IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 232-DB of 2002 Date of Decision: 13.5.2011 Marra Singh and another .....Appellants VERSUS State of Punjab ….Respondent CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE A.N. JINDAL 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? Present: Shri Vinod Ghai, Advocate, for the appellants. Shri Pavit S. Mattewal, Additional AG, Punjab. Hemant Gupta, J. Marra Singh son of Amar Singh and Ram Sarup son of Sadhu Singh, are in appeal against the judgment and order dated 18.2.2002, whereby the appellants were convicted under Section 302 read with Section 34 IPC and sentenced to undergo imprisonment for life. Criminal Appeal No. 232-DB of 2002 (O&M) The prosecution case was set in motion on the statement of Pritpal Singh son of Jarnail Singh, made to Inspector Gurmail Singh, SHO, Police Station, Sunam on 29.4.1990. The said Pritpal Singh is the son of sister of Sadhu Singh, father of the deceased Chhaju Singh aged 45 years. The mother of the deceased is Tej Kaur and father Sadhu Singh, whereas accused Ram Sarup is step brother of the deceased, he being son of Sadhu Singh from his second marriage with Nand Kaur. In the statement Exhibit PE, Pritpal Singh has stated that Sadhu Singh has not given any share from his property to Chhaju Singh, resident of Chathe Nenhera. But his father has transferred 5 killas of land out of which the property in village Mehlan, in favour of his sister’s son Chhaju Singh. His father’s sister died about 14/15 years ago and Chhaju Singh used to live with them. About four years ago Chhaju Singh committed murder of his step mother and was sentenced to 20 years’ imprisonment. Chhaju Singh aged 45 years was married and his wife Bhupinder Kaur used to live at Sunam with her two children as Chhaju has already constructed house at Sunam before committing murder. He got admitted Chhaju on bail about three months earlier from the Court. In the absence of Chhaju Singh, his wife Bhupinder Kaur became characterless. When Chhaju Singh came on bail, his relations with Bhupinder Kaur became strained and he started residing with them at Mehlan. On 28.4.1990, he and Chhaju reached Khadial on way to their village, to meet their relations on foot, they purchased half bottle of liquor and consumed the same at 7.50 p.m. When they reached village Chathe Nenhera, the ancestral village of Chhaju Singh, Chhaju Singh told that he has to settle account with the Ghumiars (potters) and sent Pritpal Singh to purchase one more half bottle of liquor. He himself stopped in the ( Criminal Appeal No. 232-DB of 2002 (O&M) locality of Ghumiars (potters). When Pritpal Singh returned at about 8 p.m., near the house of Jupa Ghumiar, in the locality of Ghumiars, he saw Chhaju Singh lying on a cot in the street, in front of the houses of the Ghumiars and was being inflicted injuries by Marra Singh and Ram Sarup, accused. Marra Singh was armed with dang and Ram Sarup was armed with Takua. Ram Sarup placed the dang portion of the Takua on the throat of Chhaju Singh, which was pressed by both the accused. Pritpal Singh raised the alarm “na- maro-na-mora”, on which both the accused ran away from there with their respective weapons. He tried to save Chhaju Singh, but he had already died. Since he did not know anybody in the village, he could not inform the matter to the residents of village Chathe Nenhera itself. After calling Jupa Ghumiar and two women from these families to safeguard the dead body, he reached village Mehlan on foot through the fields and told the entire story to his father Jarnail Singh and Sarwan Singh, elder brother of his father. He came to the police station with both of them. On said information given at 8.45 a.m., FIR Exhibit PE/1 was recorded. The special report was delivered to the learned Magistrate at 10.30 a.m. After the recording of the FIR, the inquest report Exhibit PC was prepared and the dead body sent for post mortem examination. PW1 – Dr. Suresh Kumar Goyal, conducted the post mortem examination on 29.4.1990 at 5.15 p.m. and found incised wound on the outer angle of right eye, on the front of the left leg below the knee deep joint; abrasions and lacerated wounds on the dead body of the deceased. PW8-Gurmail Singh, the Investigating Officer, lifted the blood stained earth from the spot and prepared the same into parcel and took it into possession after sealing the same. The Investigating ( Criminal Appeal No. 232-DB of 2002 (O&M) Officer also took into possession blood stained dari, cot and clothes of the deceased and took the same into possession vide separate memos. He also prepared the rough site plan with marginal notes. The accused were arrested on 1.5.1990. The dang was recovered from the possession of accused-Marra Singh. On the basis of the disclosure statement suffered by Ram Sarup, blood stained Takua, Exhibit PK was recovered from the backside of the house under the wheat husk. The said Takua was taken into possession and deposited with the MHC. On completion of investigation and on the receipt of the report of the Chemical