{"id":32827,"date":"2008-09-17T00:00:00","date_gmt":"2008-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/balwinder-singh-vs-state-of-punjab-on-17-september-2008"},"modified":"2018-11-19T21:49:38","modified_gmt":"2018-11-19T16:19:38","slug":"balwinder-singh-vs-state-of-punjab-on-17-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/balwinder-singh-vs-state-of-punjab-on-17-september-2008","title":{"rendered":"Balwinder Singh vs State Of Punjab on 17 September, 2008"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Balwinder Singh vs State Of Punjab on 17 September, 2008<\/div>\n
Criminal Appeal No.371-DB of 1998                                  1\n\n      In the High Court of Punjab and Haryana at Chandigarh\n\n                             Criminal Appeal No.371-DB of 1998\n                             Date of decision:September 17, 2008\n\nBalwinder Singh\n                                                 ......appellant\n\n\n                        Versus\n\n\nState of Punjab\n                                                 .......Respondent\n\n\nCORAM: HON'BLE MR.JUSTICE JASBIR SINGH\n\n           HON'BLE MRS. JUSTICE SABINA\n\n\nPresent:   Mrs.Baljit Kaur Mann, Advocate,\n           for the appellant.\n\n           Mr.Rajesh Bhardwaj, DAG, Punjab.\n                ****\n\nJUDGMENT\n<\/pre>\n
SABINA, J.\n<\/p>\n
           Balwinder Singh has filed this appeal challenging his<\/p>\n
conviction and sentence under Section 302 IPC vide impugned<\/p>\n
judgment dated 27.7.1998 passed by learned Sessions Judge,<\/p>\n
Hoshiarpur.\n<\/p>\n
           Prosecution story in brief is that Harjinder Singh @ Bittu,<\/p>\n
younger brother of complainant Balwinder Singh @ Binder, was<\/p>\n
running a shop as an electrician at Bus Stand Manak Dheri. Bittu<\/p>\n
has good relations with Balwinder Singh son of Piara Singh, a truck<\/p>\n
driver of village Manak Dheri. Bittu used to visit his house frequently.
\n Criminal Appeal No.371-DB of 1998                             2<\/span><\/p>\n
On 16.7.1996 at about 7.00 p.m. complainant went to         meet his<\/p>\n
brother Bittu at his shop. They discussed their domestic affairs and<\/p>\n
consumed some liquor. When complainant was about to return back<\/p>\n
to his village, Bittu suggested that they should stay at the house of<\/p>\n
Balwinder Singh driver. At about 9.00 p.m. they reached the house<\/p>\n
of Balwinder Singh driver. At that time he along with his wife were<\/p>\n
taking meals in their room. An electric bulb was on in the room as<\/p>\n
well as outside the courtyard. The complainant was following Bittu.<\/p>\n
As soon as Bittu entered the room, Balwinder Singh driver took an<\/p>\n
kulhari (axe) from underneath the iron petty (big box) and said “Aa<\/p>\n
Gia Salia Ashika” and gave an kulhari blow on the head of Bittu,<\/p>\n
which hit him near his left ear. Balwinder Singh gave another kulhari<\/p>\n
blow on the right temple of Bittu. Bittu sat down and as a result<\/p>\n
kulhari broke due to its striking against the floor. Balwinder Singh<\/p>\n
picked up a kirpan and started giving blows on the person of Bittu.<\/p>\n
Out of fear the complainant ran away from there and reached the<\/p>\n
house of his maternal aunt (Massi) Gurbachan Kaur at village<\/p>\n
Sohalpur.   He narrated the entire occurrence to his aunt         and<\/p>\n
maternal uncle Kehar Singh.     Then complainant along with Kehar<\/p>\n
Singh met Sarpanch Amarjit Singh of village Manak Dheri. In the<\/p>\n
morning they went to the house of the accused where the dead body<\/p>\n
of deceased Bittu was lying in a pool of blood and after leaving<\/p>\n
Kehar Singh at the house of the accused complainant informed the<\/p>\n
police. Accused Balwinder Singh had suspicion that Bittu was having
\n Criminal Appeal No.371-DB of 1998                                  3<\/span><\/p>\n
illicit relations with his wife and due to this reason the accused had<\/p>\n
committed his murder.\n<\/p>\n
