Crl. Appeal No. 29-DB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 29-DB of 2000 Date of Decision : January 14, 2009 Baljinder Singh and others .... Appellants Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. A.P.S.Deol, Senior Advocate with Mr. Devinder Bir Singh, Advocate for the appellants. Mr. Satinder Singh Gill, Senior DAG, Punjab. * * * L. N. MITTAL, J. : Challenge in the instant criminal appeal preferred by Baljinder Singh, his son Gursaran Singh and one Mangal Singh is to the judgment of conviction and order of sentence both dated 02.12.1999 passed by learned Additional Sessions Judge, Mansa, whereby the appellants stand convicted under Section 302 read with Section 34 of the Indian Penal Code (in short – IPC) and sentenced to undergo rigorous imprisonment for life and to pay fine of Rs.1,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for one month. Crl. Appeal No. 29-DB of 2000 2 In nut shell, the prosecution case is as under :- On 29.01.1998 at about 04:00 P.M., Nachhattar Singh (since deceased) was harvesting janwi crop in his field in Village Behniwal, whereas his brother Labh Singh was mending the water channel. Baljinder Singh, Gursaran Singh armed with gandasas and Mangal Singh armed with hockey stick came there and inflicted gandasa blow from sharp side on head and legs of Nachhattar Singh, whereas Mangal Singh fractured both arms of Nachhattar Singh with hockey. Labh Singh was attracted to the spot. Thereupon all the three accused ran away. Motive for the occurrence was that about six months prior to the occurrence, Baljinder Singh had gone to the wife of Mithu Singh (brother of the deceased) and thereupon Baljiinder Singh was beaten by the complainant party. Nachhattar Singh in serious condition was removed to Civil Hospital, Mansa by his brother Labh Singh. Dr. Suresh Kumar medico-legally examined the injured Nachhattar Singh, who was irritable and crying with pain. Pulse and blood pressure were unrecordable. Skin was cold and calmly. Pupils bilaterally equal and light reflects were present. Fourteen injuries were found on the person of Nachhattar Singh. Injuries no.6 to 9, 11 and 12 were caused with sharp edged weapon and the others with blunt weapon. Injuries no.3 and 5 were grievous. Injuries no.6 and 7 were simple. Injury no.14 was kept under observation. Other injuries were subjected to X-ray examination. SI Joga Singh of Police Station Sadar Mansa happened to be present in Civil Hospital, Mansa for some official duty. He received information regarding admission of Nachhattar Singh in hospital in serious injured condition. Joga Singh made application Ex.P-B at 07:45 P.M., on which Dr. Suresh Kumar gave opinion Ex.P-B/1 that Nachhattar Singh was fit to make statement. Joga Singh then made application Ex.P-C to the doctor for recording statement of Nachhattar Singh in the presence of doctor. The doctor allowed the request vide endorsement Ex.P-C/1. Thereupon Joga Crl. Appeal No. 29-DB of 2000 3 Singh recorded statement Ex.P-D of Nachhattar Singh, on which doctor made endorsement Ex.P-D/1 at 08:00 A.M. that the said statement was recorded in his presence. Joga Singh then made endorsement Ex.P-D/2 at 08:10 A.M. and sent the statement to Police Station Jaurkian, where on its basis, FIR Ex.P-D/3 was registered at 10:30 P.M. under Section 307/34 IPC. Meanwhile, Nachhattar Singh died at 10:15 P.M. Thereupon, offence was converted to that under Section 302 IPC. SI Kaka Singh, Station House Officer of Police Station Jaurkian reached the hospital at Mansa at about 01:00 A.M. during the night. Next day, he prepared inquest report Ex.P-F and sent the dead body for post-mortem examination. Dr. Tejinder Pal Singh conducted post-mortem examination on the dead body and found 14 injuries including fracture both bones left leg, fracture right tibia, fracture left humorus and fracture clavical. Cause of death in the opinion of the doctor was shock and haemorrhage on account of aforesaid injuries which were ante mortem and sufficient to cause death in ordinary course of nature. SI Kaka Singh went to the place of occurrence and prepared rough site plan Ex.P-T. A broken hockey and a broken sickle were seized from the spot vide memo Ex.P-J. Blood stained earth was also lifted from the spot vide memo Ex.P-H. Statements of witnesses were recorded. Labh Singh eye- witness corroborated the statement Ex.P-D made by the deceased. All the three accused were arrested on 06.02.1998. Accused Baljinder Singh and Gursaran Singh, on 08.02.1998, after making disclosure statements Exs.P-K and P-L respectively, got recovered a gandasa each, vide recovery memos Exs.P-M and P-R. Site plans Exs.P-U and P-V of the places of recovery were also prepared. Prior to the occurrence, on 18.06.1997, ASI Surjit Singh had recorded statements of Mithu Singh and Balwinder Singh vide Daily Diary Reports Exs.P-X and