Crl. Appeal No.45-DB of 1999 -1- .... IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. …. Crl. Appeal No.45-DB of 1999 Decided on: 18th February, 2008. Uggar Singh and another. … Appellants Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE S. D. ANAND Present:- Mr. A.P.S. Deol, Advocate for the appellants. Mr. Rajesh Bhardwaj, Deputy Advocate General, Punjab for the respondent. … S.D. ANAND, J. Harmel Singh PW1 and Gurtej Singh are real brothers of Gurmel Singh deceased. The last named was the eldest, the next in seniority being Harmel Singh followed by Gurtej Singh. After tethering the cattle on 7.2.1996, Gurmel Singh left for an open site in the fields to be able to answer the call of nature, at about 7 AM. He was closely followed by PW 1 Harmel Singh for that very purpose. Gurmel Singh was in the Panchayat land of which he was a lessee, for purposes of easing himself. At that point of time, the two appellants (Uggar Singh and Harbans Singh (along with the acquitted accused Udey Singh) emerged from the mustard crop field situated nearby. The appellants, who are real brothers inter se, were armed with a Gandhali each.Uggar Singh raised a Lalkara exhorting the other appellant to teach a lesson to Gurmel Singh for getting the water course demarcated. Thereupon, Crl. Appeal No.45-DB of 1999 -2- .... both the appellants gave Gandhali blows on the various parts of body of Gurmel Singh. The appellants fled the spot when Harmel Singh moved to rescue Gurmel Singh. In the meantime, PW 2 Gurtej Singh also reached the spot. The appellants had taken away their weapons of offence while fleeing from the spot. Gurmel Singh succumbed to the injuries at the spot. Harmel Singh left for the police station after leaving Gurtej Singh to guard the dead body. It was enroute that Harmel Singh met the police near the brick kiln of Shadi Ram and made statement Ex.PA, thereby notifying the offence to the police. One year prior to the impugned occurrence, there was a dispute between the parties to the present prosecution. On that count, cross-cases were registered against both the parties. Udey Singh (the acquitted accused) had sustained injuries from the side of one side, while the deceased and his son Sewak Singh had sustained injuries in the course of that very occurrence. Prosecution, in the context of the cross-case and also security proceedings, were pending against both the parties to the present litigation. It is the pendency of that litigation which actuated the appellants to commit the crime, with which they stand charged. PW 1 Harmel Singh, PW 2 Gurtej Singh represent the ocular presentation segment, PW 3 Dr. Jugraj Singh had conducted the post mortem examination on the dead body of Gurmel Singh and had found the following injuries on his person:- “1. Incised wound 4 cm x ½ cm bone deep on left side of forehead, obliquely placed going up and laterally lower end of wound is 2 cms above left eye brow and 7 cms from Crl. Appeal No.45-DB of 1999 -3- .... anterior midline, clotted blood present inside and around the wound. On dissection underlying bone of scull fractured membrane and brain injured. Blood present in cranial cavity. 2. Lacerated wound of 5 cms x 1-1/2 cms bone deep on right side of forehead obliquely placed lower end of wound is 1 cm lateral to outer vanthus of right eye upper end is 4 cm above eye brow and 4 cm from anterior mid line. Clotted blood present inside and around wound O.D. There is cummuntted fracture of underlying skull bone present. Underlying brain membranes and brain matter lacerated. Blood present in cranial cavity. 3. Incised wound of 1 cm x ½ cm 1 cm lateral and 1 cm below the outer end of left eye brow. Clotted blood present around and in the wound. O.D. fracture of underlying orbital bone present and left eye was injured. Dr. Jugraj Singh had opined that the death of Gurmel Singh had occurred on account of shock and haemorrhage as a result of the above injuries and injury No.3 was sufficient to cause death in ordinary course of nature. He further opined that all the injuries found on the dead body were ante mortem in character. PW 4 C. Mewa Singh and PW5 MHC Karam Singh represented the link evidence and they only tendered their affidavits Ex.PD and Ex. PE respectively. Crl. Appeal No.45-DB of 1999 -4- .... PW 6 Inspector Santokh Singh, then posted as SHO, Police Station Sadar, Mansa, had investigated the case. In the course of the statement under Section 313 Cr.PC, the appellants raised a pure and simple plea of innocence. Ex.DA, copy of judgment dated 24.9.1998 in case State v. Udey Singh, was tendered in to defence evidence. On appraisal of the evidence, the learned Trial Judge exonerated Udey Singh and proceeded to record a finding of conviction qua Uggar Singh and Harbans Singh. The appellants are in appeal. That the parties were on litigating terms and their relations inter- se were not easy is evident from the statements of PW1 Harmel Singh and PW2 Gurtej Singh. This inferential observation is also apparent from a perusal of Ex.DA. We have noticed the strain in the relationship between the parties at the very out set in order to be able to appreciate the factual premise in the back drop thereof. The learned counsel for the appellants criticised the line of reasoning adopted by the learned Trial Judge by indicating the following grievances:- (i) The ocular version is not in accord with the medical evidence because those constituting the former testifies to the effect that the injuries had been caused by a Gandhali which cannot be said to be a sharp