Crl. Appeal No. 523-DB of 2000. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 523-DB of 2000. Date of Decision : 01.09.2009. 1. Suba Singh son of Piara Singh 2. Mohar Singh son of Angrej Singh 3. Jarnail Singh son of Angrej Singh 4. Mohinder Singh son of Mehal Singh 5. Gurnam Singh son of Bhagwan Singh 6. Gurmukh Singh son of Jagir Singh 7. Joga Singh son of Arjun Singh 8. Mohar Singh son of Arjun Singh 9. Inder Singh son of Tehal Singh 10. Major Singh son of Ajit Singh All residents of village Chabba Tehsil and District Kaithal. ...... Appellants Versus State of Haryana ......Respondent CORAM : HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. Vinod Ghai, Advocate & Mr. Jagjit Singh, Advocate for the appellants. Mr. H.S. Sran, Addl. AG Haryana, for the respondent-State. Mr. K.S. Dhaliwal, Advocate, for the complainant. NAWAB SINGH J. The accused-appellants, above named, were tried by learned Additional Sessions Judge, Kaithal and were convicted under Sections 148 and 302 read with Section 149 of Indian Penal Crl. Appeal No. 523-DB of 2000. 2 Code and sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- each. In default of payment of fine, they were directed to undergo further rigorous imprisonment for a period of six months by judgment of conviction and order of sentence dated September 13th, 2000 and September 16th, 2000, respectively. 2. Briefly, the facts are that on March 17th, 1998 at about 5 AM, the complainant Lakha Singh, his nephew Hoshiar Singh and their relation Sahib Singh were present in the fields in their village Chhaba to transport potatoes to Vegetable Market, Samana in the tractor trolley brought by Sahib Singh. Balkar Singh-deceased (brother and father of Lakha Singh and Hoshiar Singh, respectively) and Karnail Singh came to the fields to answer the call of nature. When they reached a little ahead of their fields near the tubewell of Suba Singh, all the accused-appellants armed with gandasis and burchhas emerged from the kotha/chamber of the tubewell of Suba Singh and raised a lalkara, hurling abuses that Balkar Singh should be taught a lesson for getting their poppy husk recovered. On seeing the appellants, Balkar Singh and Kulwant Singh ran towards the fields of Lakha Singh. All the accused chased them. Balkar Singh raised alarm. Complainant, Hoshiar Singh and Sahib Singh ran towards them. There was a mound of 7-8 feet in height towards the Dera of Tehal Singh which Balkar Singh could not cross. Balkar fell down. Suba Singh gave Burchha blow on the left leg, Inder Singh gave gandasa blow on the right leg, Mohinder Singh gave a Burchha blow on the head, Mohar Singh gave gandasa blow on right foot, Jarnail Singh gave 2-3 Barchha blows on the right arm, Major Singh gave gandasi blow on the right leg, Mohar Singh gave a burchha blow on left leg, Joga Singh gave two burchha blows on left leg and left arm, Gurmukh Singh gave a gandasa blow on left leg of Balkar Singh. Lakha Singh, Hoshiar Singh, Sahib Singh and Kulwant Singh raised noise and shouted upon the accused as to why they were committing sin. Then Mohinder Singh and Mohar Singh gave a lalkara that if anybody dared to come near them, they would kill him. The accused fled away from the spot with their respective weapons. Crl. Appeal No. 523-DB of 2000. 3 Balkar Singh died instantaneously. A piece of broken gandasi and Barchha, Chadra of Inder Singh and a bottle containing a small quantity of liquor were lying on the spot. After the occurrence, accused went to the house of Sadhu Singh, Sarpanch and inflicted injuries to him and his wife Amarjit Kaur. The motive behind the occurrence was that on March 4th, 1998, 24 bags of poppy husk of Suba Singh were captured by the Police and accused-appellants had suspicion that it was on the information given by Balkar Singh and Sadhu Sarpanch. 