cms on left side of fore-head. Advised x-
ray.4. Contusion of 4 x 2 cms on right side of back on dorsal
lumber area. Advised x-ray.5. Contusion of 5 x 2 cms on right side of back on lumber area.
Advised x-ray.6. Contusion of 4 x 2 cms on lateral side of right arm. Advised
x-ray.11. As per the report of Dr. Anil Sharma (PW-1), Radiologist,
fracture of the left radius and fractures of the first and fifth mata-carpal bone
of left hand of injured Rohtas was noticed. No fracture was noticed in the
Crl.Appeal No.545-DB of 2005 6report of Radiologist on the person of Birma Devi.
12. On the basis of the report of Dr.M.K.Garg (PW-5), injury Nos.
2 and 4 on the person of Rohtas (PW-8) were declared grievous in nature
and accordingly, the offence punishable under Section 325 of the Indian
Penal Code was added.
13. One Dadar Singh produced all the accused persons except
Birma Devi before SI Ajaib Singh (PW-11), on 13.2.2003 when he had
gone to village Kaluwas. They were taken into custody.
14. On the basis of disclosure statements, Exhibits PV/1 to PV/7 of
the accused Raj Singh, Anil, Kulbir Singh, Ishwar Singh, Partap Singh,
Balwan Singh, Jasbir and Mubarak respectively; lathi Exhibit P27, kulhari
Exhibit P28, hockey Exhibit P29, lathi Exhibit P30, jelly Exhibit P31, lathi
Exhibit P32, Kulhari Exhibit P33 and lathi Exhibit P34 were recovered from
their respective houses. These recoveries were witnessed and attested by the
complainant Anil Kumar (PW-7) and Dharmender son of Surja Ram .
15. Accused Birma Devi was arrested on 15.2.2003. On the basis of
her disclosure statement, Exhibit PV/8, SI Ajaib Singh PW-11 recovered a
danda. The recovery was witnessed and attested by complainant Anil Kumar
and Constable Ram Parkash.
16. Dr. K.K.Girdhar (PW-4), after examining the said recovered
weapons gave his opinion, Exhibit PJ, that possibility of receiving injuries,
on the person of Pawan Kumar, deceased with said hockey, kulharis from
blunt sides, could not be ruled out. As per the Forensic Science Laboratory
report, human blood was found upon one lathi. Blood stains on other
weapons had disintegrated.
17. The matter was also investigated by DSP Samunder Singh (not
Crl.Appeal No.545-DB of 2005 7examined) and Inspector Hoshiar Singh (DW-1). As per the report, accused
Partap Singh, Mubark Singh, Balwan Singh and Jasbir were shown at
Panchayat Bhawan in connection with distribution of drought relief and
accused Birma Devi had gone to well to fetch water. Accordingly, no
incriminating evidence was found against these five persons.
18. In order to prove the charges, prosecution examined Dr.Anil
Sharma as PW1, Constable Bhoop Singh as PW2, Constable Subhash
Chander as PW3, Dr.K.K.Girdhar as PW4, Dr.M.K.Garg as PW5, HC
Jagdish Chander as PW6, Anil Kumar as PW7, Rohtas Singh as PW8, ASI
Miya Singh as PW9, Satyabir Singh as PW10 and SI Ajaib Singh as PW11.
19. The accused in their statements under Section 313 of the Code
of Criminal Procedure denied the circumstances appearing against them in
evidence and pleaded innocence. The five accused, who were sent for trial,
pleaded that accused Raj Singh was removing mud from the bricks in the
street, as a result of which water started flowing in the street in front of the
house of Anil Kumar (PW-7). On that account Pawan Kumar (since
deceased) and his parents attacked Raj Singh and caused injuries and no
other accused except Raj Singh was present at that time. Inspector, Hoshiar
Singh and Draftsman, Dalbir Singh were examined as DW-1 and DW-2.
