Criminal Appeal No. 249-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.249-SB of 1995 Date of Decision : 15.05.2009 1. Jagmohan Singh son of Amar Singh son of Mander Singh, aged 25 years, cultivator; 2. Jagjit Singh @ Jaggi son of Hardial Singh son of Sunder Dass, aged 22/23 years, Labourer; both residents of village Gholia Kalan. ...Appellants Versus State of Punjab ....Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Ms. Meena Bansal, Advocate, (Amicus-Curiae), for the appellants. Ms. Manjari Nehru Kaul, Deputy Advocate General, Punjab, for the respondent - State. * * * * SHAM SUNDER, J. This appeal is directed against the judgement of conviction, and the order of sentence dated 18.04.95, rendered by the Court of Additional Sessions Judge, Faridkot, vide which, it convicted the accused, and sentenced them, as under:- Criminal Appeal No. 249-SB of 1995 2 Names of the accused (now appellants) Offence for which convicted Sentence awarded 1 2 3 (i) Jagmohan Singh (a) Under Section 308 of the Indian Penal Code. To undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 1,000/-, in default thereof, to further undergo rigorous imprisonment for a period of three months. (ii) Jagjit Singh @ Jaggi (b) Under Section 308 read with Section 34 of the Indian Penal Code. To undergo rigorous imprisonment for a period of four years and to pay a fine of Rs. 1,000/-, in default thereof, to further undergo rigorous imprisonment for a period of three months. The substantive sentences, were ordered, to run concurrently. 2. The facts, in brief, are that Jasmel Singh and Jaswinder Singh were real brothers. Jagmohan Singh, accused, and Jasmel Singh, were neighbourers. Jaswinder Singh, was working as tailor-master at village Gholia Kalan. The sister of Amarjit Singh, prosecution witness, was married to Jaswinder Singh. Amarjit Singh, was working as apprentice with Jaswinder Singh, for the last one year. On 06.01.94, Jaswinder Singh had gone to see his brother Jasmel Singh. At about 11/12 noon Jinder Kaur, sister of Amrjit Singh came to the tailor's shop Criminal Appeal No. 249-SB of 1995 3 and intimated Amarjit Singh that Jasmel Singh and Jaswinder Singh were quarreling with Jagmohan Singh, accused. Amarjit Singh left the shop and went to the place where Jaswinder Singh and Jasmel Singh on one side, and Jagmohan Singh, and Jaggi, accused, on the other side were quarreling, but they were separated when Amarjit Singh, reached the spot. Jagmohan Singh, was armed with tamba. Jaggi, accused, raised an exhortation that the man power of the complainant party had increased with the arrival of Amarjit Singh. He then exhorted Jagmohan Singh, to attack the members of the complainant party, failing which they may attack them. Jagmohan Singh gave a tamba blow hitting the head of Amarjit Singh, prosecution witness, as a result whereof, he fell down on the ground. The occurrence was witnessed by Jasmel Singh and Jaswinder Singh. Amarjit Singh, injured, was taken to Civil Hospital, Moga, where he was medico-legally examined by Dr. Mohinderpal, at about 1.20 PM on 06.01.94 and the following injuries were found on his person:- (i) An abrased contusion (red) of the size of 3 ½ x 4 cms on the head 5 cms right of midline and 4 cms behind anterior hairline (abrasions was of the size of 3 x 1/8 cms placed in the center of contusion). Fresh blood was oozing out from the abrasion. Xray was advised. (ii) Patient present with history of beating in the head. There was no history of unconscious after the incident. There was history of vomiting. There was history of bleeding per right ear. No history of bleeding per nose. Patient was disphasicadisarthic. Patient felt difficulty in moving of left arm. Pupils by laterally sluggage reaction to light. Pupils were unequal in size. BP of the patient was 120/80. Pulse rate was 90 per minute. This injury was to be observed for the assessment of the damage to the brain in view of these signs and symptoms. Criminal Appeal No. 249-SB of 1995 4 He also proved copy of the medico-legal report and copy of the pictorial diagram showing the seats of injuries. Injury No. 1, on the person of the injured was kept under observation and after receipt of Xray report and surgical opinion from Dr. Ramesh Sharma, Dr. Mohinderpal, declared injury No. 1 as dangerous to life, vide his supplementary report PB. 3. A wireless message was received in Police Station Baghapurana from Police Station Moga City, whereupon, Assistant Sub Inspector Harpreet Singh, went to Civil Hospital, Moga, where Amarjit Singh, injured, was admited. Assistant Sub Inspector Harpreet Singh moved an application PE on 06.01.94 before the doctor to find out the condition of the injured, but the