JUDGMENT
Arvind Kumar, J.
1. This judgment shall dispose of Criminal Appeals No. 436-DB of 1997 preferred by accused-Leela Singh, Criminal Appeal No. 391-SB of 1997 preferred by accused-Bant Dass and others, directed against judgment and order dated 20.3.1997 passed by the Additional Sessions Judge(I), Sangrur, whereby in case FIR No. 17 dated 16.2.1994 Under Section 302/449/120B/380/323/148, 149 IPC, Police Station Dirba, District Sangrur, the accused-appellants, Leela Singh and Sher Singh have been convicted under Section 302 IPC, for having committed the murder of Mahant Shiam Dass and have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo rigorous imprisonment for one year. Both of them along with their co-accused Bant Dass and Jang Singh have also been convicted for committing offence under Section 449 IPC and have been sentenced to undergo rigorous imprisonment for seven years each and to pay a fine of Rs. 300/- each and in default of payment of fine, to further undergo rigorous imprisonment for six months. Likewise, ll these four accused have further been convicted for committing offence under Section 380 IPC and have been sentenced to undergo rigorous imprisonment for seven years each and to pay a fine of Rs. 300/- each and in default of payment of fine, to further undergo rigorous imprisonment for six months. All the substantive sentences were, however, directed to run concurrently. Criminal Revision No. 915 of 1997 has been preferred by Mahant Bhagwan Dass challenging the afore-stated judgment vide which accused Sukha Singh has been given benefit of doubt and accused Bant Dass has been sentenced to R.I. for seven
years and fine of Rs. 300/-.
2. In brief, the facts of the case are that on 16.2.1994, Mahant Ved Bhagwan Dass (PW 3) made statement, Exhibit PK, before SI Harpreet Singh, SHO of Police Station Dirba and his police party, who were present at the bus stand of Dirba, to the effect that he was the nephew and also Chela of Mahant Shiam Dass, Dera Thakur Duara, Naga Kherri. As per routine, on that day, at about 6.30 PM in the Langar of the Dera, Mahant Shiam Dass along with other members of the Dera, i.e. driver Ram Parkash, Jethu Ram, crop-sharer(seeri), Gurtej Singh, crop-sharer(seeri) and the complainant were taking meals and Pala Ram, Langri, was distributing meals outside the Langar Hall in the court-yard of the Dera. Maghar Singh and Kadda were sitting and taking the meals. All of a sudden, three persons carrying Gandasas in their hands, emerged in the Langar hall. Out of those persons, one was Leela Singh, the second one was Sheru while the third one could not be identified by the complainant as he had covered his face with turban. On entering the hall, Sheru stated in a loud voice to all the persons sitting there that no one should run out as their armed men were standing outside and while facing Mahant Ji (Mahant Shiam Dass) stated “Mahant Takra Ho Ja Tainu Jameen Da Mukadma Larrande Han (Be strong, they will teach him a lesson for fighting the litigating regarding the land).
3. Immediately, accused Leela Singh hurled his Gandasa striking Mahant Shiam Dass on his head who tried to run towards his room when accused Sher Singh gave a Gandasa blow from its sharp side hitting on the head of Mahant Shiam Dass. Mahant Shiam Dass tumbled over the threshold and all the three started giving blows with Gandasas. In order to save themselves the complainant and others spread in the hall on the sides and concealed themselves. The complainant concealed himself in the bathroom. The driver who was sitting with the Mahant, tried to save Mahant.
4. The man with muffled face gave him blows. Thereafter, all the three along with their weapons went outside the Langar hall and when the complainant came out, it was seen that articles of the personal room of the Mahant were lying scattered and the complainant and Pala Ram raised alarm “Marta Marta” by climbing the stairs of inner courtyard. Thereafter, the three other persons, who had sticks and Gandasas were standing in the outer court-yard, who could be identified by the complainant if produced before him. One tractor of the Dera HMT-3511 ‘Zeter” parked in the cattle courtyard of the Dera, was started by the accused whereafter they went towards village Rogla on the said tractor while raising Lalkaras. Complainant further stated that they came down-stairs and found that the head of Mahant Shiam Dass was badly injured and was bleeding and he had already breathed his last.
