CRIMINAL APPEAL NO. 116-DB OF 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: October 14, 2009. Parties Name Nirmal Singh ..APPELLANT VERSUS State of Punjab ...RESPONDENT CORAM: HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY PRESENT: Mr.D.S.Pheruman, Advocate, for the appellant. Mr. D.S. Brar, D.A.G., Punjab, for the respondent. JASBIR SINGH, J. ORDER. Vide judgment and order dated October 6, 2000, appellant Nirmal Singh was convicted for commission of an offence punishable under Section 302 IPC and was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 3,000/- with a default clause. It was allegation against him that on August 24, 1999, he committed murder of Surinder Kaur by inflicting injuries upon her, with the help of a Datar (Ex. PO). Case of the prosecution, as noticed by the trial Court in para CRIMINAL APPEAL NO. 116-DB OF 2001 -2- No. 2 of its judgment, reads thus: “On 24.8.1999, Gurcharan Singh, complainant, lodged report with police, when he made statement before SI Balwinder Singh of Police Post, Jhander, under Police Station Majitha, on 24.8.1999, at about 7.30 A.M, in the area of Chowk Lashkri Nangal. He stated before Police that he was resident of village Sehnsra Kalan and was an agriculturist. According to him, on that day, i.e. 24.8.1999, when he was sleeping at his house, one Sukhdev Singh of his village came to him and informed that Surinder Kaur Jathedarni, widow of Parjinder Singh alias Bittu, resident of village Sehnsra Kalan, had been killed by some one after cutting her neck. He also informed the complainant that Mohinder Kaur, mother of deceased Surinder Kaur, had called him at her house. The complainant reached at the house of Surinder Kaur and found dead body of Surinder Kaur lying on a cot and there were sharp edged injuries on her neck and half of the neck was cut. According to complainant, Mohinder Kaur had informed him that on that night, she along with her husband Chanan Singh and Surinder Kaur (deceased) along with her two children were sleeping in the courtyard of the house on their respective cots, at 3 / 4.00 A.M. Mohinder Kaur heard shriek of Surinder Kaur and she found Nirmal Singh alias Pappu, accused along with a Datar there and she had seen him running away from their house. Said Nirmal Singh was earlier known to Mohinder Kaur, as he was earlier working as a servant at her house. Mohinder Kaur also informed the CRIMINAL APPEAL NO. 116-DB OF 2001 -3- complainant that the accused had a dispute with Surinder Kaur seven/ eight months before, on the point of money transaction and the matter had gone to Panchayat and police, but a compromise was effected between them. The accused was to pay Rs. 16,000/- to Surinder Kaur and he had agreed to pay monthly instalment of Rs. 500/- each towards payment of the said amount. But, the accused, after paying one instalment backed out from his undertaking and when Surinder Kaur demanded the money, he threatened to kill her. Mohinder Kaur also informed the complainant that Surinder Kaur was having Civil litigation with regard to land with her mother-in-law. The complainant informed the police that the accused had committed murder of Surinder Kaur and that he had come to lodge report with police at the asking of mother of the deceased.” Process of criminal law was put into motion on a statement (Ex. PB) made by Gurcharan Singh (PW2). After recording his statement, as mentioned above, SI Balwinder Singh, accompanied by other police officials, went to the spot and prepared a rough site plan of the place of occurrence with correct marginal notes. He also lifted blood-stained earth from the spot, against a recovery memo. He prepared inquest report of the dead body and sent it for post-mortem examination. He also took into his possession one application (Ex. PL) alleged to have been written by the deceased against the accused, which was handed over to the Investigating Officer by one Lakhwinder Singh. Post-mortem examination of the dead CRIMINAL APPEAL NO. 116-DB OF 2001 -4- body was conducted by Dr. Ashok Chanana (PW1), who found the following injuries on the person of the deceased: “1. Horizontal incised wound 14 x 5.5 x 6 cms. with clotted blood was present on the front of the neck, at the level of thyroid cartilage. The underlying cervical vertabrae were visible and the intervening structure of neck i.e. soft tissues, ear passages, nerves, major blood vessels and oesophagus were cut through and through. Clotted blood at the site and infilteration of blood in the periphery was present. 2. An oblique incised wound 6 x 3 cms bone deep with clotted blood was present on the left clavicular region of neck, in its centre. The corresponding part of Kamiz was also cut.” The appellant – accused was arrested on September 8, 1999, by Inspector Kuldip Singh (PW8). On interrogation, he made a disclosure statement, which led to the recovery of weapon of offence, which was also taken into possession, against a recovery memo. On completion of investigation, final report was put in Court for trial. The appellant was charge-sheeted for commission of an offence under Section 302 IPC. He pleaded not guilty and claimed trial. The prosecution produced eight witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution evidence, statement of the appellant – accused was recorded under Section 313 Cr.P.C. He refuted the allegations levelled against him, controverted the evidence brought on record by the prosecution and pleaded false implication. Appellant – accused led no evidence in defence. The trial CRIMINAL APPEAL NO. 116-DB OF 2001 -5- Court, on appraisal of evidence, passed the impugned judgment/ order convicting and sentencing the appellant – accused, as mentioned in earlier part of this order. Counsel for the appellant has vehemently contended that the prosecution has miserably failed to establish guilt of the appellant – accused. His identity as an assailant has not been established. He stated that the presence of Chanan Singh (PW3) at the spot was not proved and if his statement is excluded from consideration, it is contention of counsel for the appellant that no incriminating material will be available against the appellant to convict him. Counsel further argued that the FIR was ante- timed. To show that, he has stated that the special report reached the Ilaqa Magistrate at a very belated stage, i.e., at about 4 PM. He further argued that initially, name of the appellant was not known to the Investigating Officer. In view of above, name of the accused was not shown in various documents including some recovery memos. He further argued that as per medical evidence on record, injuries were caused by two different weapons, which casts doubt upon the prosecution