Crl. Appeal No. 303 -DB of 1998. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. Appeal No. 303 -DB of 1998. DECIDED ON : 16.05.2008. Sham Singh Appellant. VERSUS State of Punjab. Respondent. CORAM : HON'BLE MR. JUSTICE J.S.KHEHAR. HON'BLE MR. JUSTICE JORA SINGH Present: Mr.D.S.Rajput,Advocate, for the appellant. Mr. D.S.Gill,Additional Advocate General, Punjab, for the respondent. JORA SINGH,J. Sham Singh preferred this appeal against the judgment/order dated 2.3.1998 in Sessions Case No.18 of 18.5.1996, bearing First Information Report No. 13 dated 5.3.1994, Police Station Sultanpur Lodhi, vide which he was convicted under Sections 302/34 of the Indian Penal Code, and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 500/-and in default of payment of fine to further undergo rigorous imprisonment for six months. Prosecution story, in brief, is that Bagga Singh son of Buta Singh is resident of village Khizarpur. Kaushalya daughter of Bagga Singh complainant was married to Crl. Appeal No. 303 -DB of 1998. 2 Harnam Singh son of Kehar Singh resident of village Chhana Sher Singh. Kaushalya had two issues from this wed lock. On 4.3.1994 at about 6 P.M., Bagga Singh had gone to the house of his daughter Kaushalya, but the house was found locked. Inquiry was made from Phuman Singh as to where his daughter Kaushalya has gone. Phuman Singh replied that Kaushalya alongwith brother-in-laws had gone to the fields to bring fodder. At 7.30 P.M., Complainant alongwith Phuman Singh had gone to the fileds of Kehar Singh, there he sighted Sham Singh and Panja Singh armed with sickle and sota respectively, while giving blows to Kaushalya. Raula was raised. Then accused Sham Lal and Panja Singh had fled away from the spot with their respective weapons. After leaving Phuman Singh on the spot near Kaushalya, Bagga Singh had gone to arrange a tractor-trolly. After arranging tractor trolly, Bagga Singh came back to the spot, then found that Kaushalya had succumbed to her injuries. Motive to commit the crime was that Sham Singh and Panja Singh wanted to molest Kaushalya without her consent. Earlier also, Kaushalya used to tell the complainant about the malafide intention of Sham Lal and Panja Singh being odd hours, Bagga Singh had not gone to Police Station to lodge report. On 5.3.1994 in the morning, after leaving Phuman Singh to guard the dead body, Bagga Singh alongwith Bachan Singh had gone to lodge the report. Police party Crl. Appeal No. 303 -DB of 1998. 3 headed by Wassan Singh Inspector/Station House Officer, was present near Dhusi Bandh Rest House P.W.D. Statement of Bagga Singh was recorded by Inspector Wassan Singh. Statement was read over and explained to Bagga Singh, who had thumb marked the same in token of its correctness. After making endorsement at 7.30 A.M. on 5.3.1994, statement was sent to the Police Station, on the basis of which, formal First Information Report was recorded. Special report was also sent to the Illaqa Magisrate. Inspector Wassan Singh alongwith police party had gone to the house of Kaushalya, dead body was lying there. Inquest report Ex.PB was prepared. Inspector Wassan Singh alongwith police party had gone to the place of occurrence. Rough site paln Ex.PJ with correct marginal notes was prepared. Blood stained earth and some blood stained wheat straw was taken into police possession vide memo Ex.PE. Dead body was sent to hospital for post-mortem examination. Clothes worn by the deceased were taken into police possession vide Memo Ex.PL. Case property was deposited with MHC Ram Lal. After the completion of investigation, challan was presented against the appellant-accused by Gurdit Singh Sub Inspector/ Station House Officer. Crl. Appeal No. 303 -DB of 1998. 4 Vide order dated 7.5.1996 passed by learned Sub Divisional Judicial Magistrate, Sultanpur Lodhi, this case was committed to the Ld.Court of Session, for trial. Accused was charged under Section 302/34 I.P.C. but the accused-appellant pleaded not guilty and claimed trial. In order to substantiate the charges, the prosecution examined as many as 11 witnesses. PW1 Doctor Kuljit Singh had conducted post- mortem examination on the dead body of Kaushalya and found injuries :- “1. Two incised wound on chin both bone deep. First is 3 x 2 cm and second 2 x 2 cm Fracture of mandible with several pieces. 2. Punctured wound over right side of chest just lateral to sternum in 3rd I.C. space of 1-1/2 x 1/3 cm on probing and dissecting it passed through chest wall, 3rd intercostals space anterior and medial part of right bleura and lung puncturing through right ventricle and pericardium obliquely. 3. Two bruises present over left shoulder sizes 3 x 2 and over left chest wall near clavicle, sizes 3 x 1- 1/2 inches. 