20. Dr. Anil Sharma, Radiologist (PW-1) proved the aforesaid x-
ray report regarding fractures on the persons of PW-8, Rohtas Singh and
injured Birma Devi. The trial Court noticed that this evidence corroborates
the evidence of PW-5, Dr. M.K.Garg to prove the nature of injuries no. 2
and 4 on the person of Rohtas as grievous.
21. As regards the delay pertaining to the delivery of report to the
Illaqa Magistrate and evidence regarding transit of the property from MHC
Crl.Appeal No.545-DB of 2005 8to Forensic Science Laboratory, Madhuban, the trial Court recorded that the
special report was received by the Illaqa Magistrate at 9.50 p.m. It was
handed over to the carrier at 8.50 p.m. The distance between the Police
Station and the residence of Illaqa Magistrate was about 1½ kms. The
occurrence took place at about 4.30 p.m. The FIR was registered at 7.40
p.m. on the statement of PW-7 Anil Kumar, recorded at 7.15 p.m. On the
basis of above material, the trial Court recorded that there was no delay in
delivery of special report to the Illaqa Magistrate, after registration of the
case.
22. PW-4 Dr. Girdhar proved the post-mortem report Exhibit PF.
This witness proved that the injuries noticed in the post-mortem report
could be caused with jelly and kulhari, if used from blunt side. It was further
deposed that injuries were given to the deceased with full force resulting
into multiple fractures of the skull which caused death. The three injuries
on the person of the deceased noticed by the doctor had been attributed to
the accused Anil, Kulbir and Ishwar as per statement of Rohtas, PW-8. On
the basis of this statement, it was further corroborated that the injured
witnesses and the deceased were brought to the hospital by Anil Kumar,
PW-7 and Rohtas, PW-8, who supported the prosecution. Both these PWs
were injured witnesses. PW-7 Anil Kumar, apart from being eye witness to
the occurrence, was witness to the recoveries of the weapons used in the
crime. ASI Miya Singh, PW-9, proved the recording of the statement
Exhibit PU of Anil Kumar which was the basis of the present FIR recorded
at 7.40 p.m. and the occurrence was of 4.30 p.m. afterwards. However, in
cross-examination, he stated that he had received a telephonic message at
1.30 p.m. and reached the hospital at 2.30 p.m. and stayed there for about
Crl.Appeal No.545-DB of 2005 9one hour but no one was found to disclose the occurrence. The trial Court
recorded that the statement made by ASI Miya Singh, PW-9 in cross-
examination was inconsistent with time and the occurrence mentioned in
report Exhibit PU and observed that the statement in cross-examination was
erroneous or might be made inadvertently or intentionally to unduly help
the defence.
23. The evidence of Anil Kumar was assailed by the defence in
regard to his schedule as a driver operating from Meham to Bhiwani; he had
not attributed any specific injury to any of the accused persons, particularly
to the deceased; he did not try to rescue his parents when they were being
assaulted; his clothes were not smeared with the blood and even blood
stained earth was not picked up by the police, which was otherwise a part of
the record. During cross-examination, he admitted that his parents were in
senses while in the hospital, whereas as per medical opinion, they were not
in a fit state of mind to make statement.
24. The trial Court recorded that nothing specific was asked from
Anil Kumar regarding the date of occurrence. It was further recorded that
when as many as three persons were being assaulted by so many persons
with different weapons it was not natural or probable to note specific
infliction. It was also not necessary for everybody to intervene and rescue at
the risk of receiving injuries especially when the place of occurrence is a
small place. As regards the fact that the clothes of Anil Kumar were not
smeared with blood, the trial Court observed that as per medical evidence,
there was no profuse bleeding from any injuries on the person of the injured
including the deceased. They were having blunt injuries. Moreover, PW-7
Anil Kumar was not a witness to the lifting of the blood stained earth. As
Crl.Appeal No.545-DB of 2005 10regards the fitness of the parents of Anil Kumar, the trial Court recorded
that remaining in senses was quite different from the fitness of mind to
make statement and, therefore, it was not considered to be a material
infirmity.
