IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 646-DB of 2001 DATE OF DECISION : 06.05.2010 Surjit Singh and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT Crl. A. No. 110-DB of 2003 DATE OF DECISION : 06.05.2010 Surjit Singh and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. J.S. Bains, Advocate, for the appellants. Ms. Gurveen H. Singh, Addl. A.G., Punjab. * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of two appeals i.e. Criminal Appeals No. 646-DB of 2001 and 110-DB of 2003. Both these appeals have been filed by the same accused against the judgment and order 14.8.2001, Crl. A. No. 646-DB of 2001 -2- passed by the Court of Sessions Judge, Patiala, whereby accused Surjit Singh, who is owner of Lahori Dhaba, Main Bazar, Tripuri, Patiala, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-, in default of payment of fine to undergo further rigorous imprisonment for a period of two months, under Section 302 IPC; and accused Prabhu Kumar, who is working as servant on Lahori Dhaba, has been convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-, in default of payment of fine to undergo further rigorous imprisonment for a period of two months, under Section 302 with the aid of Section 34 IPC. 2. As per the prosecution version, which is based upon the statement (Ex.PA) of Satya Nand (PW.1), father of deceased Gulshan Kumar, recorded by Rajbir Singh (PW.9), SHO, Police Station Civil Lines, Patiala, the complainant was a retired DSP from the Punjab Police. On 17.3.1998 (a day prior to the occurrence), he along with his friend Brij Lal son of Nanu Ram (PW.2) was present in his house, situated in Street No. 4, Tripuri Patiala. At about 7.00/8.00 PM, his son Gulshan Kumar (deceased) came to the house and told him that a dispute had taken place between him and accused Surjit Singh on account of money. He stated that in anger, he had hurled abuses to Surjit Singh, who had threatened to kill him. Meanwhile, accused Surjit Singh also came to his house. He lodged protest to the complainant to make understand his son Gulshan Kumar, otherwise, he will be done to death, as he had hurled abuses to him at his shop. At this, Crl. A. No. 646-DB of 2001 -3- complainant told him (Surjit Singh) that tomorrow, he will come to his shop and would patch up the matter. Then accused Surjit Singh left in anger. On the next day i.e. 18.3.1998 (day of occurrence), at about 12.30 PM, he along with Brij Lal and his son Gulshan Kumar went to the Dhaba of accused Surjit Singh, where Ajit Inder Singh son of Harjinder Singh resident of Jhill, Police Station Sadar, Patiala, was also present. On noticing them, accused Surjit Singh armed with fork (Chhuri) and his servant Prabhu Kumar came out of the Dhaba. Prabhu Kumar declared that Gulshan Kumar is the same person, who had abused them on the previous day, he should not be allowed to escape. Then accused Surjit Singh, who was holding fork (Chhuri) in his hand, gave a Chhuri blow on the left side of the chest of Gulshan Kumar. Accused Prabhu Kumar caught Gulshan Kumar from his hair and threw him on the ground. Then accused Surjit Singh gave two/three blows to Gulshan Kumar on his back, when he was lying on the ground. He (complainant) became perturbed, on seeing his son writhing. Meanwhile, Harshinder Singh son of Santokh Singh resident of Street No. 3, Guru Nanak Nagar, Patiala also arrived at the spot. Then, he (complainant), Harshinder Singh and Ajit Inder Singh took away his son in an injured condition to Rajindra Hospital, Patiala, in a vehicle, where doctor declared him dead. The complainant further stated that when he was going to Police Station to lodge the report, Inspector Rajbir Singh, SHO Police Station Civil Lines, Patiala met him at Leela Bhawan Chowk, Patiala, who recorded his statement. The complainant further stated that his son Gulshan Kumar has been murdered Crl. A. No. 646-DB of 2001 -4- by Surjit Singh and his servant Prabhu Kumar with common intention. 