Criminal Appeal No.371-DB of 1998 1 In the High Court of Punjab and Haryana at Chandigarh Criminal Appeal No.371-DB of 1998 Date of decision:September 17, 2008 Balwinder Singh ......appellant Versus State of Punjab .......Respondent CORAM: HON'BLE MR.JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE SABINA Present: Mrs.Baljit Kaur Mann, Advocate, for the appellant. Mr.Rajesh Bhardwaj, DAG, Punjab. **** JUDGMENT SABINA, J. Balwinder Singh has filed this appeal challenging his conviction and sentence under Section 302 IPC vide impugned judgment dated 27.7.1998 passed by learned Sessions Judge, Hoshiarpur. Prosecution story in brief is that Harjinder Singh @ Bittu, younger brother of complainant Balwinder Singh @ Binder, was running a shop as an electrician at Bus Stand Manak Dheri. Bittu has good relations with Balwinder Singh son of Piara Singh, a truck driver of village Manak Dheri. Bittu used to visit his house frequently. Criminal Appeal No.371-DB of 1998 2 On 16.7.1996 at about 7.00 p.m. complainant went to meet his brother Bittu at his shop. They discussed their domestic affairs and consumed some liquor. When complainant was about to return back to his village, Bittu suggested that they should stay at the house of Balwinder Singh driver. At about 9.00 p.m. they reached the house of Balwinder Singh driver. At that time he along with his wife were taking meals in their room. An electric bulb was on in the room as well as outside the courtyard. The complainant was following Bittu. As soon as Bittu entered the room, Balwinder Singh driver took an kulhari (axe) from underneath the iron petty (big box) and said “Aa Gia Salia Ashika” and gave an kulhari blow on the head of Bittu, which hit him near his left ear. Balwinder Singh gave another kulhari blow on the right temple of Bittu. Bittu sat down and as a result kulhari broke due to its striking against the floor. Balwinder Singh picked up a kirpan and started giving blows on the person of Bittu. Out of fear the complainant ran away from there and reached the house of his maternal aunt (Massi) Gurbachan Kaur at village Sohalpur. He narrated the entire occurrence to his aunt and maternal uncle Kehar Singh. Then complainant along with Kehar Singh met Sarpanch Amarjit Singh of village Manak Dheri. In the morning they went to the house of the accused where the dead body of deceased Bittu was lying in a pool of blood and after leaving Kehar Singh at the house of the accused complainant informed the police. Accused Balwinder Singh had suspicion that Bittu was having Criminal Appeal No.371-DB of 1998 3 illicit relations with his wife and due to this reason the accused had committed his murder. On the basis of the statement of the complainant formal FIR No.101 dated 17.7.1996 was registered by the police of police Station Hariana District Hoshiarpur. FIR was concluded at 8.35 a.m. SI Bakhshish Singh along with other police officials visited the spot and prepared the rough site plan. He lifted blood lying near the dead body. The place of occurrence was got photographed. He prepared the inquest report with regard to dead body of Harjinder Singh @ Bittu and the dead body was sent for postmortem examination. Accused was arrested and on the basis of his disclosure statement one kirpan, one handle of kulhari and blade of kulhari were recovered from the disclosed place and were taken in possession. Dr. Gurbachan Singh conducted the postmortem examination on the dead body of Harjinder Singh @ Bittu on 17.7.1996 at 5.15 p.m. and found following injuries on his person:- 1. An incised wound 9 cm x 2.5 cm lying just vertically in the right temporal and parietal region. Its lower end was 2.5 cm below and medial to the tragus of the right ear. Underlying bone was cut and the brain matter was coming out of the wound. 2. An incised wound 5 cm x 1.5 cm lying just transversally. The pinna was cut (left ear). Its anterior angle was 1 cm behind the tragus of left ear. The wound was muscle deep. Criminal Appeal No.371-DB of 1998 4 3. An incised wound 11 cm x 5 cm on the right side of the neck lying just transversally was present. Its anterior end being 4 cm below and in front of the right angle of the mandible. The right sterno-mastoid muscle was cut and the internal juglar vein was cut. Blood clots were present in the wound. 4. An incised wound 2 cm x 5 cm on the left pinna was present, 2 cms above the injury No.2. 