Criminal Appeal No.494-SB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.494-SB of 1999 Date of Decision:15.01.2010 Bhajan Singh and others .....Appellants Versus State of Punjab .....Respondent Argued by: Mr.H.S.Sandhu, Senior Advocate, with Mr.Varun Wadhwa, Advocate, for the appellants. Mr.Ajaib Singh, Additional Advocate General, Punjab. Mr.M.S.Dhillon, Advocate, for the complainant. ***** Mehinder Singh Sullar, J. Impugning the judgment of conviction and order of sentence dated 18.05.1999, the appellants have directed the present appeal vide which the trial Court has sentenced Amritpal Singh(appellant) to undergo rigorous imprisonment for a period of three years, to pay a fine of Rs.3000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of one year for the commission of offence punishable under Section 308 IPC, while the remaining appellants, namely, Ajit Singh and Gurbachan Singh, were sentenced to undergo rigorous imprisonment for a period of six months, to pay a fine of Rs.1000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of three months, for commission of offence punishable under Section 323 IPC. Likewise, appellant-Bhajan Singh was also sentenced to undergo rigorous imprisonment for a period of six months, to pay a fine of Rs.1000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of three months, for commission of offence punishable under Section 323 read with Section 34 IPC. Criminal Appeal No.494-SB of 1999 2 2. The matrix of the facts, culminating in the commencement, relevant for disposal of the present appeal and emanating from the record unfolded during the trial, is that on 13.12.1997, PW5-Arvinder Singh and his father-in-law Avtar Singh(deceased) were present at their S.T.D. Booth situated in village Bidhipur. At about 5.00 P.M., appellants-Bhajan Singh and Ajit Singh came there to meet and took Avtar Singh along with them in their Esteem car. As soon as, at about 8.00 P.M., (PW5) and Kulwant Singh son of Mohinder Singh (injured) were standing at the place of occurrence, in the meantime, appellant-Amritpal Singh brought Bhajan Singh and Avtar Singh in a Maruti Esteem car bearing registration No.PB- 08-P-5128. Another Maruti car bearing registration No.PB-08-E-6364 being driven by Atamdeep Singh-accused (proclaimed offender) also came there in which appellants-Gurbachan Singh and Ajit Singh were seated. All the occupants alighted from their respective cars. 3. The case of the prosecution further proceeds that appellants- Bhajan Singh and Gurbachan Singh started abusing Avtar Singh which attracted and PW6-Mohinder Singh (injured) also reached at the spot. PW6 lodged a protest in this respect and asked the appellants as to why they were abusing them and also why they forced Avtar Singh ( who was Amritdhari Sikh) to consume liquor. At this, the appellants also started abusing PW6 as well. All of them grappled with each other. It was claimed that, in the meantime, appellant-Amritpal Singh lifted an iron rod (wheel pana) from the car and gave a blow which hit on the head of PW6. He felled on the ground and became unconscious after receipt of the injury, while the remaining appellants were grappled with Avtar Singh who also felled on the ground and died. Appellant-Bhajan Singh continued raising 'lalkaras'. 4. PW5 and Kulwant Singh son of injured (Mohinder Singh) first took him(PW6) to Janta Hospital, Jalandhar, and later on took him to DMC Criminal Appeal No.494-SB of 1999 3 hospital, Ludhiana, where, he was got admitted by his son (Kulwant Singh). But, no one reported the matter to the police on that day. 5. Levelling a variety of allegations in all, according to the prosecution, that on 13.12.1997 at about 8.00 P.M., Appellant-Amritpal Singh gave a blow from iron rod (wheel pana) on the head of PW-6, while the remaining appellants grappled with Avtar Singh culminating into his death. The occurrence was stated to have been witnessed by Arvinder Singh (PW-5) and Kulwant Singh son of injured-Mohinder Singh. On 14.12.1997-PW5, telephonically informed the police of Police Station Sadar Jalandhar, and DDR No.42 dated 14.12.1997 (Exhibit DD) was recorded in this respect. 6. In the wake of the information, the police party headed by PW9-ASI Amarjit Singh visited the place of occurrence on 14.12.1997, recorded the statement of PW5, prepared the inquest report and sent the dead body of Avtar Singh for post-mortem examination. On the basis of aforesaid allegations and in the wake of statement (Exhibit PH) of PW5 (complainant), the present case was registered against the appellant vide FIR No.398 dated 14.12.1997 on accusation of having committed the offence punishable under Sections 148, 304, 307 read with Section 149 IPC by the police of Police Station Sadar, Jalandhar, in the manner indicated here-in-above. 