Crl. Appeal No. 104-DB of 1999 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 104-DB of 1999 Date of Decision: 26th March, 2008 Hardev Singh and another. … Appellants Versus State of Punjab … Respondent CORAM : HON’BLE MR. JUSTICE ADARSH KUMAR GOEL, HON’BLE MR. JUSTICE S.D. ANAND. Present : Mr. R.S. Bains, Advocate, for the appellants. Mr. A.S. Jattana, Additional Advocate General, Punjab, for the respondent. S.D. Anand, J. Appellants Hardev Singh son of Mukand Singh son of Nidhan Singh and Jaila Singh alias Jarnail Singh son of Mukand Singh son of Nidhan Singh, aged 40 years and 30 years respectively, are in appeal against their conviction by the learned Trial Judge for an offence under Section 302 read with Section 34 of the Indian Penal Code. PW2 – Boghar Singh had three sons, eldest amongst them being Sukhdev Singh, followed by Raj Singh and Nika Singh in order of seniority on point of age. He also had six daughters. About Crl. Appeal No. 104-DB of 1999 2 7-1/2 months ago (prior to his examination at the trial on 18.07.1998) at about 7.00 P.M., Sukhdev Singh was sitting in an open land belonging to one Kartar Singh. He went over there after having had his dinner. Golo PW3 (daughter of PW2 – Boghar Singh) was playing over there, along with other children. After finishing his meals, PW2 – Boghar Singh also proceeded towards the chowk. He spotted appellants Jaila Singh @ Jarnail Singh and Hardev Singh coming from the eastern direction. Jaila Singh was armed with a Kassauli; while Hardev Singh was armed with a Gandhala. On reaching near the place where Sukhdev Singh was sitting, appellant Jaila Singh gave a Kassauli blow on the head of Sukhdev Singh. When he raised a raula, appellant Hardev Singh gave a Gandhala blow on the right side of head of Sukhdev Singh. Further thereafter, Hardev Singh gave another Gandhala blow on the right side of head of Sukhdev Singh. Immediately thereafter, the appellants fled the scene and carried along their weapons of offence. About 2-1/2 months prior to the impugned occurrence, Sukhdev Singh and the appellants had had an altercation in the Akhara located in the area of village Gadiawala. It was on account of that grievance that the appellants had, on appearing at the scene, raised a lalkara that Sukhdev Singh ought to be taught a lesson for the above altercation. For proof of the above allegations, the prosecution examined PW1 – Dr. Kasturi Lal, PW2 – Boghar Singh, PW3 – Golo, PW4 – ASI Pritam Singh, PW5 – Constable Surinder Singh, PW6 – Ashok Kumar Gupta, PW7 – ASI Mohinder Singh and PW8 – Inspector Joginder Pal Singh. Crl. Appeal No. 104-DB of 1999 3 PW1 – Dr. Kasturi Lal had conducted the post mortem examination on the dead body of Sukhdev Singh and had found the following injuries on it:- “1. An incised wound on right parietal area of skull 1.5 cm x 5 cm bone deep 5 cm from the anterior hair line 1 cm right to the midline going posteriorly. Clotted blood was present 2. An incised wound 5 cm x 5 cm in the right parietal area of skull. It is 15 cms from upper border of right ear and 11 cm posterior to anterior hair line and 2 cm right to midline going posteriorly and laterally clotted blood was present. 3. Abluish black swelling around the upper lid and right forehead 6 x 4 cm in size.” In his opinion based upon the observations noticed above, death had occurred due to haemorrhage and shock due to injuries aforementioned which were ante mortem in nature and sufficient to cause death in ordinary course of nature. PW2 – Boghar Singh and his daughter PW3 – Golo (who was declared by the learned Trial Judge to be a competent child witness) had witnessed the impugned occurrence. PW4 – ASI Pritam Singh and PW5 – Constable Surinder Singh tendered their affidavits Ex.PC and Ex.PD respectively into evidence. PW6 – Ashok Kumar Gupta, Draftsman, had prepared scaled site plan Ex.PE on the pointing of PW2 – Boghar Singh. PW7 – ASI Mohinder Singh and PW8 – Inspector Joginder Pal singh are the two Investigating Officers of the case. The appellants raised a plea of innocence. Appellant – Jaila Singh @ Jarnail Singh raised a plea of alibi by averring that on Crl. Appeal No. 104-DB of 1999 4 the relevant date, he was away to village Chailwala, to play a Volleyball match and he returned from there late night only. The plea raised by appellant – Hardev Singh is as under:- “I am innocent. Gurmel Singh son of Kartar Singh Mazahbi is residing near the place of occurrence, one month prior to occurrence and altercation took place between Gurmel Singh and Sukhdev Singh deceased. On the day of occurrence Sukhdev Singh criminally trespassed in house of Gurmel Singh and latter gave injuries on the head of the former (Sukhdev Singh) the shoes of Sukhdev Singh also fell in the house of Gurmel Singh. Sukhdev Singh trespassed in house of Gurmel Singh with bad intention. It is a blind murder. I and my brother Jaila Singh had no altercation at village Gaddiawala in the Akhara with the deceased. This is a false story on part of prosecution Billu alias Surjit Singh son of Jangir Singh has a civil litigation pending at Mansa against Jora Singh his real brother. I and Jaila Singh were helping Billu Singh @ Surjit Singh in the said Civil litigation. Jora Singh was forcibly taking possession over the land in the possession of Billu Singh. I was named in this false case by Boghar Singh at the instance of his brother Jora Singh.” Ex.PF and Ex.PG, reports of the Chemical Examiner and Serologist respectively, were tendered into evidence. The learned counsel for the appellants, at the very outset, argues that the involvement of Jaila Singh @ Jarnail Singh in the impugned occurrence has not at all been established on the file. In Crl. Appeal No. 104-DB of 1999 5 support of the advocated view, our attention