5. An incised wound 3 cm x 75 cm on the left side of neck lying obliquely was present. Its lower and being 7cm to the left of sternal notch. In his opinion the cause of death was due to shock and haemorrhage due to injuries to the brain and right internal juglar vein which was sufficient to cause death in the ordinary course of nature and injuries were ante mortem in nature. Time between injuries and death was immediate and between death and postmortem was within 24 hours. After completion of investigation and necessary formalities accused was sent up for trial. Charge against the accused was framed under Section 302 IPC on 11.10.1996, to which he did not plead guilty and claimed trial. The material witnesses examined by the prosecution at the trial were Dr.Gurbachan Singh (PW-1), Complainant Balwinder Singh (PW-7), Kehar Singh (PW-8), ASI Surinder Singh (PW-10), Criminal Appeal No.371-DB of 1998 5 Satpal Singh (PW-13) and SI Bakhshish Singh (PW-14). After close of prosecution evidence accused, when examined under Section 313 Cr.P.C. pleaded as under:- “I am innocent, on the fateful day, the deceased came armed with a kirpan in drunken condition and caught hold of my wife and tried to outrage her modesty. Then my wife and children raised alarm. I was present in the chobara of my house. The resident of the village on hearing raula, came with whatever they could lay their hands and on seeing the deceased molesting my wife, caused injuries to him. I informed the Sarpanch of the village, who informed the police and the police came early in the morning and later on at noon time, the brother of the deceased was called from the village and he made a false statement against me. I did not cause any injury to the deceased nor I made any disclosure statement, nor I got anything recovered in pursuance of that statement.” In his defence the accused examined Amarjit Singh (DW-1) and Sharanjit Kaur (DW-2). Learned trial Judge believed the prosecution version and convicted the accused under Section 302 IPC and sentenced him to undergo imprisonment for life and a fine of Rs.2,000/-. In appeal, learned counsel for the appellant has argued that the prosecution had failed to prove its case. There was Criminal Appeal No.371-DB of 1998 6 unexplained delay in lodging of the FIR and its reaching the Special Magistrate. The presence of the eye witness at the spot could not be believed as his behaviour was most unnatural in the circumstances of this case. The complainant had no occasion to be present in the village Manak Dheri late in the evening. The deceased had come to the house of the accused in his absence and tried to outrage the modesty of the wife of the accused. He had been inflicted injuries by the wife of the accused in self defence and other persons, who had gathered at the spot. Learned State counsel, on the other hand, has argued that the dead body of the deceased was recovered from the house of the accused, who had inflicted injuries on the person of the deceased with an intention to murder him as he suspected that the deceased was having illicit relations with his wife. Present case rests on an eye witness account. The dead body of the deceased was recovered from the house of the accused. The complainant, who is brother of the deceased, has deposed to the effect that the deceased had been inflicted injuries by the accused with the help of kulhari and kirpan, whereas, the defence version is that the deceased had come to the house of the accused in a drunken condition and had tried to outrage the modesty of wife of the accused, who, in order to save herself, had inflicted injury on the person of the deceased and other persons gathered at the spot had also inflicted injuries on his person. Criminal Appeal No.371-DB of 1998 7 Complainant, while appearing in the witness box at the trial, has deposed as per the contents of the FIR. The said witness had come to meet his brother at his shop at about 7.00 p.m. Thereafter, at the instance of deceased Harjinder Singh, complainant went with him to the house of the accused. As per the FIR complainant and his brother had consumed liquor. Presence of alcohol was detected by the Chemical Examiner in the stomach, liver, spleen, kidney and intestines of the deceased. It is possible that the deceased might have been under the impression that the accused, who was a truck driver, was not at home. However, when the complainant and deceased went to the house of accused, they found him present there. Apparently, accused was not happy with regard to the visit of the deceased and the complainant to his house at 9.00 p.m. Probably some verbal altercation might have taken place between the parties which provoked the accused to inflict injuries on the person of the deceased. As per the complainant, accused inflicted kulhari blows on the person of the deceased and when handle of the kulhari broke, the accused picked up a kirpan. Out of fear the complainant fled away from the spot and went to the house of his uncle in village Sohalpur. Thereafter, he reported the matter to Sarpanch of village Manak Dheri along with his uncle Kehar Singh. However, FIR in this case was concluded at 8.35 p.m. on 17.7.1996. Every person who witnesses an assault/murder reacts in his own way. Some become speechless and stand rooted to the Criminal Appeal No.371-DB of 1998 8 spot, whereas, some become hysteric and start screaming. Some start shouting for help, whereas, some run away to keep themselves as far removed from the spot as possible. Some may rush to rescue the victim, even make an attempt to counter attack the