IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.516-DB of 2000 Date of Decision: 12.10.2009 Harnek Singh @ Nek and another Appellants Versus State of Punjab Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.Vinod Ghai, Advocate for the appellants Mr.D.S.Brar, Deputy Advocate General, Punjab for the respondent …. Jasbir Singh, J. This order will dispose of Criminal Appeal No.516-DB of 2000 and Criminal Appeal No.308-DBA of 2001. Both these appeals have arisen out of the same FIR. To dictate order, facts are being mentioned from Criminal Appeal No.516-DB of 2000. In this case, it is allegation against the appellants that they, in connivance with their two brothers, namely, Lali Singh and Gurtej Singh alias Gurcharan Singh alias Gulli, in furtherance of common intention, had committed murder of Smt.Gurnam Kaur alias Gurnam Singh, their aunty (father’s sister), on 21.10.1997 at about 7.00 p.m. in the area of village Deogarh. Vide judgment dated 1.9.2000, their brothers (who are Criminal Appeal No.516-DB of 2000 respondents in Criminal Appeal No. 308-DBA of 2001), were acquitted, however, vide the same judgment, the appellants were convicted for commission of offences punishable under Section 302, 307 IPC etc. and were sentenced to undergo rigorous imprisonment for life, besides other minor punishments of fine and imprisonment. Process of criminal law was set in motion at the instance of Gurmit Singh (PW4). The prosecution’s story, as noted by the trial Court in paragraph No.2 of its judgment, reads thus:- “According to the prosecution case, said Gurmit Singh complainant is a resident of village Lad Banjara Khurd Police Station Dirba. He was married to Baldev Kaur daughter of Mukan Singh, Jat, resident of village Deogarh, Police Station, Patran. He has brother-in-law, namely, Ruldu Singh and Piara Singh. His sister-in-law Gurdev Kaur alias Gurdev Singh aged 50 years was unmarried. She used to put on gents clothes and was cultivating the land. Ruldu Singh, Piara Singh and Gurdev Kaur alias Gurdev Singh had separate mess and residence and they had separate agricultural land for the last 15 years and were cultivating the land separately. However, Gurnam Kaur alias Gurnam Singh had kept with her Jagtar Singh son of Gurmit Singh complainant. She was bringing him up and was also looking after his education. Said Jagtar Singh was studying in the 10th class in Patran. The further prosecution case is that on 21.10.1997, Gurmit Singh had come to his commission agent Tarsem Lal in Patran and had brought paddy crop for sale. Similarly, Gurnam Kaur alias Gurnam Singh had also come to Tarsem 2 Criminal Appeal No.516-DB of 2000 Lal as said Tarsem Lal was also her commission agent. Gurmit Singh complainant borrowed cycle from said Tarsem Lal commission agent. Gurmit Singh complainant and his sister-in-law (Sali) Gurnam Kaur were going to Deogarh on one cycle. Gurmit Singh was driving the cycle while Gurnam Kaur was sitting on the carrier. The complainant turned his cycle from Patran-Moonak road on the link road towards village Deogarh. They reached near the fields of Shamsher Singh Inspector. It was 7.00 p.m. Harnek Singh alias Nek Singh (accused) son of Ruldu resident of village Deogarh brought his tractor EICHER with trolley from the back side. His brothers, Gurtej Singh alias Gurcharan Singh alias Gulli, Lali and Kala were also sitting on the tractor. When the tractor reached near the cycle of Gurmit Singh complainant, then Kala gave a lalkara that tractor be drove on the cycle and they may not be left alive. On this Harnek Singh alias Nek Singh accused drove his tractor trolley into the cycle of Gurmit Singh on which Gurdev Kaur alias Gurdev Singh was riding with an intention to kill them. As a impact of striking of the tractor with the cycle of Gurmit Singh, Gurmit Singh bounced and fell towards the fields of Shamsher Singh near the boundary wire and suffered an injury on his left ankle. Gurnam Kaur alias Gurnam Singh and cycle of Gurmit Singh came under the tractor. Gurmit Singh got up and jumped into the field by crossing the barbed wire as a result he suffered injuries on his hands and his shirt was torn. The shoe of his left foot and parna were left at the spot. In the meantime, a 3 Criminal Appeal No.516-DB of 2000 tractor and trolley came from Patran side and in the light of the said tractor, Gurmit Singh saw Gurtej Singh alias Gulli armed with a gandasi Lali armed with a takua and Kala armed with a kulhari came down from his tractor and trolley and they started giving blows on Gurnam Kaur who was lying on the ground with their respective weapons. Gurmit Singh