Criminal Appeal No.645-DBA of 2000 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. State of Punjab APPELLANT VERSUS Navjot Singh Sidhu and another RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE BALDEV SINGH Present:- Mr.S.S.Randhawa, Senior D.A.G. Punjab for the appellant. Mr.Uday U.Lalit, Senior Advocate with Mr.S.S.Dhaliwal and Mr.Nitin Sangra, Advocate for respondent No.1. Mr.T.S.Sangha, Advocate for respondent No.2. Mr.R.S.Ghai, Senior Advocate with Mr.Vinod Ghai, Advocate and Mr.Baldev Singh, Senior Advocate with Mr.Sudhir Sharma, Advocate for the petitioner (in Cr.M.185-MA of 2000). MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.645-DBA of 2000 and Criminal Appeal No.645-DBA of 2000 -2- Criminal Miscellaneous No.185-MA of 2000 by this common judgment, as they arise out of the same judgment/order dated 22.9.1999 of the Sessions Judge, Patiala whereby he acquitted Navjot Singh Sidhu son of Bhagwant Singh Sidhu and Rupinder Singh Sandhu son of Bhagat Singh Sandhu. The case of the prosecution is unfolded by the statement of Jaswinder Singh son of Pritam Singh given to SI Kaka Singh on 27.12.1988 at 2.40 p.m. at Police Station Kotwali, Patiala. Jaswinder Singh stated that he is a resident of Mandi Police Station Julkan and does agricultural work. He along with his relative Gurnam Singh had come to Patiala in regard to the marriage of his son. He and his uncle Gurnam Singh and his nephew Avtar Singh were going on Maruti car bearing No.CHI-8422 which was driven by Gurnam Singh to the State Bank of Patiala, Head Office to withdraw money. It was about 12.30 p.m. When they reached near the Crossing near Sheranwala Gate and were about to turn towards State Bank of Patiala, they saw a vehicle bearing No.PAD-6030 standing in front of them. When they started to cross this vehicle to go ahead, one Sardar i.e. Navjot Singh Sidhu, Cricket Player who was identified by him, started abusing them and used wrong words. Complainant tried to restrain him, but Navjot Singh Sidhu pulled Gurnam Singh out from his vehicle and started giving him blows. Jaswinder Singh came out to save Gurnam Singh but a clean-shaven man alighted from the vehicle standing in front of them and started giving him fist blows. Avtar Singh son of Nirbhai Singh also saw the occurrence. They took out the keys of their car and both then fled away. Jaswinder Singh and Avtar Singh put Gurnam Singh in a rickshaw and brought him to Rajindra Hospital, Patiala Criminal Appeal No.645-DBA of 2000 -3- where the doctor after checking him declared him to be dead. Leaving Avtar Singh near the dead-body, Jaswinder Singh went to Police Station, Kotwali, where he recorded his statement. On the basis of this statement Ex.PQ, F.I.R. Ex.PQ/1 was recorded on 27.12.1988 at 1.45 p.m. and the special report was received by the Additional C.J.M., Patiala on the same day at 5.30 p.m. The prosecution to prove its case, brought into the witness-box Dr.Krishan Vij PW-1, Dr.Jatinder Kumar Sadana PW-2, Jaswinder Singh PW-3, Avtar Singh PW-4 and SI Kaka Singh PW-5. Learned counsel for the complainant Shri R.S.Ghai, Senior Advocate and the learned State counsel Shri S.S.Randhawa, Senior D.A.G. Punjab, have argued that the judgment of the learned trial Court is perverse, unreasonable and is not based on the evidence on record. No finding has been given on the prompt registration of the F.I.R. Ex.PQ/1. The occurrence had taken place on 27.12.1988 at 12.30 p.m. It has come in evidence that injured Gurnam Singh was taken on a rickshaw to Rajindra Hospital, Patiala, which was 2 kms. away from the place of occurrence. He was declared dead by a doctor in Rajindra Hospital, Patiala. Jaswinder Singh PW-3 then went to Police Station Kotwali, Patiala, which was at a distance of 3 kms. away from Rajindra Hospital, Patiala and F.I.R. Ex.PQ/1 came into existence on 27.12.1988 at 1.45 p.m. The special report reached the Additional C.J.M. on the same day at 5.30 p.m. Before the special report reached the Additional C.J.M., the post-mortem on the dead of the deceased had been conducted at 4.30 p.m. and the inquest report Ex.PH had been prepared. The F.I.R. number and statements of both the eye-witnesses, Jaswinder Singh PW-3 Criminal Appeal No.645-DBA of 2000 -4- and Avtar Singh PW-4 were recorded in the inquest report and they are the ones who identified the body at 1.45 p.m. There is no delay in lodging of the F.I.R. Ex.PQ/1. This itself goes a long way in proving the case of the prosecution. The learned trial Court has overlooked this fact that no suggestion