3. Inspector Rajbir Singh (PW.9) made his endorsement (Ex.PA/1) on the above said statement at 3.15 PM and on the basis of the said statement (Ex.PA), the formal FIR (Ex.PA/2) was registered at 4.25 PM. The special report was received by the Judicial Magistrate at 5.10 PM. 4. After recording the statement (Ex.PA), Inspector Rajbir Singh (PW.9) went to the Hospital along with the complainant. He associated Harshinder Singh and Inderjit Singh Chopra, who were present there, and prepared the inquest report (Ex.PC/2) and recorded their statements. He deputed HC Joginder Singh to get the post mortem conducted on the dead body. Thereafter, he along with the complainant went to the spot. According to him, at the spot, Constable Iqbal Singh along with two SPOs, namely Amrik Singh and Gurmit Singh, met him. They handed over both the accused persons to him and informed that both the accused were being subjected to beating by the public. It is further the case of the prosecution that Inspector Rajbir Singh picked up the blood stained earth from the spot and vide recovery memo (Ex.PO), he also took into possession the blood stained Chhuri (Ex.P4), which was lying on the spot. 5. On 18.3.1998 at 5.30 PM, Dr. Deepak Walia (PW.4) conducted autopsy on the body of the deceased. He proved the Post Mortem Report (Ex.PD). The dead body was identified by Harshinder Singh and Inderjit Singh Chopra, who were present at the time of the inquest proceedings. During post mortem examination, the doctor found the following injuries on Crl. A. No. 646-DB of 2001 -5- the body of the deceased : 1. A stab wound with clean cut margins 2.5 cm x 1 cm spindle shaped, obliquely placed on left side of the chest. 2 cm above left nipple and 7 cm left of mid line. On dissection, pericardium was cut and pericardium cavity contained about 500 cc of blood. There was cut in left atrium of heart, left pleura was also cut and the pleural contained about 400 cc of blood, left lung was also found to be cut. 2. A stab wound 1 cm x 0.3 cm on right side of back 2 cm right of mid line, muscle deep at 5th thorax vertebra level. 3. A stab wound 0.5 cm x 0.2 cm on left scapula near inferior angle, 11 cm left of mid line muscle deep. 4. A stab wound 1 cm x 0.3 cm on back in mid line at lumbar vertebra No.1 level, bone deep. 5. A stab wound 2 cm x 0.5 cm on left scapular 4 cm left of mid line near superior and medial angle of scalp, 11 cm below the hair line of the scalp, muscle deep. 6. An abraded contusion 6 cm x 4 cm on left side of the back in its middle on left scapular area. All the injuries were ante-mortem in nature. In the opinion of the doctor, the cause of death was due to injury to vital organ, heart and lung. Injury No.1 individually was sufficient to cause death in the ordinary course of nature. He further opined that injuries No.1 to 5 were caused by sharp pointed weapon. The time between injuries and death was within a few minutes; and between death and post mortem within 4 to 6 hours. It is mentioned here that the prosecution did not show the recovered Chhuri (Ex.P4) to Crl. A. No. 646-DB of 2001 -6- Dr.Deepak Walia (PW.4) to get his opinion as to whether the aforesaid injuries could be caused by the said weapon, though for the first time, Chhuri (Ex.P4) was shown to the doctor in the court, when he appeared as a witness. Further, the doctor noticed that the stomach contained about 200 cc of semi digested food. In the cross-examination, he denied the suggestion that he did not take the viscera in this case as the deceased was smelling of alcohol from the mouth at the start of the post mortem examination. He also denied the suggestion that due to the pressure of the police, he intentionally avoided to send viscera to the Chemical Examiner. 6. After completion of investigation, the challan was filed against both the accused. Accused Surjit Singh was charge sheeted for the offence under Section 302 IPC and accused Prabhu Kumar was charge sheeted for the offence under Section 302 read with Section 34 IPC. They did not plead guilty to the charges and claimed trial. 7. In support of its case, the prosecution examined ten witnesses, out of whom PW.1 Satya Nand, father of the deceased; PW.2 Brij Lal, who along with Satya Nand went to the spot and claims himself to be the eye witness; PW.4 Dr. Deepak Walia, who conducted post mortem examination on the body of the deceased; PW.6 Iqbal Singh Constable, who had apprehended the accused at the spot; PW.7 Dr. Rajinder Pal, who had medico legally examined both the accused on the day of occurrence at Model Town Dispensary, Patiala, at 11.00 PM and 11.55 PM; and PW.9 Inspector Rajbir Singh, the Investigating Officer of the case, are the Crl. A. No. 646-DB of 2001 -7- material witnesses. The statements of the remaining witnesses are formal in nature. 