Criminal Appeal No.754-DB of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Kewal Singh APPELLANT VERSUS State of Punjab RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE L.N.MITTAL Present:- Shri O.P.Hoshiarpuri, Advocate for the appellant (in Cr.A.754-DB of 2006). Shri S.S.Tiwana, Advocate for the appellant (in Cr.A.806-DB of 2006). Shri Gurinderjit Singh, Advocate (Amicus Curiae) (in Cr.A.57-DB of 2007). Shri S.S.Gill, Additional A.G. Punjab. MEHTAB S.GILL, J. We will be deciding Criminal Appeals No.754-DB of 2006, 806-DB of 2006 and 57-DB of 2007 by this common judgment, as they arise out of the same judgment/order dated 23.9.2006 of the learned Sessions Judge, Ferozepur whereby he convicted Kewal Singh son of Pritam Singh, Jasvir Singh son of Swaran Singh, Dharam Pal son of Sukh Ram and Ram Avtar son of Bhullar Criminal Appeal No.754-DB of 2006 -2- Parshad under Sections 302/34 I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs.5000/- each, in default, to further undergo RI for one year each. The case of the prosecution is unfolded by the statement Ex.P1 of Lal Chand given to Inspector Manvinder Singh at Malout Chowk, Abohar, on 11.4.2003 at 8.15 a.m. Lal Chand stated that he has 5 brothers. All are married. He along with his brother Sheesh Pal were running nurseries at Abohar. Flowers and plants were being planted and sold by them. His nursery was on Sito Road adjacent to the nursery of his brother Sheesh Pal which was located at Hanumangarh road, bye-pass chowk. Both he and his brother used to come from Village Ramsara together to look after their nurseries. On 10.4.2003 they got late and both the brothers stayed at the nursery of Sheesh Pal. Sheesh Pal went to a nearby quarter of the water works department. Ram Avtar son of Bhuller Parshad, Kewal Singh son of Pritam Singh, Jasvir Singh son of Sarwan Singh and Dharam Pal son of Sukh Ram were sitting there. The above said four persons started abusing him. Lal Chand went towards the quarters after hearing the noise. Accused were abusing Sheesh Pal. Lal Chand took his brother Sheesh Pal back to the nursery. At about 11 p.m. in the night, Ram Avtar armed with an axe, Kewal Singh armed with a stick, Jasvir Singh and Dharam Pal empty-handed came to the nursery of Sheesh Pal and started abusing him. Lal Chand tried to stop them. They started beating Sheesh Pal. Ram Avtar gave axe blows to Sheesh Pal which hit him on his head and chin. Kewal Singh gave stick blows to Sheesh Pal which hit him on his left hand, right arm, shoulder and back. Jasvir Singh and Dharam Pal gave blows with clinched fists to Sheesh Pal. Sheesh Pal fell down in the nursery. Thereafter he was dragged by the above named persons. Lal Chand raised an alarm. All the accused then ran away hurling abuses. It being a public square (Chowk), bright lights were on and the occurrence was witnessed very Criminal Appeal No.754-DB of 2006 -3- easily. Lal Chand brought his brother Sheesh Pal near the thatched hut by carrying him where he died. Lal Chand did not go anywhere in the night due to fear. At 5 p.m. on 11.4.2003 Lal Chand's father Khiali Ram came to the nursery and enquired about the occurrence. On seeing his son dead, he went back to Village Ramsara and brought more persons. The motive for the commission of the offence was that Ram Avtar suspected that Sheesh Pal was having illicit relations with his sister. On the basis of this statement, F.I.R. Ex.P.1/B was recorded on 11.4.2003 at 8.20 a.m. at Police Station, Abohar. The special report was handed over to the J.M.I.C., Abohar on the same day i.e. 11.4.2003 at 11 a.m. The prosecution to prove its case, brought into the witness-box Lal Chand PW-1, Sahib Ram PW-2, Chander Kumar PW-3, Satish Kumar PW-4, Dr.G.S.Kalra PW-5, HC Jiwan Singh PW-6, Inspector Manwinder Singh PW-7, Constable Krishan Lal PW-8, Ashok Kumar PW-9, HC Nishan Singh PW-10 and Sub Inspector Darshan Singh PW-11. DW-1 Rakesh Aggarwal, S.P. City-I, Ludhiana was examined in defence. Learned counsel for appellant Ram Avtar has argued, that it is a case of blind murder. Lal Chand PW-1 was not present when the occurrence had taken place. If he had been present there, he would have come forward to save his brother Sheesh Pal. It was not that both the brothers were not on good terms. The motive for the commission of the offence is frivolous. Deceased Sheesh Pal would not have dared at 11 p.m. in the night to go to the house of appellant Ram Avtar to meet his sister. He could have met her any time during day time when appellant Ram Avtar was away for work. Police Station City, Abohar was just 1 km. away from the place of occurrence. It was the month of April. The