IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Criminal Appeal No.40-DB of 2002 Date of decision: 11.01.2008 Preet Mohinder @ Babloo & others. -----Appellants. Vs. The State of Haryana. -----Respondent. AND Criminal Appeal No.729-DB of 2002 Date of decision: 11.01.2008 Gurvinder Singh -----Appellant. Vs. The State of Haryana. -----Respondent. CORAM:- HON'BLE MR JUSTICE ADARSH KUMAR GOEL HON'BLE MR JUSTICE S. D. ANAND Present: Mr. B.R. Gupta, Advocate for the appellants. Mr. Kulvir Narwal,Addl. A.G., Haryana. ----- Adarsh Kumar Goel, J. This order will dispose of Criminal Appeal No.40-DB of 2002 filed by Preet Mohinder @ Babloo, Devinder Pal Singh and Gurvinder Singh and Criminal Appeal No.729-DB of 2002 filed by Gurvinder Singh. Criminal Appeal No.40 & 729-DB of 2002 Having regard to the fact that the appellant Gurvinder Singh has already filed Criminal Appeal No.40-DB of 2002, the second appeal i.e. Criminal Appeal No.729-DB of 2002 is not maintainable and is dismissed on that ground. Thus, we are only considering Criminal Appeal No.40-DB of 2002 on merits. The appellants stand convicted under Sections 302/324/34 IPC and have been sentenced to undergo life imprisonment and other concurrent smaller sentences besides fine. Case of the prosecution is that Amarjit Kaur mother of Preet Mohinder Singh and Devinder Pal Singh, accused, had contested election for the post of Sarpanch of Village Panjokhra. Baljit Singh, deceased, and his family members did not support her and instead supported the rival candidate Gurvinder Kaur. The accused were nursing a grudge against Baljit Singh on that account. On 1.7.1998 at 9.15 P.M., Naib Singh, PW-10, brother of the deceased Baljit Singh, was going to the place of his service. His duty hours were from 10 P.M. to 6 A.M. When he reached bus stand, he met Randhir Singh and Phuman Singh, PW-11 and started talking to them. On the other side of the road, he saw his brother Baljit Singh deceased talking to his cousin Jasbir Singh, PW-9. Accused Preet Mohinder Singh @ Babloo and Devinder Pal Singh along with Gurvinder Singh @ Bittu came on a scooter driven by Gurvinder Singh. Gurvinder Singh caught hold of the arms of Baljit Singh from back side, Preet Mohinder Singh took out a knife from his pocket and gave a blow on the chest of Baljit Singh towards the left side. Devinder Pal Singh took out his knife and gave blow in the abdomen 2 Criminal Appeal No.40 & 729-DB of 2002 towards the right side. Jasbir Singh tried to rescue Baljit Singh. Preet Mohinder Singh gave a knife blow on the left thigh of Jasbir Singh. Naib Singh alongwith Randhir Singh and Phuman Singh rushed towards Baljit Singh and Jasbir Singh. The accused ran away alongwith their weapons on a scooter and declared that they had settled scores for the Panchayat election. He along with Randhir Singh, Phuman Singh and Karnail Singh took Jasbir Singh and Baljit Singh to the hospital, where they were examined by Dr. Bimla Anand, PW-2. Baljit Singh was found having three incised wounds on chest, thigh and near knee and Jasbir Singh was found having one incised wound on thigh. Injuries on Baljit Singh are: “1. Incised wound 1 x 1½ cm present below the left nipple situated anterior lateral. Fresh bleeding was present. 2. Incised wound 2 x 1 cm on the right thigh below the right knee joint. Fresh bleeding was present. 3. Incised wound 2 x 1 cm present on the right thigh. Fresh bleeding was present. It was 8 cm below injury No.2.” On receiving a message from the hospital, ASI Balbir Singh, PW-12, arrived at the hospital. Baljit Singh was declared dead at 11.20 P.M. and Jasbir Singh, PW-9, was declared unfit to make statement. Statement (Ex.PH) of Naib Singh, PW-10, was recorded by PW-12 ASI Balbir Singh at 11.55 P.M., on which, FIR was registered at 12.30 A.M. on 2.7.1998. Balbir Singh, PW-12, got the post-mortem conducted and after investigation, sent up the accused for trial. 