complainant raised the alarm ‘na marro, na marro’ on which all the four accused along with their respective weapons drove the tractor and trolley towards village Deogarh. Thereafter, Gurmit Singh came at the spot and saw that the neck of Gurnam Kaur was lying crushed and almost cut off. She had also suffered injuries near her left ear, left cheek and on the left side of the chest and all the injuries were bleeding and Gurnam Kaur had died.” As per prosecution, motive for the attack was that Gurnam Kaur was getting land of her share cultivated by a tractor. She has adopted Jagtar Singh son of Gurmit Singh (PW4) and was looking after his education, which created suspicion in the mind of the appellants that she would transfer the tractor and her land in the name of above named Jagtar Singh. It is further case of the prosecution that after commission of offence by the appellants and their brothers, PW4 Gurmit Singh went to village Haryu Khurd, on foot, to his friend Shubegh Singh, came back, left Shubegh Singh near the dead body and then went to village Nihal to inform his brother-in-law Birbal Singh (PW5). When Gurmit Singh and Birbal Singh were coming back to the place of occurrence, they met the police party on their way. Statement of Gurmit Singh (PK/1) was recorded at 7.35 am on 22.10.1997, whereupon FIR (PK/3) was recorded in police station Patran at 4 Criminal Appeal No.516-DB of 2000 7.50 am on that very day. Special report reached the Ilaqa Magistrate in Sunam at 11.40 am. The Investigating Officer Balraj Singh (PW7) went to the spot, prepared inquest report regarding dead body of Smt.Gurnam Kaur and sent it for post-mortem examination, which was conducted by Dr.P.S.Sidhu (PW1) on 22.10.1997 at 10.00 am. The investigating officer took blood stained earth into his possession. He also took into his possession other relevant material from the spot. He arrested the accused on 26.10.1997. On interrogation, they made disclosure statement, whereupon tractor and other weapons of offence were recovered. On receipt of report of the Serologist, final report was put in Court for trial. The appellants and their co-accused were charge sheeted, to which, they pleaded not guilty and claimed trial. The prosecution produced 11 witnesses and also brought on record documentary evidence, to prove its case. On conclusion of prosecution’s evidence, statements of the accused were recorded under Section 313 Cr.P.C. They controverted the evidence led against them, pleaded innocence and false implication. They also produced 6 witnesses in defence. The trial Court, on analysis of evidence, as led by both the parties, found the appellants guilty of charges framed against them and accordingly, they were convicted and sentenced vide judgment and order dated 1.9.2000, whereas, their co-accused/ brothers, namely, Lali Singh and Gurtej Singh alias Gurcharan Singh alias Gulli were found innocent and were acquitted. Mr.Vinod Ghai, Advocate, counsel for the appellants, by making reference to the statements made by the prosecution witnesses, tried to show to this Court that the prosecution evidence is not reliable. He further tried to stress that an attempt has been made to suppress genesis of 5 Criminal Appeal No.516-DB of 2000 the occurrence and altogether a different case has been put up by the prosecution. He further stated that the prosecution has failed to explain delay in getting the FIR recorded. Motive, to commit crime, was also not proved on record. He has severally attacked the act and conduct of Gurmit Singh (PW4), Birbal Singh (PW5) and Shubegh Singh (PW6), by stating that all the three were not reliable witnesses. It is an admitted fact that the death occurred near to village Deogarh. Gurmit Singh (PW4) did not go to intimate his son, who, as per his version, was residing in village Deogarh and Piara Singh, brother of the deceased. Rather he went to village Haryu Khurd at a distance of 6 kms on foot and came back with Shubegh Singh. Even then he did not inform anybody in the village. Thereafter, he went to village Nial to intimate his brother-in-law Birbal Singh (PW5), regarding the incident. When going to village Nial, he passed through Patran, where police station is situated. Mr.Ghai argued that this witness has told lie regarding involvement of Birbal Singh, Shubegh Singh in criminal cases, whereas, above said fact was admitted by above named witnesses. Mr.Ghai brought to our notice that the photographer, namely, Ashok Kumar (DW1) has specifically stated that photographs of the dead body were snapped during night. Ashok Kumar and other witnesses, who signed the inquest