Crl. Appeal No. 298-DB of 2004 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 298-DB of 2004 Date of decision: 14.08.2008 Baldev Singh ..... Appellant Versus State of Punjab ..... Respondent CORAM : HON'BLE MR. JUSTICE S.S. SARON. HON'BLE MR. JUSTICE MOHINDER PAL. Present : Mr. S.S. Siao, Advocate for the appellant. Mr. S.S. Gill, Addl. A.G., Punjab. S.S. SARON, J. The present appeal has been filed by the appellant against the judgment and order dated 09.12.2003 whereby the appellant has been held guilty and convicted under Section 302 Indian Penal Code (“IPC” - for short) for causing the death of Kewal Singh as also under Section 307 IPC for causing injury to Gurjit Singh which was dangerous to life; besides, the appellant has been sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months for the offence under Section 302 IPC and to undergo rigorous imprisonment for five years and to pay a fine of Rs.1000/- and in default of payment of fine, to undergo rigorous imprisonment for three months for the offence under Section 307 IPC. Crl. Appeal No. 298-DB of 2004 -2- The FIR (Ex.PC/3) was registered on 29.06.2002 on the statement (Ex.PC) of Smt. Mohinder Kaur (PW-3) wife of Kewal Singh (deceased) with regard to the occurrence of 29.06.2002 at 1.30 p.m.. It is alleged by the complainant Mohinder Kaur (PW-3) that Baldev Singh (appellant) and Narinder Singh were two brothers of her husband Kewal Singh (deceased). They had partitioned their land. However, their tubewell and that of Baldev Singh (appellant) were near to each other. She (complainant) had three daughters and one son Gurjit Singh (injured). On 25.06.2002 (tuesday) her (complainants) brother-in-law (husband's elder brother) Baldev Singh (appellant) made allegations against her son Gurjit Singh (injured) that he had stolen Rs.4,000/- from him (Baldev Singh). Due to the said reason, they had quarreled in the house but the matter was settled in the house. On 29.06.2002, i.e. on the date of occurrence as usual Mohinder Kaur- complainant (PW-3) and her husband Kewal Singh (deceased) went for work to their tubewell. After finishing their work, her husband (deceased) lay down on a cot under the shade of tree while, the complainant was putting fodder to the cattle nearby. At about 1.30 p.m., complainant's brother-in-law Baldev Singh (appellant) came abusing from the side of village. He had a spade (Kahi) on his shoulder. While the husband of the complainant was sleeping, he (Baldev Singh-appellant) gave a blow on the left side of his (Kewal Singh's) forehead with the reverse side of the spade (Kahi). Kewal Singh (deceased) died on the cot at the spot. Due to fear, the complainant-Mohinder Kaur (PW-3) remained standing there and raised the noise of “mar dita mar dita” . Baldev Singh (appellant) threw his spade there and picked up an axe (Kulhari) from there and after hurling abuses said that Gurjit Singh (injured) will also be finished. He started walking briskly towards the village. The complainant Mohinder Kaur (PW-3) under the fear followed him raising hue and cry so that he Crl. Appeal No. 298-DB of 2004 -3- may not kill her son (Gurjit Singh). Baldev Singh (appellant) entered her (complainant's) house and her son was sleeping in the front room. Door and windows of the room were open. Gurpreet Kaur (PW-2) younger daughter of the complainant Mohinder Kaur (PW-3) was at home and she was washing the clothes of Gurjit Singh (son of the complainant). In presence of the complainant and her daughter (Gurpreet Kaur) (PW-2) while they were raising alarm, Baldev Singh (appellant) gave a Kulhari blow to complainant's son Gurjit Singh with an intention to kill him which struck against the right side of neck and mouth. The complainant and her daughter raised an alarm of “mar dita mar dita”. On this Baldev Singh (appellant) along with an axe (kulhari) while hurling abuses ran away out of the house. He was saying that now they may spend his money. The brother-in-law (husband's younger brother) of the complainant took Gurjit Singh (son of the complainant) to the hospital. Kewal Singh-husband of the complainant had been murdered by Baldev Singh (appellant) and her son Gurjit Singh had been injured by him (appellant). Mohinder Kaur complainant (PW-3) was going to inform the Police, when the Police met her on the way. The statement of the complainant was recorded by Bakshish Singh, SHO, Police Station Jandiala (PW-11) at 5.00 p.m. on 29.06.2002. Inspector Bakshish Singh (PW-11) along with other Police officials were patrolling and checking in the area on a Government Gypsy vehicle. They were present at Adda Bandala that Mohinder Kaur -complainant (PW-3) got her statement (Ex PC) recorded which was read over