5. After recording the police proceedings, Ex. PK/2, SI Harpreet Singh sent the same to the police Station, Dirba, through constable Bhagat Ram, on the basis of which formal FIR, Exhibit PK/3 was recorded by ASI Nachhattar Singh. Therefore, the said SI along with other police party went to the spot and on reaching near village Campher, he received a message that Ram Parkash,injured, was admitted in hospital at Dirba. The SI directed ASI Labh Singh and ASI Gurdial Singh and some constables to raid the house of the accused and to protect the place of occurrence. He along with one constable went to Civil Hospital, Dirba, and submitted an application, Exhibit PF/2, and the Medical Officer, vide his endorsement, Ex. PF/1, declared injured Ram Parkash to be unfit to make statementt.
6. Thereafter, SI Harpreet Singh went to the place of occurrence in Thakur Duara in village Naga Kherri. He prepared the inquest report of the dead-body of Mahant Shiam Dass vide Exhibit PC and sent the dead-body to Civil Hospital, Sangrur, for post-mortem examination. He then recorded the statement of Rulia Ram. He lifted blood-stained earth from the spot and converted the same into a parcel and sealed it with his own seal ‘HS’ and took the same into possession vide recovery memo. Exhibit PL. He also lifted one purse, Ex. P6, from the spot, which was found to contain one photograph, Exhibit P7, and currency notes of Rs. 148/- of the denomination of Rs. 100/-, two notes of Rs. 20/-, three notes of the denomination of Rs. 2/- each and one note of the denomination of Re. 1/(Exhibits P6/1 to P6/8) and some chits, Exhibits P6/9 and P6/10, and took the same into possession through recovery memo., Exhibit PM.
7. Photograph, Exhibit P7, was identified to be that of accused Sukha Singh. The IO also prepared the rough site plan, Ex. PN, of the place of occurrence with correct marginal notes. He recorded the statements of the witnesses under Section 161 Cr.P.C. Thereafter, he reached Civil Hospital, Dirba, and after taking the opinion of the doctor vide his request, Exhibit PG/2 declaring injured to be fit to make statement vide endorsement Exhibit PG/1, the statement of Ram Parkash was recorded. PW – 6 SI Harpreet Singh searched for the accused. HC Gurmit Singh had produced the wearing apparels of the deceased and the post-mortem report after the post-mortem examination which was taken into possession vide recovery memo., Exhibit PO, and the same was deposited with the MHC. The Investigating Officer then started searching the accused. On 24.2.1994 at bus station of Dirba, Sarpanches Hardev Singh and Amrik Singh had produced before him all the five accused. Upon interrogation, accused Leela Singh made disclosure statement vide Ex. PR, that he had kept concealed one blood stained Gandasa in a deserted brick-kiln under earth in the area of village Khanal Kalan and he had the exclusive knowledge of the same and could get the same recovered. Thereafter, accused Sher Singh made disclosure statement vide Ex. PS, that he had kept concealed one blood stained gandasa in the area of village Khanal Kalan in the deserted brick kiln, about which he had the exclusive knowledge and could get the same recovered. Further, accused Bant Dass, Sukha Singh and Jang Singh vide disclosure statements, Exhibits PU and PV respectively stated in regard to concealment of their Gandasis. One Tractor HMT-3511 having registration number PAR-7158, was taken into possession vide recovery memo (Ex. PW ), which was signed by SI Harpreet Singh and attested by the witnesses. It is further the case of the prosecution that thereafter in pursuance to his disclosure statement, accused Leela Singh got recovered one blood stained gandasa which was converted into a parcel and sealed by SI Harpreet Singh with his seal ‘HS’ and taken into possession vide recovery memo (Ex. PX). Accused Sher Singh also got recovered one blood stained gandasa from the place of concealment, which was converted into a parcel and sealed with seal ‘HS’ and was taken into possession vide recovery memo (Ex. PY) which was attested by the P.W.s. Similarly, accused Sukha Singh, Bant Dass and Jang Singh got recovered their respective Gandasis from the specified place which were taken into possession vide recovery memos., Exhibits PZ, PAA and PBB respectively. Recovery of the said Gandasis, Exhibits P-9 to P-13 were attested by the witnesses and the case property was deposited with the MHC. It is further the case of the prosecution that complainant Ved Bhagwan was provided police security and the Tractor was taken on superdari by the complainant party. After completion of the investigation and other formalities, the report under Section 173 of the Code of Criminal Procedure was presented in the Court of learned Illaqa Magistrate.