or allegation has been put to Jaswinder Singh PW-3 and Avtar Singh PW-4 of they having any enmity or illwill towards the accused. The learned trial Court has laid undue emphasis that no corroboration is coming as to Jaswinder Singh's visit to Patiala. It has been stated by the learned trial Court that the Investigating Officer did not try to get any information and did not investigate the matter as to the purpose of Gurnam Singh deceased, Jaswinder Singh PW-3 and Avtar Singh PW-4 coming to Patiala. The passbooks were not taken into possession. The learned trial Court has overlooked this fact that admittedly, the occurrence had taken place in front of the State Bank of Patiala in Patiala itself. The defence has not stated a word that the occurrence did not take place at the place mentioned by the prosecution i.e. near the Crossing of Sherawala Gate near the office of State Bank of Patiala. There was no need for the Investigating Officer to go into the matter as to the withdrawing of money from the Bank account of Gurnam Singh as the place of occurrence has not been disputed by the defence. Much emphasis has been laid by the learned trial Court on the number of the Jeep. In F.I.R. Ex.PQ/1, the number of the vehicle (Gaddi) is given as No.PAD-6030, but at a later stage when Jaswinder Singh PW-3 came into the witness-box he gave the number of the Maruti Gypsy driven by accused as PAD-6033. The learned counsel has argued that giving a wrong number and then Criminal Appeal No.645-DBA of 2000 -5- changing it at a later stage does not affect the case materially, as the prosecution witnesses have not stated anywhere that Gypsy Nos.PAD-6030 or PAD-6033 belong to the accused. No evidence has come on record as to whether vehicle bearing No.PAD-6030 or PAD-6033 was a Gypsy, or a truck. The only point to be determined was whether a dispute arose between the complainant party and the appellants or between a truck and a scooter allegedly being driven by Gurnam Singh deceased as made out by the defence. No evidence has been brought on record that vehicle No.PAD-6030 or PAD-6033 was issued to a scooter. A lot of emphasis has been laid by the learned trial Court that the rickshaw puller who had taken Gurnam Singh,Jaswinder Singh PW-3 and Avtar Singh PW-4 to the hospital, was not examined or cited as a witness, and nor had the Investigating Officer recovered the keys of the Maruti car from the accused. The Jutti and turban were also not taken into possession. This finding of the learned trial Court of the rickshaw puller not being examined is wrong and unreasonable. The rickshaw puller after leaving Jaswinder Singh PW-3, Avtar Singh PW-4 and Gurnam Singh in Rajendra Hospital, had left and there being so many rickshaw pullers, he could not have been identified. The Mechanic who had prepared the duplicate ignition keys of the car, was also not examined for the sole reason that his examination was immaterial. The ignition keys of the car of the deceased which were taken away by the accused could have been recovered, if the accused were in custody of the police. The accused surrendered before the Investigating Officer on 2.1.1989 i.e. after a gap of 5 days after obtaining anticipatory bail. Jutti and the turban could not have been taken into possession Criminal Appeal No.645-DBA of 2000 -6- by the Investigating Officer, as there was heavy traffic at the place of occurrence and by that time, the Investigating Officer reached, the Jutti and the turban of the deceased were lost. In the site plan Ex.PT, the Investigating Officer has shown the car and Jeep at Point A and B. The learned trial Court has wrongly dwelt on the point that both Tejinder Singh and Gurvinder Singh the other eye-witnesses to the occurrence were not examined. This again was not necessary as it would have only led to the multiplicity of witnesses. The Investigating Officer had examined them and finding them unnecessary, they were given up by the prosecution. The learned trial Court has erred in stating, that there were a number of shops near the place of occurrence and independent witnesses should have been examined from the locality. The Investigating Officer during the course of his investigation has not examined one or two persons from the locality, but 11 persons and it is thereafter that he came to the conclusion that the accused were the ones who had inflicted injuries to Gurnam Singh and Jaswinder Singh PW-3. The learned trial Court has taken a perverse view of the medical evidence and the ocular account. The learned trial Court has