P-Y respectively regarding the incident in which Baljinder Singh and Sukhwinder Singh on 17.06.1997 had entered the house of Mithu Singh (brother of the deceased) and threatened them and Crl. Appeal No. 29-DB of 2000 4 in the ensuing quarrel, both parties suffered injuries. Mithu Singh and his father Chuhar Singh and brother Ram Singh suffered injuries and in self- defence, injuries were also caused to Baljinder Singh and Sukhwinder Singh and compromise was effected on 18.06.1997 regarding that incident and as per compromise, Sukhwinder Singh even paid Rs.10,000/- to Mithu Singh etc. for treatment of their injuries. On completion of investigation, all the three accused were sent for trial. Charge under Section 302 read with Section 34 IPC was framed against all the three accused. They pleaded not guilty and claimed trial. In support of its case, the prosecution examined eight witnesses. Dr.Suresh Kumar PW-1 stated about medico-legal examination of Nachhattar Singh and also that he gave opinion Ex.P-B/1 on police application Ex.P-B that Nachhattar Singh was fit to make statement. He also stated that he allowed police request Ex.P-C vide endorsement Ex.P- C/1 to record statement of Nachhattar Singh and thereupon SI Joga Singh recorded statement Ex.P-D of Nachhattar Singh in the presence of the doctor, who also appended his certificate Ex.P-D/1 below it to the effect that the statement was recorded in his presence. Nachhattar Singh was conscious while making the said statement. Nachhattar Singh died at 10:15 P.M. on 29.01.1998. Dr. Tejinder Pal Singh PW-2 stated about post mortem examination of the deceased. Head Constable Harbans Singh PW-3 tendered his affidavit Ex.P-G being formal witness. SI Joga Singh PW-4 stated that he recorded statement Ex.P-D of injured Nachhattar Singh after obtaining opinion Ex.P-B/1 of the doctor and sent the statement to the police station with endorsement Ex.P-D/2. Labh Singh PW-5 made statement according to the prosecution version that all the three accused had caused injuries to the deceased with gandasas and hockey stick. He also stated about motive for the occurrence. He removed the injured Nachhattar Singh to hospital where Nachhattar Singh died at about 10:15 P.M. He also Crl. Appeal No. 29-DB of 2000 5 participated in inquest proceedings and accompanied the police to the spot. He also stated about recovery of gandasas at the instance of Baljinder Singh and Gursaran Singh in pursuance of their disclosure statements. HC Kuldip Singh PW-6 produced roznamcha dated 18.06.1997 of Police Station Jaurkian, from which ASI Surjit Singh PW-8 proved Daily Diary Reports Exs.P-X and P-Y dated 18.06.1997 regarding compromise between Mithu Singh and Baljinder Singh. SI Kaka Singh PW-7 stated about investigation of the case conducted by him. On completion of evidence, the accused were examined under Section 313 of the Code of Criminal Procedure (in short – Cr.P.C.). In their statements, the accused denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They alleged that Mithu Singh had a dispute about land with his son Manjit Singh. They were challaned under Sections 107 and 151 Cr.P.C. Baljinder Singh stood surety for Manjit Singh in that case. On account of that, Mithu Singh, Ram Singh and Chuhar Singh attacked Baljinder Singh and caused injuries to him and he also caused injuries to them in self defence and they were able to get Rs.10,000/- from Sukhwinder Singh with the help of local police. Baljinder Singh used to make complaints against the police regarding corruption, but the police officials had protection of one Balwinder Singh Bhunder, who contested and lost elections of Legislative Assembly, in which Baljinder Singh opposed him. It was blind murder but Labh Singh being party-man of Balwinder Singh Bhunder, got the accused falsely implicated with the help of Balwinder Singh Bhunder and police officials. Mangal Singh alleged that he has no concern with Baljinder Singh and his son and has been falsely implicated on account of political rivalry. The appellants did not lead any evidence in their defence. Learned Additional Sessions Judge, Mansa, vide impugned Crl. Appeal No. 29-DB of 2000 6 judgment dated 02.12.1999, held the accused guilty and convicted them for offence punishable under Section 302 read with Section 34 IPC and vide order of even date, sentenced them to life imprisonment and to fine of Rs.1,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for one month. Feeling aggrieved, the convicts have preferred the instant appeal. We have heard learned counsel for the parties and perused the case file with their assistance. The prosecution is supported by dying declaration Ex.P-D made by the deceased as well as by statement of Labh Singh who is a natural witness of the occurrence. The prosecution case is further strengthened by the motive for the occurrence as well as