8. On presentation of challan, the accused-appellants were charge-sheeted under the afore-stated sections, to which they pleaded not guilty and claimed trial.
9. The prosecution in support of its case examined Dr. Surjit Singh, Emergency Medical Officer, Civil Hospital, Sangrur, as PW – 1, Dr. Magher Singh, S.M.O., Primary Health Centre, Dirba, as PW – 2, Mahant Ved Bhagwan Dass as PW – 3, Ram Parkash as PW – 4, Rulia Ram as PW – 5, S.I Harpeet Singh as PW – 6, H.C.Gurmeet Singh as PW – 7, Constable Duni Chand as PW – 8, Draftsman Dharminder Singh as PW – 9, HC Gurmel Singh as PW – 10, Jasbir Singh, Clerk as PW – 11, Kanungo Shamsher Singh as PW 12, ASI Labh Singh as PW 13. SI Hardev Singh could not be examined as a witness due to his death while the other witnesses were given up by the prosecution. The prosecution then its closed its evidence after tendering into evidence the report, Exhibit PJJ, of the Chemical Examiner and report, Exhibit PKK, of the Serologist, copy of judgment dated 31.3.1986, Exhibit PLL and certified copy of judgment dated 16.1.1991, Exhibit PMM. Accused-appellants in their statement under Section 313 Cr.P.C. took the plea that they have been falsely implicated in the case as they had land dispute with the Dera. In defence evidence, the accused produced Ajaib Singh as DW-1 and Raj Singh as DW-2 to prove that on 13.2.1997 he had gone to the fields of Ajaib Singh to instal bore in village Hamirgarh and he remained there till 18.2.1997.
10. On consideration of the entire evidence on record, the learned Additional Sessions Judge vide judgment and order dated 20.3.1997 held the charge proved against accused-appellants and thus, convicted and sentenced them, as stated above. Hence, the present appeal by the accused-appellants.
11. Learned Counsel for the parties have been heard.
12. It has been argued on behalf of appellants that there is delay in sending the special report to the Magistrate, which reached at 7:00 a.m. at Sunam on 17.2.1994, to say that the FIR is ante timed. In order to develop this argument it has also been contended that though Ram Parkash (PW.4) had been removed to PHC Dirba at 9:20 p.m., after the occurrence and he was conscious and injury on the left arm was not serious, but deliberately he was got declared unfit from the attending Doctor, in collusion with the police, as the complainant party was not was sure of the version, since it was blind murder. The contention is meritless. It needs to be emphasized that it is not as if every delay in sending the special report to the Illaqa Magistrate would necessarily lead to the interference that the FIR has not been lodged at the time stated or has been ante-timed or that the investigation is not fair. If in a case, it is found that the FIR was recorded without delay and the investigation started on that FIR, then improper and objectionable the delayed receipt of the report by the Magistrate concerned, that cannot by itself justify the conclusion that the investigation was tainted and the prosecution un-supportable. In the instant case, there is no evidence of any apparent collusion with the doctor in getting declared PW.4 Ram Parkash unfit to make the statement. Moreover, he did receive injuries and must be under shock as it has come in evidence that he also stemors. In view of this, his statement could not have possibly recorded at that time and
thus was declared unfit to make the statement. PW.2 Dr. Maghar Singh of PHC Dirba had sent the ruqa (Ex. PE) to the police station, which was received at 9:45 p.m. but even prior to that SI Harpreet Singh (PW. 6) had already recorded the statement of PW. 3 Ved Bhagwan Dass at 9:30 p.m. So much so, FIR had already been registered at 9:45 p.m. at Police Station Dirba. Further, it is only on the arrival of PW – 6 SI Harpreet Singh, at the spot, he came to know that Ram Parkash had already been removed to PHC Dirba and as such, the argument of the counsel for the appellants that if Ram Parkash was not fit to make the statement, SI Harpreet Singh should have recorded the statement of Jethu Ram, who admitted him, has no force, since by the time SI Harpreet Singh had visited the hospital, he had already recorded the statement of Ved Bhagwan Dass, on the basis of which case had already been registered. Special report, no doubt, reached the Illaqa Magistrate at 7:00 a.m. in the morning but it cannot be overlooked that it was a night time and Sunam is situated at a distance of 16-17 Kms and in the present set up no police station is having only one case to be looked into, it cannot be said that special report was so delayed that it affects the merits of the case. Even if for the sake of arguments it is assumed that there is some delay in receipt of special report, the Hon’ble Supreme Court in Ashok Kumar Pandey v. State of Delhi 2002 Supreme Court Cases (Cri.) 728, has gone to the extent that if there is a delay in dispatch of the FIR to the court and its receipt by it, that alone can in no case be taken to be a ground for throwing out the prosecution case, if otherwise the same is proved by unimpeachable evidence.
