Crl. Appeal No.274-DB of 1998 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.274-DB of 1998 Date of Decision: 25.01.2008 Gurmail Singh ....Appellant. Versus State of Punjab ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Sham Sunder. Present: Mr. C.S. Bakshi, Advocate for the appellant. Mr. S.S. Bhinder, Addl. A.G., Punjab for the respondent. ... J.S. Khehar, J. The instant appeal is directed by appellant – Gurmail Singh against the order dated 17.2.1998 passed by the Sessions Judge, Sangrur, in Sessions Case No.6 of 1996. By the impugned judgement, appellant – Gurmail Singh has been held guilty for having committed the murder of his own father Nirbhai Singh, under Section 302 of the Indian Penal Code. By a separate order dated 5.3.1998, appellant – Gurmail Singh has been sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/-. In default of payment of fine, he was ordered to further undergo rigorous imprisonment for six months. The prosecution version of the incident is based on the Crl. Appeal No.274-DB of 1998 2 statement of complainant – Bhinder Singh son of deceased – Nirbhai Singh, and the brother of accused – Gurmail Singh. According to the complainant, the family of Nirbhai Singh, besides his mother Hamir Kaur PW4, comprises of five sons and two daughters. Two sons of deceased – Nirbhai Singh, the complainant himself and Gurmeet Singh, were residing with their father at Village Balian, Police Station Kot Sangrur, District Sangrur, whereas accused – Gurmail Singh was residing separately in the same village alongwith his family. Accused – Gurmail Singh is stated to have married about 10 years prior to the occurrence. He is stated to have started living separately alongwith his family for the last 6/7 years. On the fateful day i.e. on 5.10.1995, the parents of the complainant, namely, Nirbhai Singh and Hamir Kaur PW4, as well as, complainant – Bhinder Singh PW3 and his brother Gurmeet Singh were sleeping in the courtyard of their house. At about 1.00 AM, complainant – Bhinder Singh PW3 felt the urge of urinating and got up for that purpose. It is then that he saw his brother accused – Gurmail Singh @ Gela, holding an unsheathed "kirpan" which was smeared with blood. When complainant – Bhinder Singh saw his brother accused – Gurmail Singh attacking his father with the "kirpan", he raised an alarm. On hearing the complainant's alarm, his mother Hamir Kaur PW4, and his other brother Gurmeet Singh got up. Both of them i.e. Hamir Kaur and Gurmeet Singh saw accused – Gurmail Singh inflicting "kirpan" blows on Nirbhai Singh. They, accordingly, also raised an alarm and tried to stop accused – Gurmail Singh. As per the statement of complainant – Bhinder Singh PW3, accused – Gurmail Singh then turned towards them so as to attack them. They, therefore, took steps backwards, upon which accused – Gurmail Singh stated, that he had killed his father Crl. Appeal No.274-DB of 1998 3 Nirbhai Singh because he had not given him his share in the combine (harvester). He threatened those present in the courtyard, that he would kill them also if they did not give him his share in the combine. After having stated so, accused – Gurmail Singh ran away and in the process dropped the scarf which he had wrapped around his head. Those present in the courtyard then approached Nirbhai Singh and realised, that he had died. It was also stated by the complainant, that the dispute relating to the combine was settled with the assistance of respectables from the village only 2/3 days earlier. The aforesaid settlement was not acceptable to accused – Gurmail Singh. He had, therefore, taken the ultimate step of eliminating his own father Nirbhai Singh. In the meantime, on hearing the commotion from the residence of deceased – Nirbhai Singh, the complainant's uncles Sukhwinder Singh and Jang Singh came to the spot. Bhinder Singh, leaving his mother Hamir Kaur PW4, as also, his brother Gurmeet Singh, alongwith the dead body of his father Nirbhai Singh, proceeded to the Police Station alongwith his uncles, to register a report. On the way, they met SI Harinder Pal Singh PW8 and accordingly, recorded his statement. Recording of the aforesaid statement by complainant – Bhinder Singh PW3, resulted in the registration of First Information Report bearing No.178, at Police Station Kot Sangrur, in District Sangrur, on 5.10.1995. On the completion of the investigation, a challan was presented by the prosecution in the Court of Judicial Magistrate, Ist Class, Sangrur, on 11.1.1996. The Judicial Magistrate, Ist Class, Sangrur, concluded that a prima-facie case punishable under Section 302 of the Indian Penal Code was made out against accused – Gurmail Singh. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Crl. Appeal No.274-DB of 1998 4 Session, the Judicial Magistrate, Ist Class, Sangrur, by his order dated 25.1.1996 committed the case to the Court of Session. On 23.2.1996, the Sessions Judge, Sangrur, charged accused – Gurmail Singh for the murder of his own father Nirbhai Singh, under Section 302 of the Indian Penal Code. The accused when confronted with the charge levelled against him pleaded not guilty and claimed trial. During the course of trial, the prosecution examined a number of witnesses. A brief description of the deposition of the witnesses produced by the prosecution before the trial Court, is being summarised hereunder. The prosecution first of all, examined Dr. K.S. Sodhi, Medical Officer, Civil Hospital, Sangrur, as PW1. Dr. K.S. Sodhi PW1, had conducted the postmortem examination on the dead body of Nirbhai Singh. The postmortem examination reveals the following injuries on the body of Nirbhai Singh:- “1. Incision wound extending from angle of mouth on right side going backward across lower part of face, angle of mandible middle of neck underlying muscles vessels nerves cut. Mandible bone on right side was cut. Clotted blood was present. The wound was oral cavity deep 30x6 cm. 2. An incised wound 7cm x 2cm in the middle of scalp running interio poster for underlying bone was cut and fractured. On dissection underlying the fracture extra dural haematoma was present. 3. An incised wound present on right wrist about 5cm x 2cm on dorsal aspect. Underlying tenders and blood vessels were cut. Clotted blood was present. Crl. Appeal No.274-DB of 1998 5 4. Right hand thumb amputated in its middle. Margins regular indicate of injured wound. 5. Incised wound on left upper arm on its lateral aspect 9cm x 1 cm. 6. An incised wound on dorsal aspect of left hand near thumb. 5cm x 2cm. Underlying tenders and blood vessels were cut. Clotted blood was present.” According to the opinion of Dr. K.S. Sodhi, the death of Nirbhai Singh had been caused due to shock and haemorrhage, as a result of the injuries found on his body during course of postmortem examination. All the injuries were found to be ante-mortem in nature. According to the opinion of Dr. K.S. Sodhi PW1, injuries No.1 and 2 were sufficient to cause death in the ordinary course of nature. The statement of Dharminder Singh PW2, Draftsman, was recorded as PW2. He had visited the place of the occurrence on 30.10.1995 and prepared the scaled site plan Ex.PD. The statement of complainant - Bhinder Singh was recorded as PW3. In his statement, Bhinder Singh reiterated the factual position recorded by him while making his statement to the police after the alleged murder of his father Nirbhai Singh at the hands of his brother accused - Gurmail Singh. The statement of the widow of deceased – Nirbhai Singh, and the mother of accused – Gurmail Singh, who is also the mother of complainant – Bhinder Singh, i.e. Hamir Kaur, was recorded as PW4. In her statement Hamir Kaur PW4 reiterated the factual position narrated in the complaint made by her son Bhinder Singh, as also, the factual position depicted in the deposition of Bhinder Singh when he appeared during the course of trial as PW3. It is, therefore apparent, that in her deposition, Hamir Kaur PW4 clearly Crl. Appeal No.274-DB of 1998 6 implicated her own son accused – Gurmail Singh for having committed the murder of her husband Nirbhai Singh, who was also the father of accused – Gurmail Singh. Both Bhinder Singh while appearing as PW3 and Hamir Kaur while appearing as PW4, reiterated that the motive for accused – Gurmail Singh in having committed the murder of his own father, was his being dissatisfied with the settlement arrived at by the members of family in the presence of respectables of the village in connection with the combine (harvester). SI Ajmer Singh was produced by the prosecution as PW5. In his deposition, SI Ajmer Singh PW5, affirmed the fact, that he had arrested accused – Gurmail Singh on 27.11.1995. He also asserted, that he had interrogated accused – Gurmail Singh in the presence of Head Constables Ranjit Singh and Norang Singh, whereupon the accused had recorded a disclosure statement Ex.PH. In furtherance of the disclosure statement made by accused – Gurmail Singh, the police party recovered the "kirpan" Ex.P4 from the spot indicated in the disclosure statement. The "kirpan" was allegedly smeared in blood. On the recovery of the "kirpan", he had prepared the recovery memo Ex.PK which was also attested by the aforesaid Ranjit Singh and Norang Singh. The prosecution then examined Head Constable Ranjit Singh as PW6. In his deposition, Ranjit Singh PW6 affirmed