doctor vide his endorsement PE/1 declared that the injured was unfit to make statement. Again on 08.01.94, Assistant Sub Inspector Harpreet Singh, went to Civil Hospital, Moga, and moved an application PH to find out the condition of the injured and the doctor vide his endorsement PH/1 declared the injured fit to make statement. Thereafter, statement PG of Amarjit Singh, was reduced into writing, and after appending endorsement PG/1, Assistant Sub Inspector Harpreet Singh, sent the same to the Police Stastion, on the basis whereof, the first information report PG/2, was recorded. Assistant Sub Inspector Harpreet Singh, prepared rough site plan PJ with correct marginal notes. The accused were arrested on 22.01.94. Jagmohan Singh, accused, also produced tamba PW5/1 before Assistant Sub Inspector Harpreet Singh at the time of his arrest, which was taken into possession, vide memo PK, attested by the Criminal Appeal No. 249-SB of 1995 5 witnesses. 4. Dr. S.P. Bansal, carried out xray examination of injury No. 1 on the person of Amarjit Singh, injured, and found depressed fracture of parietal bone on the right side of the skull. He also proved his report PF and skiagrams P1 and P2. Dr. Ramesh Sharma, to whom the injured was referred for surgical opinion also opined that there was a depressed fracture of right parietal bone. After the completion of investigation, the accused were challaned. 5. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, in the Court of Sessions, charge under Section 308, against Jagmohan Singh, and under Section 308 read with Section 34 of the Indian Penal Code, against Jagjit Singh @ Jaggi, accused, was framed , which was read over and explained to them, to which, they pleaded not guilty and claimed judicial trial. 6. The prosecution, in support of its case examined Dr. Mohinderpal (PW1), who medico-legally examined Amarjit Singh, injured, and declared injury No. 1, as dangerous to life, Dr. S.P. Bansal (PW2), who conducted xray examination of the head injury of Amarjit Singh, injured, Amarjit Singh, injured (PW3), who deposed in terms of the prosecution version, as stated above, Jaswinder Singh (PW4), an eyewitness, to the occurrence, Assistant Sub Inspector Harpeet Singh (PW5), and Dr. Ramesh Sharma (PW6). The Public Prosecutor for the State, tendered into evidence PL affidavit of Bachan Singh, Constable. Criminal Appeal No. 249-SB of 1995 6 Thereafter, the Public Prosecutor for the State, closed the prosecution evidence. 7. The statements of the accused under Section 313 of the Code of Criminal Procedure, were recorded. They were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. Jagmohan Singh, accused, in his statement, under Section 313 of the Code of Criminal Procedure, stated that the complainant party caused injuries to him, but the Police did not take any action, against the members of the complainant party, and rather, implicated him, in this case. 8. Jagjit Singh @ Jaggi, accused, in his statement, under Section 313 of the Code of Criminal Procedure, took up the plea, that he was not present at the time of occurrence. The accused examined Tarlochan Singh (DW1), and Bilu Singh (DW2), in their defence. Thereafter, they closed the defence evidence. 9. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused as stated above. 10. Feeling aggrieved, the instant appeal, was filed by the appellants. 11. I have heard the Counsel for the parties, and have gone through the evidence and record of the case carefully. 12. The Counsel for the appellants, at the very outset submitted that there was unexplained delay of 52 hours in lodging the first information report, which was utilized by the complainant to falsely Criminal Appeal No. 249-SB of 1995 7 implicate the accused, concoct a false version, and introduce false witnesses. The occurrence in this case took place at about 12 noon on 06.01.94, whereas the first information report, was recorded at 4.15 PM, on 08.01.94. Assistant Sub Inspector Harpreet Singh, visited the hospital on 06.01.94, but the injured was unfit to make statement. Thereafter, Assistant Sub Inspector Harpreet Singh, went to the hospital on 08.01.94, when Amarjit Singh, injured, was declared fit to make statement by the doctor, attending on him. Immediately thereafter, Assistant Sub Inspector Harpreet Singh, recorded the statement of Amarjit Singh, injured. It may be stated here that the injured was taken to the hospital at 1.20 PM on 06.01.94, whereas the occurrence, took place at 12.00 PM. It means that within the shortest possible time, the injured was taken to the hospital and got admitted there. The first and foremost concern of the kith and kin of the injured was to provide him the best medical aid, so