Crl. Appeal No. 513-DB of 2007 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 513-DB of 2007 Date of Decision : February 10, 2009 Gurdeep Singh @ Deepa .... Appellant Vs. The State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Parveen Bhadu, Advocate for the appellant. Mr. S. S. Gill, Addl. A. G., Punjab. * * * L. N. MITTAL, J. : Gurdeep Singh @ Deepa has preferred this appeal to impugn judgment and order dated 07.06.2006 of learned Sessions Judge, Bathinda, whereby the appellant stands convicted under Sections 302 and 450 of the Indian Penal Code (in short – IPC) and sentenced as under :- Under Section 302 IPC Life imprisonment and to pay a fine of Rs.2,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of one year. Crl. Appeal No. 513-DB of 2007 2 Under Section 450 IPC Since the punishment has been awarded under the major offence under Section 302 of the Indian Penal Code, so no separate sentence has been awarded under Section 450 of the IPC. Appellant's mother and co-accused Gurmeet Kaur, however, stands acquitted by the Sessions Judge. Prosecution case in brief is as under :- On 18.03.2003, complainant Balbir Singh, resident of Village Bhai Rupa, was sleeping in his house. He and his wife Balwinder Kaur (since deceased) were sleeping in the courtyard with their younger daughter. Their other three daughters including Veerpal Kaur aged 16-17 years and their only son Chamkaur Singh aged 15-16 years were sleeping in the room. Electric bulb was lighting in the courtyard. At about 11:00 P.M., appellant- Gurdeep Singh @ Deepa, son of Gurmeet Kaur sister of the deceased Balwinder Kaur, came there armed with a sword. Due to commotion, the complainant and his wife woke up. The appellant said that they were feeling ashamed and humiliated because bad character persons had been visiting the house of the complainant. Saying so, the appellant inflicted sword blow to Balwinder Kaur, who raised her right hand to save herself and the blow landed on the fingers. The appellant inflicted second sword blow thrust-wise on the neck of Balwinder Kaur. The sword pierced her neck on left side. Meanwhile, Veerpal Kaur and Chamkaur Singh also came out in the courtyard. The appellant tried to slip away, but was caught by the complainant. However, the appellant managed to free himself and escaped with the sword, but sheath of the sword fell down in the complainant's house. Balwinder Kaur died at the spot. Motive was that the appellant felt that mischievous elements visited the house of the complainant bringing a Crl. Appeal No. 513-DB of 2007 3 bad name. The complainant went to report the matter to the police. On the way, near bridge of minor canal in the area of Village Dialpura, police party headed by SI Harinder Singh, Station House Officer of Police Station Dialpura, met the complainant, who made statement Ex.P-L to Harinder Singh, who made his own endorsement Ex.P-L/1 on it and sent it to Police Station, where on its basis, formal FIR Ex.P-L/2 was recorded. The police party went to the spot with the complainant, who made supplementary statement Ex.P-C that appellant's mother Gurmeet Kaur also accompanied the appellant to the house of the complainant and exhorted the appellant to settle the matter once for all by eliminating the deceased. Dead body of Balwinder Kaur was lying on a cot. SI Harinder Singh prepared inquest report Ex.P-D and sent the dead body for autopsy with application Ex.P-E. A pillow and a gadda (mattress) stained with blood lying on the cot were seized vide memo Ex.P-K. Sheath of sword found at the spot was also seized vide memo Ex.P-J. Statements of witnesses including Veerpal Kaur and Chamkaur Singh were recorded. Rough site plan Ex.P-M was prepared. Dr. Gurmit Kaur conducted post-mortem examination on the dead body and found following injuries :- 1. There was incised wound on left side of neck located one inch below mastoid process and extending upto angle of mandible. The tail of the wound was present on angle of mandible. The size of the wound was 11 cm x 2 cm x 2 cm. Clotted blood was present and the underlying structure was cut. The margins on wound were sharp and wound was elliptical in shape. 2. Incised wound with sharp margins located 5 cm below the first wound and running parallel to it. Crl. Appeal No. 513-DB of 2007 4 Size of wound was 3 cm x .5 cm and it was skin deep. Clotted blood was present. 3. Incised wound with sharp margin present on the dorsam and base of all fore-fingers of right hand. The size of wound 8 cm x .5 cm x .5 cm. Clotted blood was present. The wound on right ring finger was 1 cm deep and its margins were lacerated. The proximal phalanx of right ring finger was fractured. Cause of death was opined to be shock and haemorrhage. Injury no.1 was sufficient to cause death in ordinary course of nature. All the injuries were ante mortem. Sealed parcel of clothes of the deceased given by the doctor was seized by the police vide memo Ex.P-N. The appellant was arrested on 26.03.2003. The appellant, after making disclosure statement (Ex.P-G), got recovered a sword vide memo Ex.P-I in the presence of Nirmal Singh and ASI Malkiat Singh. Sketch (Ex.P-H) of the sword was also prepared. On completion of investigation, the appellant was sent for trial, whereas Gurmeet Kaur was placed in Column No.2, who was also later on summoned as accused on prosecution application under Section 319 of the Code of Criminal Procedure (Cr.P.C.). Charge