story. He prayed that the appeal be allowed, judgment and order under challenge be set aside and the appellant be acquitted of the charge framed against him. Prayer of counsel for the appellant has vehemently been opposed by counsel for the State, who, by making reference to the statement of Chanan Singh (PW3), father of the deceased, SI Balwinder Singh (PW7), the Investigating Officer and Inspector Kuldip Singh (PW8), who arrested the accused and recovered weapon of offence, argued that the prosecution case is fully proved on record. He further argued that the delay in receipt of special report is not fatal to the case of the prosecution and there is no CRIMINAL APPEAL NO. 116-DB OF 2001 -6- question of ante-timing the FIR, as alleged by counsel for the appellant. To say so, he tried to demonstrate that recording of the FIR was prompt and thereafter investigation was completed in a very efficient manner. By stating that name of the appellant was mentioned in almost all the documents except a few, he argued that, for that, no benefit can be given to the appellant – accused as it may be a lapse on the part of the Investigating Officer. He prayed that the appeal having no substance be dismissed. After hearing counsel for the parties, this Court is of the view that no interference can be made in the judgment and order under challenge, at the instance of the appellant. Gurcharan Singh (PW2) in his statement before the police (Ex. PB), has stated that he was told by mother of the deceased that the murder was committed by the appellant. When appeared in the witness-box, this part of his statement was not supported by the above said witness, he was declared hostile and was cross-examined. During his cross-examination, this witness has admitted that the police had recorded his statement and he had signed the same in Urdu. He has adopted his signatures on the statement Ex. PB. In cross-examination, this witness has admitted all other facts, which he had stated in his statement, mentioned above. It was stated by PW2 that earlier the appellant – accused was working as an agricultural labourer with the deceased. There was some dispute regarding money between the parties, a complaint was made by the deceased against the appellant- accused to the police, thereafter the matter was compromised and the appellant -accused agreed that he owe an amount of Rs. 16,000/- to the deceased, which he would pay in instalments of Rs. 500/- per month. After paying the first instalment, he defaulted and did not pay rest of the amount. This witness has further admitted that after death of CRIMINAL APPEAL NO. 116-DB OF 2001 -7- husband of the deceased, her mother Mohinder Kaur and father Chanan Singh started living with the deceased. The witness has further admitted that he brought the police party to the place of occurrence. It appears that this witness has melted under pressure and has not supported entire case of the prosecution , may be, because of being a co-villager of the appellant – accused. The prosecution got full support from statement made by Chanan Singh (PW3), father of the deceased, who has categorically stated that he, his wife and the deceased along with two children were sleeping in the courtyard of their house. He and his wife woke up after hearing shrieks of his daughter and they saw the appellant – accused Nirmal Singh running away from the spot. Despite searching cross-examination, the defence has failed to shatter testimony of this witness. Chanan Singh (PW3) has also stated that he is wearing spectacles since the year 1986, however, he had seen the accused running away from a distance of about 15 – 20 Karams. Contention of counsel for the petitioner that on account of weak eye sight, the testimony of this witness is not reliable, is liable to be rejected. Balwinder Singh (PW4) is a Sarpanch of the village. He has deposed that there was a money dispute between the appellant and the deceased. The appellant had defaulted in making the repayment. During investigation, one Lakhwinder Singh handed over a handwritten application of the deceased (Ex. PL) to the Investigating Officer, wherein the deceased has stated that she was fearing threat to her life at the hands of the appellant – accused. In view of above, this Court is of the opinion that the prosecution was successful in proving guilt of the appellant – accused. Contention of counsel for the appellant that as per medical CRIMINAL APPEAL NO. 116-DB OF 2001 -8- evidence on record, the injuries were caused by two separate weapons and on account of that, the appellant cannot be held guilty, is liable to be rejected. Dr. Ashok Chanana (PW1) in his cross-examination has stated that the possibility of two weapons having been used, for inflicting the injuries, found on the dead body, cannot be ruled out. On perusal of the injuries, it becomes clear that the difference is not such on the basis of which it can be said that two weapons were used when injuries were caused. The doctor has nowhere stated that the injuries were not possible with one weapon, i.e. , Datar. Otherwise also , if a sharp edged weapon is used with force, the wound will get more width as compared to when the weapon is used with a mild force. This appears to have happened in this case. One injury is very deep, the second is on the bone and is not very deep. Further contention of counsel for the appellant that the FIR was ante-timed is liable to be rejected. To support above said contention, counsel for the appellant has referred to the two recovery memos, in which name of the appellant – accused is not mentioned. Be that as it may, it may be due to some negligence on the part of the Investigating Officer. As per case of the prosecution, statement of PW2 Gurcharan Singh was recorded at 7.30 AM on August 24, 1999. Intimation was sent to the Police Station for registration of an FIR, which was accordingly registered , and number was intimated to the Investigating Officer at the spot. Number of the FIR is mentioned in all the documents prepared during investigation. In the meantime, the special report was sent to the Ilaqa Magistrate, which reached there at 3.50 PM. This Court feels that for some carelessness on the part of the Investigating Officer, no relief can be given to the appellant -accused. CRIMINAL APPEAL NO. 116-DB OF 2001 -9- A fact that Chanan Singh (PW3) was residing with the deceased has even been admitted by PW2 Gurcharan Singh, who was declared hostile. Otherwise also, the defence has failed to show anything to the contrary. In view of facts mentioned above, no case is made out for interference. Consequently, the appeal fails and the same is dismissed. (JASBIR SINGH) JUDGE ( DAYA CHAUDHARY) JUDGE October 14, 2009. DKC