to her and she after admitting it to be correct, signed it. From the above said statement (Ex.PC) offences under Sections 302, 307 and 452 IPC were found to be made out. The statement was sent to the Police Station through Constable Ravant Singh No.1302 for registration of case. Special Reports were ordered to be issued and control room and higher officers were asked to be informed through Crl. Appeal No. 298-DB of 2004 -4- wireless. Inspector Bakshish Singh (PW-11) along with the other Police officials and the complainant-Mohinder Kaur (PW-3) proceeded to the spot for investigation. On the basis of the statement Ex.PC, FIR Ex.PC/3 was registered by Manoj Kumar ASI at Police Station Jandiala for the offences under Sections 302, 307 and 452 IPC. Inspector Bakshish Singh (PW-11) went to the spot where the dead body of Kewal Singh was lying on a cot. He prepared inquest report (Ex.PJ) and site plan (Ex.PK) of the place of occurrence with its correct marginal notes. The dead body was sent for post mortem through HC Jagdish Singh and Constable Surjit Singh. The spade and blood-stained earth was collected from the spot and made into parcel which was sealed with the seal 'BS' and taken in possession vide recovery memo Ex.PL which was attested by Gajjan Singh son of Hazara Singh and ASI Joginder Singh. The cot stained with blood was taken in possession. The cot strings were separated and made into a parcel and sealed with seal 'BS' and taken in possession vide memo Ex.PM which was attested by the abovesaid persons. The Police then went to the house of Kewal Singh where injuries had been caused to Gurjit Singh. A rough site plan (Ex.PN) of the place where injuries were caused to Gurjit Singh was prepared. From the house blood-stained bed-sheet and blood-stained earth were taken in possession vide memo (Ex PB) and their parcels were prepared and sealed with the seal 'BS'. On 30.06.2002, the Police Party came to the hospital and in the hospital the doctor handed over to the Police the clothes of Gurjit Singh, which were also made into parcel and sealed with seal 'BS'. Then HC Jagdish Singh handed over the clothes of the deceased-Kewal Singh to Inspector Bakshish Singh (PW-11) which were made into parcel and were taken in possession vide recovery memo Ex.PF. On 01.07.2002, Baldev Singh (appellant) was apprehended and on 03.07.2002, he was interrogated and he made a disclosure statement regarding concealment of an axe with Crl. Appeal No. 298-DB of 2004 -5- which he caused injuries had been kept amongst the trees about which only he knew and could get it recovered. His disclosure statement (Ex.PH) was recorded and on the basis of the same he got recovered the axe which was taken in possession by the Police vide memo Ex.PH/2. A rough ‘khaka’ of the axe (Ex.PH/1) was prepared and site plan (Ex PH/3) of place of recovery of the axe was also prepared. The post mortem on the dead body of Kewal Singh (deceased) was conducted by Dr. Ashok Chanana, Assistant Professor, Forensic Medicines and Toxicology Department, Government Medical College, Amritsar (PW-1). According to him, the cause of death was laceration of the brain as a result of injuries No.1 and 2 (individually/collectively) which were sufficient to cause death in the ordinary course of nature. Dr. Jatinder Pal Singh (PW-12) working at Nijjer Scan and Diagnostic Centre, Court Road, Amritsar had medically examined Gurjit Singh @ Daljit Singh (son of the complainant). The medico-legal examination on the person of Gurjit Singh was conducted by Dr. Amarjit Singh, MO (Incharge), SHC Datarpur, PHC Hajipur, Distt. Hoshiarpur (PW-13). Injury No.1 on the person of Gurjit Singh was opined to be dangerous to life. After completion of investigation, the Police filed the charge report (challan) in the court of learned Judicial Magistrate, Ist Class, Amritsar. The learned Magistrate vide order dated 19.09.2002, in view of the fact that the accused had been challaned for the offences under Sections 302, 307 and 452 IPC out of which the offences under Sections 302 and 307 IPC were exclusively triable by the court of Sessions, committed the case to the said Court. The learned Additional Sessions Judge to whom the case was assigned vide order dated 24.10.2002 charged the appellant Baldev Singh on the allegations that on 25.06.2002 at about 1.30 p.m. in the area of Village Bandala committed murder by intentionally causing the death of Kewal Singh and thereby committed Crl. Appeal No. 298-DB of 2004 -6- an offence punishable under Section 302 IPC. Besides, on the same date, time and place Baldev Singh caused injuries to Gurjit Singh with such intention and under such circumstances that if by that act, he had caused the death of