CRA No.458-DB of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA No.458-DB of 2006 Date of decision:02.11.2011 Kishan Dev ..... Appellant Versus State of Punjab ..... Respondent CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA HON'BLE MR. JUSTICE NARESH KUMAR SANGHI Present: Mr.J.S.Ghuman, Advocate as Amicus Curiae for the appellant. Ms.Ritu Punj, Addl.A.G., Punjab for the State. ***** RAJIVE BHALLA, J. By way of this order, we shall dispose of Criminal Appeals No.451 and 458-DB of 2006 as they arise from a common judgment. The appellants of above appeals pray that judgment and order dated 02.09.2005, passed by the Sessions Judge, Ludhiana, convicting them under Section 302 of IPC, read with Section 34 of IPC and sentencing them to undergo life imprisonment and pay a fine of Rs.10,000/-, and in default thereof to undergo further rigorous imprisonment for one year, may be set aside. PW1 Nachhatar Singh made a statement, Ex.PA, on 17.07.2004 at about 06:30 AM, before SI Gurpreet Singh, SHO, PS Haibowal, Ludhiana, that Munna Lal has been murdered by the appellants. Nachhatar Singh informed the police that he is a driver by profession. About 10/12 years ago, he took his truck to Jabalpur (MP), CRA No.458-DB of 2006 -2- where he met Munna Lal and brought him to Ludhiana. Munna Lal worked as a cleaner with him and later-on learnt driving. Munna Lal was employed, as a truck driver, with one Gurdeep Singh Chadha resident of 140-C Kitchlu Nagar Nagar, Ludhiana and resided in the corporation building, near dairy complex Haibowal. Munna Lal stayed with Nachhatar Singh, occasionally. Khushi Ram alongwith his family and son Kishan Dev alias Sonu reside in the same complex. Khushi Ram was working as a labourer on the truck that was driven by Munna Lal. Khushi Ram suspected that his wife had illicit relations with Munna Lal. A dispute in this regard, arose between Khushi Ram, his son Kishan Dev on the one hand and Munna Lal on the other. The dispute was got settled by Nachhatar Singh. On the evening, before 17.07.2004, Nachhatar Singh asked Munna Lal to accompany him on his truck. On 17.07.2004 Nachhatar Singh and his brother Shamsher Singh went to pick up Munna Lal at about 03:00 AM. As they approached his house, they saw Khushi Ram armed with an iron rod and Kishan Dev armed with a dang inflicting injuries upon Munna Lal, who had fallen to the ground. Nachhatar Singh and his brother Shamsher Singh raised an alarm. Khushi Ram and Kishan Dev fled with their respective weapons. Nachhatar Singh and Shamsher Singh tried to take Munna Lal for treatment, but realised that he had passed away. The entire occurrence was witnessed in the street light. The statement was read over to Nachhatar Singh who affixed his thumb impression in acknowledgment of its correctness. Gurpreet Singh, SI CRA No.458-DB of 2006 -3- made an endorsement Ex.PW1/1, on the statement and forwarded it to PS Haibowal where formal FIR No.150 Ex.PA/1, PA/2 dated 17.07.2004 was registered, under Section 302/34 of IPC. Gurpreet Singh, SI alongwith other police officials and Nachhatar Singh, visited the place of occurrence, where the dead-body of Munna Lal was still lying. The SI prepared an inquest report and recorded the statements of witnesses. He also lifted blood-stained earth and after making a parcel, took the same into possession. He called a photographer to take photographs of the dead-body, prepared a rough site plan with marginal notes and sent Munna Lal's dead-body to Civil Hospital, Ludhiana for postmortem. Dr.D.S.Kochar conducted the postmortem examination. Khushi Ram and Kishan Dev were arrested on 17.07.2004 by SI Satinder Pal Singh and suffered disclosure statements, leading to the recovery of one iron rod and one dang. Upon conclusion of investigation, a report was filed under Section 173 of the Cr.P.C. before the Judicial Magistrate First Class, Ludhiana, who after supplying copies of the report and documents, committed the case to the Court of Sessions Judge, Ludhiana. Upon consideration of the report, the Sessions Judge, Ludhiana, framed charges under Section 302 read with Section 34 of IPC but as the appellants pleaded not guilty and claimed trial, called upon the prosecution to lead evidence. In order to substantiate charges levelled against the accused, the prosecution examined PW1 Nachhatar Singh and PW2 Shamsher CRA No.458-DB of 2006 -4- Singh (eye witnesses), PW3 Constable Ram Saran, PW4 Dr.D.S.Kochar, PW5 HC Darshan Singh, PW6 Constable Aneesh Kumar, PW7 HC Sohan Singh, PW8 Constable Mukhtiar Singh, PW9 ASI Harjinder Singh, PW10 SI Satinder Pal Singh and PW11 SI Gurpreet Singh and lead into evidence the documents namely: Ex.PA/2 FIR, Ex.PB inquest report, Ex.PC recovery memo of blood stained earth, Ex.PD and Ex.PE disclosure memos prepared under Section 27 of the Indian Evidence Act, 1872, Ex.PF site plan of the place of recovery of iron pipe, Ex.PG recovery memo of dang, Ex.PG/1 rough site plan of the place of recovery, Ex.PH scaled site plan, Ex.PK, Ex.PK1 application for conducting postmortem, Ex.PJ and Ex.PJ1, postmortem