Examiner, the accused were made to stand trial. The prosecution, in order to prove the charge against the appellant examined author of the FIR, Pritpal Singh as PW2, his father Jarnail Singh as PW3 as well as PW5-Gurdial Singh, the witness of arrest and recovery of Dang from Marra Singh. The prosecution also examined other formal witnesses to complete the chain of circumstances to prove the charge of commission of crime by the appellant. Incriminating evidence was put to the accused in terms of Section 313 Cr.P.C. Ram Sarup accused has stated that he has been falsely implicated as he was the complainant in FIR No. 186 dated 25.9.1986 in which the deceased Chhaju Singh was the accused whereas Marra Singh; Sukhwinder Kaur (wife of accused Ram Sarup) and his son Karamjit Singh were the witnesses. He stated that Chhaju Singh went to the house of poor potters, when he was dead drunk. A lady was sleeping in the cot and he lay over the cot with immoral purposes. The lady raised alarm and people residing in the nearby houses gathered. The deceased sustained injuries by falling and by being manhandled by the mob. He has further stated that Jagrup Singh @ Jupa Ghumiar informed Chowkidar of the village ( Criminal Appeal No. 232-DB of 2002 (O&M) i.e. Mangal Khan regarding the incident and the Chowkidar informed the police. The police called his (Ram Sarup’s) wife Bhupinder Kaur and the complainant party lodged the FIR because accused Ram Sarup and Marra Singh were the PWs in the previous murder case. Similar is the statement of accused Marra Singh. In defence, the accused examined Jagrup Singh @ Jupa as DW1 and DW2-Mangal Khan, the village Chowkidar. After considering the entire evidence the circumstances, the learned trial Court convicted and sentenced the appellant as mentioned above. As per the undisputed facts on record, deceased Chhaju Singh and accused Ram Sarup are sons of Sadhu Singh, but through different wives. Sadhu Singh, has turned out the mother of Chhaju Singh from home 14/15 years back and that Chhaju Singh has murdered Nand Kaur, second wife of his father. Chhaju Singh was convicted for the said offence and was released on bail about three months prior to the occurrence. Sadhu Singh has not given any property to Chhaju Singh. Thus, from the evidence on record, the enmity between accused and the deceased is very well manifested. Learned counsel for the appellant has vehemently argued that the prosecution case is full of infirmities and the prosecution has failed to prove the commission of offence, beyond reasonable doubt. It is argued that the evidence of Pritpal Singh, is not of any truthful witness as a person, who has seen his cousin being allegedly killed by the appellants, will not wait for more than 12 hours for lodging of the FIR, even though the police station is only nine kilometers from the place of occurrence. It is argued that from the testimony of PW2- Pritpal Singh, it is clear that he knew many inhabitants of the village Chathe Nenhera and also owns tractor and scooter, therefore, his stand that he used bus for commuting in order to report the matter to ( Criminal Appeal No. 232-DB of 2002 (O&M) the police station soon after the occurrence on account of fear, is entirely a made up story and not tenable. It is argued that the place of occurrence is a public street outside the house of Jagrup Singh @ Jupa. Jagrup Singh @ Jupa has been examined as DW1. From his testimony it transpires that Pritpal Singh was not present at the time of occurrence. Similarly, from the testimony of DW2-Mangal Khan, it is apparent that the police was informed by the Chowkidar, but the police waited for the complainant to initiate the process so as to falsely implicate the present appellants. It is argued that the FIR has been lodged after examining the dead body of the deceased Chhaju Singh and noticing the fact that he was smelling liquor. The medical evidence does not support the prosecution case. The contents of alcohol in the blood of the deceased lead to an inference that the deceased was not in a position to control him as he was in an inebriated state. PW2 is Pritpal Singh, who is resident of Mehlan. He is also a relation of the deceased. Mehlan is situated at a distance of 8 kilometers from the village Chhate Nenhera, the place of occurrence. He has, inter-alia, deposed that he and Chhaju Singh, purchased half bottle of liquor from village Khadial. They reached Chhate Nenhera at 7.30 p.m, Chajju Singh told him that he had to settle accounts with Ghumiars and he stayed there and sent him (Pritpal Singh) to bring another half bottle of liquor. He has deposed in the manner as was stated to the police in his statement Exhibit PE. In the cross examination he stated that no close relation of Chhaju is living in village Chathe Nenhera. He denied that Chhaju Singh used to take liquor since morning, but stated that he used to take it occasionally, when some friends used to come, but not daily. Massi (sister of mother) of his wife is residing at village Chhahar, which is 10-12 ( Criminal Appeal No. 232-DB of 2002 (O&M) kilometres from his village Mehlan via Khadial and Chatha. He has stated that his village is connected with pucca road with village Chhahar and peter rehra (improvised vehicle) used to play on the road, but now mini buses have started plying on that road. He stated that on the date of occurrence, in the morning time he had harvested the wheat crop. He had gone to village Chhahar to bring a thrasher for thrashing the wheat, but did not bring the thrasher later on. He deposed that he purchased half bottle of liquor at village Chathe Nenhera. After seeing the occurrence, he started running from the place of occurrence to his village. Half bottle of liquor fell on the way and had broken. He paid Rs.30/- to the liquor vend, but some amount was returned. He admitted that the place from where the dead body was lying, it is surrounded by the house of Ghumiars (Potters). He stated that though people put cots in the courtyard in the summer season, but on that day there was only one cot on which the deceased was lying. There was a dari (coarse cloth) placed on the cot underneath of the dead body. The said dari was having strips. When he saw the dead body, it was smeared with blood. The clothes were blood smeared. He admitted that the sister of Gurdial Singh was married to Nek Singh of village Khadial. He denied that sister of Jagbir Singh, resident of Mehlan, is married to Jit Singh of village Chatha. He denied that the daughter of Sher Singh is married to Niranjan Singh at Chatha. He admitted that daughter of Pritam Singh, whose house is situated at a distance of 6-7 houses from his house, is married to Sher Singh son of Karnail Singh, ex- Sarpanch of the village Chatha. He denied that other girls of his village are married in village Chatha. He has not informed anybody at Chatha, as none was known to him. He reached Police Station Sunam at 8.15 p.m. by bus and that the house of Chhaju Singh is at a ( Criminal Appeal No. 232-DB of 2002 (O&M) distance of 3-4 kilometers from Police Station Sunam. He remained with the police till the post mortem was conducted and the wife of Chhaju Singh reached the place of occurrence. Village Chathe Nanhera is at a distance of 10-12 kilometers from Sunam. He denied that the distance is 6 kilometers. He stated that at the place of occurrence, he become mentally depressed. His statement and Statements of his, father and Uncle Swaran Singh were recorded on 29.4.1990. He denied the suggestion that he went to the house of poor potters to molest some ladies and that he died of the manhandling by the mob. PW3 is Jarnail Singh. He accompanied Pritpal Singh, when they reached Police Station Sunam at 8.30/8.45 a.m next morning. He deposed that the police examined the dead body. The Investigating Officer smelt the mouth and examined the injuries. PW5 is Gurdial Singh. He is the witness of recovery of a dang from Marra Singh and of disclosure statement of Ram Sarup, which led to recovery of blood stained Takua. PW8-Gurmail Singh has, inter-alia, deposed that whatever articles were found at the spot, the same were taken into possession. But the turban and shoes must not be there as the same is not mentioned in the inquest report. Village Chathe Nanhera is the small village and the site in question falls in one side of the village. 4-5 residential houses are near the site. He stated that he does not remember if Maya, Satya and Jagrup came to him in connection with the investigation of the case. DW1 is Jagrup Singh @ Jupa. The place of occurrence is close to his house. He stated that he knew Pritpal Singh complainant and the deceased. He has deposed that when he reached the house at 7.30/8.00 p.m., he saw the dead body of Chhaju Singh, lying on the cot and that Pritpal Singh was not present there. He informed the ( Criminal Appeal No. 232-DB of 2002 (O&M) villagers about the occurrence and the Chowkidar Mangal Khan was sent for lodging the report with the police. The police came at 8.30 a.m. next day accompanied by the persons from village Mehlan and wife of Chhaju Singh. In the cross-examination, he deposed that he did not see Pritpal Singh present at the time of occurrence as it was dark. He denied that he had actually seen Pritpal Singh, present at the spot. He denied the suggestion that Pritpal Singh told him to remain with him for safeguarding the dead body. But it is correct that Pritpal Singh came in the morning along with the Police. DW2 is Mangal Khan, Chowkidar of village Chhathe Nanhera. Statement of the said witness was recorded on 31.10.2001. He deposed that Jagrup Singh told him that Chhaju Singh is lying dead in the corner of the street. At the asking of the Sarpanch of the village, he went to inform the Police in the Police Station Sunam. After informing the police, he returned to his village. Police came to the spot at about 8 a.m., accompanied by Pritpal Singh and others at that time. In the cross-examination, he admitted that both the accused belonged to his village and denied that he has deposed falsely being co-villagers of the accused. Having heard learned counsel for the parties