Criminal Appeal No.498-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.498-SB of 1999 Date of Decision:11.02.2010 Mohinder Singh and others .....Appellants Versus State of Punjab .....Respondent CORAM: HON'BLE MR.JUSTICE MEHINDER SINGH SULLAR. Argued by: Mr.Jagjit Singh Lalli, Advocate, for the appellants. Mr.Ajaib Singh, Additional Advocate General, Punjab, for the respondent-State. **** MEHINDER SINGH SULLAR, J. Impugning the judgment of conviction and order of sentence dated 12.05.1999, appellants-Mohinder Singh, Chhota Singh sons of Natha Singh, Ran Singh @ Billu and Nahar Singh sons of Chhota Singh, have directed the present appeal vide which they were convicted and sentenced by the learned Additional Sessions Judge, in the following manner:- “a) Convict Mohinder Singh for the offence punishable under Section 307 IPC – Rigorous imprisonment for a period of five years, to pay a fine of Rs.500/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of six months. b) For the offence punishable under Section 324/34 IPC: Rigorous imprisonment for a period of one year Convicts Chhota Singh, Ran Singh @ Billu and Nahar Singh a) For the offence punishable under Section 307/34 IPC - Rigorous imprisonment for a period of five years, Criminal Appeal No.498-SB of 1999 2 to pay a fine of Rs.500/- each and in default of payment of fine, to undergo further rigorous imprisonment for a period of six months each. b) For the offence punishable under Section 324/34 IPC – Rigorous imprisonment for a period of one year”. However, all the sentences were ordered to run concurrently. 2. As per brief but relevant facts, essential for disposal of the present appeal, unfolded during the trial and emanating from the record, that on 26.03.1995 at about 3.00 P.M., PW3-complainant Hamir Singh, his brother Bhura Singh(PW4) and their father Teja Singh (PW5) were proceeding from village to their fields in the revenue estate of village Phumanwal. As soon as, they reached at the pahi between their fields and the fields of Amrik Singh son of Bhan Singh (place of occurrence), in the meantime, appellant-Mohinder Singh armed with 'gandasa', Ran Singh @ Billu armed with 'tangli', Chhota Singh armed with 'neza' and Nahar Singh armed with 'dang' came there. Karnail Singh son of Gurmukh Singh armed with a double barrel gun was standing about two kilas away in the fields. According to the prosecution, appellant-Chhota Singh gave a 'lalkara' to PW3 to stop and have the taste for purchasing pahi from Chand Singh. 3. Thereafter, appellant-Nahar Singh gave a 'dang' blow on the right wrist of PW3 Hamir Singh. Appellant-Mohinder Singh gave a 'gandasa' blow from its correct side on the left arm of PW4-Bhura Singh. Appellant Ran Singh @ Billu gave a 'tangli' blow on the left lower leg of PW4-Bhura Singh. Appellant-Chotta Singh gave a 'neza' blow on the left arm of Bhura Singh. 4. The story of the prosecution further proceeds that thereafter, Mohinder Singh gave a 'gandasa' blow on the left hand fingers of PW4- Bhura Singh. When PW3 Hamir Singh advanced to rescue PW4-Bhura Singh from the clutches of the appellants, in the meantime, Mohinder Singh gave a 'gandasa' blow from its correct side which hit on the forehead of Hamir Singh. Then, Nahar Singh gave a 'dang' blow on the fingers of right hand of PW4-Bhura Singh. In the wake of alarm raised by PW3 Hamir Singh and PW5 Teja Singh, the appellants decamped from the place of occurrence with their respective weapons to the village. The motive alleged Criminal Appeal No.498-SB of 1999 3 was that the appellants had a grievance against the complainant party, who had purchased a piece of land from Chand Singh for approach to their own land. The said piece of land (pahi) was the subject matter of litigation between the complainant party and accused party. After the occurrence, injured were removed to the Primary Health Centre, Bhawanigarh, by Kaka Singh, Member Panchayat, where they were examined and treated. 5. Levelling a variety of allegations in all, according to the prosecution that the appellants caused injuries to PW3-Hamir Singh, PW4- Bhura Singh, in the manner suggested here-in-above. On the strength of aforesaid allegations and in the wake of statement (Ex.PN) of Hamir Singh, the present case was registered against the appellants vide FIR No.34 dated 28.03.1995(Ex.PN/1), on accusation of having committed the offence punishable under Sections 307/324/34 IPC by the police of Police Station Bhawanigarh, District Sangrur. 6. As accused-Karnail Singh, who was stated to be armed with a double barrel gun, was found innocent during the investigation, therefore, he was not challaned. However, after the completion of investigation, the police submitted the final police report/challan against the appellants under Section 173 Cr.P.C. 7. Since, the case was triable by the court of Sessions, so, the Additional Chief Judicial Magistrate, Sangrur, committed the case for trial vide his order dated 27.07.1995. 