3. Lakha Singh proceeded to lodge the report with the Police after leaving Mohinder Singh father of Sahib Singh on the spot. Hoshiar Singh and Sahib Singh went to inform the relations. Lakha Singh reached the Police Station and made his statement on the basis of which, First Information Report (Exhibit PF) was recorded in Police Station Guhla. Hari Kailash, Station House Officer, Police Station Guhla reached the spot. Inquest (Exhibit PJ) was held. Scene of occurrence was got photographed. Site plan (Exhibit PV) was got prepared. Belongings of the deceased were taken into possession vide recovery memorandum (Exhibit PQ). The chadra, bottle of liquor, blade of gandasi, broken piece of burchha and two broken pieces of bamboo stick were also taken into possession vide recovery memorandums (Exhibits PR and PS). Blood stained earth was also taken into possession vide recovery memorandum (Exhibit PT). Thereafter, the autopsy was conducted on the dead body of Balkar Singh by a board of Doctors. Dr. Priti Mehta (PW-8) gave details of injuries suffered by the deceased which are as under:- 1.Incised wound 4 x 1 cm bone deep on right frontal region of the scalp. Underlying bone was intact. 2.Two penetrating incised wound each measuring 2 x 2 cm adjacent to each other on medial size of right arm just above medialepicondyle. On dissection lower end of humerus was fractured, Haemota was present in the sub-contaneous Crl. Appeal No. 523-DB of 2000. 4 tissue. 3. Contusion violaceaus 8 x 2 cm on valor aspect of right fore-arm. Haemota was present, in sub- cutaneous tissue. 4. Contusion 10 x 5 cm on outer aspect of right fore-arm. On dis-section haematoma was found present. 5.Incised wound right middle finger on dorsal aspect of proximal phalanx. Underlying bones were fractured. 6. Incised penetrating wound 1 x 1 cm on medial side of left arm. Incised penetrating wound 0.5 cm x 0.5 cm x 1 cm medial to above injuries. On dissection haematoma was found present. 7. Contusion 10 x 2 cm was present on left arm on medial side. On dissection shaft of humerous was found fractured. Haematoma was found present. 8. Incised penetrating wound 2 x 2 cm on medial aspect of left elbow. On dissection haematoma was present. 9. Violaceous bruice 10 cm x 2 cm on interior aspect of left fore-arm. On dissection haematoma was present. 10. Multiple violaceous contusions were present on left knee joint. On dissection left patella was broken into multiple pieces. 11. Incised wound 5 cm x 3 cm on postero hyphen medial aspect of left knee joint. 12. Incised wound 5 x 3 cm, 5 cm below injury No.11. Muscles were coming out. Haematoma was seen on dissection. 13. Incised wound 7 x 4 cm on lower medial aspect of left leg. Multiple pieces of bones coming out of the wound. On dissection underlying bones were Crl. Appeal No. 523-DB of 2000. 5 broken into multiple pieces. Bones were broken into multiple pieces. 14. 4 x 1 cm incised wound on left medial malleolus. 15. Two penetrating incised wound 2 x 1 cm, 2 cm apart from each other on medial aspect of left leg in the middle. 16. Multiple violaceous contusions on the right knee. On dissection patella was broken into multiple pieces. Haematoma was present. 17. Incised wound 3 cm x 1 cm on anterior aspect of right knee. Muscles were coming out. Underlying bones were fractured. Haematoma was present. 18. 5 x 2 cm incised wound an interior aspect of right leg. Underlying bones were fractured. Haematoma was found present. 4. According to Dr. Priti Mehta, these injuries were ante-mortem and were sufficient in the ordinary course of nature to cause death. These could be caused by gandasis and Burchhas (Exhibits P-19 to P-26). 5. Suba Singh, Mohinder Singh, Mohar Singh and Mohar Singh son of Arjan Singh, Joga Singh, Gurnam Singh and Gurmukh Singh were arrested on March 22nd, 1998 by Jai Kishan (PW-14). All of them were interrogated. They made disclosure statements regarding concealment of the weapons used by them, that is, Burchhas and gandasis and in pursuance thereto, led to the recovery of the weapons. The burchhas and gandasas were taken into possession after preparing their sketch map and making them into different sealed parcels. 6. On March 26th, 1998 Inder Singh and Major Singh accused were arrested. They were also interrogated. They also got recovered gandasas from the disclosed places. The gandasas were taken into possession. Crl. Appeal No. 523-DB of 2000. 6 7. On April 3rd, 1998 Jarnail Singh was arrested and he also got recovered burchha which was taken into possession. The seized weapons were sent to Foresntic Science Laboratory, Haryana Madhuban, Karnal for analysis. Vide report (Exhibit PM), all the weapons were found having blood stained. After completion of the investigation and other formalities, the accused-appellants were arraigned for trial. 