4. Incised wound of 1-1/2 cm x ½ inch cm and skin deep on right side of abdomen. 3 cm below costal Crl. Appeal No. 303 -DB of 1998. 5 margin. PW2 Bagga Singh is the complainant, father of the deceased and eye witness. PW-3 Phuman Singh is the second eye witness. PW-4 Santa Singh had accompanied the complainant to lodge the report. PW-5 Assistant Sub Inspector Gian Singh was with the Investigating Officer and in his presence, blood stained earth and blood stained wheat straw was lifted from the spot and the same was made into a sealed parcel sealed with the seal bearing impression “WS” and the sealed parcel was taken into police possession vide memo Ex.PE. PW6 Ramesh Lal Patwari had prepared scaled site plan Ex.PG. PW-7 Darshan Singh is the witness before whom accused had made extra-judicial confession, but Darshan Singh had resiled from his statement. PW8 Surinder Mohan Sub Inspector had arrested Sham Singh accused on 21.3.1995 and presented supplementary challan. PW-9 Baldev Raj Assistant Sub Inspector was with Wassan Singh Inspector and in his presence blood stained earth and blood stained wheat straw was taken into police possession. Baldev Raj Assistant Sub Inspector had partly investigated the case. He got prepared scaled site plan Ex.PG Crl. Appeal No. 303 -DB of 1998. 6 from the Patwari and had recorded the statement of Darshan Singh. PW-10 Balwant Kaur, daughter of Prem Singh aged 16 years stated that she alongwith her brother Manjit Singh and sister Paramjit Kaur was in the fields. Her mother and father had gone to attend Mela. At about 6 P.M., she had seen Sham Lal and his brother with Kaushalya in the adjoining fields. They were cutting fodder from their fields, then Sham Singh and his brother started beating Kaushalya. After the occurrence, her younger brother and sister started weeping. PW-11 Wassan Singh is the Investigating Officer. Report of Chemical Examiner Ex.PM and affidavits of formal witnesses were tendered. Statement of the accused-appellant was recorded under Section 313 Cr.P.C. Incriminating evidence appearing against the appellant-accused was put to him. He denied all the allegations and claimed to be innocent. Defence version of the appellant-accused was that he is innocent. He was falsely implicated in this case. Opportunity was given to lead defence, but no defence was led. We have heard Mr. D.S.Rajput, Advocate for the appellant-accused and Mr. D.S.Gill, Additional Advocate General, Punjab for the respondent-State. Crl. Appeal No. 303 -DB of 1998. 7 Defence counsel for the appellant-accused argued that there is delay of 12 hours in lodging the First Information Report. No explanation why this in-ordinate delay when Police Station was at the distance of 2 kilometer from the place of occurrence. When the delay remains unexplained, then delay is fatal. Secondly, eye witnesses failed to explain the injuries as to how many injuries were caused by the appellant-accused and how many injuries were caused by the co-accused. Darshan Singh did not support the prosecution story. Story is un-natural. Mr. D.S.Gill, Additional Advocate General, Punjab argued that delay is procedural. No prejudice was caused to the appellant-accused. Eye witnesses are rustic villagers. Two accused were causing injuries. One was armed with a sickle and second with a sota. Occurrence had taken place on 4.3.1994 whereas Bagga Singh appeared on 10.3.1997; Phuman Singh on 10.3.1997. With the passage of time. Witnesses forget to state as to how many injuries were caused with a sickle and how many injuries with a sota. Darshan Singh did not support the prosecution story, but he was not the eye witnesses. Case under Section 307 I.P.C. was registered against Darshan Singh and in that case, he was a Proclaimed Offender. To get favour from the appellant- accused, Darshan Singh failed to support the prosecution story. Crl. Appeal No. 303 -DB of 1998. 8 First point argued by the defence counsel was that there is a delay of 12 hours in lodging the First Information Report and delay is fatal, but contention of the learned defence counsel hardly carry any weight. At 6 P.M., on 4.3.1994, Bagga Singh complainant had gone to the house of his daughter. Kaushalya wife of Harnam Singh resident of village Channa Sher Singh. Kaushalya was not present in her house. After inquiry from Phuman Singh, Bagga Singh had gone to the fields of Kaushalya where she alongwith her brother-in-laws had gone to bring fodder. At 7.30 P.M., Bagga Singh and Phuman Singh sighted Sham Singh and Panja Singh brother-in-laws of Kaushalya armed with sickle and sota giving blows to Kaushalya. Bagga Singh had gone to arrange