8. Having completed all the codal formalities, the appellant- Mohinder Singh was charge-sheeted for the commission of offence punishable under Sections 307 and 324/34 IPC and the remaining appellants were charge-sheeted for the commission of offence punishable under Sections 307/34 and 324/34 IPC vide order dated 28.08.1995. As the appellants did not plead guilty and claimed trial, therefore, the case was slated for evidence of the prosecution. 9. The prosecution in order to substantiate the charges framed against the appellants, examined PW1-Dr.Sat Pal, who medico legally examined the injured PWs, PW2-Dr.Harbans Singh, Radiologist, PW3- complainant-Hamir Singh, PW4-injured Bhura Singh, PW5-Teja Singh, eye witness, PW6-Hardial Singh, Patwari and PW7-ASI Nirvair Singh, the Investigating Officer. Criminal Appeal No.498-SB of 1999 4 10. After the close of the prosecution evidence, the statements of the appellants were recorded as contemplated under Section 313 Cr.P.C. The entire incriminating evidence was put to enable them to explain any circumstances appearing against them in the evidence. However, the appellants have denied the prosecution evidence in its totality and pleaded false implication. 11. Appellant-Mohinder Singh has set up the following plea:- “The whole male members of our family have been falsely roped in. Natha Singh has got two sons Chhota Singh and Mohinder Singh. Chhota Singh has got two sons Nahar Singh and Ran Singh. I am unmarried. Our whole family, male members of the family have been falsely roped in. Complainant has to go/pass from our fields while reaching their fields. Just to overawe, they have falsely involved us, because complainant wanted to put pressure on us to get pahi from our fields”. 12. The other appellants toed the same line of defence as pleaded by appellant-Mohinder Singh. Appellant-Mohinder Singh tendered a copy of plaint dated 17.01.1995 (Ex.DA) and copy of order dated 13.06.1995 (Ex.DB) in order to substantiate his defence plea. The remaining appellants did not prefer to lead any evidence in defence despite adequate opportunities. 13. The trial Judge, after taking into consideration the evidence on record, convicted and sentenced the appellants vide impugned judgment of conviction and order of sentence in the manner depicted here-in-above. 14. The appellants did not feel satisfied with the impugned judgment of conviction and order of sentence and filed the present appeal. That is how I am seized of the matter. 15. Assailing the impugned judgment of the trial Court, at the very outset, learned counsel for the appellants has contended with some amount of vehemence that the story of the prosecution is highly improbable. There is an unexplained delay in reporting the matter to the police and the appellants have been falsely implicated in this case due to enmity with the complainant party. Raising a variety of arguments in all, according to the learned counsel for the appellants that the evidence brought on record by the Criminal Appeal No.498-SB of 1999 5 prosecution falls short as is required to prove a criminal charge against the appellants. 16. Hailing the impugned judgment of the trial Judge, on the contrary, learned State Counsel urged that the prosecution version is duly proved by injured/eye witnesses PW3 to PW5. The argument is that ocular version of the prosecution finds corroboration from the medical evidence emanating from the statements of PW1 and PW2 and the investigation was duly testified by PW7, the Investigating Officer. In all, according to the learned State Counsel, no interference is called for in this relevant connection. 17. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable help and after bestowal of thoughts over the entire matter, to my mind, it would be expedient to have a brief resume of the evidence of the prosecution, in order to decide the real controversy between the parties and points involved in this appeal. 18. First of all, PW1-Dr.Sat Pal, medico legally examined PW3- Hamir Singh on 26.03.1995 vide MLR No.SP/36/95 (Ex.PA) and pictorial diagram showing the seats of injuries (Ex.PA/1). PW1 maintained that there was no history of unconsciousness and vomiting but the patient complained of vertigo and giddiness. He opined that the kind of weapon for injury No.1 was sharp and for injury No.2 was blunt. Injury No.1 was kept under observation and X-Ray was advised. While injury No.2 was declared as simple in nature and probable duration of the injuries was within six hours. He found the following injuries on the person of PW3-Hamir Singh:- “1. There was 6cm x 0.5cm incised wound with sharp regular markings over left side of the scalp adjoining the hair line, horizontal in direction. Profuse fresh bleeding was present. Advised X-Ray. 2. 