Gurjit Singh, he would have been guilty of murder and thereby he (appellant-Baldev Singh) committed an offence punishable under Section 307 IPC. The appellant pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case, examined as many as 13 witnesses; besides, tendered documents in evidence. The appellant, in his statement made under Section 313 of the Code of Criminal Procedure (“CrPC” - for short), has taken the stand that he was innocent and had been falsely implicated. The learned trial Court after considering the evidence and material on record has convicted the appellant for the offences under Sections 302 and 307 IPC. He has been sentenced him to undergo imprisonment for life and to pay a fine of Rs 2,000/- and in default of payment of fine, to undergo further rigorous imprisonment for six months, for the offence under Section 302 IPC as also sentenced him to undergo rigorous imprisonment for five years and pay a fine of Rs 1,000/- and in default of payment of fine, to undergo further rigorous imprisonment for three months for the offence under Section 307 IPC. Both the sentences were ordered to run concurrently. The said judgment and order of conviction and sentence is assailed by the appellant in the present appeal. Learned counsel appearing for the appellant has contended that the case is based solely on the evidence of the wife i.e. Mohinder Kaur (PW-3) and daughter Gurpreet Kaur (PW-2) of the deceased Kewal Singh. The said witnesses, it is submitted, do not inspire confidence so as to record a finding of guilt against the appellant. It is submitted that the plea of false implication raised by the accused (appellant) has been wrongly discarded. It is also Crl. Appeal No. 298-DB of 2004 -7- contended that there is delay in registration of the FIR inasmuch as the occurrence in the present case is alleged to be of 29.6.2002 at 1.30 p.m. and the matter was reported to the Police vide DDR No.19 at 6.05 p.m. on 29.6.2002 and then the FIR was recorded. However, the Special Report reached the Ilaqa Magistrate at 6.30 a.m. on the next day i.e. 30.6.2002. Therefore, there was considerable delay in lodging the FIR which would show that there was time for manipulation and exaggeration of the case. Besides, it is contended that Mohinde Kaur (PW3) was not present at the time of alleged incident. In response, learned counsel appearing for the State has submitted that the prosecution has proved its case in all material aspects and there is nothing on record which would warrant the setting aside of the well reasoned impugned judgment and order or interfering with the same in any manner. It is submitted that the minor discrepancies which may be there are not such so as to record a finding of acquittal of the appellant especially when the case is proved against the appellant on the basis of cogent and convincing evidence. We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties. Mohinder Kaur -complainant (PW-3), on whose statement (Ex.PC), FIR (Ex.PC/3) has been registered has reiterated, the version as given in her statement before the Police. It is submitted that on 25.6.2002, the appellant alleged that Gurjit Singh (injured son of the complainant) had committed a theft of Rs 4,000/- and there was an altercation in the house and the matter was compromise. On 29.06.2002 at about 1.30 p.m., the accused (appellant) came to the tubewell armed with a spade (kahi). She was giving fodder to the cattle and her husband (deceased) was lying on the cot and had gone to sleep. The accused(appellant) gave spade blow from its reverse side on the forehead of her husband. She saw the accused giving 3-4 blows. She did not go forward as she Crl. Appeal No. 298-DB of 2004 -8- apprehended that the appellant may cause injuries to her. The appellant then threw the spade at the spot and picked up an axe from there and while hurling abuses went towards the village. The appellant exhorted that he had killed the husband of the complainant Mohinder Kaur (PW-3) and that he would kill her son also. The husband of the complainant died at the spot. The complainant Mohinder Kaur (PW-3) then followed the appellant (Baldev Singh). At that time, Gurpreet Kaur (PW-2) daughter of the complainant Mohinder Kaur (PW-3) was washing clothes at the handpump. The complainant along with her daughter Gurpreet Kaur (PW-2) followed the accused (appellant-Baldev Singh) to the room where her (complainant's) son was lying. The appellant (Baldev Singh) in the presence of the complainant-Mohinder Kaur (PW-3) and her daughter Gurpreet Kaur (PW-2) gave an axe blow which struck on the right side of the head of Gurjit Singh (injured). The complainant then raised noise and the accused after that ran away