dwelt much on this aspect that the prosecution witnesses Jaswinder Singh PW-3 and Avtar Singh PW-4, the eye-witnesses have not stated as to whether accused Navjot Singh Sidhu gave a fist blow on the head of the deceased. All that has been mentioned in the F.I.R. Ex.PQ/1 is that fist blows were given. Learned counsel has argued that there is no denying the fact that fist blows were given by accused Navjot Singh Sidhu to the deceased and by Rupinder Singh to Jaswinder Singh PW-3. One of Criminal Appeal No.645-DBA of 2000 -7- the blows landed on the left head on the parietal region of the deceased which caused a subdural haemorrage resulting in the death of Gurnam Singh. It has not taken this fact into consideration that deceased Gurnam Singh did not die due to cardiac failure but due to injury on the temporal region. Lungs, heart, and part of the liver were sent for pathological examination and a Board of Doctors was constituted who went into the entire medical aspects of the case and gave their opinion Ex.PA and gave the cause of death to be the head injury and cardiac condition. Dr.Krishan Vij PW-1 has further stated that the head injury itself could be sufficient to cause death in the ordinary course of nature. Learned counsel for the complainant has vehemently argued that all along accused/appellant Navjot Singh Sidhu was interfering in the investigation of the case and the police were trying to help him. While presenting the challan under Section 173 Cr.P.C., he was placed in column No.2 and an application under Section 321 Cr.P.C. was moved on 8.12.1994 not to prosecute accused Navjot Singh Sidhu which was dismissed on 7.6.1995 by the learned Sessions Judge, Patiala. A Revision i.e. Criminal Revision No.581 of 1995 was filed in the Hon'ble High Court against the order of the learned Sessions Judge which was dismissed by this Court on 14.6.1999. Shri Uday U.Lalit, Senior Advocate has assailed the case of the prosecution on several grounds, i.e. the medical evidence, eye-witness account given by Jaswinder Singh PW-3 and Avtar Singh PW-4 and credibility of other witnesses that they not being truthful. He has argued that on the basis of Criminal Appeal No.645-DBA of 2000 -8- reasoning of the learned trial Court, we can come to only one conclusion that the accused are not guilty of the offence. Shri T.S.Sangha has adopted the arguments of Shri Uday U.Lalit. Learned counsel has argued that the learned trial Judge was conscious of all the possibilities of the case. Taking first the medical evidence, he has argued, that from the post-mortem report Ex.PF, it is clear that there were two injuries on the person of Gurnam Singh, the first being an abrasion over the left temporal region at the junction of upper part of pinna and the second being an abrasion on the left knee. After the post-mortem was performed by Dr.Jatinder Kumar PW-2 and after opening the skull, a sub-dural hemorrhage was found under injury No.1. There was no damage to the brain and also no fracture of the bone. Dr.Jatinder Kumar PW-2 could not give his opinion as to the cause of death. The post-mortem was performed on 27.12.1988 at 4.30 p.m. He referred the matter to the Pathologist and the Pathologist vide his report Ex.PJ dated 9.1.1989, did not give the cause of death. As per his opinion, Gurnam Singh had a very weak heart and his main arteries were blocked. Thereafter a Board of Doctors was constituted and a Cardiologist and Pathologist were also made the members. In the opinion of Dr.Krishan Vij PW-1, the death was due to head injury and the heart, vide report Ex.PA. In fact, Gurnam Singh died because of the condition of his heart which was abnormal, diseased and suffered from defects, and not because of the blow on the head. Accused cannot be held liable because Gurnam Singh died not due to the head injury. Opinion of Dr.Gurpreet Singh, Cardiologist has not been brought on record deliberately and purposely by the Criminal Appeal No.645-DBA of 2000 -9- prosecution for the sole reason that he has opined that Gurnam Singh had a weak heart. The abrasion on the the left side of head of Gurnam Singh is a very small abrasion which could not have been caused by a fist blow, but because of the condition of heart, Gurnam Singh fell on the ground and it is thereafter he received the small head injury. Inspector H.P.Singh vide his application Ex.PB dated 31.1.1989 asked the opinion of the doctor as to whether the death was caused due to heart attack, or the head injury. Dr.Krishan Vij PW-1 vide his opinion Ex.PB/1, reiterated his