1cm x 0.5cm lacerated wound over outer side of the right wrist, little fresh bleeding was present”. 19. On the same day, PW1 also medico legally examined PW4- Bhura Singh vide MLR (Ex.PB) and pictorial diagram showing the seats of injuries (Ex.PB/1) and found the following injuries:- “1. 0.5cm x 2mm incised wound over left elbow marginals sharp and regular mild to moderate. Fresh Criminal Appeal No.498-SB of 1999 6 bleeding was present. Advised X-Ray. 2. 0.5cm x 2mm incised wound with sharp regular margins, 1cm below injury No.1 mild to moderate. Fresh bleeding was present. Advised X-Ray. 3. 0.5cm x 2mm incised wound over lateral aspect of middle of left fore-arm, mild to moderate. Fresh bleeding was present. X-Ray advised. 4. 1.5cm linear abrasion over middle of the dorsum of left hand. 5. Lacerations over tips of index and middle fingers of left hand, little oozing of fresh blood was present. 6. Medial lacerations vertical in directions starting from just below the knee and going upto middle of the front of left lower leg. 7. Laceration over tip of little finger of right hand, little oozing of blood was present. 8. Pain, tenderness right wrist. Advised X-Ray”. 20. PW1 deposed that kind of weapon used for injury Nos.1 to 3 was sharp and for rest of the injuries, it was blunt. Injury Nos.1 to 3 and 8 were kept under X-Ray examination and rest were declared simple in nature. Probable duration of the injuries was within six hours. He sent a ruqa (Ex.PC) to the police station regarding the arrival of the injured in the hospital. On an application moved by the police on 26.03.1995 vide his endorsement (Ex.PD), he had declared injured-Bhura Singh(PW4) unfit to make the statement at 4.35 P.M. On the same day, vide his endorsement (Ex.PE), he had declared injured Hamir Singh(PW3) unfit to make the statement. According to PW1, on 27.03.1995 as well, on the applications moved by the police vide endorsements (Ex.PF and Ex.PG), he declared PW4-Bhura Singh and PW3-Hamir Singh, respectively, as unfit to make their statements. On 28.03.1995, in the wake of application(Ex.PH) moved by the police, he had declared injured PW3-Hamir Singh as fit to make the statement vide endorsement (Ex.PH/1). 21. On 05.04.1995, vide his endorsement (Ex.PK), PW1 had declared that injury Nos.1 to 3 on the person of PW4-Bhura Singh were simple in nature. PW1 has duly explained that they were administered pain Criminal Appeal No.498-SB of 1999 7 killers and sedative medicines during the course of their treatment. On 10.04.1995 on receipt of X-Ray report, vide his endorsement (Ex.PJ), PW1 opined that since there was fracture of the left frontal bone, so, injury No.1 on the person of injured-Hamir Singh could have been dangerous to his life. 22. Sequelly, PW2 on 31.03.1995 conducted the radiological examination vide his report (Ex.PL) and X-Ray films (Ex.PL/1 to PL/3) of injured PW4-Bhura Singh and observed as follows:- “1. X-Ray left elbow joint with upper part of fore-arm for injuries Nos.1 and 2, AP and lateral views. No bony injury was detected. 2. X-Ray of left fore-arm middle part, AP and lateral view. For injury No.3, no bony injury was detected. 3. X-Ray right wrist joint AP and lateral view . For injury No.8, no bony injury was detected”. 23. On the same day, PW2 also radiologically examined injured- Hamir Singh vide his report (Ex.PM), X-Ray films(Exs. PM/1 and PM/2) and found as follows:- “ X-Ray skull left lateral view, PA view for injury No.1. There was a fracture of left frontal bone”. 24. Likewise, PW6 proved the scaled site plan of the place of occurrence (Ex.PQ). 25. The next to note are the testimonies of main injured complainant-PW3-Hamir Singh, injured PW4-Bhura Singh and eye witness PW5-Teja Singh. 26. Describing the motive of the occurrence and corroborating the version given by him in the original statement (Ex. PN), which formed the basis of FIR, the relevant portion of the statement of PW3-Hamir Singh is as under:- “Accused-Chhota Singh armed with Neja(Bhala), accused Mohinder Singh armed with Gandasa, Ran Singh alias Billu accused armed with Tangli and accused Nahar Singh armed with Dang were sitting there. A person at a distance of about two killas, namely, Karnail Singh, having a double barrel Gun was Criminal Appeal No.498-SB of 1999 8 also standing. I identify the said four accused present in the Court except Karnail Singh. Accused Chhota Singh raised a lalkara that stop Sarpanch and you will be taught a lesson for purchasing pahi from Chand Singh today. His son Nahar Singh gave a Dang blow on my right arm on the wrist. The, accused Mohinder Singh inflicted a Gandasa blow on the left arm of my brother Bhura Singh. Thereafter, accused Ran Singh alias Billu inflicted a Tangli blow on the left leg of my brother Bhura Singh on the calf(Pinjni). Thereafter, accused