reports, Ex.PL recovery memo of photos alongwith negatives, Ex.PM affidavit of Constable Aneesh Kumar, Ex.PN affidavit of Constable Mukhtiar Singh, Ex.PO affidavit of HC Sohan Singh, Ex.PO/1 recovery memo of blood stained clothes of the deceased, Ex.PO1 and Ex.PO2 personal search memos, Ex.PR rough site plan, Ex.PX forensic science laboratory report, Ex.P1 receipt of dead body. After closure of prosecution evidence, the appellants were examined under Section 313 of Cr.P.C. The appellants denied the incriminating evidence and pleaded innocence but did not lead any evidence in defence. The learned trial Court after considering the evidence on record convicted and sentenced the appellants for the murder of Munna Lal. CRA No.458-DB of 2006 -5- Counsel for the appellants submits that the occurrence took place at 03:00 AM on 17.07.2004 whereas the FIR was lodged at 06:50 AM. The special report reached the Magistrate at 04:10 PM on 17.07.2004, i.e., eight and a half hours after registration of FIR. The prosecution has not furnished any explanation whether cogent or otherwise for this delay. The delay in lodging the FIR and forwarding the report to the Magistrate establishes that the police was arranging convenient eye witnesses so as to foist a false case upon the appellants. In an attempt to cover up delay in lodging the FIR, the police has asked Nachhatar Singh to depose that he had gone in search of the religious sister of the deceased. The explanation is as ridiculous as it is unbelievable as Nachhatar Singh admittedly did not know the address of the so called religious sister of the deceased. The police station is a mere kilometer from the site of the occurrence, Nachhatar Singh should visited the police station first. The absence of any explanation, for the delay, renders the prosecution case doubtful. It is further submitted that the presence of Nachhatar Singh and Shamsher Singh at 03:00 AM at the place of occurrence at the exact moment of inflicting injuries is highly improbable and renders the prosecution story unbelievable. It is further submitted that the alleged eye-witnesses have made improvements in their statements as in the statement made before the Police, Nachhatar Singh has not stated that they were going to Kiratpur Sahib whereas in the statement made before the Court he has stated as such. The site plan does not show the place where the eye-witnesses CRA No.458-DB of 2006 -6- were standing much less any street light in which the eye-witnesses could have seen the occurrence. The alleged motive, i.e., illicit relations between the deceased and the wife of Khushi Ram, has not been corroborated much less established by any independent evidence or by reference to any complaint made by Khushi Ram. Counsel for the State of Punjab submits that the case against the appellants is based on direct, credible, cogent and consistent ocular testimony that has stood the test of a searching cross-examination. The eye-witnesses are truck drivers who had come to pick up Munna Lal, as they intended to take him with them. The eye witnesses have witnessed the entire occurrence and as the defence has failed to point out any fact, other than irrelevant discrepancies there is no doubt that the appellants have been rightly convicted and sentenced. The absence of reference to a source of light in the site plan is bonafide error on the part of the investigating officer. The delay has been satisfactorily explained. The motive has been established. We have heard counsel for the parties, perused the trial court's record, considered the arguments addressed by counsel for the parties and appraised the impugned judgment. At the very outset, we would deal with the delay in lodging the FIR and forwarding of the special report to the Magistrate. The occurrence took place at 03:00 AM. The FIR was registered at 06:40 AM. The special report was forwarded to the Magistrate at Ludhiana and reached at 04.10 PM on 17.07.2004, after a delay of about eight CRA No.458-DB of 2006 -7- and a half hours. Delay in lodging an FIR and forwarding a special report puts a court on guard and requires a court to assure itself about the bonafides of the prosecution case, the absence of any possibility of false implication or tailoring of facts so as to suit a preconceived notion of identity of an accused. Delay is by itself insufficient to reject the prosecution version or to acquit an accused, if the prosecution version is otherwise believable and proved by clear, cogent and credible evidence. Nachhatar Singh has deposed that, after witnessing the murder of Munna Lal, they went to search for the religious sister of the deceased who resided in 'Y' Block, Rishi Nagar but could not find her house as he was not aware of her exact address. On the way to the police station, he met the police party at Choti Haibowal and recorded his statement Ex.PY at 06:30 PM. The fact that Nachhatar Singh was not aware of the exact address of the deceased's religious sister, or spent some time in trying to find her, instead of proceeding straight to the police station, does