8. Trial ensued. In order to prove its case, prosecution examined Surinder Kumar (PW-1), Rishi Pal (PW-2), Gulab Singh (PW-3), Jasmer Singh (PW-4), Soran Lal (PW-5), Sewa Singh (PW-6), Lakha Singh (PW-7), Dr. Priti Mehta (PW-8), Dharamvir (PW-9), Hoshiar Singh (PW-10), Tek Ram (PW-11), Balraj Singh (PW-12), Hari Kailash, Sub-Inspector (PW-13), Jai Kishan Sub-Inspector (PW-14), Sadhu Ram (PW-15) and Amarjeet Kaur (PW-16). 9. The accused-appellants were examined under Section 313 of Code of Criminal Procedure to explain the incriminating circumstances appearing in the prosecution evidence. They denied their complicity and pleaded innocence. It was added that Balkar Sigh (deceased) was a stool pigeon and some unknown persons due to enmity murdered him on the intervening night of March 16/17th 1998. They have been falsely implicated. Kulwant Singh PW was inimical to the family of Mohar Singh son of Arjun Singh. Sadhu Singh Sarpanch and Kulwant Singh had to settle the old score with them. Suba Singh added in his statement that no poppy husk was recovered from him as alleged by the witnesses. Similar stances were adopted by the other accused-appellants. 10. Assailing the impugned judgment, it has been submitted by learned counsel for the appellants (i) that there was inordinate delay in lodging the First Information Report. The occurrence took place at 5 AM on March 17th, 1998, whereas the FIR was recorded at 9.30 AM which shows that it was recorded after consultation and confabulation of which the accused should be given benefit of doubt; (ii) that prosecution failed to prove the motive Crl. Appeal No. 523-DB of 2000. 7 because it was the case of the prosecution that accused-appellants murdered Balkar Singh. He was a Police informer and was instrumental in getting 24 bags of poppy husk captured from the possession of Suba Singh on March 4th, 1998 but no documentary evidence was led to prove the same which falsifies the prosecution case; (iii) that presence of Lakha Singh and Hoshiar Singh in the fields at 5 AM at the time of occurrence was improbable because prosecution failed to prove that the eye witnesses had dug out the potato crop and were to transport the same to Samana Mandi in the tractor trolley of Sahib Singh-eye witness which prosecution could establish by placing the girdawaris of said field on the record; (iv) that Lakha Singh (PW-7) and Hoshiar Singh (PW-10)-eye witnesses are brother and son of the deceased respectively, so, their evidence should not be believed; (v) that medical evidence is not consistent with the eye witness account. 11. The submissions advanced by the learned counsel for the appellants will be taken up one by one for an analytical evaluation. 12. The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing first information to the police. The law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course, a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR, the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein. 13. When there is criticism on the ground that FIR in a Crl. Appeal No. 523-DB of 2000. 8 case was delayed the Court has to look at the reason why there was such a delay. There can be a variety of genuine causes for FIR lodgment to get delayed. Rural people are seldom conscious of the need for informing the police of a crime without any lapse of time. This kind of ignorance is common among urban people also. They might not immediately think of going to the police station. Another possibility is due to lack of adequate transport facilities for the informers to reach the police station. The third, which is of a quite common bearing, is that the kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sedativeness of temper for moving to the police station for the purpose of furnishing the requisite information. Yet, another cause is, the persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting some nebulous information about the incident. In any case where there is delay in making the FIR the Court is to look at the causes for it and if such causes are not attributable to any effort to concoct a version consequence shall be attached to the mere delay in lodging the FIR. 14. In Tara Singh Vs. State of Punjab, 1991, Supreme Court Cases (Criminal), 710, the Apex Court made the following observations:- “It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief- stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these Crl. Appeal No. 523-DB of 2000. 