8. PW.1 Satya Nand supported the prosecution version. However, he made improvement with regard to the number of blows caused by accused Surjit Singh to the deceased. In his statement, he did not explain the injuries, which were later on found on the body of the deceased. Though he admitted that Leela Bhawan Chowk, Patiala, is located in a busy and crowded market, but according to him, none of the shopkeepers of the neighbouring shops was attracted at the spot. In his cross-examination, he had also stated that he does not remember when Gulshan Kumar had taken his last meal on the day of occurrence. 9. PW.2 Brij Lal also supported the prosecution version, though on certain aspects, there are contradictions between his statement and the statement of PW.1 Satya Nand. 10. PW.4 Dr. Deepak Walia proved the Post Mortem Report (Ex.PD) of the deceased Gulshan Kumar. 11. PW.6 Iqbal Singh Constable stated that on the day of occurrence, he along with SPOs Amrik Singh and Gurmit Singh (both not examined) was on beat duty in Main Bazar. On that day, at about 1.00 PM, they were coming from the side of Kohli Sweet Chowk. He saw that members of the public were beating accused Surjit Singh and Prabhu Kumar. He rescued them and handed them over to his companions Amrik Singh and Gurmit Singh. He noticed that blood was lying on the ground and Crl. A. No. 646-DB of 2001 -8- a blood stained Chhuri was also lying there. He protected the area and at about 5.00/5.30 PM, Inspector Rajbir Singh (PW.9) reached the spot, who was accompanied by two ASIs and other police officials. On their arrival, he handed over the accused to them. Thereafter, he showed the place of occurrence to them, where blood and blood stained Chhuri were lying, which were taken into possession by the police party and his statement was recorded by Inspector Rajbir Singh. 12. PW.7 Dr. Rajinder Pal stated that on 18.3.1998, he was posted as Medical Officer at Model Town Dispensary, Patiala. On that day, at about 11.00 PM, he medico legally examined Prabhu Kumar and found the following injuries on his person : 1. Swelling of right foot involving all the right foot upto ankle joint. No external injury. No bleeding. Tender on pressing. 2. An abrasion 2 x 1 ½ cm in size on the right elbow joint on the dorsal aspect. Clotted blood was seen on the wound. 3. Complaint of pain on the back. No external injury. According to him, the duration of injuries was within 12 hours. He proved the Medico Legal Report (Ex.PF) of the said accused. He further stated that on the same day at 11.55 PM, he medico legally examined accused Surjit Singh and found the following injuries on his body : 1. Complaint of pain in the right foot. On examination swelling of right foot extending upto ankle joint on the ventral aspect. No external wound. Crl. A. No. 646-DB of 2001 -9- 2. Complaint of pain in the left foot. No swelling. No wound mark. 3. Multiple abrasion marks on the right lower leg on the lateral aspect of the thigh. 4. Multiple abrasion marks on the left side of the knee joint of various sizes. 5. A lacerated wound on the little finger of the right hand ½ x ½ cm, 1 cm from the nail bed. 6. Complaint of pain in the back. No external wound. No swelling. Able to bend. 7. An abrasion on the lateral aspect of the hip 8 cm from the iliac spine on the left side. He stated that the probable duration of injuries was within 12 hours and proved the MLR (Ex.PH) of the said accused. 13. PW.9 Inspector Rajbir Singh is the Investigating Officer of the case. He stated that the statement of Satya Nand (Ex.PA) was recorded by him. He also proved the inquest report (Ex.PC/2). He stated that when he inspected the spot, Constable Iqbal Singh handed over both the accused to him. He also proved the recovery memos Ex.PM and Ex.PO, vide which he took into possession the blood stained earth and the blood stained Chhuri from the spot. In his cross-examination, he stated that during his investigation at the spot, he had joined 14/15 persons having their shops adjoining to the place of occurrence, but none of them was cited as a witness. 14. In his statement under Section 313 Cr.P.C., accused Surjit Singh denied all the allegations appearing against him in the prosecution Crl. A. No. 646-DB of 2001 -10- evidence. He stated that he was innocent and was arrested from his house on 18.3.1998 after 3.00 PM by the police. He was taken to his Dhaba, where complainant Satya Nand and his gunman were present. He was given beating by Inspector Rajbir Singh, other police officials and Satya Nand. He stated that he was not given beating by any public man. Deceased Gulshan Kumar came to his Dhaba at noon time. He further stated that his servant Prabhu Kumar and two other servants were present there at that time. Gulshan Kumar had a quarrel with them and had broken the window of the shop and show room. His servants gave pushes to Gulshan Kumar, who received injuries when struck against sharp broken pieces of glass. At that time, Satya Nand, Brij Lal and other witnesses were not present there. This is the reason that no body from the locality i.e. shop keepers came to support the prosecution version, which was cooked up by the prosecution in connivance with the police. Gulshan Kumar was a quarrel some type of person. 