Criminal Appeal No.190-DB of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.190-DB of 1998 Date of decision: January 22 ,2008 1. Jagdish Kumar son of Raunki Ram resident of village Patara, District Jalandhar. 2. Surinder Kaur wife of Raunki Ram, resident of village Patara Disrict Jalandhar. .................................appellants. Versus State of Punjab ................................Respondent CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR.JUSTICE SHAM SUNDER Present: Mr.Vinod Ghai,Advocate, for the appellants. Mr. S.S.Bhinder, Additional Advocate General, Punjab for the State. Sham Sunder,J. This appeal is directed against the judgment of conviction dated 4.4.1998, and the order of sentence of the even date, rendered by the learned Sessions Judge, Jalandhar, vide which he convicted, Jagdish Kumar accused/appellant for the offence punishable under Section 302 of the Indian Penal Code and Surinder Kaur accused/appellant for the offence punishable under Section 302 read with section 34 of the Indian Penal Code, and sentenced them to undergo imprisonment for life each, and to a fine of Rs.1000/- each, and in default of fine, to undergo R.I. for one month each. 2. The facts, in brief, are that on 6.11.1996, at about 10.00 a.m.,Ram Asra, complainant, had remonstrated with Surinder Kaur, Criminal Appeal No.190-DB of 1998 2 one of the accused, at her house,situated in the area of village Patara, on account of the reason that her son Jagdish Kumar, the other accused/appellant had cut indecent joke with his sister-in- law,Sunita, on the previous evening i.e.on the evening of 5.11.1996. After doing so, he left for his shop, situated in the area of village Patara, and when reached opposite the Coop. Bank, he saw both the accused following him. While following Ram Asra, they were hurling abuses at him. Ram Asra then stopped on seeing them. At that time, Jagdish Kumar accused/appellant was having a kirtch ( knife) in his hand. On hearing noise, which ensued, Kamaljit Singh , Satnam Singh and Jasvinder Singh, brothers of Ram Asra, complainant, also came to the spot, from their shops. Jagdish Kumar, accused/appellant told Ram Asra that he was going to teach him a lesson, for levelling false allegations, against him. He advanced towards him, with a view to achieve his end, but in the meantime, Jasvinder Singh, his brother, physically intervened to stop him. On this, Surinder Kaur accused/appellant, got flared up, and caught hold Jasvinder Singh of his arms, followed by gripping, as a result whereof, Jagdish Kumar accused/appellant, gave an injury with kirtch ( knife) on the right side of the chest of Jasvinder Singh, upon which he fell down. With a view to save Jasvinder Singh, and also in self-defence, Kamaljit another brother of Ram Asra, caused injuries, with khurpa which he picked up from a nearby shop, on the head of Jagdish Kumar. Thereafter, Jagdish Kumar along with Kirtch ( knife), as well as his mother Surinder Kaur, ran away. When Jasvinder Singh was being taken to Civil Hospital,Jalandhar, after arranging a vehicle, he died. 3. On receipt of slip ( Ex.PF), from the hospital, regarding the death of Jasvinder Singh, Nirmal Singh, Sub Inspector/SHO, Criminal Appeal No.190-DB of 1998 3 Police Station, Sadar Jalandhar, reached there. Ram Asra, complainant-brother of the deceased, was found present there. His statement Ex.PD was recorded by Nirmal Singh, S.I. which was read over and explained to him, and after admitting the same to be correct, he signed it. Endorsement Ex.PD/1, was appended thereon, and the same was sent to the Police Station, for the registration of a case, on the basis of which, FIR Ex.PE was recorded by Shiv Singh, ASI. 4. Thereafter Ex.PC, the inquest report of the deadbody of Jasvinder Singh, in the presence of Makhan Lal and Mohinder Lal , prosecution witnesses, was prepared, by Nirmal Singh, Sub Inspector. Thereafter the deadbody of Jasvinder Singh was handed over to HC Surjit Singh with police request Ex.PB for the purpose of getting post mortem examination conducted. 5. Thereafter, Nirmal Singh, S.I. went to the spot, along with Ram Asra, Kamaljit Singh and Satnam Singh and inspected the same. Nirmal Singh then lifted blood stained earth, which was converted into a parcel, duly sealed with the seal bearing impression 'NS', and taken into possession vide memo Ex.PQ, attested by Kamljit Singh and Ram Asra, prosecution witnesses. He also prepared the site plan Ex.PJ, with correct marginal notes, of the place of occurrence. He recorded the statements of the prosecution witnesses. Before he returned to the Police Station from the spot, he went to the hospital, where Jagdish Kumar, accused, was found admitted. He made an enquiry from the Doctor, vide application Ex.PR, as to whether, accused Jagdish was fit to make a statement upon which, the Doctor opined vide his endorsement Ex.PR/1, that the accused was fit to make statement. He recorded his statement. Thereafter, Nirmal Singh, SI reached the Police Station, and Criminal Appeal No.190-DB of 1998 4 deposited the case property with the MHC with seals intact. 