IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH
Crl. Appeal No. 401-DBA of 2001
Date of Decision: 5.10.2009.
State of Punjab --Appellant
Versus
Baljit Rai and others --Respondents
CORAM:- HON'BLE MR.JUSTICE MEHTAB S. GILL.
HON'BLE MR.JUSTICE JITENDRA CHAUHAN.
Present:- Mr. Satinder Singh Gill, Addl. A.G., Punjab.
Ms. Baljeet Mann, Advocate with
Mr. Anmol Partap Singh Mann, Advocate.
Mr. Atul Lakhanpal, Sr. Advocate with
Mr. Arjun Lakhanpal, Advocate and
Mr. S.C. Chhabra, Advocate for revision petitioner.
***
MEHTAB S. GILL.J (ORAL)
This is an appeal against the acquittal of Sharif Masih son of
Lakha, Raj Kumar @ Raju son of Nawab Masih, Baljit Rai son of Sharif
Masih, Sarban Singh son of Sultan Singh by the learned Sessions Judge,
Ferozepur vide his order dated 1.9.2000. Learned counsel for Lachman
Singh son of Sultan Singh and Ruldu son of Satnam Singh has stated that
both have died, thus the appeal against them has abated.
Criminal Revision No. 119 of 2001 filed by Joginder Masih-
complainant against the same judgement dated 1.9.2009 acquitting the
respondents is also being disposed of by this judgement.
The prosecution case is that on 31.5.1995 ASI Rajnish Kumar
after receiving the medico legal report of Sheedo, Kala and Joginder
reached Civil Hospital, Kot Isekhan and made an application to the doctor
on duty as to whether the statement of Sheedo, Kala or Joginder could be
Crl. Appeal No. 401-DBA of 2001 -2-
recorded. The duty doctor opined that all three who were injured, were not
fit to make a statement. ASI Rajnish Kumar on 1.6.1995 again went to Civil
Hospital Kot Isekhan and moved an application Ex. PG. Doctor vide his
endorsement Ex. PG/1 declared Sheedo and Joginder fit to make statement.
Statement of Joginder was recorded. Joginder stated that on 31.5.1995 he
along with his sister-in-law Sheedo wife of Chanan Masih and his brothers
Kala and Chanan Masih were standing in front of the door of their house
and were talking to each other at about 7.30 P.M. Respondents/accused
Baljit Rai son of Sharif Masih armed with Kirpan, Sharif son of Lakha
armed with Kirpan, Raju son of Nawab armed with gandasi, Sarban son of
Sultani armed with gandasi, Lachhman son of Sultani armed with Sua and
Ruldu son of Sultani armed with dang came there. Respondent/accused
Sharif raised a lalkara that Chanan Masih should not get away and he should
be taught a lesson for installing a Govt. handpump in the graveyard.
Thereafter, Raju gave a gandasi blow to Joginder which hit on the middle of
his left upper arm. Ruldu gave two dang blows which hit Joginder on his
left elbow and on the back of the lower part of his right fore-arm. Baljit
gave a kirpan blow to Sheedo which hit her in the middle of the forehead.
Raju gave a gandasi blow to Sheedo which hit her on the right side of her
head. Ruldu gave a dang blow to Sheedo which hit on her right eye.
Lachman gave a sua blow which hit on the left parietal region of Kala
Singh. Sarban gave two gandasi blows which hit on the lumbar area and
behind the right ear pinna of Kala Singh. Chanan Masih saw the occurrence
while hiding behind a wall.
The motive for the commission of the offence was that Chanan
Masih, who had been elected as a member panchayat wanted to install a
Crl. Appeal No. 401-DBA of 2001 -3-
Govt. handpump in the graveyard of the village. The respondents/accused
were objecting to this. They wanted to install the handpump in the basti
abadi area. Thereafter, Chanan Masih took Sheedo, Kala Singh and
Joginder to Civil Hospital, Kot Isekhan, where they were medically
examined.
The prosecution in order to prove its case brought the following
witnesses in to the witness box:
Dr. Pritam Singh Sauna as PW1, Dr. Ajit Singh as PW2, Dr.
V.J.S. Dhillon as PW3, Dr. Tejinder Kumar Gupta as PW4, Dr. Raman
Sharma as PW 5, Hari Krishan Singh, Patwari as PW6, HC Karamjit Singh
as PW7, Dr. Rashpal Singh as PW8, Dr. Mohinder Pal as PW9, Mr. Baljit
Singh, DDPO as PW10, Joginder son of Rashid as PW11, Kala son of
Rashid as PW12, C. Soba Singh as PW 13, ASI Sucha Singh as PW 14, ASI
Rajnish Kumar as PW 15 and SI Devinder Singh as PW 16.
Learned counsel for the State has argued that FIR Ex. PAA was
promptly lodged. The main concern of Chanan Masih was to first see the
condition and take care of Sheedo (deceased), Kala PW 12 and Joginder PW
11, who had been injured.
The Investigating Officer ASI Rajnish Kumar recorded the
statement of Joginder after getting a certificate from the doctor that he was
fit to make a statement. Joginder PW 11 and Kala PW 12 have corroborated
the statement of Sheedo wife of Chanan Masih, who had given her
statement which should be read as a dying declaration. Joginder PW 11 and
Kala PW 12 are stamped witnesses, as they also were injured in the
occurrence.
Crl. Appeal No. 401-DBA of 2001 -4-
Dr. Ajit Singh PW 2 had declared all the injured witnesses unfit
to make a statement on 31.5.1995. It was on the next day i.e. On 1.6.1995 at
8.30 A.M that the FIR came into existence. No special report was sent
earlier because it was a case under sections 324/325 IPC.