from there along with the axe saying that they may use the amount of which they had committed the theft. Gurjit Singh (injured) was then taken to the hospital. The complainant then went to the tubewell where the dead body of her husband was lying and number of other persons had gathered there. She then reported the matter to the Police. Mohinder Kaur – complainant (PW-3) was cross-examined by the learned defence counsel. From the cross- examination of Mohinder Kaur (PW-3), nothing favourable for the appellant could be brought out. Gurpreet Kaur (PW-2) who is the daughter of Kewal Singh (deceased) and complainant Mohinder Kaur (PW-3) was also examined. It is stated by her that she is married at village Beroke. On 29.06.2002, she had come to her parent's house at Village Bandala. At about 2.00 p.m., she was washing clothes at the handpump and her brother Gurjit Singh (injured) was sleeping inside the room. Her father (Kewal Singh-deceased) and mother Mohinder Crl. Appeal No. 298-DB of 2004 -9- Kaur (PW-3) were at the tubewell and were working there. Then, Baldev Singh (appellant) who was her real uncle came to their house armed with an axe. At that time, he was abusing her father. He then went inside where her brother (Gurjit Singh) was sleeping and gave an axe blow on the right side on the neck of her brother(Gurjit Singh). In the meantime, her mother (Mohinder Kaur – PW3) had also reached in the room. They (complainant and her daughter) raised a noise and at that time her mother (Mohinder Kaur PW-3) said that Baldev Singh had committed the murder of her father. Police had come to their house and her (Gurpreet Kaur’s) statement was recorded. In her presence, blood-stained chadar (sheet) and blood lying on the cot were taken in Police possession vide memo (Ex.PB) which she (Gurpreet Kaur) (PW-2) signed as a witness. Gurpreet Kaur (PW-2) was cross- examined by the learned defence counsel. However, nothing favourable for the appellant could be brought out from her deposition. Dr. Ashok Chanana, Assistant Professor, Forensic Medicines and Toxicology Department, Government Medical College, Amritsar (PW-1) conducted the post mortem examination on the dead body of Kewal Singh. He found the following injuries on the dead body:- 1. A lacerated wound 6 x 4 cms with clotted blood was present obliquely on the front and left side of forehead 0.5 cms above the centre of left eye brow. 2. A lacerated wound 1.4 x 1 cms obliquely placed with clotted blood was present on the front and left side of forehead, 1 cm above the outer and of left eye. On dissection the underlying frontal bone was fractured into multiple pieces. The fractured fragments were piercing into the membranes and brain matter, thereby causing their lacerations. Crl. Appeal No. 298-DB of 2004 -10- The cranial cravity contained 150 cc of fluid and clotted blood. 3. A lacerated wound 3 x 1 cms with clotted blood was present on the inner canthus of left eye. The underlying bone was fractured. Clotted blood was present at the site. 4. A lacerated wound 3 x 1 cms with clotted blood was present on the left cheek, 1 cm below the left lower eyelid. 5. A lacerated wound 5 x 3.5 cms obliquely placed was present on the left side of head in its centre on dissection the underlying bone was fractured, clotted blood was present at the site. 6. A reddish brown abrasion 2.5 x 1 cm was present on the dorsum of bridge of nose. On dissection the underlying nasal bones were fractured into multiple pieces. Clotted blood was present at the site. Dried blood stained discharge was present at the mouth and nostrils. The heart and bladder were empty, stomach contains 150 CC of partly digested food material. Small intestine contains chyme and large intestine contains faces. Injuries were of ante mortem origin. In my opinion cause of death was laceration of brain as a result of injury No.1 and 2 (individually/collectively) which was sufficient to cause death in the ordinary course of nature.” In cross-examination, it is stated by Dr. Ashok Chanan (PW- Crl. Appeal No. 298-DB of 2004 -11- 1) that injuries were caused by blunt weapons and possible with 'dang'. Besides, deceased might have taken his last meal between four to six hours. Dr. Tejwant Singh, Department of Surgery, GND Hospital, Amritsar (PW-6) stated that patient Daljit Singh son of Kewal Singh was admitted in the GND, Hospital on 29.06.2002 at about 3.35 P.M. He had operated the patient under local anaesthesia. He had brought the original bed head ticket and his notes and the Photostat copy of the notes recorded by him in the bed head ticket was Ex PG, which was objected to. In cross examination, it is stated that in case stitches are given under local anaesthesia, the