report and took dead body of the deceased to the hospital, though cited as witnesses but were not produced in Court with a view to suppress the true facts. By stating that defence evidence is more liable, he prayed that the appeal filed by the appellants be allowed and they be acquitted of the charges. He further stated that the respondents in Criminal Appeal No.308- DBA of 2001, were rightly acquitted by the trial Court, by giving them benefit of doubt. The prosecution has failed to prove charges against them. Their presence at the spot was not proved. To say so, he has made reference 6 Criminal Appeal No.516-DB of 2000 to the defence evidence on record, which was produced to support a defence of alibi taken by the respondents in that appeal. He prayed that Criminal Appeal No.308-DBA of 2001 be dismissed, as having no substance. Prayer made has vehemently been opposed by Mr.D.S.Brar, Deputy Advocate General, Punjab, who has put in appearance for the respondent-State. He, by making reference to the statements made by Gurmit Singh (PW4), Birbal Singh (PW5) and Shubegh Singh (PW6), tried to show that the trial Court has rightly convicted the appellants in Criminal Appeal No.516-DB of 2000. He further tried to demonstrate that acquittal of their co-accused was not justified. He argued that it was an eye witness account. The entire occurrence, in which, Gurnam Kaur was killed, was seen by Gurmit Singh (PW4). He further argued that the prosecution has explained the delay. Gurmit Singh was terrorized and was facing danger to his life due to that, he did not go to village Deogarh and rather went to village Haryu Khurd, brought Shubegh Singh (PW6) with him, left him at the spot and then he went to his close relative Birbal Singh (PW5) and thereafter, reported the matter to the police. Gurmit Singh (PW4) is an injured witness and his presence at the spot, cannot be doubted. He also made reference to the statement made by the investigating officer, stating that the investigation was done in a very fair and efficient manner. Weapons of offence were recovered on a disclosure statement made by the accused. He further argued that DW1 Ashok Kumar is not a reliable witness and he was left out by the prosecution, having been won over by the defence. He further argued that the trial Court has wrongly acquitted the two accused, which order, as per evidence on record, is not justified and deserves to be reversed. He prayed that Criminal Appeal No.516-DB of 7 Criminal Appeal No.516-DB of 2000 2000 be dismissed and Criminal Appeal No.308-DBA of 2001, filed by the State, be allowed. After hearing counsel for the parties, this Court is of the opinion that Criminal Appeal No.516-DB of 2000 filed by Harnek Singh and Kala Singh deserves to be allowed. Before proceeding further, we will refer to the medical evidence on record. Post-mortem on the dead body of Gurnam Kaur was conducted by Dr.P.S.Sidhu (PW1), Medical Officer, Civil Hospital, Sunam on 22.10.1997 at 10.00 am. This witness has specifically stated that the dead body was brought to the hospital by Satnam Singh/ Satantar Pal Singh. (emphasis supplied). Doctor found the following injuries on the person of the deceased:- “1. Incised wound 3cm x 2cm x 5cm over the left side of the face starting from tragus of ear, cutting pinna of the left ear, extending upto mastoid cutting face skin facia and underlying bones. The brain matter exposed. Clotted blood was present. 2. Incised wound 4cm x 1.5 cm x 2cm over left mandibular region of face cutting skin facia and underlying bones. Clotted blood was present. 3. Incised wound 1 cm x 5cm x 2 cm over right side of chin cutting akin facie underlying bones. Clotted blood was present. 4. Incised wound 4 cm x 3cm x 3cm over left side of face below the chin cutting skin facie underlying bone. Clotted blood was present. 8 Criminal Appeal No.516-DB of 2000 5. Incised wound over the neck starting from the right side extending to the left encircling the neck. Skin facia underlying bone and other structure cutting. Clotted blood was present. Incised wound 7 cm x .5cm x 4cm lying transversely. 6. Incised wound 3 cm x 2cm x 0.5cm over the left side of the chest starting from the left border of sternum lying transversely. Skin and underlying bone cut. Clotted blood was present. 7. Incised wound 3cm x 2cm x 2cm over left side of the chest extending from lower border of left clavical. Skin and underlying bond cut. 8. Abrasion 2 cm x 3 cm over the right side of thigh 10 cm above the knee joint. 9. Abrasion over the left side of pelvic region measuring 4 cm x 2cm. 10. Abrasion 2 cm x 1cm over the dorsum side of the right hand starting from base of ring finger. 