that accused – Gurmail Singh had recorded the disclosure statement in his presence, and that, on the basis of the aforesaid disclosure statement, a "kirpan" was found from the fields of Baldev Singh, Lamberdar. He also affirmed the fact, that he had attested the disclosure statement, as also the recovery memo. Constable Jagwant Singh was then examined as PW7. Constable Jagwant Singh PW7 placed on the record of the case his statement in the form of an affidavit Ex.PM. A perusal of the Crl. Appeal No.274-DB of 1998 7 affidavit Ex.PM reveals, that various parcels containing the clothes of deceased – Nirbhai Singh, blood stained earth, khes, parna, pillow, mattress etc. recovered from the courtyard of deceased – Nirbhai Singh, were taken by Constable Jagwant Singh PW7 to the office of the Chemical Examiner, Patiala on 10.10.1995. On 6.1.1997 and 11.3.1997, statements were made by the public prosecutor giving up Norang Singh and Constable Sadhu Masih who were earlier cited as witnesses by the prosecution. The statement of SI Harinder Pal Singh, who recorded the complaint of Bhinder Singh PW3 and who was assigned the investigation of the case under reference, was examined as PW8. In his deposition, he affirms having made various parcels from the place of occurrence and had sent them for chemical examination. In his statement Harinder Pal Singh PW8 also averred, that on 26.11.1995, the investigation of the case was handed over to SI Ajmer Singh PW5. The statement of Constable Ram Singh was recorded as PW9. He tendered into evidence his affidavit Ex.PX. The statement of Head Constable Naib Singh was recorded as PW10. He tendered into evidence his affidavit Ex.PY. Thereafter, on 9.1.1998, the prosecution closed its evidence. The statement of accused – Gurmail Singh was recorded under Section 313 of the Code of Criminal Procedure, on 12.1.1998. The incriminating evidence appearing on the record, was put to the accused. He denied the same and pleaded innocence and asserted, that he had been falsely implicated. Relevant extract of his stance is being reproduced hereunder:- “This is a false case. I am innocent. No such occurrence ever took place. I have been falsely implicated in this case. I was Crl. Appeal No.274-DB of 1998 8 cordial with my father and I have no strained relations with my father. I was living separate from my brothers for about 8 years prior to the alleged occurrence. I have no concern with the combine which was purchased by Bhinder Singh my brother after the partition. The bad elements had raised house of my brothers once or twice as our houses are on the village Phirni. The police suspected that my brothers were co-operating with the bad elements. The police took my brothers into custody due to that suspicion, but they were not shown in any paper as taken into custody. My brother Bhinder Singh, Gurmeet Singh and others suspected me that I have got them arrested by police by giving information to the police about visit of bad elements. I had a quarrel with my brothers Bhinder Singh and Gurmeet Singh but I was asked by my father to keep mum. My brothers were pressing my father to sell the land so that they may purchase more land in Gujarat. Hamir Kaur my mother also joined with my brothers. My father was sleeping in an accessible place and he was killed by some unknown person/bad elements. Bhinder Singh, Gurmeet Singh, Hamir Kaur after consultation got me implicated in this case falsely so that they may grab the land of my share also. After the present alleged occurrence, my wife and daughter were turned out of the house by my brothers. I have been got implicated in this case falsely.” The defence evidence was closed on 17.2.1998, without Crl. Appeal No.274-DB of 1998 9 producing any defence witness. The Sessions Judge, Sangrur delivered the judgement in Sessions Case No.6 of 1996, on 17.2.1998, wherein accused – Gurmail Singh was held guilty of having committed the murder of his own father Nirbhai Singh. He was, accordingly, convicted under Section 302 of the Indian Penal Code. The convict was then heard on the quantum of sentence, whereupon by an order dated 5.3.1998, accused – Gurmail Singh was sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- under Section 302 of the Indian Penal Code. In default of payment of the aforesaid fine, he was ordered to further undergo rigorous imprisonment for six months. A perusal of the evidence produced by the prosecution, as well as, the judgement rendered by the Sessions Judge, Sangrur, reveal that while convicting accused – Gurmail Singh, the trial Court heavily relied on the statements of two eye witnesses – Bhinder Singh PW3 and Hamir Kaur PW4. Bhinder Singh PW3 is none