earlier opinion which he had expressed earlier. Dr.krishan Vij PW-1 vide his letter Ex.PC, sent to the S.H.O., Police Station Kotwali, Patiala stated that if any clarification is needed, he will submit it in Court. The Investigating Officer was not sure as to whether the death was due to the head injury, or due to heart attack. Dr.Krishan Vij PW-1 was also not willing to cooperate for the reason best known to him. The learned trial Court has rightly held that no definite opinion was given by either Dr.Krishan Vij PW-1, or Dr.Jatinder Kumar PW-2 regarding the cause of death. Learned counsel has further argued that the eye-witnesses Jaswinder Singh PW-3 and Avtar Singh PW-4 cannot be believed and their credibility is doubtful. The injuries on the person of Jaswinder Singh PW-3 are superficial injuries. He got himself examined on 27.12.1988 at 8.30 p.m., clearly showing that these injuries were self-inflicted or were given by friendly hand. These witnesses have stated that they came in a Maruti car and had a verbal dual (quarrel) with the accused. But when they came into the Court, they changed the number of the Maruti car from PAD-6030 to PAD-6033. There was no need for Criminal Appeal No.645-DBA of 2000 -10- the accused to take away the keys of the car, but it is only a story built up to make out an accident and skirmish. In fact, the prosecution witnesses and the deceased did not come in a car, but were on a scooter, which hit a truck and after quarreling with the truck driver Gurnam Singh having a diseased heart collapsed. Appellants at that point of time were not near the place of occurrence. It is after hearing the commotion , that Navjot Singh Sidhu came out and saw that Gurnam Singh and the truck driver were having a heated exchange of words and it is thereafter that Gurnam Singh fell on the ground. The doctor who declared Gurnam Singh dead, was not identified, nor has his presence been marked on any of the medical cards. The Mechanic who made the duplicate key of the car of the deceased, was not examined. The turban and Jutti of the deceased were not taken into possession from the place of occurrence. The theory of car hitting the Gypsy of the accused is all shrouded in suspicion. If there is no car, then three of them could not have come on a scooter. In the spot inspection (spot Panchnama), which should have been conducted by the Investigating Officer, there is no mention of the car. In F.I.R. Ex.PQ/1, number of the car is given as PAD-6030 and it is after a long lapse of time in statement Ex.DB and in statement before the learned trial Court i.e. the Sessions Judge, that the number was changed from PAD-6030 to PAD-6033. Avtar Singh PW-4 has stated in his testimony that they were searching for the vehicle, but they could not find it. The learned counsel has lastly argued assailed the case of the prosecution on the ground that the occurrence had taken place at 12.30 p.m. at a busy place in Patiala. There were a number of lottery hawkers and other persons Criminal Appeal No.645-DBA of 2000 -11- present. Though their statements were recorded under Section 161 Cr.P.C. by the Investigating Officer, but none was brought into the witness-box. Tejender Singh and Gurmit Singh who were mentioned in the complaint Ex.PR and examined by the Investigating Officer but were not brought into the witness-box for the reasons best known to the prosecution. The only inference we can draw is that Tejender Singh and Gurmit Singh were not ready to support the case of the prosecution. The only possible and plausible view especially taking the medical evidence into consideration, is that the deceased did not die due to violence, but due to a weak heart and he has suffered a heart attack when he started quarreling with the truck drive. We have heard the learned counsel for the parties and perused the record with their assistance. We are conscious of the fact that the Hon'ble Supreme Court in a number of judgments has held that if there are two views possible, the one favourable to the accused is to be taken in an appeal against acquittal. In Bhim Singh v. State of Haryana 2003 Criminal Law Journal 875, the Hon'ble Supreme Court has held that the Appellate Court should only interfere in an appeal against acquittal where the judgment of the learned trial Court is perverse, unreasonable or not based on evidence. In Kallu alias Masih and others v. State of Madhya Pradesh 2006(1) Apex Criminal 135, the Hon'ble Supreme Court has held in para-8 of the judgment as under :- “While deciding an appeal against