as to save his life. Only after the kith and kin of the injured were sure that no danger to the life of the injured subsisted, they could think of lodging the first information report. Injury No. 1 was on the head of the injured, which was declared dangerous to life. Such an injury could not be self suffered. If the Police, did not record the statements of the eye- witnesses, when the injured was unfit to make statement, then the blame, could not be cast on the complainant. Since the injured was admitted in the hospital with a serious injury on his head, the question of consultations and due deliberations did not at all arise. Even otherwise, mere delay, in lodging the first information report, in itself, Criminal Appeal No. 249-SB of 1995 8 is not sufficient, to throw away the case of the prosecution over-board. In the face of delay in lodging the first information report, the Court is required to scrutinize the evidence of the prosecution, and, if it is found that the same is reliable and trustworthy, then the delay pales into insignificance. In the instant case, the evidence of the prosecution witnesses is trustworthy. In the first instance, the delay in lodging the first information report, stood explained, on account of the circumstances mentioned above. Even if, it is assumed for the sake of arguments, that some delay in lodging the first information report, did not stand explained, that, in itself, was not sufficient to disbelieve the case of the prosecution. The submission of the Counsel for the appellants, in this regard, being without merit, must fail,and the same stands rejected. 13. It was next submitted by the Counsel for the appellants that no offence punishable under Section 308 of the Indian Penal Code, was made out, but the trial Court, was wrong in recording conviction and awarding sentence for the said offence to the accused. The submission of the Counsel for the appellants, in this regard, does not appear to be correct. Dr. Mohinder Pal, PW1,who medico-legally examined the injured, in clear-cut terms, stated that vide his supplementary report PB, he declared injury No. 1, on the person of Amarjit Singh, as dangerous to life, after receipt of x-ray as well as surgical opinion from Dr. Ramesh Sharma. Dr. S.P. Bansal, Radiologist, Civil Hospital, PW2, who conducted x-ray examination of the injured in relation to injury No 1, found depressed fracture of the parietal bone on the right side of Criminal Appeal No. 249-SB of 1995 9 the skull. He gave the report PF, in this regard. Dr. Ramesh Sharma, Surgical Specialist, PW6, gave his surgical opinion, in relation to injury No. 1, on the head of the injured. He stated that there was depressed fracture of right parietal bone. There was facial nerve palsy and monoparsis of right upper limb. He also stated during the course of his cross-examination that injury was dangerous to life, but it was not imminently dangerous to life. From the evidence of Amarjit Singh, PW3, it was also proved that the injury on his head with tamba was caused by Jagmohan Singh, accused, with an intention to kill him. To the same effect, was the statement of Jaswinder Singh, PW4, an eyewitness. The injury on the head of Amarjit Singh, was given by Jagmohan Singh, accused, with such intention or knowledge and under such circumstances that if by that act he had caused his death, he would have been guilty of culpable homicide not amounting to murder. Under these circumstances, the trial Court, was right in holding that Jagmohan Singh, accused, committed the offence, punishable under Section 308 of the Indian Penal Code. The submission of the Counsel for the appellants, in this regard, being without merit, must fail,and the same stands rejected. 14. It was next submitted by the Counsel for the appellants, that Jasmail Singh, another eyewitness, who allegedly witnessed the occurrence, was not examined by the prosecution. She further submitted that Jasmail Singh, was given up as unnecessary. She further submitted that the prosecution, thus, withheld the best evidence in its possession, and an adverse inference could be drawn that had he been Criminal Appeal No. 249-SB of 1995 10 examined, he would not have supported the case of the prosecution. It is, no doubt, true that Jasmail Singh, was not examined by the prosecution. It is to be determined, as to whether, it was essential for the Public Prosecutor for the State, to examine each and every prosecution witness. In my considered opinion, it was not necessary for the Public Prosecutor for the State, to examine each and every prosecution witness, cited in the list of witnesses. It was for the Public Prosecutor for the State, to decide, as to how many witnesses, he wanted