25. In an effort to prove the complainant to be an aggressor, it was
stated that on removal of the bricks by accused Raj Singh water started
flowing in the street in front of the house of the PWs and complainant-party
attacked Raj Singh. It was further tried to establish that except Raj Singh no
one was present at the spot.
26. On the basis of the certain mud found on the hands of Raj
Singh, an effort was made to establish that the injuries to Raj Singh were
caused by Pawan Kumar. But the trial Court noticed that mud and dust
particles on the hands and feet of the deceased could have been because of
many other reasons, particularly when it had come in the evidence that at
the relevant time he was busy in bringing fodder from gandasa room and
putting it to the room meant for tethering of cattle. He also might have been
working in the street to avoid stagnation of water in front of his house. On
the basis of the same, it was noticed that presence of mud or dust particles
on the hands of the deceased do not in any manner help the defence.
Moreover, there is nothing on record to establish the fact that there was
imminent danger to the life of accused Raj Singh to cause the death of
Pawan Kumar or to cause injuries to other persons. In the circumstances, it
was observed that it could not be said that only Raj Singh was present or he
had exercised his right of private defence. On the contrary, from the number
of injuries on the person of deceased and on the person of other injured
witnesses, it was clear that the complainant was assaulted by number of
Crl.Appeal No.545-DB of 2005 11accused persons with their weapons. An effort was also made to show that
the occurrence took place much prior to 4.30 p.m.
27. The presence of Anil Kumar was also corroborated from the
medical evidence of MLRs and medical ruqas, wherein it was mentioned
that Anil Kumar along with Rohtas brought the deceased and injured
witnesses to the hospital. The evidence of this witness was also assailed on
the ground of discrepancy in his version regarding attribution of weapons to
various accused that there was improvement in his earlier version. The trial
Court observed that recording of the statement of PW-7 Anil Kumar at 7.15
p.m. inspires full confidence and there was nothing to infer or to presume
that the occurrence was of much prior to 4.30 p.m. Even accused Raj Singh
had not raised any objection in this regard who raised the plea of self
defence. It is evident from the injuries that the condition of deceased and
other injured witnesses was serious. Therefore, the first concern was to
provide medical help and in the circumstances, the trial Court observed that
it could not be said that there was any delay in reporting the matter to the
police or the FIR was the result of any deliberation or consultation.
28. The dispute regarding the exact place of occurrence was also
raised. The trial Court observed that it was of no consequence whether the
occurrence took place inside the kotha or outside in the street as the cattle
kotha opened in the street, other opening of the kotha was in the house of
PWs. The occurrence admittedly took place in the street in between the
houses of the two parties. The deceased was assaulted by the accused when
he was empty handed with common motive. From the evidence, it was also
established that accused Kulbir, Ishwar and Anil were ahead of other
accused persons and they gave injuries to Pawan Kumar.
Crl.Appeal No.545-DB of 2005 1229. After considering the evidence and relevant material, the trial
Court held that the prosecution had fully established its case beyond any
reasonable doubt only against the accused Anil, Kulbir, Ishwar and
Tharmos. The prosecution failed to prove its case against other accused
persons, namely, Birma Devi, Partap, Mubarak, Balwan, Jasbir and Raj
Singh beyond reasonable doubts. Consequently, by giving benefit of doubt,
they were acquitted.
30. Against the judgment and order dated 12.7.2005 passed by the
Additional Sessions Judge (II), Bhiwani, Criminal Appeal No. 545-DB of
2005 on behalf of Kulbir Singh and Crl.Appeal No. 576-DB of 2005 on
behalf of remaining three accused were preferred. Crl. Appeal No. 545-DB
of 2005 was admitted on 8.8.2005 and Cri. Appeal No. 576- DB of 2005
was admitted on 18.8.2005.