7. After completion of the investigation, the police submitted the final report against the appellants, as envisaged under Section 173 Cr.P.C. except accused-Atamdeep, who was declared proclaimed offender. It is not a matter of dispute that Atamdeep Singh son of Ajit Singh was subsequently arrested, tried separately vide Sessions Case No.152 of 2002, and has already been acquitted by the Additional Sessions Judge, Jalandhar, vide judgment dated 22.07.2002, which had already attained the finality. Criminal Appeal No.494-SB of 1999 4 8. Having completed all the codal formalities, appellant-Amritpal Singh was charge-sheeted for the commission of offence punishable under Section 308 IPC, while the remaining appellants were charge-sheeted for the commission of offence punishable under Section 304-I IPC vide order dated 21.04.1998. As the appellants did not plead guilty and claimed trial, therefore, the case was slated for the evidence of the prosecution. 9. The prosecution in order to substantiate the charges brought against the appellants, examined PW1-Dr. R.K.Kaushal, PW2, Dr.Manmohan Singh, PW3, member of the Board constituted by the Medical Superintendent of Civil Hospital, Jalandhar, PW4, Amarjit Kaur, Clerk, D.T.O. Office, Jalandhar, PW5-Arvinder Singh(complainant), eye witness of the occurrence, PW6-Mohinder Singh(injured), PW7 Rattan Singh, PW8, Dalip Singh, Draftsman, PW9-ASI Amarjit Singh, PW10 Charanjit Singh-Photographer, PW11-Dr.K.S.Kular and PW12-Angrej Singh, in oral evidence. 10. The prosecution has also tendered into evidence Exhibit PA- report, Exhibit PB-Bed-Head Ticket, Exhibits PB/1 to 3- treatment record, Exhibit PC-medico legal report, Exhibit PC/1-pictorial diagram showing the seat of injury, Exhibit PD-intimation/ruqa, Exhibit PE/1-inquest report, Exhibit PH-statement, Exhibit PJ-site plan, Exhibit PK and Exhibit PL- recovery memos of the cars, Exhibit PM-recovery memo of the clothes of the deceased, Exhibit PN-application/ruqa dated 15.12.1997, Exhibit PN/1- opinion, Exhibit PQ-recovery of iron rod, Exhibit PQ/1-sketch of iron rod, Exhibit PQ/2-disclosure statement, Exhibit PQ/3-site plan and Exhibit PR- site plan in the documentary evidence. 11. After the close of the case of the prosecution, the statements of the appellants were recorded. The entire incriminating material/evidence was put to enable them to explain any circumstance appearing against them in the evidence, as contemplated under Section 313 Cr.P.C. Criminal Appeal No.494-SB of 1999 5 However, the appellants denied the prosecution version in its entirety and pleaded false implication. They claimed that complainant-PW5 was the resident of village Jhawan, P.S. Tanda, District Hoshiarpur and he was not present at the time of occurrence. The cars were taken into possession from their village and the case has been registered against them after due deliberations and consultations after summoning PW5 from his village Jhawan, P.S. Tanda, District Hoshiarpur. They have also produced DDR No.42(Exhibit DD) and Voter-list of PW5 (Exhibit DE) in their defence. 12. The trial Judge, after taking into consideration the evidence on record, disbelieved the prosecution version with regard to the death of Avtar Singh. However, the appellants were convicted and sentenced in the manner stated here-in-above. 13. The present appellants did not feel satisfied with the impugned judgments of conviction and order of sentence and filed the present appeal. That is how I am seized of the matter. 14. At the very outset, learned counsel for the appellants has contended with some amount of vehemence that the prosecution version is highly improbable and there is an inordinate and unexplained delay of more than 14 hours in reporting the matter to the police. The argument is that there are inherent improbabilities and contradictions in the ocular and medical evidence produced on record by the prosecution. The presence of PW5 at the spot is doubtful. So much so, all the material witnesses have not been examined by the prosecution. Raising a variety of arguments, in all according to the learned counsel for the appellants, that as the evidence of the prosecution is not reliable and is discrepant on material points, therefore, the appellants deserve to be acquitted. 15. On the contrary, learned counsel appearing on behalf of the State assisted by the learned counsel for the complainant has urged that the story of the prosecution is quite natural, delay is not fatal to its case and Criminal Appeal No.494-SB of 1999 6 the ocular version of the prosecution finds corroboration from the medical evidence. In all, according to the learned State Counsel and counsel for the complainant that the trial Judge has rightly convicted the appellants in this regard and the appeal deserves to be dismissed. 16. Having heard the learned counsel for the parties, having gone through the evidence on record with their valuable assistance and after bestowal of thoughts over the entire matter, to my mind, it would be expedient to have a brief resume of the prosecution evidence in order to decide the precise/real points involved in this appeal. 