9 circumstances for them to take some time to go to the police station for giving the report.” 15. In the case in hand, the occurrence had taken place at 5 AM in village Chhaba. The distance between the spot and the Police Station was 20 Kms as find mentioned in the FIR (Exhibit PF). The occurrence was witnessed by Lakha Singh (PW-7), Hoshiar Singh (PW-10), Sahib Singh and Kulwant Singh. Sahib Singh and Hoshiar Singh went to inform their relations. Mohinder Singh father of Sahib Singh remained on the spot. Lakha Singh could not get conveyance in the village. He boarded a bus to go to Guhla. On the way, he also took Resham Singh his relative to go to the Police Station. FIR was recorded after four and a half hours of the occurrence. Lakha Singh the informant had lost his brother and he must have been shaken and stupefied after viewing the crime. Under the given circumstances it could not have been expected Lakha Singh to act like a computer so as to run to the Police Station which, of course, he did as early as possible. In view of this, it is unhesitatingly held that there was no delay in lodging the FIR. 16. Now comes the ocular testimony narrated by Lakha Singh (PW-7) and Hoshiar Singh (PW-10). They have given a vivid narration of the occurrence. Both of them have spoken with one voice that all the accused armed with gandasis and burchhas emerged from the kotha of tubewell of Suba Singh. Balkar Singh tried to escape but they chased him, laid him down and caused injuries to him indiscriminatingly. In the FIR and in the statement made before the trial Court, they have even described the part played by each of the assailants. The deceased received 18 injuries and all were as a result of blows of gandasis and burchhas as opined by the Medical Officer. These witnesses were cross-examined but no flaw could be pointed out in their testimony by the learned counsel for the appellants which could shake the basic version of the eye witnesses. Their statements made before the Court make cogent reading and it does not appear to be a product of falsehood. They have described how the occurrence took place in a spontaneous manner. The Crl. Appeal No. 523-DB of 2000. 10 statements of these witnesses have been corroborated fully by the medical evidence comprised in the post-mortem examination report referred to in paragraph No. 3 of this judgment and the statement of Doctor Priti Mehta (PW-8) who has opined that Balkar Singh died as a result of multiple injuries which were ante-mortem in nature and were sufficient to cause death in the ordinary course of nature. Not only that, she has also proved that injuries could be caused with the gandasis and burchhas (Exhibits P-19 to P-26). The only criticism made by learned counsel for the accused-appellants was that Kulwant Singh, who was also one of the witnesses, was not examined by the prosecution which leaves a yawning gap in the story of the prosecution. This Court does not concur with the submission advanced by the learned counsel. Prosecution has examined two eye witnesses. Quantity of evidence is not what is needed, it is the quality of witnesses which is to be taken into consideration for proving the charge against the accused. One credible witness outweighs the testimony of a number of other witnesses of doubtful veracity. Section 134 of the Evidence Act has enshrined the well-recognized maxim that 'Evidence has to be weighed and not counted”. The Court is concerned with quality and not with quantity of the evidence necessary for proving or disproving a fact. Moreover, there is no rule of law or even prudence which will require the prosecution to examine each and every witness who was included in the list. In view of this, argument of the counsel is devoid of merit. 