assailant. Thus, there cannot be a set rule of natural reaction of an eye witness. In this case, the complainant out of fear ran away to the house of his relative in the nearby village. Hence, the statement of the eye-witness cannot be discarded merely because he ran away from the spot and lodged the FIR in the morning. Kehar Singh has corroborated the statement of the complainant to the effect that he had come to his house at 11.00 p.m. Complainant has stated in his cross-examination that his another maternal uncle also resided in village Sohalpur and was having a tractor but complainant did not go to the house of the said uncle. Apparently, the complainant may not be having cordial relations with his other maternal uncle and went to the house of Kehar Singh (PW-8) as he must have felt that he (Kehar Singh) would come to his help. Recording of the FIR was concluded at 8.35 p.m. on 17.7.1996, whereas, special report reached the Magistrate at 3.20 p.m., although the distance between police station Hariana and the Court premises, Hoshiarpur was only about 15 k.m. It has been held by the Apex Court in the case of Shiv Ram v. State of Uttar Pradesh 1998 (1) RCR 778 that delay in sending special report to Magistrate would not demolish the other positive and credible Criminal Appeal No.371-DB of 1998 9 evidence on record. This would only show that the investigating agency was not careful and prompt as it ought to be. It has been held by the Apex Court in the case of State of Uttar Pradesh v. Gokaran and others AIR 1985 Supreme Court 131 that it was not as if every delay in sending special report to the District Magistrate would necessarily lead to the inference that the FIR had not been lodged at the time stated or had been antetimed or antedated or that the investigation was not fair and forthright. Although in the present case the special report reached the Magistrate after delay but this in itself is not sufficient to demolish the prosecution case. It only shows that the investigation in this case has not been carried out in a prompt and careful manner. However, the statement of the eye witness cannot be brushed aside on account of this lapse on the part of the investigating agency. The dead body of deceased Harjinder Singh was recovered from the house of the accused. The explanation offered by the accused and his wife when examined as defence witness, is that the deceased had come to their house and had tried to outrage the modesty of Sharanjit Kaur. She inflicted a kulhari blow on the person of the deceased and other neighbours, who had gathered at the spot also inflicted injuries on the person of the deceased. Had this been a fact, the accused or his wife would have informed the police regarding the occurrence. The neighbours present at the spot Criminal Appeal No.371-DB of 1998 10 would have informed the police. Hence, the defence version that the injuries on the person of the deceased were not inflicted by the accused fails to inspire confidence. Accused has admitted his presence in the house when examined under Section 313 Cr.P.C. Amajit Singh (DW-1) was given up by the prosecution as having been won over and, thereafter, he was examined by the accused in his defence. The statement of this witness, however, fails to inspire confidence because this witness had not made any application regarding false implication of the accused being Sarpanch of the village nor any resolution in this regard was passed by the Panchyat. It appears that with a view to help the accused he has not supported the prosecution case. Kulhari, its handle and kirpan were recovered on the basis of the disclosure statement suffered by the accused. As per the report of the Chemical Examiner, kirpan and kulhari dasta were found to be stained with blood, whereas, the blood stains on fal kulhari were disintegrated and their origin could not be determined. Thus, the ocular version is corroborated by the medical evidence with regard to injuries on the person of the deceased. After going through the evidence on record we are of the opinion that the accused had no intention to commit the murder of the deceased but got provoked by the visit of the deceased in a drunken condition at an odd hour to his house and inflicted injuries on his person. The accused, however, had the knowledge that the Criminal Appeal No.371-DB of 1998 11 injuries inflicted by him could cause the death of deceased Harjinder Singh @ Bittu because as many as five injuries were inflicted on the person of the deceased but he had no intention to commit murder of deceased. Keeping in view the totality of circumstances in mind, we are of the opinion that the present case falls within the purview of Section 304 (II) IPC and not under Section 302 IPC. Accordingly, this appeal is partly allowed and conviction of the accused is converted from Section 302 IPC to Section 304 (II) IPC and his sentence is reduced to the imprisonment already undergone by him. (SABINA) JUDGE (JASBIR SINGH) JUDGE September 17, 2008 anita