11. Abrasion 4 cm x 2cm over the left hand ventral side extending from base of thumb. 12. Multiple small abrasions present over the back of right fore-arm. Wall, ribs and cartilages of the thorax, left side frist and 2nd ribs fractured. Pleaura:- left side damaged. Larynx trachea, cut. Left lung was damaged. Pericardium and heart were healthy and large vessels cut and damaged. Pharynx and Oesophagus were cut a damaged. Stomach 9 Criminal Appeal No.516-DB of 2000 contained 200 m.l. of semi solid particles. The bladder contained 50 ml of urine.” This witness has further stated that death was caused, due to extensive injuries on the vital organs i.e. head and neck. The injuries were sufficient to cause death in an ordinary course and were ante mortem in nature. This witness has also medically examined Gurmit Singh (PW4) on 22.10.2007 at 10.15 a.m. and found the following injuries on his person:- “1. Incised wound ‘Y’ shaped measuring 4cm x 3cm over the ventral side of ring finger of left hand 1 cm above the base of ring finger. Clotted blood was present. 2. Incised wound 3cm x 0.5cm over the ventral side of left hand lying verticale extending from the base of ring finger. Clotted blood was present. 3. Abrasion 1 cm x 1cm over the ventral side of the left hand extending from base of first finger. 4. Lacerated wound 4cm x 3cm over the back of left ankle joint over posterior aspect, 2cm behind left malleoli posterior border. 5. Abrasion over right medium malleoli 3cm x 1cm 6 cm from back of leg. 6. Swelling 6cm x 6cm over left ankle joint .” After X-ray, injury No.6 was declared grievous and it was found a fracture of talus of left foot (emphasis supplied). The witness has further stated that possibility of causing all injuries to the deceased with one weapon cannot be ruled out. Witness has also deposed that the deceased might have taken her last meal about two hours before her death. Regarding injuries to Gurmit Singh (PW4), it was specifically stated that all the 10 Criminal Appeal No.516-DB of 2000 injuries, including injury No.6, could be the result of a friendly hand. This witness has further stated that possibility of injuries as self suffered by Gurmit Singh, at about 7.00/8.00 a.m. on 22.10.1997, cannot be ruled out. The Court will discuss the impact of medical evidence on the prosecution’s case at a later stage. Now it is to be seen whether prosecution was successful in explaining delay of more than 12 hours in recording the FIR in this case. As per version of Gurmit Singh, when he was going to village Deogarh on a cycle along with the deceased, Harnek Singh appellant came from behind and hit them with a tractor, which he was driving. Both were knocked down. The witness bounced and fell down towards the fields and Gurnam Kaur along with cycle was run over by the tractor. Thereafter, in the light of another tractor, he had seen all the accused causing injuries to the deceased. When he raised alarm, all the accused ran away along with their respective weapons. This witness has stated that his son Jagtar Singh, who was student of 10th class, was residing with the deceased in village Deogarh. It is also an admitted fact that another brother of the deceased, namely, Piara Singh and his family were also residing in the village. It is not case of the prosecution that when this witness raised an alarm, he was chased by the assailants or they made any attempt to kill him also. Under these circumstances, it was expected from this witness to go to village Deogarh and intimate above named persons or respectables of the village regarding the above said incident. In a very surprising manner, he left the dead body unattended on a roadside and with his fractured foot, went to village Haryu Khurd at a distance of 6 kms and came back along with Shubegh Singh (PW6). With the injured foot, he traveled a distance of 12 kms. Police 11 Criminal Appeal No.516-DB of 2000 station Patran is situated at a distance of about 2 ½ kms. He did not reported the matter to the police, left Shubegh Singh near to the dead body and after crossing Patran, went to village Nial, to intimate his brother-in-law Birbal Singh (PW5). When they were coming back, police met them on the way and his statement was recorded at 7.35 a.m. on 22.10.1997. It has also come on record that neither in village Haryu Khurd nor in village Nail, Gurmit Singh (PW4) made any attempt to intimate any respectable of the village. When passing through Patran, he did not bother to go to the police station. The prosecution has failed to fill up this gap of 12 hours in reporting