6. Jagdish Kumar, accused, was arrested on 7.11.1996 on his discharge from the hospital. On 7.11.1996, Surjit Singh,Head Constable also produced before Nirmal Singh, S.I., the clothes of the deceased namely, Pant, under-wear (Kacha), under-west (Banyan), and Shirt which were were taken into possession vide memo Ex.PS, after converting the same into a parcel, duly sealed with the seal, bearing impression 'NS'. Parcel of the clothes was deposited with the MHC, with seals intact, and the accused was detained in the lock up in the Police Station. 7. On 9.11.1996 Jagdish Kumar, accused, was interrogated in the presence of ASI Sanjiv Goel, and HC Balkar Singh, as a result whereof, he made a disclosure statement, that he had concealed a khokhri which was stained with blood, in the iron box, lying in a room of his house, which he could get recovered. His disclosure statement, was recorded. He then got recovered the khokhri, in pursuance of his disclosure statement, which was taken into possession vide memo Ex.PN/1 after preparing its sketch Ex.PN/2. Rough site plan of the place of recovery, Ex.PN/3, was also prepared by Nirmal Singh, S.I. The statements of the prosecution witnesses, were recorded. On reaching the Police Station, he deposited the case property with the MHC with seals intact. 8. Surinder Kaur, accused, was arrested on 14.11.1996. During the course of investigation, the place of occurrence was got photographed from the photographer, by Nirmal Singh,S.I. After the completion of investigation, the challan was presented against both the accused for the offence punishable under Section 302 I.P.C. ( against accused Jagdish Kumar) and for the offence punishable under Section 302 read with Section 34 I.P.C.( against accused Criminal Appeal No.190-DB of 1998 5 Surinder Kaur). 9. After the commitment of the case to the Court of Sessions, charge against Jagdish Kumar, accused, for the offence punishable under Section 302 of the Indian Penal Code, and for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code, against Surinder Kaur accused, was framed. The same was read over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 10. The prosecution, in support of its case, examined PW1 Dr. Ashwani Kumar. Medical Officer, Civil Hospital,Jalandhar, who conducted the post-mortem examination, on the deadbody of Jasvinder Singh at 10.20 a.m., on 7.11.1996, found one injury on the middle of left clavicular area. PW2 Dr. Surinder Singh,Medical Officer, Johal Block, Distt. Hoshiarpur, who medicolegally examined Jagdish Kumar, accused, at 12.30 p.m. on 6.11.1996 found three injuries which were declared simple, in nature, after X-ray examination, PW3 Ram Asra, the complainant, PW4 Kamaljit Singh, an eye witness to the occurrence, PW5 HC Surinder Kumar, a formal witness, PW6 HC Balkar Singh, a witness to the recovery of Khokhri Ex.P1, got effected by Jagdish Kumar, accused, in pursuance of his disclosure statement, Nirmal Singh, Sub Inspector, the Investigating Officer PW7, Constable Ram Lubhaya, PW8, and Dr Jasmit Walia, Radiologist, Civil Hospital Jalandhar as PW9. 11. The Public Prosecutor for the State, tendered into evidence Ex.PU, report of the Chemical Examiner, and Ex.PU/1, report of the Serologist and closed the same. 12. The statements of accused under Section 313 of the Code of Criminal Procedure, were recorded, wherein, they were put all the incriminating circumstances, appearing against them, in the Criminal Appeal No.190-DB of 1998 6 prosecution evidence. They pleaded false implication. Jagdish Kumar, accused, in his statement under Section 313 Cr.P.C. stated that during the days of occurrence one Sunita, sister-in-law of Ram Asra, had come to his house. He further stated that house of Ram Asra is in the same lane in which his house is situated and is at a distance of about 10 yards. Ram Asra developed misconceived suspicion, that he had cut a joke with Sunita on 6.11.1996. Ram Asra accompanied by his brother Jasvinder Singh, deceased, and Kamaljit Singh armed with a dang, a handle of Hand Pump and a khurpa, respectively, trespassed into their house. They gave a push and forcibly opened the door. Ram Asra then raised an exhortation that he should be killed and taught a lesson for cutting a joke with Sunita. He further stated that he and his father Raunki Ram entreated them, that they had some misunderstanding, but Ram Asra opened the attack and gave him a dang blow, hitting his head. Jasvinder Singh also gave two blows, with the handle of the hand pump, on his