17. First of all, PW1 stated that on 13.12.1997, (PW6) was got admitted at 10.55 P.M. by his son Kulwant Singh in DMC Hospital, Ludhiana, vide admission Card No.27339, C.R.No.83489. He had 3” long wound on the left side of his head. He treated him and vide his report (Exhibit PA) opined that the injury on his person could have proved fatal to life. Subsequently, on receipt of CT Scan, multiple fracture of left parietal, left frontal bone and fracture of left zygoma were found. He was discharged from the hospital on 03.01.1998. He has also proved the indoor Bed-Head ticket (Exhibit PB) of Mohinder Singh, patient. 18. Sequelly, PW2 also maintained that on 13.12.1997 at about 10.55 P.M., Mohinder Singh, injured was brought by his son Kulwant Singh in the Emergency Ward. He examined him vide medico legal report (Exhibit PC) and Exhibit PC/1 is the pictorial diagram showing the seat of injury, which was prepared in the same process. He has also confirmed Bed-Head Ticket (Exhibit PB) and treatment notes (Exhibits PB/1 to 3). He sent intimation (Exhibit PD) to Sarabha Nagar Police Station, Ludhiana. He declared injury on the person of Mohinder Singh grievous in nature vide report Exhibit DA. 19. Similarly, PW4 stated that as per summoned record, Maruti Esteem car bearing registration No.PB-08-P-5128, was registered in the Criminal Appeal No.494-SB of 1999 7 name of Bhajan Singh son of Bule Singh, resident of village Cheema, while car bearing registration No.PB-08-E-6364 was registered in the name of Ajit Singh son of Pritam Singh, resident of Sarai Khas, Jalandhar. 20. The next to note is the testimony of PW5-eye witness of the occurrence. He inter, alia, maintained that on 13.12.1997 at about 8.00 P.M., he was standing in front of his shop along with Kulwant Singh. The appellants along with Avtar Singh came there in two cars. Having alighted from the cars, they started abusing them. On hearing the noise, his uncle Mohinder Singh also reached at the spot. He asked the accused as to why they were hurling abuses and as to why they have made Avtar Singh to drink as he is Amritdhari Sikh. Then, the accused started abusing PW6 and an altercation took place between the parties. In the meantime, Atamdeep Singh again said Amritpal Singh brought a rod from the Esteem Car. Atamdeep grappled with Mohinder Singh. Amritpal Singh gave an iron rod blow on the head of PW6. Ajit Singh and Gurbachan Singh caught hold of Avtar Singh and felled him on the ground. They gave him kicks blow. Mohinder Singh also felled on the ground and became unconscious. He and Kulwant Singh raised alarm and the accused ran away leaving their cars at the spot. Mohinder Singh was taken to Janta Hospital, Jalandhar, then, was admitted to DMC Hospital, Ludhiana. Avtar Singh died at the spot, On coming back from DMC Hospital, Ludhiana, he(PW5) informed the police on telephone. The police came and recorded his statement (Exhibit PH). Instead of reproducing the statement of PW5 in toto and in order to avoid repetition, suffice it to say that he attempted to corroborate the version of his statement (Exhibit PH). 21. Likewise, PW6 is none else but an injured witness. Examination-in-chief of his statement is as under:- “Avtar Singh was my brother. He had got three daughters. The elder daughter lives in the village. Her Criminal Appeal No.494-SB of 1999 8 husband Arvinder Singh also reside in village Bidhipur. He runs the STD shop in the village. My house is adjacent to the house of Avtar Singh. On 13.12.1997, at about 8/9 P.M., Bhajan Singh, Jit Singh, Amritpal Singh, Atamjit and Gurbachan Singh came there in two vehicles. They started abusing and on hearing abuses, I reached the spot. My son Kulwant Singh also reached the spot. Arvinder Singh was already present. Accused were abusing Avtar Singh. I asked them as to why they are abusing. I asked the accused as to why they have forcibly given liquor to Avtar Singh as he was Amritdhari. The accused were also drunkard. They also started abusing me. Bhajan Singh shouted that I be done to death. Gurbachan Singh and Ajit Singh gave kick blows to my brother Avtar Singh. When I tried to rescue Avtar Singh, Atamdeep caught hold of me and Amritpal Singh brought an iron rod from the vehicle and gave blow on my head. I fell down and became unconscious. I gained consciousness in Ludhiana Hospital. Except Atamdeep all the accused are present in Court. My statement was recorded in the hospital”. 