not cast any doubt on the prosecution case particularly when neither Nachhatar Singh nor Shamsher Singh had any ill-will against or enmity with the appellants that would compel them to depose falsely. The occurrence took place at about 03:00 AM. Nachhatar Singh and Shamsher Singh realised that Munna Lal has passed away. They would have taken some time to gather their wits. An eye witness to a murder, would ideally be required to instantly inform the police but human behaviour is far from ideal or predictable. CRA No.458-DB of 2006 -8- What is, however, important that the conduct of witnesses should be examined with caution so as to rule out the possibility of tailoring of facts or false implication. Nachhatar Singh and Shamsher Singh went in search of the deceased's religious sister and then made a statement to the police at 06:30 AM. A ruka was forwarded to the police station and the FIR was registered at 06:50 AM. The police recorded his statement, made a site plan of the place of occurrence, prepared an inquest report, completed all formalities and then forwarded the special report to the Magistrate. The delay in lodging the FIR, and forwarding the special report, in our considered opinion, does not, in the facts of this case, cast any doubt about the prosecution story or raise an inference that the facts have been tailored to falsely implicate the appellants. The next argument is, the absence of any clear and cogent evidence with respect to motive. The argument in our considered opinion is not tenable. PW1 Nachhatar Singh has deposed that Khushi Ram suspected that his wife had illicit relations with Munna Lal. On an earlier occasion, he got this dispute resolved. The motive for commission of an offence is locked in the mind of an accused and cannot be proved by direct evidence. We are, however, satisfied that the evidence adduced with respect to the motive, as accepted by the trial court, is sufficient in the facts and circumstances of the present case particularly as the deposition of Nachhatar Singh relating to the question of motive has gone unchallenged, in cross-examination. CRA No.458-DB of 2006 -9- The plea that there are certain material improvements in the statement of Nachhatar Singh as he did not state before the police that they were going to Kiratpur Sahib but has not so stated during his deposition, in our considered opinion, need not detain us for long. The difference in the statements does not impinge upon the truthfulness of the depositions of PW1 and PW2 Nachhatar Singh and Shamsher Singh, eye-witnesses of the occurrence, in any manner. The eye witnesses saw the appellants inflicting injuries upon the person of the deceased and after they raised an alarm, the appellants left him for dead. The inconsistency is irrelevant as it does not effect the prosecution version. The plea that the place of occurrence, detailed in the site plan does not indicate the place where eye-witnesses were standing and nor does it indicate the presence of a street light, suggests that the prosecution case is false, must also fail. An error on the part of the investigating officer in not pointing out the place where eye-witnesses were standing, does not entitle the appellants to any benefit or cast any doubt on the deposition of eye witnesses. The absence of a street light, in the site plan, in our considered opinion, does not cast any doubt on the prosecution version. The place of occurrence adjoins the Municipal Corporation building which in all probability must have a street light. Nachhatar Singh had deposed about the presence of a street light. The fact that the Investigating Officer has not indicated a source of light in the site plan Ex.PB is a mere lapse that does not CRA No.458-DB of 2006 -10- entitle the appellants to any benefit much less cast any doubt on the prosecution version. The prosecution version stands proved in its entirety by the depositions of PW1 and PW2, eye-witnesses who have clearly and categorically deposed that they saw the appellants inflicting injuries with an iron rod and a dang. The iron rod and the dang were recovered pursuant to disclosure statements Ex.PD and Ex.PE suffered by the appellants. PW4 Dr.D.S.Kochar has deposed that the cause of death was multiple injuries to vital organs i.e. brain and lungs which were ante mortem in nature and also sufficient to cause death in the ordinary course of nature. He also deposed that injuries on the person of the deceased could be possible with blows by an iron rod, Ex.P1, and a dang Ex.P2. The medical and ocular evidence corroborate each other thereby establishing the prosecution case against the appellants. We find no reason whether in fact or in law to differ with the findings recorded by the learned trial court or to hold that the learned trial court has erred in any manner in accepting the prosecution story and holding that the appellants are guilty as charged. In view of what has been stated hereinabove, the appeals are dismissed. [RAJIVE BHALLA] JUDGE 02.11.2011 [NARESH KUMAR SANGHI] shamsher JUDGE CRA No.458-DB of 2006 -11-