head. He and his father repeated that they had misconception, but they did not desist from causing injuries, and were determined to kill him. He further stated that he then picked up a knife, lying in the kitchen nearby and wielded the same, in order to defend himself, as a result whereof Jasvinder Singh sustained an injury. Thereafter, the assailants went away. It was further stated by him that he was immediately removed to the hospital, by his father, where he was medically examined. He made a report to the Police in the Hospital, but the police had been influenced by Ram Asra, and, as such, it did not take any action, against the aggressors. He further stated that thereafter he filed a complaint against Ram Asra and Kamaljit Singh. That case was committed to the Court of Session and Ram Asra and others were facing trial therein. He Criminal Appeal No.190-DB of 1998 7 further stated that the Police visited their house, and collected knife, from the spot, and avoided to produce the same in the Court. It was further stated that had he not used the knife, Jasvinder Singh and his companions would have killed him. 13. The accused tendered into evidence certified copy of the complaint titled as Raunki Ram V. Ram Asra and others as Ex.DA, and certified copy of the charge sheet Ex.DB. Thereafter they closed the defence evidence. 14. After hearing the Public Prosecutor for the State, Counsel for the accused, and on going through the evidence on record, the learned Sessions Judge, Jalandhar convicted and sentenced the accused, as stated hereinbefore. 15. Feeling aggrieved, against the judgment and order dated 4.4.1998, rendered by the Sessions Judge, Jalandhar, the instant appeal was filed by the accused/appellants. 16. We have heard the learned Counsel for the parties, and have gone through the evidence and record of the case carefully. 17. Learned Counsel for the appellants, at the very out-set, contended that there was inordinate delay, in lodging the FIR, which remained unexplained and, as such, the possibility of concoction of story and false implication of the accused, could not be ruled out. This submission of the learned Counsel for the appellants, is devoid of merit. In the instant case, the date and time of occurrence were admitted, by the accused/appellants, and only the place of occurrence and the mode and manner thereof, were disputed. Once the date and time of occurrence were admitted, delay, if any, in lodging the report paled into insignificance. Even otherwise, there was no delay in lodging the report. The occurrence took place at about 10 a.m. in the area of village Patara, which is at a distance of Criminal Appeal No.190-DB of 1998 8 about six kilometres from Police Station Sadar, Jalandhar. Since the condition of Jasvinder Singh, who had been caused an incised wound 4 cm x 1.5 cm below and lateral to the middle of left clavicular area, with a knife, by Jadish Kumar,appellant, was very precarious , immediately a vehicle was arranged and he was taken to Civil Hospital,Jalandhar. PW2 Dr. Surinder Singh, who was posted as Medical Officer, Civil Hospital, Jalandhar at the relevant time stated that the deadbody of Jasvinder Singh was received in the hospital at 11.45 a.m. on 6.11.1996. As stated above, Jasvinder Singh died while he was being taken to Civil Hospital,Jalandhar. It means that the deadbody of Jasvinder Singh reached Civil Hospital,Jalandhar within one hour and fourty five minutes of the occurrence. Since Jasvinder Singh, brother of the complainant and Kamaljit Singh had died, they must be completely perturbed and puzzled. After the death, the brothers of the deceased were to inform their relatives. As soon as the deadbody of Jasvinder Singh reached Civil Hospital,Jalandhar, slip Ex.PF bearing time 11.45 a.m.was sent to the Police Station, on receipt whereof Nirmal Singh, S.I. came there and recorded the statement of Ram Asra on the basis whereof, FIR at 2.25 p.m. was registered. The delay, if any, therefore, stood duly explained, from the aforesaid circumstances. Even otherwise, it is settled principle of law, that mere delay in lodging the FIR, is not sufficient to throw away the case of the prosecution. In the case of unexplained delay, in lodging the FIR, the court is put on guard to scrutinise the evidence of the prosecution witnsses carefully and cautiously and after such scrutiny, if it comes to the conclusion that the same does not suffer from any serious infirmity, the same can be relied upon. The statements of PW3 Ram Asra and PW4 Kamaljit Singh have been carefully and cautiously scrutinised. They stood Criminal Appeal No.190-DB of 1998 9 the test of touch-stone of all probabilities, during the course of their cross-examination. Their evidence is cogent, convincing, reliable and unimpeachable. In these circumstances, the possibility of concoction of story or false implication of the accused could be completely ruled out. The submission of the Counsel for the appellants,therefore, stands rejected. 18. It was next contended by the learned Counsel for the appellants, that the presence of Kamaljit Singh and Satnam Singh, at the time of occurrence, was highly doubtful. He further submitted that the shop of Kamaljit is 30/35 karams away from the place of occurrence, and in between there is bus stand, whereas, the shop of Satnam is at a distance of 15-20 karams, from the place of occurrence. He further submitted that, in these circumstances, they could not reach the place of occurrence, at the time the incident took place. The submission of the learned Counsel for the appellants, in this regard, is also not correct. The occurrence, as is proved, from the evidence of Ram Asra PW3, Kamaljit Singh PW4 and Nirmal Singh PW7, Investigating Officer, took place near the Cooperative Bank, in village Patara. Patara is a small village. On hearing the noise, as stated by Ram Asra, Kamaljit Singh, Jasvinder Singh and Satnam Singh, his brothers, reached the spot. It was not difficult for them to reach the spot from their nearby shops, as soon as they heard noise. Ram Asra ,as stated above, had gone to the house of Surinder Kaur on 6.11.1996, at about 9.45 a.m., to lodge a protest against Jagdish Kumar, one of the appellants, that he had cut a obscene joke with Sunita, his sister-in-law, and after lodging the same, when he proceeded towards his shop,both the accused followed him, hurling abuses at him. Ram Asra and Kamaljit Singh, the prosecution witnesses were thoroughly cross-exmained, but Criminal Appeal No.190-DB of 1998 10 nothing of consequence could be got elicited from their mouth which may go to establish the non presence of the latter and Satnam Singh at the time of occurrence. Nodoubt, minor discrepancies, crept in their statements, but they are not connected with the actual occurrence leading to the death of Jasvinder Singh, deceased. In these circumstances, the submission of the learned counsel for the appellants that the presence of Kamaljit Singh and Satnam Singh, at the time of occurrence was doubtful, being devoid of merit, stands rejected. 19. It was next submitted by the learned Counsel for the appellants, that there was no motive with the accused/appellants to cause injury on the person of Jasvinder Singh. He further submitted that on the other hand motive lay with the complainant party, to cause injuries on the person of the accused. The submission of the learned Counsel for the appellants, in this regard, also does not appear to be correct. The motive is a double edged weapon. It is proved from the evidence discussed above, that on 6.11.1996 at about 9.45 a.m. Ram Asra had gone to the house of Surinder Kaur, one of the appellants, who is the mother of Jagdish Kumar, the other appellant, to lodge a protest against the latter, on the ground that he had cut an indecent joke on 5.11.1996 with his sister-in- law, Sunita. The accused /appellants were of the view that a false allegation, had been levelled against Jagdish Kumar. They felt insulted, on account of the alleged false allegation levelled against Jagdish Kumar, by Ram Asra. In this view of the matter, with a view to teach a lesson and take revenge, both the appellants followed Ram Asra, immediately after he lodged the protest and when he reached near Coop. Bank, in the area of village Patara, an injury with kirtch (knife) was caused on the chest of Jasvinder Singh by Criminal Appeal No.190-DB of 1998 11 Jagdish Kumar, appellant, which proved fatal, whereas, Surinder Kaur, facilitated causing of this injury, by holding Jasvinder Singh of his arms from behind, and gripping him. In these circumstances, there was a motive with the appellants, to cause injuries on the person of Ram Asra and his brother,Jasvinder Singh deceased. The submission of learned Counsel for the appellants, therefore, stands rejected. 20. It was next submitted by the learned Counsel for the appellants, that the occurrence,in fact, had taken place, in the house of the appellants and not in the Bazar near the Coop. Bank, village Patara, as alleged by the prosecution. He further submitted that the complainant party was the aggressor. He further submitted that the prosecution suppressed the genesis of the occurrence and, as such, its case was highly doubtful. The submission of the learned Counsel for the appellants, in this regard, does not appear to be correct. It is proved from the evidence of Ram Asra PW3, and Kamajjit Singh PW4, that the occurrence took place in the Bazar, in the area of village Patara, near Coop. Bank. The blood stained earth was also lifted therefrom by Nirmal Singh, Sub Inspector. For establishing, as to which party was the aggressor and which party was the aggressive, the motive for the occurrence,the nature of the injuries caused, the weapon used for causing the same; part of the body on which the injuries were caused; which party reached the hospital, first in point of time; and which party lodged the report, first in point of time, are required to be taken into consideration . As stated above, the motive was with the appellants, to cause injuries, on the person of Ram Asra and his brothers. The injury which was caused on the person of Jasvinder Singh ( now deceased), brother of Ram Asra was described by Dr.Ashwani Kumar PW1, as under : Criminal Appeal No.190-DB of 1998 12 “ 1. Incised wound 4 x 1.5 cm below and lateral to the middle of left clavicular area. Wound was 3 cm below the left clavical. It was going medially, downward and posteriorly. On further exploration and dissection of the wound underlyhing fascia, muscle were found cut in the third intercostal space. On dissection and exploration of thoraxic cavity ,it was found that the chest was full of blood. Apax of the left lung found cut which was through and through piercing the vessles connecting the lung to the heart. Plaura was found cut. Both the chambers of the heart were found empty. Stomach was healthy and contained semi-digested food material approximately 10 ML. Small intestines, large intstines liver, and all other organs were healthy.” The doctor also opined that the cause of death, in this case, was shock and haemorrhage due to the injury described, which was sufficient to cause death, in the ordinary course of nature. He also opined that the injury was ante-mortem in nature. The injury aforesaid caused extensive damage to the left lung which was found cut.It proved fatal to the life of Jasvinder Singh. The same was caused on the vital part of the body of Jasvinder Singh ( now deceased). The weapon used in this case was kitrch/knife/khokhri, Ex.P1. The deadbody of Jasvinder Singh, was taken to the hospital, and reached there at 11.45 am. i.e. within the shortest possible time of the occurrence. Jagdish Kumar,accused/appellant, however, reached Civil Hospital,Jalandhar at 12.15 p.m. and was medicolegally examined at 12.30 p.m. as stated by Dr. Surinder Criminal Appeal No.190-DB of 1998 13 Singh, Medical Officer, PW2.It means that the deadbody of Jasvinder Singh deceased reached Civil Hospital, Jalandhar, prior in time, than the arrival of Jagdish Kumar appellant. The statement of Ram Asra, was recorded, by Nirmal Singh, Sub Inspector, in the hospital, and ultimately, the FIR was recorded at 2.25 p.m.wheras the statement of Jagdish Kumar was recorded much later. Had Ram Asra and his brothers, Jasvinder Singh,and Kamaljit Singh gone to the house of the appellants to cause injuries, on their person, they would not have gone there empty handed. In those circumstances, they would have caused very serious and grievous injuries, on the person of Jagdish Kumar, and would have made an attempt to kill him as the honour of a lady, especially, in the State of Punjab, is very dear to his near relations. It has come, in the evidence, that Kamaljit Singh, brother of Ram Asra, only picked up a Khurpa, from the shop nearby the place of occurrence, and caused injuries, on the person of Jagdish Kumar, appellant, which landed on his head, but were declared simple, in nature, after X-ray examination by Dr. Surinder Singh PW2. Not only this, the accused/appellants, filed a criminal complaint, with regard to the version set up by them, in their statements u/s 313 Cr.P.C. Copy of the complaint is Ex.DA, whereas, copy of the charge sheet is Ex.DB. The Counsel for the appellants, at the time of arguments, conceded that Ram Asra and others, accused, in the cross-complaint referred to above, were acquitted. It means that the version set up by the accused, in their statements u/s 313 Cr.P.C., was not believed by the Court. The aforesaid factors,therefore, clearly proved that the accused were the aggressors, and the complainant party was only the aggressive. In these circumstances, the aggressors could not seek the right of private defence of their body. There was no suppression Criminal Appeal No.190-DB of 1998 14 of genesis of the occurrence. In this view of the matter the submission of the learned Counsel for the appellants stands rejected. 21. It was next submitted by the learned Counsel for the appellants, that the injuries on the person of Jagdish Kumar were not explained by the complainant party. It may be stated here, that it is not the law that, in each and every case, in which the accused sustained injuries, in the same occurrence, the same are required to be explained, by the prosecution witnesses. In the instant case, as stated above, there were only three lacerated wounds, no doubt, on the head of Jagdish Kumar, but the