occurrence had taken place in the town of City Abohar. A number of persons would have been still there on the road at that time. If complainant Lal Chand Criminal Appeal No.754-DB of 2006 -4- PW-1 had seen the occurrence and had recognised the appellants, he would have gone to the police station which was only 1 km. away. Appellant Ram Avtar and complainant Lal Chand PW-1 lived close by, appellants would not have spared Lal Chand PW-1 and he would have also been eliminated, so that there was no eye- witness. There is an unexplained delay of 12 hours in the special report reaching the J.M.I.C., Abohar. Learned counsel for appellant Kewal Singh has argued, that injury attributed to Kewal Singh is that he gave stick blows on the left hand, right arm, shoulder and back of the deceased. The stick being only 1 foot long. As per the post-mortem report, there are no injuries on the left hand and back of the deceased. The medical evidence does not corroborate the ocular account. Learned counsel has also adopted the arguments put forward by the counsel for appellant Ram Avtar. Similarly, learned counsel for appellants Jasvir Singh and Dharam Pal after adopting the arguments of learned counsel for appellant Ram Avtar, has added that all that has been attributed to appellants Jasvir Singh and Dharam Pal is that they gave fist and kick blows, but it is not mentioned as to where and on which part of the body of the deceased kick and fist blows were given. The post- mortem report does not show fist or kick blow injuries. There is no motive for appellants Jasvir Singh and Dharam Pal to have gone to the place of occurrence in the night. There was no enmity between them and the deceased. Learned counsel has further argued that as per the investigation done by DW-1 Shri Rakesh Aggarwal, S.P. City-I, Ludhiana, appellants Jasvir Singh, Dharam Pal and Kewal Singh were found innocent, but were summoned under Section 319 Cr.P.C. by the learned trial Court. Learned counsel for the State has argued, that there is no delay in lodging of the F.I.R. Father of the deceased Shri Khiali Ram came in the morning Criminal Appeal No.754-DB of 2006 -5- and it is thereafter that Lal Chand PW-1 got the courage to go to the police station and report the matter to the police. Even if we see the timing of the occurrence which took place on 10.4.2003 at 11 p.m., the F.I.R. was recorded at Police Station City, Abohar on 11.4.2003 at 8.20 a.m. It was natural for Lal Chand PW-1 not to go out, he being not a local, as they being not locals, but outsider. Out of fear, he did not leave the hut, lest the appellants may attack him also. The motive for the commission of the offence that Sheesh Pal was having illicit relations with the sister of Ram Avtar, is very strong. They were living near each other and this is the reason that Appellant Ram Avtar along with other appellants attacked deceased Sheesh Pal. We have heard the learned counsel for the parties and perused the record with their assistance. F.I.R. Ex.P1/B is very prompt and this itself goes a long way in proving the case of the prosecution. It gets corroboration from the statement of Lal Chand PW-1, who is brother of the deceased and an eye-witness to the occurrence. The occurrence took place on 10.4.2003 at 11 p.m. when appellant Ram Avtar armed with a Kulhari came to the nursery of the deceased and after abusing him gave axe blows on his head and chin from the sharp side. Out of fear Lal Chand PW-1 did not go out as rightly put by the learned counsel for the State that he was not a resident of the town, but used to come daily from Village Ramsara, and thus was afraid lest he also be injured. It is on the next day that his father Khiali Ram came that Lal Chand PW-1 went to Police Station City, Abohar, to lodge a report, S.H.O. Manvinder Singh PW-7 met him at Malout Chowk and recorded his statement on 11.4.2003 at 8.15 a.m. On the basis of this statement F.I.R., Ex.P1/B came into existence on the same day at 8.20 a.m. and the special report reached the safe hands of the J.M.I.C., Abohar on 11.4.2003 at 11 a.m. Promptness in lodging of the F.I.R. qua Ram Avtar goes a long way in proving the Criminal Appeal No.754-DB of 2006 -6- case of the prosecution. Going through the medical evidence and the statement of Dr.G.S.Kalra PW-5, the following injuries were found on the person of the deceased :- (1) Reddish blue contusion 10 x 8 cm on the right leg on front just below the knee joint. There was an abrasion 3 cm x 1.5 cm overlying the contusion. (2) Reddish bluish contusion 12 x 8 cm on the front of mid thigh on right side. (3) Reddish bluish contusion 8 x 7 cm on the back of the right fore-arm on its