15. Accused Prabhu Kumar, in his statement under Section 313 Cr.P.C., also denied all the incriminating evidence, put to him. He stated that he and two other servants were present at Lahori Gate at about 1.00 PM, when Gulshan Kumar came there and demanded fish and meat from them. They told him that the owner was not present and the owner had also stopped them from giving eatables to Gulshan Kumar. At this, he and his two accomplices became rash and started breaking show room and window panes of the Dhaba. When they (accused Prabhu Kumar and other servants) Crl. A. No. 646-DB of 2001 -11- tried to push Gulshan Kumar away, he fell on the broken pieces and received injuries. Complainant Satya Nand, Brij Lal and other witnesses were not there. The other boys accompanied by Gulshan Kumar ran away from the spot. Thereafter, Surjit Singh, owner of the Dhaba, was arrested from his house after 3.00 PM. He was brought to Dhaba and was given beating there by the police and complainant Satya Nand. 16. In support of their defence, the accused examined eight witnesses. 17. DW.1 Constable Mohan Singh was examined to prove that PW Brij Lal was involved in an excise case in the year 1999, after the occurrence in this case. DW.2 SPO Amarjit Singh was examined in order to prove the involvement of PW Brij Lal in another case under the Excise Act in the year 1999, which is also after the alleged occurrence in this case. DW.3 Constable Manohar Singh proved copy of FIR No. 55 dated 24.5.1999 (Ex.DJ) registered at Police Station Sadar Kapurthala against Brij Lal. DW.4 Amarjit Singh, Addl. Ahlmad of the Court of Addl. Civil Judge, Senior Division, Patiala, was examined to prove that Brij Lal was cited as a prosecution witness in case FIR No. 113 dated 28.2.2000 registered at Police Station Civil Lines, Patiala, under Sections 356/382/171 IPC, which was also registered after the day of occurrence in this case. DW.5 HC Balwant Singh also proved that Brij Lal was accused in case FIR No. 171 dated 9.4.2000 under Section 160 IPC registered at Police Station Civil Lines, Patiala, which is also after the occurrence in this case. Crl. A. No. 646-DB of 2001 -12- 18. DW.6 Ravinder Singh resident of Anand Nagar B, Tripuri, Patiala, is the witness, who had seen the alleged occurrence. According to him, he knew Gulshan Kumar deceased and his father Satya Nand as well as Brij Lal PW and accused Surjit Singh. His shop is situated ten shops away from Lahori Dhaba of the accused. He stated that on the day of occurrence, between 12.40 PM to 1.00 PM, when he was carrying his cable work in his shop, he saw three persons, namely Gulshan Kumar (deceased), Harshinder Singh and Inderjit Singh, sitting in Lahori Dhaba. The Dhaba owner was not present there. Prabhu Kumar servant was saying that he will not supply the meals on credit, but Gulshan Kumar and his companions were insisting to take the meals on credit. Then Gulshan Kumar and his companions started giving Soti blows on the glass panes of the Dhaba. The workers of Dhaba quarreled with them. They caught hold of Gulshan Kumar, who fell down and his companions ran away. He (Gulshan Kumar) suffered injuries, as they exchanging brick bats and broken glass pieces. He further stated that Harsh Inder Singh and Inderjit Singh took Gulshan Kumar on a scooter to the hospital. The scooter was being driven by Inderjit Singh. He further stated that he gave information to the parents of Gulshan Kumar and then he also went to the hospital, where Harsh Inder Singh and Inderjit Singh were also present. He further stated that both the accused were not given any beating by the people, but they were tortured by the police. 19. DW.7 Sanjeev Kumar, Record Clerk, Judicial Record Room, Patiala, was examined to prove that Ajitinder was also an accused in case Crl. A. No. 646-DB of 2001 -13- FIR No. 49 dated 7.4.1994 registered at Police Station Civil Lines, Patiala under Sections 326/325/323/34 IPC. DW.8 Dr. S.S. Chauhan, Medical Officer stated that X-ray of accused Surjit Singh was done, which is part of the Bed Head Ticket. 