acquittal, the power of Criminal Appeal No.645-DBA of 2000 -12- the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial Court is based on evidence and the view taken is reasonable and plausible. it will not reverse the decision of the trial Court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court.” After taking these authorities into consideration, we find that judgment of the learned trial Court is unreasonable and not based on the evidence on record. The power of the Court to interfere in an appeal against acquittal has been given in Narendra Nath Khaware v. Parasnath Khaware and others (2003) 5 S.C.C. 488, wherein the Hon'ble Supreme Court has held in paras 8 and 9 of the judgment that the High Court was the first court of appeal. In para-9, it has held that so long as the statute provides a right to appeal, in our view, the Court will be failing in its duty, if the appeal is disposed of in a casual manner. The first and foremost lacuna in the judgment of the learned trial Criminal Appeal No.645-DBA of 2000 -13- Court is that it has not taken into consideration the promptness in lodging of the F.I.R. Ex.PQ/1, which in itself in this case, goes a long way in proving the case of the prosecution and the guilt of the accused. The occurrence had taken place on 27.12.1988 at 12.30 p.m. at Sherawala Light Crossing Gate of Patiala. F.I.R. Ex.PQ/1 came into existence on the same day at 1.45 p.m. at Police Station Kotwali, Patiala and the special report reached the Additional C.J.M., Patiala on the same day at 5.30 p.m. In this intervening period from 12.30 p.m. to 5.30 p.m., the post-mortem report was prepared and the inquest report Ex.PH had also been prepared by the Investigating Officer. Dr.Jatinder Kumar Sadana PW-2 has stated that on 27.12.1988 at 4.30 p.m. he conducted the post-mortem examination on the dead-body of Gurnam Singh son of Ajmer Singh. The F.I.R. Ex.PQ/1, Inquest report Ex.PH and the statement of Jaswinder Singh PW-3 and Avtar Singh PW-4 were with Dr.Jatinder Kumar Sadana PW-2 at 4.30 p.m. He has stated that as per police information, deceased allegedly died due to fist blows. In the inquest proceedings Ex.PH in column No.3 regarding date and hour of discovery of body, it has been mentioned as 27.12.1988 at 1.45 p.m. Meaning thereby that immediately after recording of the F.I.R., the Investigating Officer came to Rajindra Hospital, Patiala and started the inquest proceedings. The body of Gurnam Singh was lying in the Dead House of the Hospital. Statements of both the eye-witnesses Jaswinder Singh PW-3 and Avtar Singh PW-4 were recorded and in column No.4 of the inquest proceedings Ex.PH, it is shown that Jaswinder Singh PW-3 and Avtar Singh PW-4 are the ones who identified the dead-body of deceased Gurnam Singh. It is clear from the inquest proceedings Ex.PH that the Criminal Appeal No.645-DBA of 2000 -14- Investigating Officer joined them in the investigation when he was preparing the inquest report. Jaswinder Singh PW-3 in his statement before the Court has stated that after the doctor told him that Gurnam Singh was dead, he went to Police Station Kotwali, Patiala which was 2 kms. away and gave his statement Ex.PQ to SI Kaka Singh PW-5, on the basis of which F.I.R. Ex.PQ/1 was recorded. By 4.30 p.m. on the same day, the post-mortem proceedings had also started. The F.I.R. Ex.PQ/1, inquest report Ex.PH and other documents regarding death of Gurnam Singh were at that moment of time in the hands of Dr.Jatinder Kumar Sadana PW- 2. By 5.30 p.m. on 27.12.1988, the special report reached the Additional C.J.M., Patiala. The promptness with which the F.I.R. Ex.PQ/1 was recorded, the post- mortem conducted and inquest report Ex.PH prepared and the special report reaching the Illaqa Magistrate by 5.30 p.m. on the same day proves that both Jaswinder Singh PW-3 and Avtar Singh PW-4 were present from the time of the occurrence had taken place till the post-mortem was conducted. The promptness with which the F.I.R. has been recorded and other proceedings completed goes a long way in proving the case of the prosecution. Now coming to the medical evidence which the learned trial Court has discussed in detail. Learned counsel for the respondents/accused has argued that the medical evidence does not corroborate the ocular account. He drew our attention to paras 29 to 36 of the judgment of the learned trial Court where the medical evidence has been discussed. With the assistance of the learned counsel we went through these paras. We are not in agreement with the finding of the learned