has been invited to the fact that no blow had at all been attributed to him in the inquest proceedings which were attested by two persons including a son of Boghar Singh. The learned counsel, in support of the line of argument adopted by him, also invites our attention to the statement of PW1 – Dr. Kasturi Lal to the effect that “possibility of both these injuries have been caused with one weapon is not ruled out. Injuries No.1 and 3 are superficial and simple in nature.” On an appraisal of the material obtaining on the file including the above two pieces of evidence towards which our attention has been invited by the learned counsel for the appellants, we find ourselves in agreement with the plea. As apparent from the inquest proceedings, though the name of Jaila Singh @ Jarnail Singh, and also the weapon carried by him, is mentioned therein, both the blows given to the deceased are attributed to Hardev Singh. As already noticed in an earlier part of this judgment, the inquest proceedings were attested by two persons and the latter out of them is the real son of PW2 – Boghar Singh first informant. That aspect is to be appreciated in view of the statement of PW1 – Dr. Kasturi Lal which stands quoted in the preceding para of this judgment. Even at the cost of repetition, it may be noticed that the Medical Officer had recorded a categorical finding that “Injuries No.1 and 3 are superficial and simple in nature”. That part of the statement of PW1 – Dr. Kasturi Lal, appreciated in the light of his statement that the possibility of Injuries No. 1 and 2 having been caused by one weapon cannot be ruled out and also the fact that no blow is attributed to Jaila Singh @ Crl. Appeal No. 104-DB of 1999 6 Jarnail Singh in the inquest proceedings, is a clincher to record a finding that appellant – Jaila Singh @ Jarnail Singh appears to have been roped in falsely. However, we must indicate here that the prosecution plea against appellant – Hardev Singh is established by the categorical, unambiguous and clinching statements of PW2 – Boghar Singh and PW3 – Golo, both of whom gave a detailed presentation of the manner in which the impugned occurrence had taken place. In a very forthright manner, they detailed the sequence of events, starting from the appearance on the scene of appellant – Hardev Singh while he was armed with a Gandhala and culminating in the giving of blows by him to Sukhdev Singh. In spite of the fact that a fairly lengthy cross- examination had been directed at them, they were able to withstand it and their credit could not be shaken or impeached in the course thereof. Faced with the predicament of having to explain the averments (evident) from the testimony of PW2 – Boghar Singh and PW3 – Golo, the learned counsel for the appellants presses into service the oft-repeated argument that this Court ought not to rely upon the testimony of relation witnesses, which PW2 – Boghar Singh and PW3 – Golo concededly are qua the deceased. The plea raised deserves to be negatived, for the simple reason that our attention has not been invited to any law authorising the outright discarding of the testimony of relation witnesses. We do, however, concede that the testimony of relation witnesses would require stricter scrutiny if their testimony is not corroborated by evidence of independent character. We have indeed undertaken that Crl. Appeal No. 104-DB of 1999 7 exercise and we find that the learned Trial Court had very correctly relied upon the testimony of PW2 – Boghar Singh and PW3 – Golo. It requires no reiteration that the relation witnesses would be least interested in letting the real culprit get away and to substitute the same by any one else. The relation witnesses, on the other hand, would be the keenest to ensure that the perpetrator of the crime must face the frown of the law for having done away with a relation of theirs (relation witnesses). The learned counsel for the appellants, then, argues that the prosecution case is rendered doubtful on account of the fact that no independent witness had been joined in spite of the fact that the houses of a particular segment of society and also of others are located around the site of occurrence. It is a matter of common observation that the co-villagers would prefer to stay away from siding with one segment of the village population, for fear of annoying a life long neighbour/village mate and also on account of the fear of reprisal. Though the reiteration of that phenomenon cannot be contested by either party, it indeed shows the general population in poor light. A truthful independent witness is an asset to the administration of justice inasmuch as such a witness enables the Courts to do substantial justice in the matter of disposal of an adjudicatory exercise of this category. Nonetheless, this case cannot be said to be at all doubtful just because no independent witness had been cited by the prosecution. The reasons therefor have already been indicated in an earlier part of this para. The present is, thus, a case in which the prosecution plea is fully supported by the father and daughter duo PW2 – Boghar Singh Crl. Appeal No. 104-DB of 1999 8 and PW3 – Golo and their testimony is completely in accord with the medical evidence. The prosecution has also been able to prove the motive on the part of the appellant – Hardev Singh which actuated him to commit the crime for which he stands convicted. In the light of the foregoing discussion, we allow the appeal preferred by appellant – Jaila Singh @ Jarnail Singh and acquit him of the charge. However, appeal preferred by appellant – Hardev Singh shall stand dismissed, being completely devoid of force. ( S.D. Anand ) Judge March 26, 2008 ( Adarsh Kumar Goel ) vkd Judge Note: Whether to be referred to Reporter : Yes/No