upper part. Overlying was an abrasion 3 x 1.5 cm over the contusion. (4) Abrasion 2 x 1 cm on the back of the right elbow joint. (5) Reddish contusion 8 x 6 cm on the top of the right shoulder joint. (6) Incised wound 1.5 x .5 cm on the left thumb at the interphalngial joint. (7) Abrasion 6 x 5 cm on the back in the lumber region. (8) Incised wound 3 x 0.75 cm x bone deep on the left side of the chin. On dissection the underlying bones were fractured. (9) Incised wound 1 x 0.5 cm x bone deep on the back of the right pinna of the ear of the head. On dissection the underlying bone was fractured. (10) Incised wound 5 x .75 cm into bone deep on the left side of the head, 7 cm from the midline of the head, and 2 cm from the hair line. On dissection the underlying bone was fractured. Membrane of the bone were cut and brain tissue was also Criminal Appeal No.754-DB of 2006 -7- incised. There was collection of blood in the skull. All the injuries were ante-mortem in nature. From the medical evidence we find that injuries No.1,2,3 and 5 are contusions. Injuries No.4 and 7 are abrasions. Injuries No.6,8,9 and 10 are incised wounds, these are the injuries which have been caused by appellant Ram Avtar as he wielded his Kulhari Ex.P.18 on the person of the deceased Sheesh Pal. The injuries, i.e. contusion and abrasions, are of a minor nature which could be caused at the time when Lal Chand PW-1 picked up his brother Sheesh Pal and took him near the hut. Lal Chand PW-1 did not go in the night to the police station, as he feared that appellant Ram Avtar who had already murdered his brother, may be waiting for him also to come out from the nursery. This is the natural instinct of a human being. The motive for the commission of the offence is that appellant Ram Avtar suspected deceased Sheesh Pal of having illicit relations with his sister. Both lived closeby. Learned counsel for appellants Kewal Singh, Jasvir Singh and Dharam Pal have rightly argued that there was no motive for these three appellants to have committed the murder of Sheesh Pal. The stick injuries attributed to appellant Kewal Singh are not corroborated by the medical evidence. As per the statement of Lal Chand PW-1 and as per what he has stated in the F.I.R. Ex.P.1/B, appellant Kewal Singh gave stick blows on the right hand, right arm, shoulder and back of the deceased. If we go through the injuries, there is no injury on the left hand or back of the deceased. Injury No.3 is a reddish contusion on the right fore-arm. This injury is also of a minor nature which as already stated above, could be caused when Lal Chand PW-1 was pulling his brother into the hut. Similarly, appellants Jasvir Singh and Dharam Pal were empty-handed. If they did want to be a party with appellant Ram Criminal Appeal No.754-DB of 2006 -8- Avtar in the murder of Sheesh Pal, they would have definitely been armed with some weapon. It has come in the evidence of Lal Chand PW-1 that Ram Avtar dragged Sheesh Pal. Abrasions and contusions could have also been caused by the dragging of the deceased by appellant Ram Avtar and by Lal Chand PW-1 who took the deceased into the hut. Shri Rakesh Aggarwal, S.P. City-I, Ludhiana who appeared as DW-1, has stated in his testimony that vide Zimni No.8 dated 25.5.2003, he declared accused Dharam Pal, Jasvir Singh and Kewal Singh to be innocent. He recorded the zimni after the Investigating Officer investigated the case on the spot and he himself was satisfied with the investigation. This aspect cannot be overlooked that a senior police officer has exonerated appellants Jasvir Singh, Dharam Pal and Kewal Singh. Dharampal, Jasvir Singh and Kewal Singh were put in column No.2 of the challan, but were summoned by the learned trial Court under Section 319 Cr.P.C. From the above discussion, it is clear that appellants Kewal Singh, Jasvir Singh and Dharam Pal have unnecessarily been roped into the case. They are given the benefit of doubt and are acquitted of all the charges framed against them. From the above discussion, it is clear that appellant Ram Avtar alone has committed the murder of Sheesh Pal. Criminal Appeal No.754-DB of 2006 filed by Kewal Singh son of Pritam Singh and Criminal Appeal No.806-DB of 2006 filed by Jasvir Singh son of Swaran Singh and Dharam Pal son of Sukh Ram are accepted. Criminal Appeal No.57-DB of 2007 filed by Ram Avtar son of Bhullar Parshad is dismissed. If on bail, Ram Avtar is directed to surrender before Criminal Appeal No.754-DB of 2006 -9- the C.J.M., Ferozepur, so that he could undergo the remaining part of his sentence. ( MEHTAB S.GILL ) JUDGE ( L.N.MITTAL ) February 4, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO