CRIMINAL APPEAL NO. 224-DB OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: December 08, 2009. Parties Name Sarmukh Singh ..APPELLANT VERSUS State of Punjab ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE JUSTICE MRS. DAYA CHAUDHARY PRESENT: Mr. Veneet Sharma, Advocate, for the appellant Mr. D.S.Brar, D.A.G., Punjab, for the respondent. JASBIR SINGH, J. ORDER. Appellant has filed this appeal against judgment and order dated November 2, 2000, vide which he was convicted for commission of an offence under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 5,000/-, with a default clause. Period spent in custody during trial, was ordered to be set off against the period of sentence, mentioned above. It was allegation against the appellant that on August 22, 1998, he committed murder of Ajit Singh, within the area of village Chogawan, Police Station Lopoke, at about 7 PM. CRIMINAL APPEAL NO. 224-DB OF 2001 -2- Process of criminal law was set in motion on a statement (Ex. PC) made by Head Constable Hardip Singh (PW6) at 8 PM on August 22, 1998, which was recorded by Inspector Dharam Singh (PW9), on the basis of which formal FIR (Ex. PC/2) was registered in Police Station Lopoke, at 9 PM. Special report reached the concerned Magistrate at 5 AM on August 23, 1998. Case of the prosecution, as noted by the trial Court in para No. 2 of the judgment, reads thus: “That on 22.8.1998, a police party headed by HC Hardip Singh (now ASI Hardip Singh PW6) along with other police officials including LC Davinder Singh (PW7) had held a Naka in Chowk Chogawan. At about 7 p.m., HC Hardip Singh and other police officials noticed that two persons were having altercation between themselves on the side of Ajnala road, opposite to the general merchant shop of Balwinder. HC Hardip Singh and LC Davinder Singh proceeded towards those two persons. Within the sight of police officials, one of them, who was Sarmukh Singh accused, gave Khanda (iron rod) blow to the other person, who was Ajit Singh (deceased). The blow hit the deceased on his neck, as a result of which, he fell down on the ground and his injury started bleeding. In the meantime, Savinder Singh, Sarpanch, also reached there. When HC Hardip Singh and LC Davinder Singh went near Ajit Singh, they noticed that he had already died. HC Hardip Singh snatched Khanda from the accused. Allegedly, the accused disclosed to police that litigation was pending between him and CRIMINAL APPEAL NO. 224-DB OF 2001 -3- his father-in-law Dharam Singh and in that litigation, the deceased was helping his father-in-law.” The Investigating Officer prepared rough site plan of the place of occurrence, with correct marginal notes. He also took into his possession Khanda (double edged sword), i.e., weapon of offence against a recovery memo. He also lifted blood stained earth from the spot and took it into his possession against a recovery memo. He recorded statements of the witnesses, prepared inquest report Ex. PA of the dead body and sent it for post-mortem examination, which was conducted by Dr. Didar Singh (PW1) on August 23, 1998, at 11.15 AM. The accused was arrested at the spot. On completion of investigation, final report was put in Court for trial. The appellant – accused was charge-sheeted, to which he pleaded not guilty and claimed trial. The prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the appellant – accused was recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to him, which he denied, pleaded innocence and false implication. He further stated that he was picked up from his village and falsely involved in this case. He also led evidence in defence. The trial Court, on appraisal of evidence, found the appellant – accused guilty, convicted and sentence him, as mentioned in earlier part of this order. Hence this appeal. Counsel for the appellant, Shri Veneet Sharma, has vehemently contended that in view of evidence on record, the trial Court was not justified in convicting and awarding sentence to the appellant – accused. CRIMINAL APPEAL NO. 224-DB OF 2001 -4- Occurrence had taken place at 7 PM on August 22, 1998. Special report reached the Ilaqa Magistrate at 5 AM on August 23, 1998. It appears that the FIR was recorded in mid of the night and it was ante timed to show that it was recorded at 9 PM on August 22, 1998. He further argued that the appellant – accused and the deceased were not known to each other. The prosecution has failed to prove any motive on the part of the appellant to cause injuries to the deceased. He also argued that case of the prosecution rests upon testimony of the official witnesses only, without any independent corroboration for the same. By making reference to the medical evidence on record, in the alternative, he argued that only one injury was caused by the appellant to the deceased. It was not repeated, as such his case would not fall under the provisions of Section 302 IPC. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant – accused be acquitted of the charge framed against him. Prayer made has vehemently been opposed by the State counsel, who, by making reference to the statements of ASI Hardip Singh (PW6), Constable Davinder Singh (PW7) and Inspector Dharam Singh (PW9), argued that the prosecution was successful in proving its case against the appellant – accused. He further argued that there is not an iota of evidence on record to show that police officials had any motive to falsely implicate the appellant – accused in this case. The accused was apprehended at the spot. Weapon of offence was recovered from him and thereafter FIR was recorded in a very prompt manner. He also made reference to the medical evidence on record to state that it was a deliberate murder and no concession can be granted to the appellant – accused on the CRIMINAL APPEAL NO. 224-DB OF 2001 -5- ground that he had caused only one injury to the deceased. He prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, this Court is convinced that it is not possible to interfere in the judgment and order under challenge at the instance of the appellant – accused. There is nothing on record to suggest that the police officials had any motive to falsely implicate the appellant, as alleged. ASI Hardip Singh (PW6) along with other was on patrolling duty and present at a check post at a road crossing in Chogawan. At about 7 PM, he noticed that two persons were engaged in altercation with each other. He went towards them to know as to why they were fighting. In his sight, the appellant – accused gave a blow with Khanda to the deceased at his neck, on the left side. Injury was so serious that Ajit Singh died at the spot immediately. The appellant – accused was apprehended with the help of other police officials. Weapon of offence was also snatched from him. In the meantime, Inspector Dharam Singh (PW9) also reached at the spot. He recorded statement (Ex. PC) of ASI Hardip Singh, on the basis of which formal FIR was registered in Police Station Lopoke at 9 PM. Appellant – accused, disclosed to ASI Hardip Singh that he had killed Ajit Singh because he was helping his father-in-law, in a matrimonial dispute, with his wife. The testimony of this witness could not be shattered during cross-examination. The witness has given vivid description of the entire occurrence and the manner, in which murder was committed. It has also come on record that the deceased had not caused any injury to the appellant – accused , though armed with a small Kirpan. Statement made by PW6 has further been corroborated by Constable Davinder Singh(PW7), who was also member of the police party. He had CRIMINAL APPEAL NO. 224-DB OF 2001 -6- also seen the entire occurrence. This witness has described the circumstances, under which injury was caused by the appellant – accused to the deceased. This witness also stood test of the cross-examination. Further support to the prosecution case was given by Inspector Dharam Singh (PW9), the Investigating Officer. This witness reached at the place of occurrence and recorded statement of ASI Hardip Singh. Appellant – accused was arrested and weapon of offence was also taken into possession. Blood stained earth was also lifted from the spot. The weapon of offence and blood -stained earth were sent for examination and as per Chemical Examiner's report (Ex. PO), weapon of offence (Khanda) and earth were found stained with blood. Contention of counsel for the appellant that in view of only one injury inflicted by the appellant on the deceased, his case may not be covered under the provisions of Section 302 IPC, is liable to be rejected. As per medical evidence on the record, post-mortem on the dead body was conducted by Dr. Didar Singh (PW1)on August 21, 1998, at 11.15 AM, who found the following injuries on the person of the deceased: “Incised chop wound size 18 x 8 cms. Present on left side of neck- 2.5 cms. below lobule of left ear. Margins of the wound were regular and contused. It was placed horizontally. Clotted blood was present. Extensive damage to the underlying soft tissue and bones was present. On dissection, all the soft structures and tissues of the neck found cut through and through sparing skin and fascia of the right side of neck. Cervical vertebrae C3 and C4 were also found cut through and through. Spinal cord was found cut CRIMINAL APPEAL NO. 224-DB OF 2001 -7- corresponding to the injury.” This witness has stated that cause of death in this case was severance of neck, as a result of injury, mentioned above, which was sufficient to cause death in ordinary course. Injury was found ante mortem in nature. Khanda is a heavy weapon of offence. Extent of injury, as indicated above, suggests that the blow was given with vengeance and force. Neck of the deceased was cut through and through sparing skin and fascia of the right side of the neck. Cervical vertebrae C3 and C4 were found cut through and through. Spinal cord was also found cut. The nature of injury clearly shows strong intention of the appellant – accused to kill the deceased, who died at the spot, in no time. The deceased had not even given a scratch to the appellant – accused. Under these circumstances, this Court is of the opinion that the trial Court was justified in awarding conviction to the appellant – accused under the provisions of Section 302 IPC. PW8 Dharam Singh, father-in-law of the appellant – accused, was cited as a witness to prove motive. He turned hostile. Be that as it may, in the presence of eye witness account, motive becomes a pale shadow. Eye witness account is very clear. Under these circumstances, no benefit of lack of any motive on the part of the appellant – accused to cause injury to the deceased, can be given to the appellant – accused. By leading evidence in defence, an attempt was made by the appellant – accused to show that he was picked up from his house and then falsely implicate in this case. To support his contention, he has produced Gurbhej Singh (DW1), Sarpanch of his village as a witness. This witness CRIMINAL APPEAL NO. 224-DB OF 2001 -8- has supported averment, made by the appellant – accused, regarding false implication. However, in cross-examination, this witness has admitted that no application was moved before the higher authorities complaining false implication of the appellant – accused in this case. He further admitted that even resolution was not passed in the Gram Panchayat in that respect. Thus it appears that this witness has deposed in favour of the appellant – accused being his co-villager. There is not an iota of evidence to suggest that there was any reason with the police officials to falsely implicate the appellant -accused in this criminal case. Testimony of the police officials is trust worthy and inspires confidence. Contention of counsel for the appellant that FIR was ante timed is not justified. Occurrence had taken place at about 7 PM. Statement of ASI Hardip Singh was recorded at 8 PM by Inspector Dharam Singh (PW9). Police Station is situated nearby. FIR Ex. PC/2 was recorded at 9 PM. Merely because the police officials have shown some lethargy in delivering the special report to the concerned Magistrate, i.e., at 5 AM on August 23, 1998, no benefit of the same can be given to the appellant – accused. For negligence of a police official, entire case of the prosecution cannot be discarded, if otherwise it inspires confidence. Otherwise also, in the year 1998, situation in Punjab was turbulent. There is a long distance between Police Station Lopoke and Ajnala, where special report was to be delivered. On account of darkness/ night, police official may not have gone to deliver the special report quickly. On this score alone, no benefit can be given to the appellant – accused. In view of facts, mentioned above, this appeal fails and the CRIMINAL APPEAL NO. 224-DB OF 2001 -9- same is dismissed and conviction and sentence awarded to the appellant are upheld. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE December 08, 2009. DKC