20. The trial court, after considering the evidence on record, while relying upon the oral testimony as well as the medical evidence, convicted and sentenced both the accused, as indicated above. 21. We have heard the arguments of learned counsel for both the parties. 22. Learned counsel for the appellants argued that in the present case, the prosecution has not proved the guilt of both the appellants beyond reasonable doubt. According to him, case of the prosecution is based upon the testimonies of two eye witnesses, namely PW.1 Satya Nand and PW.2 Brij Lal, but their presence at the spot is highly doubtful and their version is improbable. PW.1 Satya Nand is a highly interested witness and PW.2 Brij Lal is having the criminal background. According to the learned counsel, complainant Satya Nand (PW.1), who is retired DSP from the Punjab Police, has concocted the whole story in connivance with the local police, though he had not seen the occurrence, as he was not present at the time of the occurrence. Learned counsel submits that the version given by these two witnesses could have been corroborated by Ajit Inder Singh, who was also present at the time of the occurrence, but without any justification and reason, he has not been examined by the prosecution. Similarly, Harshinder Crl. A. No. 646-DB of 2001 -14- Singh, who came later on at the place of occurrence and took the deceased to the Hospital, has also not been examined by the prosecution. The other witness, namely Inderjit Singh Chopra, who was present at the time of the inquest proceedings and had identified the dead body before post mortem, has also not been examined. 23. Learned counsel for the appellants, while referring to the statements of PW.1 Satya Nand and PW.2 Brij Lal, pointed out certain contradictions. According to him, in the cross-examination, PW.1 Satya Nand stated that the deceased was taken to Rajindra Hospital by other persons and he followed them to the hospital and his car was being driven by Ajit Inder Singh. He further stated that he was taken to the police station by Bhajan Singh, who drove the car. The prosecution has not examined Bhajan Singh. However, PW.1 Satya Nand has further stated that during investigation, the Investigating Officer neither examined his car nor took into possession his blood stained clothes. On the other hand, PW.2 Brij Lal stated that Harshinder Singh and Ajit Inder Singh put the injured Gulshan Kumar into the car and they along with Satya Nand removed Gulshan Kumar to the hospital, whereas he (Brij Lal) stayed back, as there was no space in the car. Secondly, learned counsel pointed out that both the witnesses have made improvements in the court with regard to the number of blows caused by the accused to the deceased. Thirdly, according to the learned counsel, PW.2 Brij Lal stated that on the day of occurrence, Satya Nand complainant made him telephone call and asked him to accompany Crl. A. No. 646-DB of 2001 -15- him to the shop of Surjit Singh, whereas PW.1 Satya Nand does not state so. Fourthly, PW.1 Satya Nand states that when the occurrence had taken place, no one from public had gathered there. On the other hand, PW.2 Brij Lal states that at the time of the occurrence, many persons had gathered and some of the members of the public started giving beating to Surjit Singh. He further states that after 15-20 minutes, the police reached there and rescued the accused from public. He also states that Satya Nand caught hold Surjit Singh of his arms and he (PW.2 Brij Lal) also caught hold Surjit Singh. These contradictions clearly indicate that both the witnesses had not seen the occurrence. 24. Learned counsel further argued that the testimonies of both the alleged eye witnesses are highly improbable. They have not stated as to what was the money dispute between the deceased and accused Surjit Singh. The version given by them is that one day prior to the day of occurrence, accused Surjit Singh came to the complainant's house and complained about the dispute and on the assurance given by the complainant, he went away. If that was the position, then on the next day, when complainant along with Brij Lal and his son Gulshan Kumar reached the Dhaba of accused Surjit Singh for negotiations, there was no occasion for the accused to immediately attack upon Gulshan Kumar. It