Chhota Singh son of Natha Singh gave a Neza blow on the left arm of my brother Bhura Singh. Thereafter, accused Mohinder Singh again inflicted Gandasa blow on the fingers of the left hand of my brother Bhura Singh. When I came forward to rescue my brother Bhura Singh, accused Mohinder Singh gave a Gandasa blow on my head. I fell down on the ground. Accused Nahar Singh gave another Dang blow on the right wrist of my brother Bhura Singh. My father and my brother raised alarm 'MARTA MARTA'. Meanwhile, Kaka Singh, Panchayat Member came on the spot after hearing the raula. All the four persons proceeded towards the village thereafter along with their respective weapons. Kaka Singh Member Panchayat took us in the tractor-trolley to Civil Hospital, Bhawanigarh, and we were admitted in the hospital. The motive behind the above said occurrence is that accused were aggrieved by the purchase of pahi by us from Chand Singh”. 27. Similarly, PW4 and PW5 gave a vivid account of the occurrence and fully supported the prosecution version. Instead of reproducing the statements of PW4 and PW5 in toto and in order to avoid repetition, suffice it to say that narrating the sequence of events, PW3 to PW5 supported the prosecution version on all vital counts, which finds corroboration from medical evidence. 28. The last to note is the testimony of PW7, who is the Criminal Appeal No.498-SB of 1999 9 Investigating Officer in this case. He stated that on 26.03.1995, on receipt of ruqa (Ex.PC), he visited the Primary Health Centre, Bhawanigarh, where injured Hamir Singh and Bhura Singh were admitted. He moved applications (Exs.PD/1 and PE/1), wherein, the doctor vide his endorsements (Exs.PD and PE) opined that PW3-Hamir Singh and PW4- Bhura Singh were not fit to make the statements on that day. Similarly, on 27.03.1995, he moved applications (Exs.PF/1 and PG/1), where again the doctor vide his endorsements (Exs.PF and PG), respectively, opined that injured PW3-Hamir Singh and PW4-Bhura Singh were not fit to make their statements. According to PW7, on 28.03.1995, he again went to the hospital and moved application (Ex.PH/1), where the doctor opined vide his endorsement (Ex.PH) that injured-Hamir Singh was fit to make the statement. Then, he(PW7) recorded his(PW3) statement (Ex.PN). He signed the same in token of its correctness on the basis of which formal FIR (Ex.PN/1) was recorded. PW7 also prepared site plan (Ex.PR) of the place of occurrence with its correct marginal notes and recorded the statements of the witnesses. He raided the houses of the accused on different occasions upto 30.03.1995. On 31.03.1995, Sarpanch produced the accused Mohinder Singh, Ran Singh, Nahar Singh and Chhota Singh. He arrested them. The 'gandasa' produced by the appellant-Mohinder was taken into possession vide recovery memo (Ex.PS). He also prepared Memos (Exs. PT, PU and PV) and recorded the statements of recovery witnesses. It means, PW7 has testified the investigation carried out by him. 29. Above being the position of evidence on record, now adverting to the main argument of the learned counsel for the appellants that there is an unexplained delay in reporting the matter to the police and also no explanation as to why PW5-Teja Singh did not lodge the report on the date of occurrence. In this regard, no doubt PW5-Teja Singh stated that the police came to the hospital but there is nothing in the statement of PW7 to indicate that PW5-Teja Singh had met him or he had seen him in the hospital before recording the statement (Ex.PN) lodged by PW3-Hamir Singh. It has come in evidence that in the wake of ruqa (Ex.PC) of PW1, PW7 reached the hospital on the day of occurrence on 26.03.1995 and 27.03.1995. He moved applications (Exs. PD/1, PE/1, PF/1 and PG/1) for seeking the opinion of the doctor and on all the occasions, the doctor vide Criminal Appeal No.498-SB of 1999 10 his endorsements (Exs.PD, PE, PF and PG) opined that both the injured PW3-Hamir Singh and PW4-Bhura Singh were unfit to make the statements. It was only on 28.03.1995, that PW1 vide his endorsement (Ex.PH) opined that PW3-Hamir Singh was fit to make the statement. Consequently, PW7 recorded his statement (Ex.PN) which he(PW3) signed in token of its correctness. Moreover, no specific suggestion was put to PW1 in this respect. The testimony of PW1 that PW3-Hamir Singh and PW4-Bhura Singh remained unfit to make the statements on 26.03.1995 and 27.03.1995, remained unchallenged. 