the matter to the police, by Gurmit Singh (PW4). Special report also reached Ilaqa Magistrate at Sunam, at a distance of 25 kms. at 11.00 a.m. Prosecution took four hours to deliver the special report to the Magistrate, which also creates doubt regarding its case. Contention of counsel for the appellants that intervening period was used to concoct a story, appears to be correct. It is virtually an admitted fact that the investigating officer and other prosecution witnesses have admitted it as a fact that none of the prosecution witnesses, who were produced in Court i.e. Gurmit Singh (PW4), Shubegh Singh (PW6) and Birbal Singh (PW5) had signed the inquest report. The inquest report was signed by Chuha Singh and Piara Singh (brothers of the deceased). It has also come on record that in the hospital, dead body was identified by one Satnam/ Stanter Singh. If PW4 to PW7 were present at the spot, then it was natural for the investigating officer to get their signatures on the inquest report and other papers and further they were the persons, who were to shift the body of the deceased to the hospital. Presence of Gurmit Singh (PW4) at the spot, in view of facts mentioned earlier and to be mentioned hereinafter, appears to be doubtful. 12 Criminal Appeal No.516-DB of 2000 In his statement, this witness has admitted that occurrence had taken place 40/50 karams from the Patran Jakhal road towards village Deogarh, which was at a distance of one km from that spot. This witness has further admitted that there were many shops on Patran Jakhal road near the turning to village Deogarh. Shops are in existence from that turning point upto Patran town and there was also a sugar mill at a distance of 2/3 kms from the spot. Strangely, with a fractured foot, this witness went to a distance of 6 kms, however, he failed to intimate any of the occupants of the shops which were supposed to be open at 7.00 pm. This witness also did not go to the sugar mill for help. This witness has further stated that when he was struck from behind by Harnek Singh appellant with his tractor, he fell down in the nearby fields. He saw another tractor coming to the spot and in the light of that tractor, had seen the accused causing injuries to the deceased. The witness has further stated that the tractor driver had seen the occurrence. Prosecution has failed to bring on record any evidence to show that who was the tractor driver, whether he stopped at the spot or not, no attempt was made to join him in the investigation. So far as injuries received by this witness are concerned, those are also doubtful. Dr.P.S.Sidhu (PW1) has specifically stated that all these injuries could be the result of a friendly hand. The witness has further stated that possibility of receipt of those injuries at about 7.00/8.00 am on 22.10.1997, could not be ruled out. This witness was not declared hostile. Otherwise also, this Court feels that with a fractured foot, it was not possible for Gurmit Singh (PW4), to travel a distance for more than 20 kms. i.e. firstly by going to village Haryu Khurd and coming back to the spot and then going to village Nial. It was case of the prosecution that the deceased 13 Criminal Appeal No.516-DB of 2000 was crushed underneath the front tyre of the tractor. The doctor has not seen any crush injury on the person of the deceased. Gurmit Singh (PW4) is also found to be a liar. Suggestion was put to this witness that PW5 and PW6 were involved in criminal cases, which was denied by him, whereas when this fact was put to the above said witnesses, they admitted that they were involved in criminal cases. It is an admitted fact that parties were maintaining family friendship with each other for more than 20 years, in such like situation, it was expected from Gurmit Singh (PW4) that he should know involvement of the PW5 and PW6 in criminal cases. It was case of Gurmit Singh (PW4) that by chance, he met her sister-in-law i.e. the deceased Gurnam Kaur at a commission agent’s shop i.e. Tarsem Lal. He had brought his crop for sale, to that commission agent. So did the deceased. In the evening, he proceeded to village Deogarh along with the deceased and thereafter, occurrence had taken place. To prove above said fact, Tarsem Lal, Commission Agent was not joined in the investigation. No receipt of the sale of the produce was brought on record. Facts mentioned above, clearly casts doubt regarding presence of Gurmit Singh (PW4) at the spot. To show motive to commit the crime, it was stated that the deceased had adopted Jagtar Singh son of Gurmit Singh (PW4) and it was suspected by the accused that she will give