IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.355-DB of 2006 Date of Decision: 27.01.2009 Jaswinder Singh and another Appellants Versus State of Haryana Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Mr.Amarpal, Advocate for the appellants Mr.S.S.Randhawa, Addl.A.G. Haryana for the State-respondent …. Jasbir Singh, J. Both the appellants are real brothers. It was allegation against them that they along with their father Surjit Singh, uncle Gurmej Singh and Lakhwinder Singh son of Jodh Singh, in furtherance of their common object, on 19.11.2000, had committed murder of Raj Kumar son of Kali Ram Saini. Vide judgment, under challenge, in this appeal, appellant No.1 was convicted for commission of an offence under Section 302 IPC, appellant No.2 was also found guilty for commission of the above said offence with the aid of Section 34 IPC and both were sentenced to undergo Rigorous Imprisonment for life and to pay a fine of Rs.5000/- each with a default clause. However, other three named above, were acquitted. During arguments, it transpires that against acquittal of above named three accused, State filed Criminal Misc. No.627-MA of 2006 and complainant also filed Criminal Revision No.1889 of 2006, challenging their acquittal. Both the cases were dismissed by this Court on 12.12.2006. Criminal Appeal No.355-DB of 2006 2 Prosecution story, as noticed by the trial Court in paragraph No.2 of its judgment, reads thus:- “Brief facts of the prosecution case are that on 20.11.2000 Rameshwar Dass S.H.O., P.S.Jathlana received a telephonic message from village Thaska Khadar that a fight has taken place in the village and injured Raj Kumar s/o Kali Ram Saini of village Thaska Khadar has been taken to Civil Hospital, Radaur. The S.I. alongwith Amar Nath A.S.I. and other officials went to Civil Hospital, Radaur where the doctor handed over a ruqa qua the death of Raj Kumar. One Surinder Kumar, brother of the deceased, was sitting beside that dead body. Statement of Surender Kumar s/o Kali Ram Saini, aged 30-32 years of village Thaska Khadar Ex.PK was recorded. In that statement he inter alia alleged that he is an agriculturist and is residing at the above address; that on that night at about 10.00 there was a marriage of Balwinder Singh s/o Dalel Singh of village Thaska Khadar and the marriage party was to go in the morning to Hamidpur village; that during night at 10.00 P.M. Ghurchari ceremony was being performed and Balwinder Singh after paying offerings on the Khera of the village, the procession was heading towards the Kali Mata temple; that suddenly the light went off and Balkar Singh, as well as, Jaswinder Singh alias Kala sons of Surjit Singh, while taking advantage of the darkness, started teasing the girls; that thereupon Raj Kumar deceased after seeing them informed the Criminal Appeal No.355-DB of 2006 3 father of the bridegroom namely Dalel Singh; that Dalel Singh pleaded with folded hands with those boys not to indulge in such acts and create a hurdle in the marriage of his son; that thereupon both these persons i.e. Balkar Singh and Jaswinder Singh gave abuses to Raj Kumar deceased and told him that they would see him as and when he comes to pay obeisance at the Gurudwara; that thereafter the procession after paying obeisance in the Kali Mata temple started going towards Gurudwara; that when the procession reached in front of the house of Manga Ram Jheevar, five persons namely Lakhwinder Singh s/o Jodh Singh, Balkar Singh and Jaswinder Singh sons of Surjit Singh and Surjit Singh and Gurmej Singh sons of Nanu Singh were coming with their intention to kill Raj Kumar and they at once started the attack. It was asserted that he should be caught hold of and be killed. Thereupon Lakhwinder Singh caught hold of right hand of Raj Kumar and Balkar Singh caught hold of left hand of Raj Kumar; Surjit Singh and Gurmej Singh started inflicting fist and slap blows and Jaswinder Singh took out a knife from the dub of his pant and inflicted injuries on the left chest of Raj Kumar. He raised alarm of Maary Diya Maar Diya and on hearing the noise, his brothers Pawan Kumar and Mam Chand, who were at a distance of 10-15 paces came running and got rescued Raj Kumar from the clutches of those five persons. These five persons while leaving were abusing. Jaswinder Singh alias Kala ran away alongwith the Criminal Appeal No.355-DB of 2006 4 knife.” Thereafter, injured Raj Kumar was removed to Civil Hospital, Radaur, however, on the way, he succumbed to the injuries and was declared brought dead in the hospital. The process of law was set in motion on a statement made by Surinder Kumar (PW7), brother of the deceased, at whose instance, FIR (Ex.PD) was recorded at 3.30 AM on 20.11.2000. The investigating officer Inspector Rameshwar Dass (PW13) prepared inquest report of the dead body and sent it for post-mortem examination, which was conducted by Dr.Deepak Jain (PW1), who found the following injuries on person of the deceased:- “Stab wound on the neck in the left side one inch below lower border of earobule. 