13. There were three main witnesses namely PW. 3 Ved Bhagwan Dass, PW. 4 Ram Parkash and PW. 5 Rulia Ram. PW. 4 Ram Parkash though supported the case of the prosecution, but in cross-examination, which was conducted after about 21 months, he fell flat and did not support the case of the prosecution. The prosecution is thus, left with the evidence of PW. 3 Ved Bhagwan Dass and PW. 5 Rulia Ram. PW. 5 Rulia Ram in fact had not seen the actual happening having taken place in the Langar hall, as he was not outside the Langar hall having been detained by Bant Singh and Jang Singh.
14. It is only when he asked both of them the purpose of their visit, he was asked to be silent and had only heard the noise “Mar-diya” “Mar-diya” and then had seen the accused emerging from inside having gandasis smeared with blood and escaped in the tractor, which was parked in the courtyard.
15. Therefore, his evidence is of circumstantial in nature, which links the accused-appellants with the commission of crime. His testimony has been assailed on the ground that his name was not mentioned in the FIR so as in the inquest report. The argument is meritless. The FIR, as discussed above, was lodged by PW. 3 Ved Bhagwan Dass with utmost promptness, who also must have been perplexed on account of having seen the murder of Mahant Shiam Dass and in this situation if he had omitted the name of Ruliya Ram, in the FIR, is no ground to doubt the prosecution evidence. In Raj Kishore Jha v. State of Bihar and Ors. 2003 (4) RCR (Criminal) 935, the Hon’ble Supreme Court has held that names of all the witnesses do not appear in the FIR, that by itself cannot be a ground to doubt their evidence.
16. The inquest proceedings under Section 174 Cr.P.C. have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances of an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or in whose presence or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174 Cr.P.C. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report. No doubt, PW – 5 Ruliya Ram has admitted in his cross-examination that though he is unmarried, but has five sons and one daughter from his loins out of the womb of Kamla wife of his elder brother, but merely on account of his such moral act and conduct, he cannot be rated as an untruthful witness. His statement is in natural sequence, without there being any exaggeration. Otherwise if he intended to exaggerate, he could be introduced as an eye-witness. His presence at that point of time and place, being a Langri, was quite natural. The star witness of the ocular account is only PW. 3 Mahant Ved Bhagwan Dass. He is the nephew and Chela of deceaseed Mahant Shiam Dass. His testimony has been assailed on account of relationship which is meritless as it is not the absolute law that evidence of a relation witness is not entitled to any weight but this very circumstance would add to the value of his evidence because he would be interested in ensuring that the real culprit responsible for the crime is punished and not the innocent person. It was dinner time. Obviously, the deceased and all his Chelas/asssociates were present in the Langar hall to take meals. Thus, the presence of PW – 3 Mahant Ved Bhagwan Dass was quite natural at the time of occurrence. He has given the sequence of occurrence in the manner the present accused-appellants, Leela Singh and Sher Singh had caused injuries to the deceased with their respective Gandasis, causing death at the spot. He was subjected to lengthy cross-examination. He stood firm to his stand as regards the part played by the present appellants in the commission of crime. Some contradictions have been pointed out from his statements but the same do not carry any significance as they are minor in nature as it cannot be expected from a rustic witness that he would give a photographic version of the events which had taken place few months prior to his deposition in Court.