22. The evidence of PW7 was also to the effect that on 13.12.1997, he had seen that all the five accused were administering something in the steel glasses to Avtar Singh. He lodged protest in this regard but the accused replied that he has no business to interfere. Then, he went to his house. Subsequently, he came to know that Avtar Singh had died. It may be added here that the trial Court has already disbelieved the statement of PW7 and the prosecution story, as regards the death of Avtar Singh is concerned, and the State has not filed any cross-appeal in Criminal Appeal No.494-SB of 1999 9 this respect. PW8, Dalip Singh, Draftsman, proved the rough site plan (Exhibit PJ) of the place of occurrence. 23. Sequelly, PW9 stated that on 14.12.1997, S.H.O., Angrej Singh took into possession two cars bearing registration Nos.PB-08-P- 5128 and PB-08-E/6364 vide separate recovery Memos. Exhibits PK and PL. The clothes of the deceased were also taken into possession vide recovery memo Exhibit PM. On 15.12.1997, he went to DMC Hospital, Ludhiana and obtained the opinion of the Doctor on application (Exhibit PN) that Mohinder Singh was fit to make statement and then he recorded the statement of Mohinder Singh without any addition or omission. On 17.12.1997, SHO Angrej Singh got recovered iron rod (Exhibit PQ/2) in pursuance of the disclosure statement of accused-Amritpal Singh, which was taken into possession vide recovery memo (Exhibit PQ), after preparing its sketch (Exhibit PQ/1). PW10 proved the photographs (Exhibits PW10/1 to 3) vide negatives (Exhibits PW10/4 to 6) of the spot. PW11 on 15.12.1997 opined on the application (Exhibit PN) that patient Mohinder Singh was fit to make the statement, gave opinion vide (Exhibit PN/1). 24. The last to note the testimony of PW12, who is the Investigating Officer. He deposed that on 14.12.1997, he received a telephonic message from Arvinder Singh that some people have quarreled at village Bidhipur. After recording DDR(Exhibit DD), he left for the spot where Arvinder Singh-PW5 met him. He recorded his statement(Exhibit PH) correctly which was read over and explained to him who signed the same in token of its correctness. He sent the statement (Exhibit PH) to the police station along with its endorsement(Exhibit PH/1) where formal FIR (Exhibit PH/2) was recorded by ASI-Shiv Singh. According to PW-12, dead body of Avtar Singh was lying at the spot and, he prepared the inquest report (Exhibit PE/1) and sent the dead body for post-mortem examination Criminal Appeal No.494-SB of 1999 10 vide request (Exhibit PE). He prepared the rough site plan (Exhibit PR) and recorded the statements of the witnesses. He took into possession cars bearing registration Nos. Nos.PB-08-P-5128 and PB-08-E/6364 vide recovery memos. Exhibits PK and PL, respectively. PW-12 further maintained that he arranged the photographs of the place of occurrence. On 17.12.1997, he arrested accused-Amritpal Singh, Gurbachan Singh and Ajit Singh. During interrogation, accused-Amritpal Singh suffered disclosure statement and in pursuance thereof, got recovered the iron rod which was taken into possession vide recovery memo (Exhibit PQ) after preparing its sketch (Exhibit PQ/1). He also prepared rough site plan (Exhibit PQ/3) regarding place of recovery and recorded the statements of the witnesses. 25. Possibly, no one can dispute that the cardinal fundamental principles of criminal law/jurisprudence have to be kept in focus, while deciding such criminal cases. Some of these are that the absolute onus is always on the prosecution to prove its case beyond any reasonable doubt. The accused cannot possibly be convicted without any legal substantive evidence as the evidence is essential element in criminal proceedings, notwithstanding the seriousness of the allegations alleged against him. It is the reliable and trustworthy evidence, on the basis of which, the decision of a criminal court is based and criminal proceedings require strict proof of the guilt, otherwise, in the absence of the same, the Court has no option but to record an order of acquittal, howsoever, painful the same may be. 26. Such, thus, being the evidence on record and legal position, now the short and significant question though important arises for determination in this appeal is, whether the prosecution remained successful in proving the charges framed against the appellant or not? 27. Having regard to the rival contentions of learned counsel for the parties, to me, the prosecution has miserably failed to bring guilt home Criminal Appeal No.494-SB of 1999 11 to the accused which suffer the vices of deliberations and consultations and its evidence falls short as is required to prove a criminal charge. 28. As is evident from the record, the story of the prosecution as regards the death of Avtar Singh is concerned (projected by PW7) was disbelieved by the trial Court . As the State did not file any cross-appeal in this regard, therefore, the case with regard to injury on the person of PW-6 only remained to be examined in the instant appeal by this Court. 