3 Criminal Appeal No.40 & 729-DB of 2002 The post-mortem examination was conducted by Dr. A.K. Garg, PW-1, on 2.7.1998 at 10.10 A.M. According to him, death was on account of injury No.1, which was sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem. The prosecution examined Dr. A.K. Garg as PW-1, Dr. Mrs. Bimla Anand as PW-2, Manohar Lal as PW-3, Zile Singh UGC as PW-4, Ishwar Singh as PW-5, Labh Singh as PW-6, Pal Singh as PW- 7, Mohinder Singh as PW-8, Jasbir Singh as PW-9, Naib Singh as PW-10, Phuman Singh as PW-11, Balbir Singh as PW-12 and Hari Singh, Inspector as PW-13. The accused denied prosecution allegations and stated that Preet Mohinder Singh and Gurvinder Singh were assaulted by Jasbir Singh and Baljit Singh near the shop of Kartari Devi near Bus Stand, Panjokhra. Kartari Devi tried to intervene on which she was also injured. In the scuffle, Preet Mohinder Singh and Gurvidner Singh also inflicted injuries to Baljit Singh and Jasbir Singh. Devinder Pal Singh was not present. They were also medico-legally examined along with Kartari Devi, who was also claimed to have been injured. Their injuries are as under:- Injuries on Preet Mohinder Singh:- “1. Incised wound 3 x 5 cm vertical on the left gluteal region posterily. Fresh bleeding was present. Stitches were given. Corresponding tear was present in the under wear, vest and pant. 2. Swelling was present in the right parieto occipital region 2 x 1 cm. Tenderness was present. No external injury was seen. 4 Criminal Appeal No.40 & 729-DB of 2002 Injuries on Gurvinder Singh:- “1. Incised wound on the middle of the right fore-arm anteriorily across the arm 5 cm x .5 cm. Profused bleeding was present. Stitches were given. X-ray right fore-arm was advised. 2. Small punctured wound skin deep on the right hytogastrim was present. Clotted blood was present. 3. Complaint on pain in the left renal angle and on the back.” Injuries on Kartari Devi:- “1. Bruise bluish in colour over the lower portion of leg over the tibia of right side. 7 x 3 cm. 2. Complaints of pain in the left hypochondrium and on the infra scapular region. Tenderness was present. X-ray chest were advised. 3. Patient complained of headache and giddiness.” The trial Court after considering the evidence on record, held the case of the prosecution to be fully proved beyond reasonable doubt and convicted and sentenced the accused. The substance of findings recorded by the trial Court is as under:- (i) Case of the prosecution was proved by the ocular testimony of Naib Singh, PW-10, which was fully corroborated by the testimony of injured eyewitness Jasbir Singh, PW-9 and another eyewitness Phuman Singh, PW-11; 5 Criminal Appeal No.40 & 729-DB of 2002 (ii) Injuries on the person of the accused were simple and superfluous and failure on the part of the prosecution was of no consequence; (iii) There was contradiction in the stand of the accused in as much as during cross-examination, suggestion given on behalf of Gurvinder Singh was that Gurvinder Singh was in the hospital at the time of occurrence having received injuries in some accident but in statement under Section 313 Cr.P.C., it was stated that injuries were received in the same occurrence; (iv) The place of occurrence was proved to be the place given by prosecution witnesses and not the place given by the accused. Recovery of bloodstained earth took place from the said place. We have heard learned counsel for the parties and perused the record. There are three eyewitnesses. PW-10 Naib Singh is the brother of deceased Baljit Singh and he accompanied the deceased to the hospital immediately after the occurrence. His statement was recorded by the Investigating Officer in the hospital itself immediately after the occurrence. His version in the Court is corroborated by the statements given immediately after the occurrence. There is no reason whatsoever to reject his testimony. Nothing could be elicited from him in the cross-examination. The accused have admitted the occurrence and have only alleged that they caused injuries in exercise 6 Criminal Appeal No.40 & 729-DB of 2002 of right to private defence and that Devender Singh was not there. Having regard to the nature of injuries found on the deceased Baljit Singh and PW-9 Jasbir Singh, the plea of private defence has no merit. The accused party was clearly the aggressor and causing of injuries by Preet Mohinder Singh and Devinder Pal Singh, accused, stand fully proved, which resulted in death of Baljit Singh. Jasbir Singh, PW-9, is a stamped injured witness who has fully supported the case of the prosecution. He is also cousin of deceased Baljit Singh. He will be the last person to substitute the real accused for the actual accused. His testimony is forthright and reliable. Nothing significant has been elicited in the cross-examination. PW-11 Phuman Singh has fully corroborated the version given by PW-9 Jasbir Singh and PW-10, Naib Singh. The version given by three eyewitnesses is categorical and consistent and no reason whatsoever has been shown for not accepting the same. The weapons of offence were duly recovered in pursuance of the disclosure-statements of the accused. It is well settled that evidence of witnesses cannot be rejected merely because they are blood relations of the deceased. The maxim of Falsus in Uno Falsus in Omnibus cannot be applied except as a rule of caution. Normal discrepancies due to errors of observations or memory or mental disposition do not affect the credibility of the witnesses. Reference may be made to Gangadhar Behera v. State of Orissa AIR 2002 SC 3633. 