other than the son of deceased – Nirbhai Singh and the brother of accused – Gurmail Singh. Likewise, Hamir Kaur PW4 is the widow of deceased – Nirbhai Singh and the mother of accused – Gurmail Singh. Both of them affirmed the fact, that they were eye witnesses to the murder of deceased – Nirbhai Singh at the hands of accused - Gurmail Singh. They also in unison stated, that accused – Gurmail Singh had himself stated at the place of occurrence, that he had committed the murder of his father Nirbhai Singh on account of the fact, that he was not given a share in the combine (harvester). The prosecution, as well as, the trial Court also relied on the disclosure statement at the hands of accused – Gurmail Singh which resulted in the recovery of the "kirpan" used by accused – Crl. Appeal No.274-DB of 1998 10 Gurmail Singh in the commission of the murder of Nirbhai Singh, as also, the recovery memo prepared thereupon. Likewise, reliance was heavily placed on the postmortem report, depicting various incised wounds inflicted on the body of Nirbhai Singh, which could have been inflicted by a sharp edged weapon. The trial Court also relied upon the statement recorded by Dr. K.S. Sodhi PW1 to the effect, that the death of Nirbhai Singh had been caused due to shock and haemorrhage as a result of the injuries inflicted upon his person, as also, the fact that injuries No.1 and 2 were sufficient in the ordinary course of nature to cause death. During the course of hearing of the instant appeal, learned counsel for the appellant invited the Court's attention to various discrepancies in the statements of the two eye witnesses – Bhinder Singh PW3 and Hamir Kaur PW4. In so far as, the statement of Bhinder Singh PW3 is concerned, learned counsel for the appellant vehemently contended, that at the time of he occurrence Bhinder Singh while making the complaint, had clearly recorded that accused – Gurmail Singh was residing separately from the other members of the joint family for the last about 6/7 years, whereas while appearing as PW3, he had stated, that accused – Gurmail Singh had started residing separately for the last about 7/8 years. Learned counsel for the appellant also showed improvement in the statement of Bhinder Singh PW3, during the course of his cross-examination when he clarified by stating, that the occurrence took place on the intervening night of 4/5.10.1995, whereas in Ex.PE, he had depicted the date and time of occurrence as 1.00 AM on 5.10.1995. Likewise, learned counsel for the appellant – Gurmail Singh invited the Court's attention to the statement of Bhinder Singh PW3, Crl. Appeal No.274-DB of 1998 11 wherein, in his statement Ex.PE, he had stated that he was proceeding to the police post to lodge a report when the police party met him, whereas in his statement Ex.PE, he had not made reference to the police post. It was also vehemently contended, that Bhinder Singh PW3, stated that his mother had asked him to lodge a report at the police post, during the course of his deposition as PW3 and that he had not made any such assertion when his statement Ex.PE was recorded. From the statement of Hamir Kaur PW4, wherein during the course of her cross-examination, she had stated that she had informed the police, that the occurrence under reference had taken place at 12.00 midnight/1.00 AM, whereas in her statement Ex.DA, she had stated that the occurrence had taken place at 1.00 AM. She also affirmed in her cross- examination, that she had asked Bhinder Singh PW3 to lodge a report at the police post, whereas in her statement Ex.DA, she had not affirmed the aforesaid fact. The Court's attention was also invited to the fact, that Hamir Kaur PW4 has stated, that she had informed the police that accused – Gurmail Singh had caused forceful "kirpan" blows on the neck of Nirbhai Singh, whereas in her statement Ex.DA, there is no mention of the place where the injuries were caused by accused – Gurmail Singh. We have collectively perused the discrepancies pointed out from the evidence of the two starred witnesses Bhinder Singh PW3 and Hamir Kaur PW4 by the learned counsel for appellant – Gurmail Singh. In our view, however, the discrepancies are so trivial that it is not necessary even to individually deal with them. It can not be forgotten, that Hamir Kaur PW4 is the mother of accused – Gurmail Singh. She would do nothing, whatsoever, which would cause any harm to her own son. Therefore, there Crl. Appeal No.274-DB of 1998 12 is no justification, whatsoever, to doubt the veracity of her statement. Trivial discrepancies highlighted by the learned counsel for the appellant are natural when there is a long gap between the date of occurrence