17. It has been contended by the counsel for the accused-appellants that the other witnesses, namely, Jethu Ram, Gurtej Singh, Maghar Siungh and Kadda who were also present, have not been examined by the prosecution. This again does not affect the case of the prosecution. It is not the quantum of the evidence but the quality of credibility of the witness that lends assurance to the Court for acceptance. What is important is not how many witnesses have been examined by the prosecution but what is the nature and quality of the evidence on which it relies. The evidence of a single witness may sustain sentence of death whereas host of vulnerable witnesses may fail to support single charge of hurt.
18. It has further been pointed out that according to PW – 3 Mahant Ved Bhagwan Dass, the deceased was about to take meals when the present occurrence had taken place, though PW – 1 Dr. Surjit Singh who conducted the post-mortem examination, found semi-digested food in the stomach, and has developed the argument that the medical evidence is at variance with the ocular version. This argument is not again not sustainable. Possibility cannot be ruled out that the deceased must have taken something even prior to the occurrence. It has to be noted that it would be erroneous to accord undue primacy to such opinions of medical witness to exclude the eyewitnesses’ account which had to be tested independently and not treated as variable keeping the medical evidence as the constant. Therefore, undue importance can be given to such an opinion in the circumstances of the present case. The medical evidence otherwise supports the case of the prosecution as it is in consonance with the time of occurrence, weapon used and the location of the injuries on the person of the deceased. Motive assumes great importance in this case. There was a civil litigation. Mahant Shiam Dass had filed a civil suit relating to the land of the Dera which had been decreed in his favour and Mukhtiar Singh father of Leela Singh,accused-appellant, and the uncles of Sher Singh-appellant, were defendants in the said case. It is also note-worthy that at the very start of the aggression,a Lalkara had been raised for teaching the deceased, for contesting the case relating to the land. Prosecution, thus, has adequately proved to translate the mental disposition of the accused-appellants into evidence that existed in their minds at the time of occurrence. Gandasis, Exhibits P-9 and P-10, so recovered from Leela Singh and Sher Singh were sent to the Chemical Examiner/Serologist, who vide reports Exhibits PJJ and PKK respectively found the same having human blood. No doubt, there is no blood group mentioned in the report but it does not affect the case of the prosecution in view of the dicta of the Hon’ble Supreme Court in Gura Singh v. State of Rajasthan 2001 Supreme Court Cases (Crl.) 323, wherein there was a seizure of blood stained Chaddar from the disclosure statement of the accused. It was held that by the lapse of time, classification of the blood could not be determined and the accused cannot claim any benefit on the strength of a belated and stale argument that in the absence of the report regarding the origin of the blood, accused cannot be convicted.
19. So far as accused-appellants Bant Dass and Jang Singh are concerned, there is no charge of homicide against them. Their participation is only to the extent of taking away from the spot the tractor (HMT-3511, Zeter make) belonging to the Dera. The argument is that their case does not fall under Section 449 IPC and would fall under Section 451 IPC, which has not been controverted by the State counsel. Therefore, their conviction stands converted from Section 449 IPC to one under Section 451 read with Section 380 IPC. With the said modification, their sentences are reduced to the period already undergone by them.
20. However, the conviction and sentence imposed upon accused-appellants, namely, Leela Singh and Sher Singh are maintained. Their appeals stand dismissed accordingly.
21. As regards Criminal Revision No. 915 of 1997 preferred by Mahant Bhagwan Dass, the same too stands dismissed.