tructor-trolly to shift the injured. After arranging tractor trolly, Bagga Singh came back to the spot but before arrival of Bagga Singh, Kaushalya had succumbed to her injuries. Bagga Singh is the father of the deceased. After death, Bagga Singh was in a shock. Due to odd hours, he had not gone to the Police Station to lodge report. Next day in the morning i.e. 5.3.1994, Bagga Slingh with Bachan Singh had gone to lodge report. Police party headed by Wassan Singh Inspector had met the complainant near Dhusi Bandh Rest House. After recording statement of Bagga Singh, endorsement was made and the statement was sent to the Police Station at 7.30 A.M. to register the First Information Crl. Appeal No. 303 -DB of 1998. 9 Report. After recording First Information Report, Gurdip Singh SI/SHO Police Statilon Sultanpur Lodhi, had sent special report to the Illaqa Magistrate. Special report was received by Illaqa Magistrate at 10 A.M. on 5.3.1994. Bagga Singh is the resident of Village Khizarpur. Occurrence was in the area of village Chhana Sher Singh. After the death of Kaushalya due to odd hours, report was not lodged with the concerned police station with delay of 12 hours no prejudice was caused to the appellant-accused, who is the real brother- in-law of the deceased. With the delay of 12 hours, story has not become unnatural. So, we do not agree with the first contention of the learned defence counsel that with the delay of 12 hours, impugned judgment be set aside. Second contention of the learned defence counsel was that four injuries were noted on the person of deceased, but eye witnesses failed to explain how many injuries were caused with a sickle and how many injuries with a sota. So, presence of eye witnesses is doubtful. As discussed earlier, occurrence had taken place on 4.3.1994 at about 7.30 P.M. On the next day, report was lodged. Bagga Singh aged about 60 years appeared in Court on 10.3.1997. He is illiterate. Phuman Singh aged about 55 years appeared in Court on 10.3.1997, is the resident of village Chhana Sher Slingh. Phuman Singh was not inimical towards the appellant-accused. No suggestion was given to Crl. Appeal No. 303 -DB of 1998. 10 Phuman Singh as to why he deposed in favour of the prosecution. Bagga Singh after reaching the house of Kaushalya had enquired from Phuman Singh as to where Kaushalya has gone. Phuman Singh replied that Kaushalya alongwith her brother-in-laws had gone to the fields to bring fodder, then Bagga Singh and Phuman Singh had gone to the fields of Kaushalya, then sighted the accused namely Sham Singh and Panja Singh, while giving blows to the deceased with a sickle and sota. They forget to state when appeared in Court as to how many injuries were caused by Sham Singh and how many injuries were caused by Panja Singh. Bagga Singh or Phuman Singh were not cross examined by the learned defence counsel to know as to how many injuries were caused by Sham Singh with a sickle and how may injuries were caused by Panja Singh with a sota. In examination-in-chief, both the witnesses stated that Sham Singh armed with sickle and Panja Singh armed with sota were seen while giving injuries to Kaushalya. Presence of Bagga Singh and Phuman Singh at the time of occurrence is natural. If witnesses failed to disclose as to how many injuries were caused by one accused and how injuries were caused by the second accused, then presence of the witnesses at the time of occurrence is not to be doubted. As per evidence, appellant-accused had made extra judicial confession before Darshan Singh, but Darshan Crl. Appeal No. 303 -DB of 1998. 11 Singh, while appearing as PW7 did not support the prosecution story. In view of the statement of Darshan Singh, prosecution story has not become unnatural. Darshan Singh was not the eye witness. Criminal case under Section 307 of the Indian Penal Code was registered against Darshan Singh and in that case, he was a proclaimed offender. Darshan Singh with motive to get benefit from the appellant-accused, had resiled from his statement. So, we agree to ignore the statement of Darshan Singh. As per Doctor Kuljit Singh four injuries were noted on the person of the deceased as observed in the earlier part of this judgment. Doctor was not cross examined that injuries noted on the person of deceased were not possible with a sickle or sota. Co-accused was tried separately and was convicted. No other contention was put forward. The above discussion shows that there is no illegality in the impugned judgment of the trial Court and the same is upheld. The appeal being without merit, is dismissed. ( JORA SINGH ) JUDGE ( J.S. KHEHAR ) 16.05.2008 JUDGE Anoop Crl. Appeal No. 303 -DB of 1998. 12