2 cm elliptical about 5 cm deep. On dissection caroted artery and vein were cut with neuro vascular bundle. He was well built and nourished wearing white payjama, white shirt, blue baniyan, off-white underwear. Eyes were closed. Rigor mortis was present in all the four limbs. Stab wound 2 cm elliptical on the left side of chest below left nipple. On exploration wound was 6 cm deep. Pluara were ruptured and lung was lacerated. Blood was present in the thoracie cavity. Blood was coming out of left ear. Abrasion on the right shoulder in the Acromio clavicular region. Abrasion on the left cheek 6 cm linear. Lacerated wound on the right little toe.” Criminal Appeal No.355-DB of 2006 5 As per doctor’s opinion, death was caused due to injury to caroted vessels and injury to lung, leading to hemorrhage and shock. The injuries were ante mortem in nature and were sufficient to cause death under ordinary course of circumstances. Probable time between injury and death was about one hour and between death and post-mortem was within 24 hours. The investigating officer then went to the spot, got prepared site plan of the place of occurrence and also recorded statements of other witnesses. Except Lakhwinder Singh, other accused were arrested. On a disclosure statement made by Jaswinder Singh –appellant No.1, blood stained knife (Ex.P1) was recovered. During investigation, Lakhwinder Singh was found innocent and his name was put in column No.2 of the final report. Thereafter, on completion of investigation, final report was put in Court for trial. The accused were charge sheeted, to which they pleaded not guilty and claimed trial. During trial, Lakhwinder Singh was also summoned to face trial. The prosecution produced 13 witnesses and also brought on record documentary evidence to prove its case. Hakam Singh, who also alleged to have received injuries at the hands of the accused, was given up by the Public Prosecutor, being unnecessary. On conclusion of prosecution’s evidence, statements of the appellants and other accused were recorded under Section 313 Cr.P.C. Except Lakhwinder Singh, others denied their participation in the alleged crime, pleaded innocence and false implication. They further stated that they have been named on account of existence of party faction in the village. They also led evidence in defence. Lakhwinder Singh, by stating that he was Criminal Appeal No.355-DB of 2006 6 innocent, also took up defence of alibi, by stating that on the date of alleged occurrence, he was present in his village Kalanaur and had attended marriage ceremony of daughter of Sahib Singh, Advocate. He has further stated that his name has been added in the list of accused because criminal and civil litigation was pending between him and the witnesses. The trial Court, on appraisal of evidence as led by both the parties, came to a conclusion that the prosecution was successful in bringing home guilt of the appellants. Qua others it was observed to the contrary and by giving them benefit of doubt, they were acquitted. Counsel for the appellants has vehemently contended that participation of the appellants in the alleged crime was not proved on record. The trial Court has erred in convicting and sentencing them simply on the basis of presumption. Counsel further argued that there was delay in lodging the FIR, the witnesses were discrepant in describing participation of the appellants in the alleged crime. He further stated that the benefit, which was given to the other three accused, could not have been denied to the appellants. Once, the Court below has held that the FIR was got lodged after consultation, the Court was required to discard testimony of the alleged eye witnesses. He further stated that so far as Balkar Singh-appellant No.2 is concerned, he has not caused any injury to the deceased. It is allegation against him that he had caught hold of the deceased from his left hand when injuries were inflicted by his co-accused. Counsel for the appellants argued that similar allegation of ‘catching hold of the deceased’ from his right hand was levelled against Lakhwinder Singh, however, that was not believed by the trial Court and he was acquitted. Appellant Balkar Singh was also Criminal Appeal No.355-DB of 2006 7 similarly situated. The trial Court has committed error by not giving the same benefit to him also. He prayed that appeal be allowed and judgment under challenge be set aside and the appellants be acquitted of the charges levelled against them. Prayer made has vehemently been opposed by the State counsel. He by making reference to the depositions made by Dr.Deepak Jain (PW1), eye witnesses and testimony of the investigating officer, stated that guilt of the appellants-accused was proved on record, the delay in recording the FIR was not fatal to the case of the prosecution. For little delay whatever benefit could have been given to the accused, the same was given by the trial Court by acquitting three other accused named in the FIR. He further argued that participation of Balkar Singh in the crime is also proved on record. He continued to catch hold of the deceased when injuries were inflicted by appellant No.1 – Jaswinder Singh. By supporting conviction of the appellants, he prayed