7 Criminal Appeal No.40 & 729-DB of 2002 In view of above, the case of the prosecution is fully proved at least against Preet Mohinder Singh and Devinder Pal Singh. Contention raised on behalf of the above appellants is that since they were also injured in the same incident, the right to private defence should be held to have been proved and adverse inference should be drawn against the prosecution. We do not find any merit in the contention raised. In Takhaji Hiraji v. Thakore Kubersing Chamansing AIR 2001 SC 2328, the Hon’ble Supreme Court observed:- “17. The first question which arises for consideration is what is the effect of non-explanation of injuries sustained by the accused persons. In Rajender Singh v. State of Bihar (2000) 4 SCC 298 : (2000 AIR SCW 1314: AIR 2000 SC 1779: 2000 Cri LJ 2199): Ram Sunder Yadav v. State of Bihar (1998) 7 SCC 365: (1998 AIR SCW 3030 AIR 1998 SC 3117: 1998 Cri LJ 4558) and Vijayee Singh v. State of U.P. (1990) 3 SCC 190: (AIR 1990 SC 1459: 1990 Cri LJ 1510) all 3-Judge Bench decisions, the view taken consistently is that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greater significance when the evidence consists of interested or partisan witnesses or where the defence gives a version which competes in probability with that of the prosecution. Where the evidence is clear, cogent and creditworthy and where the court can distinguish the truth from falsehood the mere fact that the injuries on the side of the accused persons are not explained by the prosecution cannot by itself be a sole basis to reject the testimony of the prosecution witnesses and consequently the whole of the prosecution case.” 8 Criminal Appeal No.40 & 729-DB of 2002 Injuries found on the accused are simple and superfluous. The suggestion given to the PWs was that accused Gurvinder Singh was in the hospital at the time occurrence. It was stated that Gurvinder Singh was not present at the spot and had not participated in the occurrence. Different stand has been taken in the statement under Section 313 Cr.P.C. In any case, injuries being simple, the prosecution was under no obligation to explain the same and merely because of the said injuries, no ground was made out to reject the consistent direct version clearly showing that the accused party was the aggressor and they had no right to private defence. The accused were armed with lethal weapons and they caused injuries with sharp- edged weapons causing instant death of Baljit Singh and injuries to Jasbir Singh. It was next submitted that in the post-mortem report the name of the deceased is mentioned as Baljit Singh son of Gulab Singh while the name of the deceased is Baljit Singh son of Labh Singh. We do not find any substance in the contention raised. In the evidence of PW-2 Dr. Bimla Anand, who examined the injured in the first instance, the name of the deceased has been correctly mentioned as Baljit Singh son of Labh Singh. Mere error in description in the evidence of the doctor who conducted post-mortem examination, is of no consequence. Where the prosecution evidence unequivocally establishes the fact of murder by the accused, even non-holding of the post-mortem examination, may not be a ground to 9 Criminal Appeal No.40 & 729-DB of 2002 reject the prosecution version as held in Banwari Ram and others v. State of UP AIR 1998 SC 674. We, however, find that though Gurvinder Singh has taken inconsistent stand to confuse the matter and has admitted his presence in his statement under Section 313 Cr.P.C., he being unarmed, may not have shared common intention of Preet Mohinder Singh and Devinder Pal Singh who were both armed and caused the death of Baljit Singh by fully participating in the occurrence, from which, their common intention is patent. In these circumstances, we consider it safe to give benefit of doubt to Gurvinder Singh while upholding conviction and sentence awarded to Preet Mohinder Singh @ Babloo and Devinder Pal Singh, appellants. The appeal is disposed of accordingly. ( ADARSH KUMAR GOEL ) JUDGE January 11, 2008 ( S. D. ANAND ) ashwani JUDGE 10