to examine, to prove his case. Since the Public Prosecutor for the State, was satisfied that the evidence of Amarjit Singh, injured, and Jaswinder Singh, eyewitness, was sufficient to prove the case of the prosecution, he did not examine Jasmail Singh. There was no necessity to multiply the number of the prosecution witnesses on the same point. In State of U.P. Vs. Anil Singh, AIR 1988 Supreme Court 1998, the principle of law, laid down, was to the effect, that it was not correct approach to reject the prosecution version, merely on the ground that all the witnesses to the occurrence, were not examined. In Makhan Singh and others Vs. State of U.P. AIR 1994, Supreme Court, 1443, the principle of law, laid down, was to the effect, that failure, on the part of the prosecution, to examine the other direct witnesses, could not prove fatal to its case. In Hardev Singh Vs. Harbej Singh, 1997, Judgments Today (1), Supreme Court, 29, the principle of law, laid down, was to the effect, that merely because the other independent witnesses, were not examined, could not be a ground to discredit the evidence of two eye witnesses, who were examined in that case. The Criminal Appeal No. 249-SB of 1995 11 principle of law, laid down, in the aforesaid authorities, is fully applicable to the present case. Non-examination of Jasmail Singh, in this case, did not at all affect the merits of the case. In this view of the matter, the submission of the Counsel for the appellants, being without merit, must fail,and the same stands rejected. 15. It was next submitted by the Counsel for the appellants, that Jagjit Singh @ Jaggi, accused, was falsely implicated, in the instant case. She further submitted that the trial Court, was wrong, in recording his conviction, and awarding him sentence. The submission of the Counsel for the appellants, in this regard, appears to be correct. No injury was attributed to Jagjit Singh @ Jaggi, accused, on the person of the injured. He was only attributed an exhortation. No other over-tact was also attributed to him, in the commission of crime. It appears that the name of Jagjit Singh @ Jaggi, accused, was mentioned, just with a view to exaggerate the number of the accused. In Tarlok Singh Vs. State of Punjab, 1974, PLR 84 and Kashmira Singh Vs. State of M.P. AIR, 1952, (SC), 159, the principle of law, laid down, was to the effect, that the tendency to include the innocent, with the guilty is peculiarly present, in India, and it is very difficult, for the Court, to guard against this danger. The only real safeguard, against the risk of condemning the innocent, with the guilty, lies in insisting on independent evidence, which in some measures, implicates such accused. The principle of law, laid down, in the aforesaid case, is fully applicable, to the facts of the present case. In the instant case, no independent witness was examined to prove the role allegedly played by Jagjit Singh @ Jaggi, accused, in Criminal Appeal No. 249-SB of 1995 12 the commission of crime. Out of abundant caution, he is required to be given the benefit of doubt. The trial Court, was wrong, in recording conviction, and awarding sentence to Jagjit Singh @ Jaggi. The submission of the Counsel for the appellants, carries substance, and his accepted. 16. No other point, was urged, by the Counsel for the parties. 17. For the reasons recorded above, the appeal filed by Jagmohan Singh, appellant, being devoid of merit, is dismissed. The judgement of conviction, and the order of sentence, rendered by the trial Court, qua Jagmohan Singh, appellant, are upheld. If he is on bail, his bail bonds, shall stand cancelled. 18. The appeal filed by Jagjit Singh @ Jaggi, appellant, is accepted. The judgement of conviction, and the order of sentence, rendered by the trial Court, qua Jagjit Singh @ Jaggi, appellant, are set- aside. He shall stand acquitted of the charge, framed against him. If he is on bail, he shall stand discharged of his bail bonds. If he is in custody, he shall be set at liberty, at once, if not required, in any other case. 19. The Chief Judicial Magistrate, is directed to comply with the judgement, qua Jagmohan Singh, son of Amar Singh, appellant, keeping in view the applicability of the provisions of Section 428 of the Code of Criminal Procedure, and qua Jagjit Singh @ Jaggi son of Hardial Singh, appellant, in accordance with the provisions of law, and submit compliance report within a period of two months. 20. The District & Sessions Judge, is also directed to ensure Criminal Appeal No. 249-SB of 1995 13 that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court. 21. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action. 15.05.2009 (SHAM SUNDER) AMODH JUDGE