under Section 302 IPC against Gurdeep Singh and under Section 302 read with Section 34 IPC against Gurmeet Kaur and under Section 450 IPC against both of them was framed. They pleaded not guilty and claimed trial. In support of its case, the prosecution examined eight witnesses. HC Gurcharan Singh (PW-1) tendered his affidavit Ex.P-A in evidence being formal witness. He had taken the dead body for post- mortem examination. Dr. Gurmit Kaur (PW-2) stated about post-mortem Crl. Appeal No. 513-DB of 2007 5 examination of the deceased. ASI Malkiat Singh (PW-3) stated that the appellant, after making disclosure statement, got recovered a sword stained with blood. Veerpal Kaur (PW-4) and complainant Balbir Singh (PW-5) broadly stated according to the prosecution version that the appellant killed Balwinder Kaur by inflicting sword blows. SI Harinder Singh (PW-6) stated about investigation of the case conducted by him. Constable Baljit Singh (PW-7) and HC Karamjit Singh (PW-8) tendered their affidavits being formal witnesses to affirm that the case property was not tampered with. Chamkaur Singh – PW was given up as unnecessary. The appellant in his examination under Section 313 Cr.P.C. denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He alleged that the complainant had borrowed Rs.5,000/- from him and he demanded back the amount and for this reason, he has been falsely implicated. He also stated that he was not present at the time of alleged occurrence and Balwinder Kaur was murdered by the complainant Balbir Singh in connivance with his daughter Veerpal Kaur. In defence, the accused examined Kikkar Singh (DW-1), who stated that on 19.03.2003, at about 08:00 A.M., he visited the house of Shamsher Singh, where both the accused Gurmeet Kaur and Gurdeep Singh met him. It was in Village Phulewala. We have heard learned counsel for the parties and examined the case file with their assistance. The prosecution has led impeccable evidence to bring home the charge against the appellant. The occurrence took place at about 11:00 P.M. on 18.03.2003 at the house of complainant Balbir Singh. Consequently, Balbir Singh and his daughter Veerpal Kaur are natural witnesses. The deceased was wife of the complainant. The complainant reported the matter to the police immediately without any delay. His statement, along with Crl. Appeal No. 513-DB of 2007 6 police endorsement, concluded at 01:30 A.M. i.e. during the night itself and registration of FIR commenced at 01:45 A.M. and concluded at 02:45 A.M. Special report reached the Magistrate at 07:30 A.M. The matter was thus reported to the police very promptly and even special report reached the Magistrate without any delay. Detailed manner of occurrence has been narrated in the FIR and the appellant was also named therein as the sole culprit. The FIR is thus a very valuable piece of evidence. Balbir Singh complainant and Veerpal Kaur both eye-witnesses have fully supported the prosecution case in the witness-box. They have categorically deposed that the appellant came to their house and caused injuries with sword to Balwinder Kaur, who resultantly died. The appellant is son of sister of the deceased and on account of this close relationship, he was not likely to be falsely implicated in the case. In fact, he was the sole accused named in the FIR, although later on, his mother Gurmeet Kaur was also named, who stands acquitted by the trial court. Balbir Singh and Veerpal Kaur are natural eye-witnesses of the occurrence, which took place at their house at 11:00 P.M., where they were sleeping along with the deceased. Their statements are also corroborated by the medical evidence. Even sheath of the sword, used by the appellant to inflict injuries to the deceased, fell at the spot and was seized from there by the police. Blood stained sword was also got recovered by the appellant after making disclosure statement. The witnesses have also stated about motive for the occurrence. Statements of both the eye-witnesses could not be impeached in their cross-examination. Their statements, therefore, inspire confidence and the prosecution evidence is sufficient to prove the guilt of the appellant beyond reasonable doubt. Learned counsel for the appellant contended that motive for the occurrence is not proved and if undesirable elements visited the house of the deceased, her own son and daughter or husband and his brother Nirmal Singh would have opposed the same. The contention cannot be accepted. Crl. Appeal No. 513-DB of 2007 7 The appellant is also a close relative of the deceased being son of her sister. The appellant is also resident of the same village and therefore, appellant felt humiliated on account of aforesaid conduct of the deceased. Moreover, motive pales into insignificance, when there are eye-witnesses of the occurrence. Learned counsel for the appellant next contended that there is a Police Post in Village Bhai Rupa itself and it is not explained why the complainant, instead of reporting the matter in the Police Post in the village itself, proceeded towards Police Station. However, no such specific question was put to the complainant in his cross-examination as to why he preferred to proceed to the Police Station instead of reporting the matter to the police in the Police Post of village itself. In any case, the FIR was lodged very promptly and therefore, the aforesaid contention cannot be accepted. Learned counsel for the appellant next