and the date when the statements are recorded. In the instant case, the murder of Nirbhai Singh was committed on 5.10.1995, whereas the statements of Bhinder Singh PW3 and Hamir Kaur PW4 were recorded on 12.11.1996 i.e. more than one year after the incident took place. Some of the discrepancies pointed out are factually frivolous. As for instance, the duration of the period since when accused – Gurmail Singh had been living separately. Bhinder Singh PW3 had made a statement on 5.10.1995, that accused – Gurmail Singh had been living separately for the last 6/7 years. While appearing as PW3 on 12.11.1996 Bhinder Singh had stated that accused – Gurmail Singh had been living separately for the last 7/8 years. Actually there is no discrepancy in the aforesaid factual position. Likewise, mention of the time of occurrence at the hands of complainant - Bhinder Singh PW3 as the intervening night between 4/5.10.1995 while recording his complaint, and as 1.00 AM on 5.10.1995 while deposing as PW3, is certainly no discrepancy. Even the non-mention of the words “police-post” as noticed above, in our view is a frivolous submission. To the same effect are the discrepancies pointed out from the statement of Hamir Kaur PW4. We find no reason for Hamir Kaur PW4 to implicate her own son for the murder under reference, knowing fully well the consequences of her statement. In view of the fact, that no previous dispute or enmity has come out in evidence between complainant- Bhinder Singh PW3 and his brother accused – Gurmail Singh, we are of the view, that there is no justification, whatsoever, to doubt the veracity of the statement made under oath even by Crl. Appeal No.274-DB of 1998 13 Bhinder Singh PW3. In view of the above, we find no merit in the first contention of learned counsel for the appellant. The second contention of the learned counsel for the appellant was based on the statement of accused – Gurmail Singh recorded under Section 313 of the Code of Criminal Procedure. The relevant extract of the statement relied upon by the learned counsel for the appellant has already been reproduced hereinabove. Learned counsel for the appellant also took us through the cross-examination conducted on complainant – Bhinder Singh PW3 and Hamir Kaur PW4 in order to substantiate his contention, that suggestions in terms of the statement made by accused – Gurmail Singh under Section 313 of the Code of Criminal Procedure, were put to the relevant witnesses. It is, therefore, the vehement contention of the learned counsel for the appellant, that appellant – Gurmail Singh was innocent and had been wrongly implicated in the matter. It is submitted, that the correct version of the murder of Nirbhai Singh is the one narrated by accused – Gurmail Singh in his statement under Section 313 of the Criminal Procedure Code. It is not possible for us to accept the instant contention of the learned counsel for the appellant. It is not sufficient for appellant – Gurmail Singh to record a statement under Section 313 of the Criminal Procedure Code, and to expect, that the same would be accepted as the gospel truth. In case, there was any truth therein, the appellant should have produced witness in his defence to substantiate the same. Merely on account of the fact, that suggestions in terms of the statement recorded under Section 313 of the Criminal Procedure Code were put to the witnesses during the course of cross-examination, cannot lead to any inference in the matter. Accordingly, we find no merit in the instant contention of the learned Crl. Appeal No.274-DB of 1998 14 counsel for the appellant. It was also the contention of the learned counsel for the appellant – Gurmail Singh, that the two other brothers of deceased – Nirbhai Singh, who were living as a joint family alongwith the family of Nirbhai Singh, had committed the murder of Nirbhai Singh. To state the least, we are of the view, that there is no evidence, whatsoever, on the record of the trial Court on the basis of which such an accusation can be levelled. It is, therefore, not possible for us to accept the instant plea advanced by learned counsel for the appellant. As a last ditch effort, learned counsel for the appellant contends, that a lenient view should be taken in the matter, inasmuch as, the appellant has already undergone more than six and a half years of sentence, and that, even if his conviction has to be sustained, his sentence may be reduced. It is not possible for us in law, to accept the aforesaid contention of learned counsel for the appellant. There are only two punishments that can be inflicted under Section 302 of the Indian Penal Code, namely, life imprisonment or death sentence. The