patient remains conscious. Dr Vishal Sharma, Surgery Department, GND Hospital, Amritsar, stated that on 30.6.2002, he was posted in Unit-5 Surgical Ward, GND Hospital, Amritsar. He received an application from Police Station, Jandiala on which he declared Gurjit Singh son of Kewal Singh fit for making his statement at 1.40 p.m. He had seen the application and the same was Ex PH. In cross-examination, he stated that he could not identify the accused. Dr. Jatinder Pal Singh working at Nijjer Scan and Diagnostic Centre, Court Road, Amritsar (PW-12), stated that Daljit Singh alias Gurjit Singh son of Kewal Singh underwent CT face and upper leg examination. He gave his report in that regard. Dr. Amarjit Singh, Medical Officer (Incharge) SHC, Datarpur, PHC Hajipur, District Hoshiarpur (PW-13) conducted the medico legal on the person of Gurjit Singh son of Kewal Singh injured. It is staed that on 20.6.2002, he was posted as MO/Junior Resident, Department of Forensic Medicines, GMC, Amritsar. On medical examination of Gurjit Singh son of Kewal Singh, he found the following injury on his person:- “10.5 x 2.9 cms incised chopped wound was present on the right side on face and neck on front and behind right ear lobe involving lower end of ear lobe. Margins were found clean cut Crl. Appeal No. 298-DB of 2004 -12- and fresh bleeding was present.” The injury was subject to x-ray and Surgeon’s opinion. The injury was opined to be dangerous to life. It was recorded by Dr Amarjit Singh (PW13) as under:- “That since x-ray reports have not been received till that date, on going through MLR/Surgeon’s opinion, bed head ticket No.80756 of Surgical Unit 5 including CT Scan report from pages 1 to 12, duly signed by me, I was of the opinion that injury No.1 was dangerous to life.” He was cross-examined by the learned defence counsel. However, nothing favourable for the accused could be brought out from his cross-examination. In the circumstances, it may been seen that the eye- witnesses Mohinder Kaur-complainant (PW-3) and her daughter Gurpreeet Kaur (PW-2) have fully proved and established that Baldev Singh (appellant) had caused injuries to Kewal Singh (deceased) on account of which he died; besides, injury was caused to Gurjit Singh, which has been opined to be dangerous to life. Mohinder Kaur (PW-3) has proved both the incidents i.e. of the injuries caused to her husband-Kewal Singh (deceased) at the tubewell and thereafter, the injury caused to her son Gurjit Singh at her home. The injuries that were caused to Kewal Singh and the injury caused to Gurjit Singh (son of the complainant Mohinder Kaur) (PW-3) have been corroborated by the medical evidence on record. In the circumstances, merely because the witnesses Mohinder Kaur (PW-3) and Gurpreet Kaur (PW-2) are related to the deceased and the injured is no ground by itself to disbelieve or discard their sworn testimonies. Bakshish Singh, Inspector (PW11) then posted as SHO at Police Station Jandiala has proved the statement (Ex.PC) made by Mohinder Kaur Crl. Appeal No. 298-DB of 2004 -13- (Complainant-PW3). On the basis of the said statement, FIR (Ex.PC/3) was recorded by ASI Manoj Kumar. Bakshish Singh Inspector (PW11) had prepared the inquest report (Ex.PJ) as also the site plan of the place of occurrence (Ex.PK) with correct marginal notes. He had also sent the body of the deceased Kewal Singh for post mortem examination. Besides, clothes of the deceased were taken in possession by him. The parcel of blood-stained earth (Ex.P2) and the strings of the cot on which Kewal Singh (deceased) was lying were also taken in possession. Besides, other investigations were carried out. He was cross-examined by the learned defence counsel. However, nothing could be brought out which would, in any manner, favour the case of the appellant. The Forensic Science Laboratory report is also on record which includes Parcel 'A' containing 'Kahi'; parcel 'B' containing 'kulhari', parcel 'C' containing soil; parcel 'D' containing 'chaddar', parcel 'E' containing 'Kamiz' and 'Pajama' marked as Exs. e- 1 and e-2 respectively; Parcel 'F' containing 'Fatuhi', 'Chaddar' and 'Parna' marked as Exs. f-1, f-2 and f-3 respectively; Parcel 'G' containing 'vaan' (cot strings) and parcel 'H' containing 'cotton swab'. All were alleged to be stained with blood. In terms of result of the examination, it has been opined that the exhibits contained in the parcels A,B,D, E, F, G and H are stained with human blood. The exhibit contained in parcel 'C', it was stated was stained with blood. However, the material extracted from the exhibit was found disintegrated for serological examination. Parcel 'C' as already noticed is the soil, on which the human blood could