by medical evidence. On the other hand, there is no defence evidence led by the accused in support of their defence version. In precise and concise statement Ex.P-D, made by Nachhattar Singh to SI Joga Singh, it has been categorically stated that all the three accused caused injuries to him with gandasas (by Baljinder Singh and Gursaran Singh) and with hockey stick (by Mangal Singh). Labh Singh was also named as eye-witness of the occurrence. Motive for the occurrence was also stated in statement Ex.P-D. The FIR was thus got registered very promptly and therefore, FIR is a very important piece of evidence and assumes significance. SI Joga Singh before recording statement Ex.P-D, obtained opinion Ex.P-B/1 from Dr.Suresh Kumar that Nachhattar Singh was fit to make statement. Joga Singh also moved application Ex.P-C for recording statement of Nachhattar Singh in the presence of Dr. Suresh Kumar, who allowed the application vide endorsement Ex.P-C/1. It was thereafter that statement Ex.P-D of Nachhattar Singh was recorded in the presence of Dr. Suresh Kumar, who appended his certificate Ex.P-D/1 to this effect below statement Ex.P-D Crl. Appeal No. 29-DB of 2000 7 itself. Thereafter, Joga Singh made endorsement Ex.P-D/2 and sent it to the concerned Police Station i.e. Police Station Jaurkian for registration of FIR. Occurrence took place at about 04:00 P.M. Nachhattar Singh reached the hospital at 07:35 P.M. and was medico-legally examined immediately. Applications Exs.P-B and P-C were moved at 07:45 P.M. and statement of Nachhattar Singh concluded at 08:00 P.M. The said statement was thus recorded at the earliest. Nachhattar Singh expired at 10:15 P.M. on the same night. There is nothing on record to doubt the veracity of dying declaration Ex.P-D. Labh Singh PW-5 is brother of the deceased and is eye-witness of the occurrence. He was also present in the field where the occurrence took place. He has fully corroborated the dying declaration made by the deceased and has categorically stated that Baljinder Singh and Gursaran Singh armed with gandasas and Mangal Singh armed with hockey stick came to the spot and caused injuries to Nachhattar Singh. The witness has also stated that statement of Nachhattar Singh was recorded in the hospital by the police. Labh Singh has also stated about the motive for the occurrence. Labh Singh also stated that a broken hockey stick (of Mangal Singh) and a broken sickle (being used by the deceased for harvesting the crop) were also seized by the police from the spot. He also stated about recovery of a gandasa each at the instance of Baljinder Singh and Gursaran Singh in pursuance of disclosure statements made by them. The statement of Labh Singh is trust-worthy and could not be shaken in any manner in his lengthy cross-examination. The statement of Labh Singh also, therefore, proves the prosecution case against all the three accused. Motive for the occurrence is proved from statement Ex.P-D made by the deceased as well as by the sworn statement of Labh Singh made in the witness-box. The prosecution has also examined ASI Surjit Singh, who had recorded statements of Mithu Singh (brother of the Crl. Appeal No. 29-DB of 2000 8 deceased) and Baljinder Singh-accused, on the basis of which Daily Diary Reports Exs. P-X and P-Y respectively were recorded. According to these documents, on 17.06.1997, Sukhjinder Singh and Baljinder Singh stood sureties for Manjit Singh and Baldev Kaur, son and wife of Mithu Singh in a case under Sections 107 and 151 Cr.P.C. In the evening, both of them went to the house of Mithu Singh and caused injuries to him and his father and brother Ram Singh. In self-defence, they also caused injuries to Baljinder Singh and Sukhwinder Singh. However, on the next day i.e. on 18.06.1997, compromise was effected between the parties regarding that incident and Sukhwinder Singh paid Rs.10,000/- to Mithu Singh etc. for their treatment. Reports Exs.P-X and P-Y relate to the said compromise. This fact has also been admitted by Baljinder Singh and Gursaran Singh. Thus, motive for the occurrence stands established from the cogent evidence of the prosecution i.e. statement Ex.P-D of the deceased, sworn statement of Labh Singh and reports Exs.P-X and P-Y regarding the earlier incident in which compromise was effected and is also not disputed by the appellants. Medical evidence further corroborates the prosecution case. On medico-legal examination as well as on post-mortem examination, 14 injuries were found on the person of the deceased and out of these injuries, six were caused with sharp-edged weapon and the remaining with blunt weapon. According to the prosecution version also, Baljinder Singh and Gursaran Singh caused injuries with gandasas and Mangal Singh with hockey stick. The prosecution version is thus fully corroborated by the medical evidence. Learned counsel for the