edged weapon; whereas the inquest report findings indicate that the injuries found on the person of the deceased were sharp in character. Crl. Appeal No.45-DB of 1999 -5- .... (i) The prosecution plea is only supported by the testimony of relation witnesses and not corroborated by any independent witness. The first plea raised is merely required to be stated to be discarded. Though there can be no manner of doubt that the Investigating Officer did record in the inquest report that the injuries found on the dead body were 'sharp', we cannot lose sight of the fact that the Investigating Officer cannot claim expertise to be able to correctly describe the nature of the injuries. In fact, the inquest report cannot at all be said to be encyclopedia of the entire gammut of the prosecution plea. The nature of injuries can be indicated only by the Medical Officer who has the required expertise in the context. The learned defence counsel, in that context, argued that the matter deserves a favourable disposal in favour of the appellants in view of the testimony of PW3 Dr. Jugraj Singh that he was not sure whether injury No.1 on the person of the deceased could be caused by Gandhali (Ex.P2) which was shown to him in the Court on the day he was examined. The plea raised is bereft of merit and is oblivious of later part of the cross-examination of Dr. Jugraj Singh who testified that “ Possibility of injury No.3 cannot be ruled as caused by spear Ex.P3.” In that view of the things, it cannot be said that the examining doctor had completely ruled out the causing of injuries with the recovered weapon of offence. For the above reasons we do not find anything significance in the advocated plea. Insofar as the other grievance is concerned, there is no merit in it as well. There is nothing unnatural in Harmel Singh and Gurtej Singh having Crl. Appeal No.45-DB of 1999 -6- .... gone over to the fields in the open to be able to answer the call of nature. They were only following an age old practice adopted by the people in the villages. It is a matter of common observation that, by and large, there is want of toilet facilities in the houses and there also no sewerage facilities in the villages. For that reason, it is compulsive for a particular segment of the population to go out in the morning to evacuate by defecating in the open. In this case too, the deceased and also his two brothers had gone out in the open to defecating at about 7/5.15 AM which obviously is the appropriate time of the day for the purpose aforementioned. No taint, per se, attaches to the testimony of Harmel Singh and Gurtej Singh because they are real brothers of Gurmel Singh deceased. Their presence at the spot is very natural in the given circumstances of the case. There is no law which provides that a prosecution plea resting on the testimony of relation witnesses deserves outright invalidation. All that the law provides is that the testimony of relation witnesses, if not corroborated by any independent witness, would require a little careful examination. If the Court finds their testimony to be reliable, it can record conviction on the basis thereof. We have carefully examined the testimony of Harmel Singh PW1 and Gurtej Singh PW2 and we find, on the touch stone of the above observation, that their testimony inspires confidence and their credit could not be shaken or impeached in the course of the fairly lengthy cross-examination directed at them. In fact, we are of the view that their credentials cannot be doubted as they would be least interested in letting the real culprit escape. They are expected to be accusatory in character vis-à-vis the real culprit only. Crl. Appeal No.45-DB of 1999 -7- .... On point of affirmative evidence adduced by the prosecution, it requires particular notice that the prosecution version was testified on oath by PW 1 Harmel Singh in a very forthright manner. He made a clear deposition about the motive which actuated the appellants to commit the crime with which they stand charged. It is in his statement that in an altercation over the demarcation of watercourse, Udey Singh (acquitted accused), on the one hand, and deceased Gurmel Singh and his son Sewak Singh, on the other hand, had sustained injuries and cross-cases were registered against them. Apart therefrom, he also averred the pendency of security proceedings against the parties. Thereafter, he informed the Court by means of his testimony that his brother Gurmel Singh was in the process of evacuating in the Panchayati, land, which was on lease with him, when the appellants, both armed with a Gandhali each, emerged from the mustard crop field. Appellant Uggar Singh raised a Lalkara calling upon his co-appellant Harbans Singh to teach a lesson to Gurmel Singh for obtaining demarcation of watercourse. That Uggar Singh gave a Daang wise Gandhali blow on the right eye-brow and Harbans Singh gave a similar blow on the left eye-brow of Gurmel Singh was stated by him. A Raula was raised by Gurmel Singh. Harmel Singh proceeded to rescue him. Gurtej Singh PW2, who reached in the meantime also witnessed the occurrence. It was thereafter that the appellants fled the spot along, with their weapons of offence. PW 1 Harmel Singh was on way to the Police Station when he came across the police party near the brick kiln of Shadi Ram and he made statement Ex.PA, notifying the offence to the police under his signatures. Crl. Appeal No.45-DB of 1999 -8- .... In the course of cross-examination, he was categorical in indicating that the mustard crop fields