that appeal be dismissed, having no substance. To analyze arguments raised by counsel for the parties, first of all, we will deal with the allegation against Jaswinder Singh – appellant No.1. It was case of the prosecution that on the fateful day, Jaswinder Singh – appellant No.1 along with Balkar Singh – appellant No.2, at the time of marriage related ceremony of one Balwinder Singh son of Dalel Singh, when lights went off, tried to misbehave with the girls, who were participating in that ceremony. Their act was noticed by Raj Kumar, who objected to the same and brought it to the notice of Dalel Singh, who requested the appellants to left that place. Appellant Jaswinder Singh felt annoyed, he abused Raj Kumar, deceased and went away threatening that he will teach the Criminal Appeal No.355-DB of 2006 8 deceased a lesson. It is further case of the prosecution that when the complainant party reached in front of house of Mange Ram, both the appellants along with three others, came to the spot, deceased was caught hold by appellant No.2 and Lakhwinder Singh. Surjit Singh and Gurmej Singh started thrashing him. Appellant No.1 Jaswinder Singh took out a knife and caused two injuries to the deceased, which proved to be fatal. Role ascribe to Jaswinder Singh has clearly been depicted by PW7 Surinder Kumar, PW9 Pawan Kumar, PW12 Shyam Singh, who were eye witnesses to the said occurrence. Further corroboration has been given to the story of prosecution by Sahab Singh (PW10). Counsel for the parties have taken us through the contents of statements made by above said witnesses. So far as Jaswinder Singh – appellant No.1 is concerned, all the witnesses have clearly supported case of the prosecution. Lengthy cross examination has failed to shatter their testimony. Ocular version fully tallies with the medical evidence on record. It has also come on record that after his arrest, on a disclosure statement made, appellant No.1 -Jaswinder Singh got recovered weapon of offence (a knife), which was sent to the Forensic Science Laboratory, for examination. As per its report (Ex.PH, Ex.PH/1), knife was found stained with human blood. The defence has failed to shatter case of the prosecution so far as recovery of weapon of offence from appellant No.1 is concerned. In view of evidence discussed above, the trial Court has rightly come to the conclusion that participation of appellant No.1 in the crime was established on record. It is not in dispute that material witnesses to the occurrence are closely related to the deceased being brothers and brother-in-law. By noting Criminal Appeal No.355-DB of 2006 9 few discrepancies in the statements made by them and with a view to segregate truth from the falsehood, the trial Court rightly observed that there is always an attempt to involve as many as members of the family, as may be possible. In this case, Lakhwinder Singh, who was not related to the appellants, was named as an accused. He took defence of alibi, which was virtually accepted by the Court below in acquitting him vide judgment under challenge. Other two members of the family of the accused were also acquitted by observing that allegations regarding their participation in the crime, appears to be an exaggeration. It has also come on record that application to file an appeal against judgment of acquittal of above named three persons and revision petition filed by the complainant challenging their acquittal, were dismissed by this Court. To that extent, findings given by the trial Court had become final. It was allegation against Blakar Singh – appellant No.2 and Lakhwinder Singh that both had caught hold of the deceased from his hands. Other two accused, namely, Surjit Singh and Gurmej Singh started thrashing the deceased. None of the witnesses have attributed any other role to the appellant Balkar Singh. It has come on record that inquest report was prepared before recording statement of PW7, the complainant. The trial Court has also noticed that there is some delay in recording the FIR, which may have been used to increase number of the accused and to involve all able-bodied members of the family. Once it has come on record that Lakhwinder Singh and other two were named as accused without any justification, the same is possible so far as Balkar Singh is concerned. Otherwise also, from the circumstances of the case, it appears that causing of Criminal Appeal No.355-DB of 2006 10 two injuries to the deceased by appellant No.1 Jaswinder Singh was possible without any participation of Balkar Singh in the said crime. As per information supplied, Balkar Singh has already undergone about one year and nine months of actual sentence. The facts are such in which we can safely say that his participation in the crime was doubtful. In view of facts mentioned above, we dismiss this appeal, so far as appellant No.-1, namely, Jaswinder Singh is concerned, however, by giving benefit of doubt to appellant No.2 Balkar Singh, appeal qua him is allowed, his conviction and sentence is set aside. Balkar Singh – appellant No.2 is acquitted of the charges framed against him. (Jasbir Singh) Judge 27.1.2009 (Jora Singh) gk Judge