           On the basis of the statement of the complainant formal<\/p>\n
FIR No.101 dated 17.7.1996 was registered by the police of police<\/p>\n
Station Hariana District Hoshiarpur. FIR was concluded at 8.35 a.m.<\/p>\n
           SI Bakhshish Singh along with other police officials visited<\/p>\n
the spot and prepared the rough site plan. He lifted blood lying near<\/p>\n
the dead body. The place of occurrence was got photographed. He<\/p>\n
prepared the inquest report with regard to dead body of Harjinder<\/p>\n
Singh @ Bittu and the dead body was sent for postmortem<\/p>\n
examination.     Accused was arrested and on the basis of his<\/p>\n
disclosure statement one kirpan, one handle of kulhari and blade of<\/p>\n
kulhari were recovered from the disclosed place and were taken in<\/p>\n
possession.\n<\/p>\n
           Dr.    Gurbachan      Singh    conducted     the   postmortem<\/p>\n
examination on the dead body of Harjinder Singh @ Bittu on<\/p>\n
17.7.1996 at 5.15 p.m. and found following injuries on his person:-<\/p>\n
           1. An incised wound 9 cm x 2.5 cm lying just vertically in the<\/p>\n
               right temporal and parietal region. Its lower end was 2.5 cm<\/p>\n
               below and medial to the tragus of the right ear. Underlying<\/p>\n
               bone was cut and the brain matter was coming out of the<\/p>\n
               wound.\n<\/p><\/blockquote>\n
           2. An incised wound 5 cm x 1.5 cm lying just transversally.<\/p>\n
               The pinna was cut (left ear). Its anterior angle was 1 cm<\/p>\n
               behind the tragus of left ear. The wound was muscle deep.
\n Criminal Appeal No.371-DB of 1998                                    4<\/span><\/p>\n<\/blockquote>\n
            3. An incised wound 11 cm x 5 cm on the right side of the<\/p>\n
              neck lying just transversally was present. Its anterior end<\/p>\n
              being 4 cm below and in front of the right angle of the<\/p>\n
              mandible. The right sterno-mastoid muscle was cut and the<\/p>\n
              internal juglar vein was cut. Blood clots were present in the<\/p>\n
              wound.\n<\/p><\/blockquote>\n
            4. An incised wound 2 cm x 5 cm on the left pinna was<\/p>\n
              present, 2 cms above the injury No.2.\n<\/p><\/blockquote>\n
            5. An incised wound 3 cm x 75 cm on the left side of neck<\/p>\n
              lying obliquely was present. Its lower and being 7cm to the<\/p>\n
              left of sternal notch.<\/p><\/blockquote>\n
            In his opinion the cause of death was due to shock and<\/p>\n
haemorrhage due to injuries to the brain and right internal juglar vein<\/p>\n
which was sufficient to cause death in the ordinary course of nature<\/p>\n
and injuries were ante mortem in nature. Time between injuries and<\/p>\n
death was immediate and between death and postmortem was within<\/p>\n
24 hours.\n<\/p>\n
            After   completion         of   investigation   and   necessary<\/p>\n
formalities accused was sent up for trial.             Charge against the<\/p>\n
accused was framed under Section 302 IPC on 11.10.1996, to which<\/p>\n
he did not plead guilty and claimed trial.\n<\/p>\n
            The material witnesses examined by the prosecution at<\/p>\n
the trial were Dr.Gurbachan Singh (PW-1), Complainant Balwinder<\/p>\n
Singh (PW-7), Kehar Singh (PW-8), ASI Surinder Singh (PW-10),
\n Criminal Appeal No.371-DB of 1998                             5<\/span><\/p>\n
Satpal Singh (PW-13) and SI Bakhshish Singh (PW-14).<\/p>\n
           After close of prosecution evidence accused, when<\/p>\n
examined under Section 313 Cr.P.C. pleaded as under:-<\/p>\n
           “I am innocent, on the fateful day, the deceased came<\/p>\n
           armed with a kirpan in drunken condition and caught hold<\/p>\n
           of my wife and tried to outrage her modesty. Then my<\/p>\n
           wife and children raised alarm.      I was present in the<\/p>\n
           chobara of my house.       The resident of the village on<\/p>\n