appellants emphatically contended that dying declaration Ex.P-D is not legally admissible in evidence because it was not recorded in accordance with the relevant rules. It was contended that no written intimation sent by Dr. Suresh Kumar to the police has been placed on record. However, even in the absence of any such written Crl. Appeal No. 29-DB of 2000 9 intimation, the prosecution version cannot be doubted because it is the case of prosecution since inception that SI Joga Singh happened to be present in the Civil Hospital and on receiving intimation there itself regarding admission of Nachhattar Singh in the hospital in serious injured condition, Joga Singh at once took steps to record the statement of Nachhattar Singh after obtaining opinion from the doctor that Nachhattar Singh was fit to make statement. In these circumstances, absence of written intimation from the doctor pales into insignificance. Learned counsel for the appellants argued that SI Joga Singh was posted in Police Station Sadar Mansa, whereas the instant case pertains to Police Station Jaurkian and therefore, Joga Singh had no jurisdiction to record statement of Nachhattar Singh. The argument, although apparently attractive on first blush, is in fact devoid of substance. Before recording statement of Nachhattar Singh, it was not known to Joga Singh that the occurrence had taken place in the territorial jurisdiction of Police Station Jaurkian. It was only after statement Ex.P-D was recorded that it was learnt that the occurrence had taken place in territorial jurisdiction of Police Station Jaurkian and accordingly, Joga Singh sent statement Ex.P-D with his own endorsement Ex.P-D/2 over it, to the concerned Police Station i.e. Police Station Jaurkian. In these circumstances, no fault can be found with the recording of statement Ex.P-D of Nachhattar Singh by SI Joga Singh. Learned counsel for the appellants referred to Rule 25.3 of the Punjab Police Rules, 1934. The same is reproduced hereunder :- “25.3. Action when offence occurring in another police station is reported. - When the occurrence of a cognizable offence in another police station jurisdiction is reported, the fact shall be recorded, i the daily diary and information shall be sent to the officer in charge of the police station in the Crl. Appeal No. 29-DB of 2000 10 jurisdiction of which the offence was committed. Meanwhile all possible lawful measures shall be taken to secure the arrest of the offender and the detection of the offence.” Perusal of the aforesaid rule reveals that if occurrence of cognizable offence in another Police Station jurisdiction is reported, the information shall be sent to the Officer Incharge of the said Police Station. In the instant case, when the occurrence was reported to Joga Singh vide statement Ex.P-D, Joga Singh sent the same to the concerned Police Station. There was, thus, proper compliance with the aforesaid rule. That apart, the rule also provides that meanwhile, all possible lawful measures shall be taken inter-alia to secure the detection of the offence. Consequently, SI Joga Singh committed no wrong in recording the statement of Nachhattar Singh and in sending the same to the concerned Police Station. Rule 25.4 of the Punjab Police Rules also provides that if a Police Officer, even after registering a case and commencing the investigation, discovers that offence was committed in jurisdiction of another Police Station, he shall at once send information to Officer Incharge of such Police Station. Thus, even if Joga Singh had registered a case and commenced the investigation before discovering that offence was committed in jurisdiction of another Police Station, even then there was no illegality and at that stage, information could be sent to the concerned Police Station. In the instant case, Nachhattar Singh was in a serious condition and in fact, he died after about two hours of recording of his statement Ex.P-D by Joga Singh. For this reason as well, Joga Singh was justified in immediately recording the statement of Nachhattar Singh, who was likely to die soon in view of his serious condition and in fact, he died soon thereafter. Consequently, keeping in view the fact situation and the condition of Nachhattar Singh, Joga Singh was justified in recording his statement. He took all the Crl. Appeal No. 29-DB of 2000 11 precautions before recording the statement because he obtained opinion of the doctor regarding fitness of Nachhattar Singh to make statement and also took the precaution that the statement was recorded in the presence of doctor himself, who also appended his certificate below the statement. Learned counsel for the appellants also contended that it was unusual for SI Joga Singh to have moved application Ex.P-C as well along with application Ex.P-B. The contention cannot be accepted because Joga Singh rightly took the