31. On behalf of the appellant, it was argued that evidence led by
the prosecution was vague and the prosecution failed to prove and establish
even the correct time of occurrence. As per FIR, the time of occurrence was
4.30 p.m., whereas PW-9, ASI Miya Singh, in his cross examination stated
that he had received a telephonic message about the incident at about 1.30
p.m. ASI Miya Singh reached the hospital at 2.30 p.m. and there was no one
available in the hospital who could disclose anything about the occurrence.
Learned counsel contends that the trial Court wrongly discarded this
material evidence. The occurrence had taken place much prior to the time
mentioned in the FIR and this time was consumed in consultation and
deliberation to falsely implicate the persons of the choice of the complainant
party.
32. It was further argued that the place of occurrence had also not
Crl.Appeal No.545-DB of 2005 13been proved. As per the prosecution version, the occurrence took place in
the cattle kotha and blood stained earth was lifted from there, whereas the
eye witness Anil Kumar stated that blood was not lifted by the police.
Further as per the report of the doctor, the hands and feet of the deceased
were found smeared with dust and mud, which establishes that occurrence
took place outside the kotha. Even in the complaint, no specific injury had
been attributed to the appellants. The statement of PW-8 Rohtas was
recorded at much later stage, when the injuries on the person of the
deceased had been described by the doctor. Appellant Kulbir was
attributed hockey injury to match the injuries on Pawan (since deceased) so
as to falsely implicate the appellant.Learned State counsel submits that the occurrence took place
at 4.30 p.m. Both the injured were brought to the hospital by Anil Kumar,
PW7, which fact is fully proved from the cross-examination of PW7. FIR
was promptly recorded. Anil Kumar, PW7 named all the accused along
with weapons which is corroborated from the statement of Rohtas, PW8.
Moreover, the injuries suffered by the deceased could not be received on
account of fall. Accused Kulbir was put specific question under Section
313 of the Code of Criminal Procedure regarding his presence. All the
accused were present and had a motive to eliminate the deceased.33. We have heard the learned counsel for the parties and perused
the record.34. As per the prosecution case, the occurrence took place at about
4.30 p.m.on 4.2.2003. The FIR was recorded at about 7.40 p.m. on 4.2.2003
on the statement made by complainant, Anil Kumar.No specific injury to the
deceased Pawan Kumar or to injured Rohtas Singh son of Chandgi Ram and
Birma Devi wife of Rohtas Singh has been attributed to any of the accused-
appellants. Complainant, Anil Kumar appeared as PW-7 on 15.3.2005 and
admitted in his cross-examination that his statement was earlier recorded in
the learned Trial Court on 15.11.2003 and that it was correct that he could
not specifically state as to which accused caused specific injuries to
deceased, Pawan Kumar. The statement of PW-8, Rohtas Singh, attributing
specific injuries to the deceased having been allegedly caused by accused-
appellants Anil, Kulbir and Ishwar requires close scrutiny.
Crl.Appeal No.545-DB of 2005 1435. As per the record, Rohtas Singh-injured, PW-8, was fit and
fully oriented to make statement. The statement of Rohtas Singh under
Section 161 was recorded on 5.2.2003 at 9.30 A.M. after the post-mortem. It
appears that the same was so done to synchronise oral evidence with the
medical record. In this context, a perusal of Exhibit PM deserves
consideration as also no time has been mentioned regarding the opinion of
the doctor that Rohtas Singh was not fit to make statement, whereas the
subsequent report of his fitness is shown to have been made at 10.50 a.m.
on 5.5.2003. Thus, it costs aspersion upon the investigating agency for not
being very diligent in preparation of record and, therefore, cannot be said to
be fully fair and trustworthy.
36. After the occurrence at about 4.30 p.m., on 4.2.2003, the
injured were shifted to the hospital after half an hour as admitted by Anil
Kumar, complainant PW-7. As per the statement of this witness, his
parents-Rohtas Singh PW-8 and Smt. Birma Devi were in senses and fully
oriented after receiving the injuries while in hospital. In the circumstances,
it appears to be highly unlikely and improbable that in case Rohtas Singh
(PW-8) had known as to which accused had caused specific injury to Pawan
Kumar (deceased), he would not disclose it to his son-complainant, Anil
Kumar particularly when as per the statement of Anil Kumar, the
complainant, there is no specific attribution of injuries to any of the accused
either in the FIR or in his statement recorded by learned trial Court on
15.11.2003. This goes to establish that attribution of specific injuries to the
accused-appellants on the person of the deceased is not truthful and worthy
of complete credence. Therefore, the case of appellant Kulbir cannot be
segregated from that of co-accused who stand acquitted by the trial Court,
Crl.Appeal No.545-DB of 2005 15merely because appellant, Kulbir Singh has been attributed specific injury.
37. The occurrence took place on account of dispute between the
families of Rohtas Singh son of Chandgi Ram and Ishwar Singh son of
Dalpat Singh on account of throwing of mud in the common street between
the houses of the aforesaid parties. Accused-appellants-Anil and Tharmos
are sons of abovesaid Ishwar Singh son of Dalpat Singh. The site plan,
Exhibit DA, shows that the houses of the aforementioned Rohtas and Ishwar
are opposite to each other, whereas the house of appellant Kulbir Singh son
of Attar Singh is far away from the houses of Ishwar and Rohtas, in another
street. As per record, the appellants Ishwar son of Dalpat and Kulbir son of
Attar are related only through a common ancestor in the third generation.
They are also not shown to have any common interest and are separate from
each other.
38. Keeping in view the nature of the alleged dispute between
Rohtas and Ishwar, motive for commission of offence could only be
attributed to appellant Ishwar son of Dalpat and his two sons-appellants i.e.
Anil and Tharmos (all the three are appellants in Criminal Appeal No.576-
DB of 2005.
39. There appears to be no motive on the part of appellant Kulbir to
indulge in the alleged fight and his involvement in the present case is highly
doubtful. Even otherwise, the totality of the facts and circumstances of the
case reflects the tendency of the prosecution to throw too wide a net to
implicate all the family members and relatives of the opposite party.
Therefore, the prosecution case cannot, thus,be relied upon, in its entirety.
40. As per the prosecution case, ten persons were named as
accused, out of which six persons were acquitted by the trial Court. The
Crl.Appeal No.545-DB of 2005 16grounds of acquittal of the said six co-accused also apply to the case of the
appellant Kulbir, who appears to have been roped in on account of his
relationship with the main accused and to harm his career as a Constable in
the Border Security Force. As in the case of six acquitted co-accused, the
house of the appellant Kulbir is also at a different place and not in the same
street where houses of Rohtas (complainant) and Ishwar (main accused-
appellant) are situated. The only distinguishing feature being the attribution
of specific injury to appellant Kulbir on the person of Pawan cannot be
given much credence inasmuch as the specific attribution of injury has been
made at a highly belated stage and apparently appears to be an afterthought.
41. Apart from this, the nature of injuries sustained by deceased
Pawan Kumar, in the context of the medical evidence on record of the case,
shows that all the injuries could be caused by one person also and with the
same weapon. Dr. K.K.Girdhar (PW-4) also admitted that injuries no. 1 and
2 on the person of deceased Pawan Kumar could be possibly by multiple
falls on the hard surface. It creates strong possibility of appellant Kulbir
Singh having been falsely implicated and his involvement in the offence is
highly doubtful.
42. The recovery of hockey in pursuance of disclosure statement of
the appellant Kulbir Singh cannot be accorded much credence as observed
by the trial court that recoveries of different weapons from different accused
persons do not inspire confidence. Consequently, there is no incriminating
circumstance against appellant Kulbir Singh which may prove his guilt
beyond the shadow of reasonable doubt. Appellant Kulbir Singh is,
therefore, entitled to acquittal.
43. During the examination under Section 313 of the Code of
Crl.Appeal No.545-DB of 2005 17Criminal Procedure, the appellant Kulbir Singh has not been asked to
explain that as per prosecution evidence, he had caused injury on the head
of deceased Pawan with hockey. In this context, the Hon’ble Supreme Court
in Ajay Singh v. State of Maharashtra, 2007 (3) RCR (Criminal) 348
held as under:
“12. The word ‘generally’ in sub-section (1)(b) does not limit
the nature of the questioning to one or more questions of a
general nature relating to the case, but it means that the
question should relate to the whole case generally and should
also be limited to any particular part or parts of it. The question
must be framed in such a way as to enable the accused to know
what he is to explain, what are the circumstances which are
against him and for which an explanation is needed. The whole
object of the section is to afford the accused a fair and proper
opportunity of explaining circumstances which appear against
him and that the questions must be fair and must be couched in
a form which an ignorant or illiterate person will be able to
appreciate and understand. A conviction based on the accused’s
failure to explain what he was never asked to explain is bad in
law. The whole object of enacting Section 313 of the Code was
that the attention of the accused should be drawn to the specific
points in the charge and in the evidence on which the
prosecution claims that the case is made out against the accused
so that he may be able to give such explanation as he desires to
give.”44. In Lattu Math & another v. The State of Bihar, 2008 (3)
RCR (Criminal) 467 also, Hon’ble Supreme Court held as under:
“18. What is the object of examination of an accused under
Section 313 of the Code ? The section itself declares the object
in explicit language that it is “for the purpose of enabling the
accused personally to explain any circumstances appearing in
the evidence against him”. In Jai Dev v. State of Punjab (AIR
Crl.Appeal No.545-DB of 2005 181963 SC 612) Gajendragadkar, J. (as he then was) speaking for
a three-Judge Bench has focussed on the ultimate test in
determining whether the provision has been fairly complied
with. He observed thus :“The ultimate test in determining whether or not the
accused has been fairly examined under Section 342
would be to inquire whether, having regard to all the
questions put to him, he did get an opportunity to say
what he wanted to say in respect of prosecution case
against him. If it appears that the examination of the
accused person was defective and thereby a prejudice has
been caused to him, that would no doubt be a serious
infirmity.”
20. At the same time it should be borne in mind that the
provision is not intended to nail him to any position, but to
comply with the most salutary principle of natural justice
enshrined in the maxim audi alteram partem. The word “may”
in clause (a) of sub-section (1) in Section 313 of the Code
indicates, without any doubt, that even if the court does not put
any question under that clause the accused cannot raise any
grievance for it. But if the court fails to put the needed question
under clause (b) of the sub-section it would result in a handicap
to the accused and he can legitimately claim that no evidence,
without affording him the opportunity to explain, can be used
against him. It is now well settled that a circumstance about
which the accused was not asked to explain cannot be used
against him.”
45. In view of the above, the judgment and order dated 12.7.2005
passed by the learned trial Court qua appellant Kulbir Singh is hereby set
aside and his appeal is accepted.
46. As regards the case against the appellants, Ishwar Singh son of
Dalpat Singh, Anil and Tharmos sons of Ishwar Singh is concerned, the
Crl.Appeal No.545-DB of 2005 19
prosecution has been successful in proving their involvement in the
commission of offence beyond all shadow of doubt. The occurrence took
place between Ishwar Singh and Rohtas Singh on account of putting of
mud in the common street between their houses in order to divert the flow
of water. The other accused, besides aforesaid Ishwar Singh, Anil and
Tharmos had no interest in the subject matter of the dispute between the
parties and the motive lay only with the appellants Ishwar Singh, Anil and
Tharmos to cause injuries resulting in the death of Pawan Kumar.
47. In view of the entirety of the facts and evidence on record of
the case, the guilt of appellants Ishwar Singh, Anil and Tharmos stands
established and resultantly, their appeal stands dismissed.
( JITENDRA CHAUHAN )
JUDGE
( K. S. GAREWAL )
JUDGE
December 19, 2008
mk/SRM
Note: Whether to be referred to reporter ? Yes/No