           hearing raula, came with whatever they could lay their<\/p>\n
           hands and on seeing the deceased molesting my wife,<\/p>\n
           caused injuries to him. I informed the Sarpanch of the<\/p>\n
           village, who informed the police and the police came early<\/p>\n
           in the morning and later on at noon time, the brother of<\/p>\n
           the deceased was called from the village and he made a<\/p>\n
           false statement against me. I did not cause any injury to<\/p>\n
           the deceased nor I made any disclosure statement, nor I<\/p>\n
           got anything recovered in pursuance of that statement.”<\/p><\/blockquote>\n
           In   his   defence the accused examined Amarjit Singh<\/p>\n
(DW-1) and Sharanjit Kaur (DW-2).\n<\/p>\n
           Learned trial Judge believed the prosecution version and<\/p>\n
convicted the accused under Section 302 IPC and sentenced him to<\/p>\n
undergo imprisonment for life and a fine of Rs.2,000\/-.<\/p>\n
           In appeal, learned counsel for the appellant has argued<\/p>\n
that the prosecution had failed to prove its case.        There was
\n Criminal Appeal No.371-DB of 1998                             6<\/span><\/p>\n
unexplained delay in lodging of the FIR and its reaching the Special<\/p>\n
Magistrate. The presence of the eye witness at the spot could not be<\/p>\n
believed as his behaviour was most unnatural in the circumstances<\/p>\n
of this case. The complainant had no occasion to be present in the<\/p>\n
village Manak Dheri late in the evening. The deceased had come to<\/p>\n
the house of the accused in his absence and tried to outrage the<\/p>\n
modesty of the wife of the accused. He had been inflicted injuries by<\/p>\n
the wife of the accused in self defence and other persons, who had<\/p>\n
gathered at the spot.\n<\/p>\n
            Learned State counsel, on the other hand, has argued<\/p>\n
that the dead body of the deceased was recovered from the house of<\/p>\n
the accused, who had inflicted injuries on the person of the deceased<\/p>\n
with an intention to murder him as he suspected that the deceased<\/p>\n
was having illicit relations with his wife.\n<\/p>\n
            Present case rests on an eye witness account. The dead<\/p>\n
body of the deceased was recovered from the house of the accused.<\/p>\n
The complainant, who is brother of the deceased, has deposed to the<\/p>\n
effect that the deceased had been inflicted injuries by the accused<\/p>\n
with the help of kulhari and kirpan, whereas, the defence version is<\/p>\n
that the deceased had come to the house of the accused in a<\/p>\n
drunken condition and had tried to outrage the modesty of wife of the<\/p>\n
accused, who, in order to save herself, had inflicted injury on the<\/p>\n
person of the deceased and other persons gathered at the spot had<\/p>\n
also inflicted injuries on his person.\n<\/p>\n
 Criminal Appeal No.371-DB of 1998                               7<\/span><\/p>\n
            Complainant, while appearing in the witness box at the<\/p>\n
trial, has deposed as per the contents of the FIR. The said witness<\/p>\n
had come to meet his brother at his shop at about 7.00 p.m.<\/p>\n
Thereafter, at the instance of          deceased Harjinder Singh,<\/p>\n
complainant went with him to the house of the accused. As per the<\/p>\n
FIR complainant and his brother had consumed liquor. Presence of<\/p>\n
alcohol was detected by the Chemical Examiner in the stomach, liver,<\/p>\n
spleen, kidney and intestines of the deceased. It is possible that the<\/p>\n
deceased might have been under the impression that the accused,<\/p>\n
who was a truck driver, was not at home.          However, when the<\/p>\n
complainant and deceased went to the house of accused, they found<\/p>\n
him present there. Apparently, accused was not happy with regard<\/p>\n
to the visit of the deceased and the complainant to his house at 9.00<\/p>\n