17. It has inter-alia been urged by the learned counsel for the appellants that the testimony of two eye witnesses should not be believed as they are interested witnesses being related to the deceased. The law on this aspect is now well settled. Evidence of interested witnesses cannot be rejected straightway on the sole ground that they are interested witnesses, but the Court has to scrutinize evidence of interested witnesses with care and caution. It may be also pointed out that close relations of the deceased are, in fact, best witnesses who would naturally like to ensure that the culprits do not escape. In this connection, it is considered necessary Crl. Appeal No. 523-DB of 2000. 11 to reproduce observations made by the Apex Court in State of Rajasthan Vs. Smt. Kalki and another AIR 1981 SC 1390 which have bearing on the case under consideration. The observations were made in relation to the deposition of widow of the deceased who was said to be the most natural witness. The observations are : “Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the circumstances of the instant case, the widow of the deceased was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. She had no interest in protecting the real culprit and falsely implicating the accused.” 18. In Shyam Vs. State of M.P. 2007(2) RCR (Criminal) 61 the occurrence was witnessed by wife of the deceased. She gave cogent and lucid description and withstood the test of cross-examination. It was ruled that there is no proposition of law that relatives are to be treated as un-truthful witnesses. If the peal of partiality is removed then reason has to be shown that witness wanted to shield the actual culprit and implicate the accused. 19. In view of the clear proposition, there is no force in the submission of the learned counsel in order to discard the testimony of the eye witnesses. 20. It was next argued that there could be no motive Crl. Appeal No. 523-DB of 2000. 12 for the accused to attack Balkar Singh. Indeed, the prosecution has not placed on record any documentary evidence to prove that 24 bags of poppy husk were captured from the possession of Suba Singh on March 4th 1998 at the instance of Balkar Singh (deceased) as pleaded by the accused-appellants but on this sole ground the prosecution case cannot be thrown out. The motive remains embedded in the mind of the culprit which no one else could enter. Where eye witness account is available, as is the case, motive shall take a back seat. It will be advantageous to refer here Mani Kumar Thapa Vs. State of Sikkim AIR 2002 SC 2920 wherein it was held that if the prosecution is able to establish beyond all reasonable doubt from other circumstantial evidence that the accused alone could have committed the murder, the absence of the motive will not hamper a safe conviction. 21. Another important factor in this case is the recovery of gandasas and burchhas (Exhibits P-19 to P-26) which were recovered at the instance of the accused-appellants were sent to FSL. The FSL vide its report (Exhibit PM), found that there was blood on all the weapons which again make the prosecution case more strong. 22. The deceased, Suba Singh, Inder Singh and Mohinder Singh are collaterals. Major Singh and Suba Singh are cousins (their mothers were sisters). Mohar Singh son of Arjun Singh, Joga Singh, Gurmukh Singh and Gurnam Singh are also collaterals. Mohar Singh son of Angrej Singh and Jarnail Singh are brothers. It has been proved to the hilt that all the accused-appellants had collected at Suba Singh's kotha and emerged armed with gandasas and burchhas. They caused 18 injuries with their respective weapons on the person of the deceased. All the accused obviously shared a common intention and they acted in prosecution of their common intention. The facts and circumstances are speaking for themselves. In Bhola Singh and another Vs. State of Punjab 1995 Crl. L.J. 1830, the accused came to the spot together and after committing murder left the spot together. It was held that the Crl. Appeal No. 523-DB of 2000. 13 circumstances were sufficient to presume that they acted in furtherance of common intention. 23. In view of above, it stands proved that Balkar Singh was murdered by the accused-appellants who acted in prosecution of their common object. It also stands proved beyond any matter of doubt that all the ten accused committed offence punishable under Section 148 and 302 read Section 149 IPC. 24. Learned trial Judge has correctly appreciated the evidence and delivered