argued that the complainant did not suffer any injury in the occurrence, although he allegedly grappled with the appellant. Reason for the same is not far to seek because the complainant tried to catch the appellant and therefore, the appellant was interested in getting himself released from the grip of the complainant and to escape and was not interested in causing injuries to him, having already achieved his objective of killing the complainant's wife. The appellant succeeded in his mission and escaped and fled away. However, sheath of sword of the appellant was left at the spot on account of grappling. Learned counsel for the appellant also submitted that no blood stained earth was lifted by the police from the spot. This argument has no bearing because it is not even the case of the appellant that the deceased was not killed at the place alleged by the prosecution. The appellant's plea was that the deceased was killed by the complainant and his daughter, but there Crl. Appeal No. 513-DB of 2007 8 is no material on record to substantiate this plea. Moreover, it has come in evidence that the blood had not fallen on the ground, probably because pillow and mattress soaked the blood. The blood stained pillow and mattress were seized by the police. Learned counsel for the appellant also contended that Nirmal Singh – PW, brother of the complainant, was given up. However, Nirmal Singh was not a material witness because he was not eye-witness of the occurrence. He was witness of disclosure statement and recovery of sword at the instance of the appellant, but the same has been proved by ASI Malkiat Singh (PW-3) and SI Harinder Singh (PW-6). Nirmal Singh, therefore, was rightly given up by the prosecution. Learned counsel for the appellant next argued that Chamkaur Singh – PW, son of the deceased, has also been given up and it probablizes the defence version that the complainant and Veerpal Kaur murdered the deceased. The argument is without any substance. Both Veerpal Kaur and Balbir Singh have stepped into the witness-box. They are eye-witnesses of the occurrence and they have deposed against the appellant as per prosecution version. Consequently, it would have been futile to examine Chamkaur Singh as well relating to the same fact. Evidence is to be weighed and not counted. It is the quality and not the quantity of the evidence that matters. It is not imperative for the prosecution to examine all witnesses of the same fact. No particular number of witnesses is necessary to prove a fact, as provided by Section 134 of the Evidence Act. Non- examination of Chamkaur Singh does not give rise to any adverse inference against the prosecution case, when two other eye-witnesses have been examined. Learned counsel for the appellant also contended that the appellant, who was alone, could have easily been over-powered by the complainant and his son Chamkaur Singh and daughter Veerpal Kaur. The Crl. Appeal No. 513-DB of 2007 9 argument cannot be accepted because the complainant did try to over-power the appellant but he succeeded in escaping. The appellant was armed with a sword and had already killed Balwinder Kaur. In these circumstances, Veerpal Kaur and Chamkaur Singh might not have dared to intervene or might not have got opportunity to intervene. Learned counsel for the appellant also submitted that there is contradiction in the statements of HC Gurcharan Singh (PW-1), Veerpal Kaur (PW-4), Balbir Singh (PW-5) and SI Harinder Singh (PW-6) regarding the number of persons, who had gathered at the spot. However, such contradiction regarding trivial and insignificant fact cannot be given any importance in a murder case. The fact as to how many persons gathered after the occurrence is hardly of any significance. Learned counsel for the appellant submitted that no independent witness has been examined although many persons gathered at the spot. The submission is devoid of merit because those persons gathered after the occurrence and had not witnessed the occurrence. It may be highlighted that the occurrence took place at 11:00 P.M. in a village and obviously, people were asleep when the occurrence took place and they were attracted to the spot when alarm was raised. No independent witness had witnessed the occurrence and therefore, no such witness could be examined. Learned counsel for the appellant also contended that it is improbable that the appellant was roaming freely after having committed the murder, so as to be arrested by the police. The argument has no force because the appellant was arrested a week after the occurrence, although SI Harinder Singh has stated that he had been searching for the appellant earlier as well. Learned counsel for the appellant lastly submitted that no complaint was previously made against the appellant regarding any undesirable activity or any threat extended by him to the deceased. Crl. Appeal No. 513-DB of 2007 10 However, it is not the prosecution case that the appellant is a vagabond or a habitual criminal or had earlier threatened the deceased. From the discussion aforesaid, it emerges that the prosecution evidence is cogent and credible and sufficient to establish the guilt of the appellant beyond reasonable doubt. The appeal is thus without any merit and is accordingly dismissed. The appellant, if on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining sentence. ( L. N. MITTAL ) JUDGE February 10, 2009 ( MEHTAB SINGH GILL ) monika JUDGE