p.m.     Probably some verbal altercation might have taken place<\/p>\n
between the parties which provoked the accused to inflict injuries on<\/p>\n
the person of the deceased. As per the complainant, accused<\/p>\n
inflicted kulhari   blows on the person of the deceased and when<\/p>\n
handle of the kulhari broke, the accused picked up a kirpan. Out of<\/p>\n
fear the complainant fled away from the spot and went to the house<\/p>\n
of his uncle in village Sohalpur. Thereafter, he reported the matter to<\/p>\n
Sarpanch of village Manak Dheri along with his uncle Kehar Singh.<\/p>\n
However, FIR in this case was concluded at 8.35 p.m. on 17.7.1996.<\/p>\n
            Every person who witnesses an assault\/murder reacts in<\/p>\n
his own way. Some become speechless and stand rooted to the
\n Criminal Appeal No.371-DB of 1998                               8<\/span><\/p>\n
spot, whereas, some become hysteric and start screaming. Some<\/p>\n
start shouting for help, whereas, some run away to keep themselves<\/p>\n
as far removed from the spot as possible. Some may rush to rescue<\/p>\n
the victim, even make an attempt to counter attack the assailant.<\/p>\n
Thus, there cannot be a set rule of natural reaction of an eye witness.<\/p>\n
           In this case, the complainant out of fear ran away to the<\/p>\n
house of his relative in the nearby village. Hence, the statement of<\/p>\n
the eye-witness cannot be discarded merely because he ran away<\/p>\n
from the spot and lodged the FIR in the morning. Kehar Singh has<\/p>\n
corroborated the statement of the complainant to the effect that he<\/p>\n
had come to his house at 11.00 p.m. Complainant has stated in his<\/p>\n
cross-examination that his another maternal uncle also resided in<\/p>\n
village Sohalpur and was having a tractor but complainant did not go<\/p>\n
to the house of the said uncle. Apparently, the complainant may not<\/p>\n
be having cordial relations with his other maternal uncle and went to<\/p>\n
the house of Kehar Singh (PW-8) as he must have felt that he (Kehar<\/p>\n
Singh) would come to his help.\n<\/p>\n
           Recording of the FIR was concluded at 8.35 p.m. on<\/p>\n
17.7.1996, whereas, special report reached the Magistrate at 3.20<\/p>\n
p.m., although the distance between police station Hariana and the<\/p>\n
Court premises, Hoshiarpur was only about 15 k.m. It has been held<\/p>\n
by the Apex Court in the case of Shiv Ram v. State of Uttar<\/p>\n
Pradesh<\/a> 1998 (1) RCR 778 that delay in sending special report to<\/p>\n
Magistrate would not demolish the other positive and credible
\n Criminal Appeal No.371-DB of 1998                               9<\/span><\/p>\n
evidence on record.      This would only show that the investigating<\/p>\n
agency was not careful and prompt as it ought to be.<\/p>\n
              It has been held by the Apex Court in the case of State<\/p>\n
of Uttar Pradesh v.       Gokaran and others AIR<\/a> 1985 Supreme<\/p>\n
Court 131 that it was not as if every delay in sending special report<\/p>\n
to the District Magistrate would necessarily lead to the inference that<\/p>\n
the FIR had not been lodged at the time stated or had been<\/p>\n
antetimed or antedated or that the investigation was not fair and<\/p>\n
forthright.\n<\/p>\n
              Although in the present case the special report reached<\/p>\n
the Magistrate after delay but      this in itself is not sufficient to<\/p>\n
demolish the prosecution case. It only shows that the investigation in<\/p>\n
this case has not been carried out in a prompt and careful manner.<\/p>\n
However, the statement of the eye witness cannot be brushed aside<\/p>\n
on account of this lapse on the part of the investigating agency.<\/p>\n
              The dead body of deceased Harjinder Singh was<\/p>\n
recovered from the house of the accused. The explanation offered<\/p>\n
by the accused and his wife when examined as defence witness, is<\/p>\n
that the deceased had come to their house and had tried to outrage<\/p>\n