Learned counsel for the respondents/accused have argued that
the dying declaration Ex. PLL of Sheedo should not be taken into
consideration.
Statement Ex.PLL is under Section 161 of Cr.P.C. It is not signed or thumb
marked. Never did the doctor give his opinion that Sheedo was fit to make
a statement.
Chanan Masih saw the occurrence and he could have lodged
the FIR in the night itself when ASI Rajnish Kumar PW 15 had come to the
hospital. Doctor Ajit Singh PW 2 had opined that Sheedo, Joginder and
Kala were not fit to make a statement. The delay in lodging the FIR was for
the reason that consultation and confabulations were taking place between
the complainant party to falsely implicate the respondents/accused. Chanan
Masih infact was not present at the place of occurrence.
We have heard learned counsel for the parties and have perused
the impugned judgement and the record.
There are discrepancies in the medical evidence and the ocular
account. The alleged injuries inflicted on the person of the deceased and the
injured witnesses are as under:-
” On 31.5.1995 PW2 Dr. Ajit Singh, SMO, Incharge, PHC,
Daroli Bhai while posted as SMO, PHC Kot Ise Khan medicolegally
examined Sheedo wife of Chanan Masih and found the following injuries on
her person:-
Crl. Appeal No. 401-DBA of 2001 -5-
1. Incised wound 8 cms x 1 ½ cms x bone deep on front of
middle of forehead in upper part. Longitudinally just
crossing the hair line. The wound was profusely
bleeding on examination.
2. Swelling 5 cms x 3 cms on right parietal area of head, 5
cms above pinna of right ear.
3. Contusion with swelling 2 cms x 2 cms on lower part of
eye lids of right side.
Injuries no.1 and 2 were kept under observation while injury
no.3 was declared simple in nature. After X-ray examination injuries no. 1
and 2 were declared grievous in nature. This witness has proved the M.L.R
in respect of Sheedo being Ex.PB and pictorial diagram showing the seat of
injuries as Ex.PB/1. He has also given his opinion Ex. PB/2, vide which he
declared injuries no.1 and 2 as grievous in nature on the basis of X-ray
report Ex.PA and skiagrams Ex.PA/1-2.
On the same day this witness also medico legally examined
Kala Singh at 8.30 PM and found the following injuries on his person:-
1. Swelling 6 cms x 5 cms on left parietal area of head.
Bleeding from the left ear was present and continuous.
Patient was semi conscious and did not speak.
2. An abrasion 6 cms x 2 cms on lumbar area of back.
3. Swelling 3 cms x 1 cm behind right ear pinna.
Injury no.1 was kept under observation by this witness while
injuries no.2 and 3 were declared simple in nature. He has also proved the
carbon copy of the MLR in respect of Kala Singh as Ex.PC and pictorial
diagram showing the seat of injuries as Ex.PC/1. After receipt of surgical
specialist opinion Ex.PD, Dr. Ajit Singh declared injury no.1 as grievous in
nature vide his endorsement Ex.PD/1.
On the same day Dr. Ajit Singh medico legally examined
Joginder at 9.10 PM and found the following injuries on his person.
Crl. Appeal No. 401-DBA of 2001 -6-
1. Incised wound 2 cms x 1/10 cm x muscle deep on outer
side of middle of left upper arm.
2. Swelling with contusion 3 cms x 2 cms on outer side of
left elbow.
3. Pinkish contusion 3 cms x 2 cms on back and lower part
of right forearm.”
In the testimony before the court Joginder PW 11 and Kala
Singh PW 12 have given a different version regarding the injuries inflicted
on them and deceased Sheedo.
Both Joginder PW 11 and Kala Singh PW 12 and in the alleged
dying declaration of Sheedo are silent regarding the role of Chanan Masih,
who was the prime target of the respondents/accused. If, Chanan Masih had
been present, respondents/accused would not have spare him as he was the
one they had a grudge against. If, Chanan Masih had been present, he
would have lodged the report before it came into existence on the next day
on the basis of statement of Joginder.
It is admitted by the prosecution witnesses that Chanan Masih
was present in the hospital, why he did not record his statement with the
Investigating Officer ASI Rajnish Kumar PW 15, who had reached the Civil
Hospital Kot Isekhan in the night has not been explained by the prosecution.
Chanan Masih has not been examined by the prosecution before the court
for the reasons best known to them.
Regarding the alleged dying declaration Ex.PLL no doctor was
present at the time when it was recorded. The Investigating Officer had
ample time to have the statement of Sheedo recorded by an Executive
Magistrate/Judicial Magistrate but he did not do so. Before recording of the
statement by the Investigating Officer ASI Rajnish Kumar no fitness
certificate was taken as to whether Sheedo was fit to make a statement or
Crl. Appeal No. 401-DBA of 2001 -7-
not from the doctor on duty. In the statement of Dr. Ajit Singh PW 2, SMO,
PHC Daroli Bhai, who produced the bed head ticket he has conceded in his
cross-examination, that there is no mention in the bed head ticket that
Sheedo was declared fit to make a statement.
We do not find any infirmity in the judgement of the learned
Trial Court.
Criminal Appeal No. 401-DBA of 2001 is dismissed.
There is no merit in Criminal Revision No. 119 of 2001, which
is also dismissed.
(MEHTAB S. GILL)
JUDGE
(JITENDRA CHAUHAN)
JUDGE
October 5, 2009
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