from out of which the appellants had emerged, were owned by one Jarnail Singh and that the appellants fled towards Mansa Khurd village. He denied, as incorrect, a suggestion that it was a case of blind murder, that the dead body was seen by Jarnail Singh at about 6.00 AM and that it was Jarnail Singh who intimated the recovery of dead body to Major Singh son of Lal Singh, Panch, Labh Singh son of Mehar Singh, Panch and some other respectables. We have been through the cross- examination directed at him and find that nothing whatsoever has appeared in the course thereof to dilute the evidentiary value to be attached to it. The deposition of Harmel Singh PW1 is cemented by that of his brother PW 2 Gurtej Singh. He was also thoroughly cross-examined on every factual aspect averred by him. He did state that deceased Gurmel Singh was earlier an Inspector in the FCI and was posted at Abohar prior to the impugned occurrence. However, he denied that a case under Sections 406,468 and 471 IPC had been registered against him. For want of knowledge, he could not indicate whether Gurmel Singh retired from service or that his services were terminated. We do not find any logic in the tenor of cross-examination directed at him. In the present prosecution, we are called upon only to adjudicate upon the accountability or otherwise of the appellants for having committed the murder of Gurmel Singh. Whether a criminal case had been registered against him or not or whether his services had been terminated or not would hardly have any relevance to the merits of the case. On point of fact, it may be indicated that the appellants did not take any steps to falsify the Crl. Appeal No.45-DB of 1999 -9- .... denial offered by the witness with regard to non-registration of a case under Sections 406,468 and 471 IPC against the deceased. In the course of further cross-examination, the witness conceded that the village Abadi is at a distance of about 3 Killas from the place of occurrence and that none except Gursewak Singh was attracted to the spot on hearing the Raula raised in the course of the impugned occurrence. The learned counsel for the appellants tries to raise a plea of falsity of the prosecution version in view of the fact that it would have been otherwise natural for the co-villagers to get attracted to the spot. The learned counsel is not on a firmer footing when he so argues. As is apparent from the record, the impugned occurrence had taken place in the early hours of the day. The entire occurrence had taken few seconds to culminate. We do not find anything unnatural or abnormal in the fact that no co-villager was attracted to the spot. Apart therefrom, it is to state the obvious that the co-villagers normally refrain from getting involved in a such like controversy, for fear of reprisal and also for fear of annoying the assailant party. Before concluding, our fidelity to the presentation at the bar would require us to notice and deal with the various judicial pronouncements relied upon by the learned counsel for the appellants. Ram Narain Singh v. Jaggar Singh and others, 1975 Supreme Court Cases (Crl.) 571 was relied upon by the learned counsel in support of his argument that a conflict between the prosecution evidence and the medical evidence constitutes a material infirmity which dis-credits the entire prosecution plea. Crl. Appeal No.45-DB of 1999 -10- .... The ruling aforementioned has absolutely no applicability to the facts and circumstances of the present case. In that case, the Court found as a fact that the first informant did not notify the offence to any one in the village in spite of the fact that he was available for quite some time over there. The occurrence had taken place at about 6.30 PM. The first informant left the village for the police station at about 8 PM only. The witness had admitted before the Court that he did not inform anybody in the village regarding occurrence. There was also a finding of fact that the accused in that case threw the cartridges, re-loaded their guns but did not fire again. No pellets were found at the site of the occurrence or embedded in the wall. The re- loading theory was also discarded. The testimony of eye witness Surjit Singh was not believed by holding that “Coming to the evidence of Surjit Singh who has been described by the High Court as a stamped witness as he had been injured by the accused in the course of the occurrence, a careful perusal of his evidence would clearly show that it is replete with inherent improbabilities and full of serious contradictions and meaningful embellishments.” That authority has, thus, no applicability to the facts and circumstances of the present case. Insfoar as Bhola Singh v. State of Punjab, 1999 Supreme Court Cases (Cri) 135 is concerned, that too has no application to the facts of the present case. In that case, the weapon used was a Gandasa and a Ghop which were used only from the blunt side. The Apex Court observed that the normal way in which the Gandasa and Ghop could be used was only from the sharp edged side and not from the blunt side. That authority has no applicability to Crl. Appeal No.45-DB of 1999 -11- .... the facts and circumstances of the present case inasmuch as the evidence in that case was, even otherwise, found unreliable. In the light of the foregoing discussion, we find that the learned Trial Judge had recorded a proper finding which is fully borne out by the evidence on the file. The appeal is accordingly dismissed. ( S. D. ANAND ) JUDGE February 18, 2008. (ADARSH KUMAR GOEL) JUDGE sn