precaution of recording statement of Nachhattar Singh in the presence of the doctor. Learned counsel for the appellants submitted that thumb impression of Nachhattar Singh appears just at the end of the statement Ex.P-D, without leaving any space and in fact, last 3-4 lines of the said statement have been squeezed before the thumb impression by narrowing the space between the lines. We have carefully seen statement Ex.P-D. It reveals that there is normal spacing between the lines and there is no squeezing in, as contended by learned counsel for the appellants. No such suggestion was either put to Dr. Suresh Kumar or to SI Joga Singh that thumb impression of Nachhattar Singh had been obtained on blank paper and the statement was fabricated later on. Learned counsel for the appellants contended that Joga Singh started investigation without having territorial jurisdiction. The contention is devoid of merit because Joga Singh did not commence any investigation. After recording statement Ex.P-D, Joga Singh simply sent the same with his endorsement Ex.P-D/2 to the concerned Police Station having territorial jurisdiction. No investigation was done by Joga Singh thereafter. Learned counsel for the appellants also argued that provisions of Chapter 13-A of the High Court Rules and Orders – Volume III, relating to recording of dying declaration, have also not been complied with. This contention also cannot be accepted. It is correct that wherever possible, Crl. Appeal No. 29-DB of 2000 12 dying declaration should be recorded by Judicial Magistrate. However, in the instant case, Joga Singh has explained that there was no time to secure the presence of Judicial Magistrate to record the dying declaration, in view of serious condition of Nachhattar Singh. This conduct of Joga Singh in himself recording statement of Nachhattar Singh is justified inasmuch as Nachhattar Singh died just two hours after his statement was recorded by Joga Singh. Veracity of statement Ex.P-D cannot be doubted because the same was recorded in the presence of Dr. Suresh Kumar, whose certificate Ex.P-D/1 was also obtained on it. There is no reason why Dr. Suresh Kumar or why even Joga Singh would falsely implicate the accused. It was suggested to Labh Singh and Joga Singh that there was some relationship between the deceased and Joga Singh, but the suggestion was denied by the witnesses. No evidence whatsoever has been led to prove the alleged relationship between Joga Singh and the deceased. Consequently, it cannot be said, as argued by learned counsel for the appellants, that the conduct of Joga Singh in recording statement Ex.P-D of Nachhattar Singh was mala fide on account of their alleged relationship. There is also no reason why Dr. Suresh Kumar would also become a party to the alleged collusion. Reference was also made to Rule 25.21 of the Punjab Police Rules providing that the dying declaration, wherever possible, shall be recorded by a Magistrate. In the instant case, however, it was not possible to procure presence of a Magistrate to record the dying declaration in view of critical condition of the deceased. However, before recording his statement, he was examined by Dr.Suresh Kumar, who found him fit to make statement. The dying declaration was thumb marked by the deceased and Dr. Suresh Kumar also appended his certificate to the same. There has been substantial compliance with the aforesaid rule as well. In such a case, meticulous compliance of the aforesaid rules cannot be insisted and benefit of any such technicality cannot be extended to the appellants because the Court has to Crl. Appeal No. 29-DB of 2000 13 see the substance and not the form of the evidence. Learned counsel for the appellants contended that Nachhattar Singh was seriously injured and could not, therefore, be in a fit state of mind to make a statement. Reliance in support of this argument has been placed on judgment of Hon'ble Supreme Court in the case of Paparambaka Rosamma and others vs. State of A.P. reported as (1999) 7 Supreme Court Cases 695. The argument is not acceptable. In the reported case, there was certificate of the doctor that the deceased was conscious but not about fitness of mind to make statement. In the instant case, however, there is certificate of Dr. Suresh Kumar that Nachhattar Singh was fit to make statement and the statement was also recorded in his presence. No particular words or form have been prescribed for the opinion of doctor in this regard. The use of words `fit state of mind' is not imperative or essential and the expression `fit to make statement' is also good and sufficient enough. Learned counsel for the appellants also argued that Labh Singh PW-5, being brother of the deceased, is an interested witness and has been introduced as eye-witness. The argument is devoid of any substance. At the earliest opportunity, Labh Singh was