at some length and having examined the record of the case, we do not find any merit in the present appeal. Deceased-Chhaju Singh was convicted for the murder of Nand Kaur, mother of Ram Sarup and sister-in-law of Marra Singh. Sadhu Singh, father of Chhaju Singh, has not given any share of his property to Chhaju Singh. Therefore, Chhaju Singh was not residing in the village of his father and was either staying at village Mehlan, which is the village of his mother or at Sunam, where his wife along ( Criminal Appeal No. 232-DB of 2002 (O&M) with the children is residing. It is not the case of the prosecution or the defence that the deceased was residing in the village Chhathe Nanhera at the time of occurrence. He is stated to have accompanied PW2-Pritpal Singh on foot to go to village Chahar. Though it is suggested that there is an alternative route available, but since the road from Mehlan to Chhathe Nenhera is a pucca road, therefore, it is possible for the deceased and the witness to take the said road. The witness is resident of Mehlan and possessed of scooter, but, he is not on his scooter when he was going village Chahar. Both of them had consumed liquor. The alcohol contents are found in the post mortem report conducted by PW1 Dr. Suresh Kumar. The defence has sought to demolish the prosecution case, inter-alia, on the ground that the deceased has attempted to molest the ladies of potters and received injuries in the manhandling by the mob. Such is the cross- examination conducted on the prosecution witness and the statement given by the accused under Section 313 Cr.P.C. There is no evidence of mob violence or that the deceased has tried to molest any of the ladies of the potters. Even the defence witnesses are silent on such aspect. The only question which is required to be examined is whether the prosecution witness has witnessed the manner of occurrence, as deposed by him. PW2-Pritpal Singh has deposed that he accompanied the deceased to village Chathe Nanhera. There is no improbability in the said part of the statement. There is no improbability in the testimony of the witness that they had consumed liquor. Mere fact that the witness is not able to tell the place of liquor vend or the person(s), who sold liquor, is not sufficient to create doubt on the prosecution story. PW2 has deposed that he has seen the manner of injuries by the appellants. Once, the injuries are inflicted and a person is killed, ( Criminal Appeal No. 232-DB of 2002 (O&M) the person accompanying such deceased, would be in fear and shock. As per the statement, he has gone back to his village and after narration of the story to his relation, came back to police station at Sunam. It is admitted by DW1-Jagrup Singh and DW2-Mangal Khan that Pritpal Singh came with Police in the morning of 29.4.1990. DW1-Jagrup Singh has in cross-examination stated that he might not have noticed Pritpal Singh in darkness. He came to the place of occurrence when Chhaju Singh had already died. Therefore, it is not possible to return a finding that Pritpal Singh was not present at the time of occurrence. The statement of Pritpal Singh that he was under fear and shock on account of death of Chhaju Singh cannot be said to be unfounded. Pritpal Singh is also said to have taken liquor. Though he has admitted that certain relations of his village are married in village Chhathe Nenhera, but not necessarily he is expected to remember all relations and seek their assistance. Village life sometime is complex with factionalism being common. Therefore, the presence of Pritpal Singh at the place of occurrence, cannot be doubted. The deceased was convicted for the murder of mother of Ram Sarup. He was released on bail only three months back. It has not come on record or any question asked from any of the prosecution witness that the deceased had come to the village earlier or has ever visited village after his release on bail. Therefore, mere sight of the deceased, an accused of murder of Nand Kaur, in the village, was sufficient to arouse anger. No doubt, the place of occurrence is a public street in the locality of potters, but it has also come on record that village Chhatha Nanhera is a small village. Therefore, it cannot be said that the ( Criminal Appeal No. 232-DB of 2002 (O&M) causing of the injuries on the person of the deceased in the locality of potters, is impossible. The nature of the injuries suffered by the deceased in the manner suggested by PW2-Pritpal Singh is supported by the medical evidence. Still further, the blood stained Takua had been recovered on the basis of the disclosure statement of accused Ram Sarup. Such evidence, corroborates the prosecution story. In view of the above, we do not find that the reasoning given by the learned trial Court convicting the appellant for the offence under Section 302/34 IPC can be said to be suffering from any illegality or material irregularity, which may warrant interference by this Court in the present appeal. Hence, the present appeal is dismissed. [HEMANT GUPTA ] JUDGE [ A.N. JINDAL ] JUDGE 13.5.2011 ds (