30. It is not a matter of dispute that PW7 did not try to find out that who had brought the injured PW3 and Pw4 to the hospital. He did not contact their attendants and did not try to ascertain the origin and manner of the occurrence. Even he did not try to visit the village of the injured and he could not give reasons why he did not contact Teja Singh or Kaka Singh. PW1 promptly sent ruqa (Ex.PC) to the police station. Meaning thereby, all these facts proved that PW7 was somewhat negligent and did not show the required interest in the investigation. But the inefficiency on the part of the Investigating Officer, in this respect, is not a ground to throw the complainant's case, which is otherwise proved on record. The prompt medical examinations of the injured persons lend considerable corroboration and the lapse on the part of PW7 in this regard has got no direct bearing on the instant case. The guilty persons cannot possibly be allowed to escape punishment simply on account of such lapse by the Investigating Officer, particularly when the case of the prosecution is otherwise proved from ocular as well as the medical evidence, as discussed here-in-above. 31. Moreover, in injury case, mere delay in lodging the report to the police is not fatal to the prosecution case. Therefore, the argument that PW5-Teja Singh did not lodge the FIR pales into insignificance in this relevant connection. Because, the delay in lodging the FIR is satisfactorily explained, which is not per se fatal, particularly when the case of the prosecution is otherwise proved from the statements of PW3 and PW4, injured eye witnesses coupled with medical evidence. 32. The celebrated argument of learned counsel for the appellants that non-examination of PW-Kaka Singh renders the prosecution story Criminal Appeal No.498-SB of 1999 11 doubtful, is not only devoid of merit but misplaced as well. It is nobody's case that Kaka Singh actually witnessed the occurrence. There is positive evidence on record that the appellants had inflicted injuries and in the wake of noise raised by the complainant party, subsequently, Kaka Singh came to the spot and removed the injured persons to the hospital. Therefore, he was not a very material witness and his non-examination will not, in any way, adversely affect the prosecution version, which is otherwise proved by trustworthy and reliable evidence. Moreover, there is no legal requirement for the prosecution to produce each and every witness of the occurrence, in question, in the court in view of Section 134 of the Indian Evidence Act, which postulates that no particular number of witnesses shall in any case be required for the proof of any fact in issue. 33. Hence, it is proved on record from the evidence of PW3 to PW5 that the appellants inflicted injuries, in the manner indicated here-in- above, to the injured PWs. PW3 and PW4 injured witnesses gave the consistent version of the occurrence. They were cross-examined at length but nothing substantial material could be elicited in their searching cross- examination, to dislodge their testimonies, except minor and insignificant discrepancies, such as that in the statement (Ex.PN), which is in Punjabi describes the 'lalkara' of Chhota Singh as “khalo jaa oe sarpancha tuhanu aj Chand Singh pason pahi mul lain da maja chakhaunde han” and in the witness box PW3-Hamir Singh describes the 'lalkara' as “stop sarpanch and you will be taught a lesson for purchasing pahi from Chand Singh today”. Sequelly, according to PW4-Bhura Singh, appellant-Chotta Singh asked to teach them a lesson for purchasing the pahi from Chand Singh and PW5- Teja Singh stated that Chhota Singh raised a 'lalkara' that he would teach a lesson to the Sarpanch for purchasing pahi from Chand Singh. To me, actually these are not at all contradictions as regards actual participation of the appellants in the crime is concerned, as projected by the learned counsel for the appellants. The total sum and substance of the texts of 'lalkara' given by the witnesses with slight variations in phraseology is the same and such insignificant discrepancies have got no direct bearing on the prosecution version, which is otherwise proved by the testimonies of the stamped/injured witnesses. The evidence of PW3 to PW5 is reliable and trustworthy. They gave the vivid and consistent version of the occurrence. Criminal Appeal No.498-SB of 1999 12 Not only, that the prosecution story is duly proved by ocular evidence, it finds corroboration from the medical evidence as well indicating the corresponding injuries on the persons of injured witnesses. 34. Now adverting to the defence plea, the appellants have utterly failed to prove that they have been falsely implicated just to put pressure on them to get the passage (pahi) from their fields. The plea of false implication deserves to be outrightly rejected in the absence of any cogent evidence on record in this context. As indicated earlier, PW3-Hamir Singh suffered two injuries including grievous hurt on the forehead while PW4- Bhura Singh suffered eight injuries. It is highly improbable to believe that the complainant party would suffer such injuries, by friendly hand, including grievous hurt, in order to falsely implicate