29. In this context, according to the prosecution version on 13.12.1997 at about 8.00 P.M. PW5 and Kulwant Singh son of PW-6 were present at the spot. The appellants came there in Maruti Esteem cars. They started abusing PW5 which attracted PW-6. PW-6 lodged a protest and asked the appellants as to why they are abusing PW-5 and also as to why they have forced Avtar Singh to consume liquor. It furiated the appellants who grappled with Avtar Singh and PW-6. The prosecution claimed that the main accused Amritpal Singh lifted the iron rod (wheel pana) and gave a blow on the head of PW-6. Both Avtar Singh and PW-6 felled on the ground. Avtar Singh was stated to have died at the spot, while PW-6 was removed in an injured condition by his son Kulwant Singh and PW-5 firstly to Janta Hospital, Jalandhar, and then he was got admitted in DMC Hospital, Ludhiana by them. 30. PW-5 is none else but son-in-law of Avtar Singh(deceased) and Kulwant Singh is son of PW-6, who were present at the spot at the time of occurrence. The argument of learned counsel for the appellants that the prosecution version and conduct of PW5 and PW6 are highly improbable and unnatural, has considerable force. At the first instance, it is highly improbable to believe that PW-5 would accompany Mohinder Singh, injured to the hospital after leaving the dead body of his father-in- law Avtar Singh at the spot, particularly when Kulwant Singh son of the injured was there to take him to the hospital. Moreover, PW5 would have Criminal Appeal No.494-SB of 1999 12 informed the police on the same day, that the appellants had caused injuries to PW6. Even on the next day, the telephonic information given by him to the police, is totally silent about the origin/manner of the occurrence and name of injured, assailants and the witnesses. On his information, the police recorded DDR No.42 dated 14.12.1997 (Exhibit DD) in this respect. PW5 in his cross-examination has admitted that after the occurrence, many persons collected at the spot, but he did not tell them about the occurrence, which reflects against his natural conduct. Assuming for the sake of arguments (though not admitted) if PW5 and Kulwant Singh accompanied injured PW6 to the hospital, even then, after his (PW6) admission in the DMC hospital, they did not report the matter to the police for the reasons best known to them. 31. According to PW-2, he sent intimation/ruqa (Exhibit PD), with regard to the admission of PW6 in the hospital to the police of Police Station Sarabha Nagar, Ludhiana. But the police did not verify the facts on that very day. Meaning thereby, no cogent explanation is forthcoming on record as to why either PW-5, Kulwant Singh or any other person who collected at the spot, did not report the matter to the concerned police station on the same day and why the police of Police Station Sarabha Nagar, Ludhiana, did not verify the facts in the wake of intimation/ruqa (Exhibit PD)? These facts leave no manner of doubt that PW-5 was not present at the spot. Otherwise, his natural conduct would have been firstly to look after his father-in-law Avtar Singh and, then, to report the matter to the police. Hence, his conduct casts a shadow of doubt on the prosecution version in this connection. 32. Above all, the prosecution claimed that the occurrence had taken place at 8.00 P.M. on 13.12.1997, which was witnessed by PW-5 and Kulwant Singh son of injured-PW6. It has also come in the evidence that many persons also collected there but nobody informed the police. It Criminal Appeal No.494-SB of 1999 13 was on the next day of 14.12.1997 that police machinery was put into motion when PW-5 telephonically informed the concerned police about the occurrence. In the wake of telephonic information made by PW-5, the police recorded DDR No.42 on 14.12.1997 (Exhibit DD) and reached at the spot. The perusal of report (Exhibit DD) would reveal that PW5 neither narrated the origin/manner of the occurrence nor mentioned the names of the assailants, witnesses and injured persons. Moreover, he(PW5) has not stated that he himself witnessed the occurrence. PW12 also admitted the recording of DDR No.42 dated 14.12.1997 (Exhibit DD) and stated that he (PW5) did not disclose the origin of occurrence and names of the eye- witness etc. It means, PW5 did not witness the occurrence on 13.12.1997. Therefore, the possibility of calling PW5 from his village by the police on the next day and recording his statement (Exhibit PH) on the basis of which formal FIR (Exhibit PH/1) was recorded at 10.10 A.M. On 14.12.1997 after due deliberations and consultations, cannot possibly be ruled out in the present set of circumstances. 33. Proceeding on this premises, the argument of learned counsel for the appellants that delay in lodging the FIR was used for deliberations and consultations, which resulted into false implication of the accused, has considerable merit. That means, there was an inordinate delay of more than 14 hours in recording the FIR as well which remained unexplained