the modesty of Sharanjit Kaur. She inflicted a kulhari blow on the<\/p>\n
person of the deceased and other neighbours, who had gathered at<\/p>\n
the spot also inflicted injuries on the person of the deceased. Had<\/p>\n
this been a fact, the accused or his wife would have informed the<\/p>\n
police regarding the occurrence. The neighbours present at the spot
\n Criminal Appeal No.371-DB of 1998                             10<\/span><\/p>\n
would have informed the police. Hence, the defence version that the<\/p>\n
injuries on the person of the deceased were not inflicted by the<\/p>\n
accused fails to inspire confidence.      Accused has admitted his<\/p>\n
presence in the house when examined under Section 313 Cr.P.C.<\/p>\n
           Amajit Singh (DW-1) was given up by the prosecution as<\/p>\n
having been won over and, thereafter, he was examined by the<\/p>\n
accused in his defence. The statement of this witness, however, fails<\/p>\n
to inspire confidence because this witness had not made any<\/p>\n
application regarding false implication of the accused being<\/p>\n
Sarpanch of the village nor any resolution in this regard was passed<\/p>\n
by the Panchyat. It appears that with a view to help the accused he<\/p>\n
has not supported the prosecution case.\n<\/p>\n
           Kulhari, its handle and kirpan were recovered on the<\/p>\n
basis of the disclosure statement suffered by the accused. As per<\/p>\n
the report of the Chemical Examiner, kirpan and kulhari dasta were<\/p>\n
found to be stained with blood, whereas, the blood stains on fal<\/p>\n
kulhari were disintegrated and their origin could not be determined.<\/p>\n
Thus, the ocular version is corroborated by the medical evidence with<\/p>\n
regard to injuries on the person of the deceased.<\/p>\n
           After going through the evidence on record we are of the<\/p>\n
opinion that the accused had no intention to commit the murder of<\/p>\n
the deceased but got provoked by the visit of the deceased in a<\/p>\n
drunken condition at an odd hour to his house and inflicted injuries<\/p>\n
on his person. The accused, however, had the knowledge that the
\n Criminal Appeal No.371-DB of 1998                             11<\/span><\/p>\n
injuries inflicted by him could cause the death of deceased Harjinder<\/p>\n
Singh @ Bittu because as many as five injuries were inflicted on the<\/p>\n
person of the deceased but he had no intention to commit murder of<\/p>\n
deceased.\n<\/p>\n
            Keeping in view the totality of circumstances in mind, we<\/p>\n
are of the opinion that the present case falls within the purview of<\/p>\n
Section 304 (II) IPC and not under Section 302 IPC.<\/p>\n
            Accordingly, this appeal is partly allowed and conviction<\/p>\n
of the accused is converted from Section 302 IPC to Section 304 (II)<\/p>\n
IPC and his sentence is reduced to the imprisonment already<\/p>\n
undergone by him.\n<\/p>\n<\/p>\n
                                                   (SABINA)
\n                                                    JUDGE<\/p>\n
                                             (JASBIR SINGH)
\n                                                 JUDGE<\/p>\n
September 17, 2008
\nanita\n <\/p>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Balwinder Singh vs State Of Punjab on 17 September, 2008 Criminal Appeal No.371-DB of 1998 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Appeal No.371-DB of 1998 Date of decision:September 17, 2008 Balwinder Singh ……appellant Versus State of Punjab …….Respondent CORAM: HON’BLE MR.JUSTICE JASBIR SINGH HON’BLE MRS. JUSTICE […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-32827","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nBalwinder Singh vs State Of Punjab on 17 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/balwinder-singh-vs-state-of-punjab-on-17-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Balwinder Singh vs State Of Punjab on 17 September, 2008 - 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