Criminal Appeal No.910-SB of 1998 -1- **** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.910-SB of 1998 Date of decision:22.12.2009. Ajaib Singh and another ....Appellants Versus State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Mr. Raj Mohan Singh, Advocate for the appellants Ms. Neena Madan, Addl. Advocate General, Haryana S. D. ANAND, J. The appellants (Ajaib Singh and Jagtar Singh) were convicted by the learned Trial Judge for an offence under Section 304 Part II IPC read with Section 34 IPC for the death of Surinder Singh, father of first informant. Though charged with and tried for an offence under Section 302 IPC, the learned Trial Court ordered the above noticed conversion on a finding that the intention on the part of the appellants to cause the death of deceased was not proved. Though the finding otherwise was to the effect that as many as seven injuries on the person of the deceased led to the death of the deceased. Gurcharan Singh had four male issues namely, deceased Kapoor Singh, Amar Singh, Gurnam Singh and Surinder Singh. The appellants are sons of Gurnam Singh. Amar Singh and Gurnam Singh were already dead before the impugned occurrence. The agricultural holding in the name of the fore-fathers of the parties had been partitioned on verbal methodology, though a common Criminal Appeal No.910-SB of 1998 -2- **** khewat of the land was retained. After effecting the oral partition, the land owners continued the cultivation thereof as per their shares on the basis thereof. In the year 1991, the appellants raised a grievance that the land which was allotted to them in partition was not of good quality. The first informant exchanged the land with the appellants. The exchange was documented by a writing before the Panchayat. However, the girdawari in respect of the exchanged land remained unaltered. The appellants and also the first informant, however, continued to cultivate their exchanged land only. Thereafter, the first informant put in lot of labour and made improvements upon the land which he had obtained in partition from appellants herein. On finding that the land had been improved, appellants raised a demand to reverse the exchange. The first informant did not concede and opted to launch proceedings for correction of the girdawari entries. Sons of Amar Singh and Surinder Singh favoured the line of thought of first informant. In the course of the proceedings for the correction of the girdawari entries the spot was visited by the Tehsildar, Nilokheri. On 31.7.1996, the first informant came over to the Court of Tehsildar at Nilokheri to attend the date of hearing (of the proceedings for the correction of Khasra girdawari entries). He was accompanied by his uncle Surinder Singh and Amar Singh and Gurmeet Singh ( son of the latter). Appellants also attended the date of hearing. The orders announced by Tehsildar were in favour of first informant. The first informant and those who accompanied him on the date of hearing came out of the Tehsildar office at about 5.15 P.M. It was out side the office that the appellants caught hold of the first informant and declared that the verdict of the revenue officer notwithstanding, they would not allow the first Criminal Appeal No.910-SB of 1998 -3- **** informant to enter the relevant land. When Surinder Singh tried to intervene, appellant Jagtar Singh caught hold of the beard of Surinder Singh, felled him upon the ground and struck his head 2-3 times against the ground. Surinder Singh became unconscious. The first informant and Gurmeet Singh did try to catch the appellants but they succeeded in fleeing from the spot. The ocular prosecution presentation at the trial was testified by PW-3-Harbans Singh son of Kapoor Singh and Gurmeet Singh son of Amar Singh. The official investigation segment consists of the statement of PW-2 Ashok Kumar (an official in the office of Tehsildar, Nilokheri who proved Ex. PE and Ex. P1, copy of the application filed by Harbans Singh for correction of Khasra girdwari entries and the order of the Tehsildar thereupon respectively), and PW-6 Sub Inpsector Shamsher Singh who had investigated this case. PW-1 is Dr. Sunil Kumar, Medical Officer, Civil Hospital, Karnal who, alongwith Dr. S.Ajmani, had conducted the post- mortem on the dead body of Surinder Singh son of Gurbachan Singh and had opined that the cause of death was shock and hemorrhage due to head injury which was ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The appellants raised a plea of innocence. They averred that they were available in the compound of Tehsil office, Nilokheri in the company of few common relations where the matter pertaining to the controversy about girdwari entries was being discussed. It was in the course of discussion that Surinder Singh lost tamper and started quarreling with them. They put him aside in order to release themselves from his clutches. Surinder Singh left that place thereafter. It was in the evening that Surinder Singh developed some abdominal problem in the village and was hospitalised. The complainant party gave his death the colour of Criminal Appeal No.910-SB of 1998 -4- **** murder. In defence, Ram Kumar Kamboj, Draftsman DW-1 was examined. He had prepared scaled site plan (Ex. D1) of the spot. DW-2 Yash Pal Jain, Handwriting and Finger Prints Expert, Jind, was examined to prove that portion mark “A to A” of ruqqa had been written subsequently. He also proved report Ex. D2, photographs Ex. D3 and Ex. D4, Ex. D5 and Ex. D6 being negatives thereof. The learned Trial Judge upheld the prosecution version, declined reliance upon the defence plea of innocence and proceeded to indict the appellants on a charge under Section 304 Part II IPC. The appellants are in appeal against it. Insofar as appellant Ajaib Singh is concerned, the finding of indictment recorded by the learned Trial Court against him does not appear to be free from doubt. The precise allegation of PW-3 Harbans Singh and PW-5 Gurmeet Singh is to the effect that it was Ajaib Singh who gave kick blows to Surinder Singh deceased. The medical segment would not appear to be supporitve of that part of the ocular presentation. The medical Officer had found only one injury on the person of deceased which was just on the head and on the immediate rear of left ear of the deceased. Though he did not raise a plea of alibi, mere non-raising thereof does not enable the prosecution to disable him from arguing that the role attributed to him at the spot has not been proved beyond shadow of reasonable doubt. Ajaib Singh gets the benefit of doubt and shall stand acquitted. The same is, however, not true in case of appellant Jagtar Singh. There is clear, clinching and unambiguous evidence on the record, in the statements of PW-3-Harbans Singh and PW-4 Gurmeet Singh to the effect that it was he who caught hold of Surinder Singh, deceased by latter's beard and hair, felled him upon ground and hit his head twice or Criminal Appeal No.910-SB of 1998 -5- **** thrice against ground. It was on account of that hit that Surinder Singh became unconscious on the spot. Though appellant Jagtar Singh did make an attempt, abortive though, to raise above indicated plea (in the statement under Section 313 Cr.P.C.) but that plea does not stand proved on record. If there was a iota of truth in the above noticed plea of appellant Jagtar Singh (to the effect that matter was under discussion in the presence of certain common relations), there is no reason why he could not have named them or examined atleast one or two out of them at the trial. Their testimony could be supportive of the plea raised by Jagtar Singh appellant at the trial. Having noticed that , this Court must also notice a precise plea on behalf of Jagtar Singh appellant that prosecution had not been able to prove that the appellant had any inimical relations with Surinder Singh on account whereof the former could have done the latter to death. It was, then, argued that the prosecution had not been able to prove that there was any motive on the part of Jagtar Singh which could have actuated him to commit the attributed crime. There also, Jagtar Singh appellant is not on firmer footing. There is plethora of evidence available on record to prove that the first informant had filed an application for correction of Girdawari entries and the adjudication announced on the relevant date by the revenue officer was favourable to him. There is also material available on record that first informant had improved the land which he exchanged with the appellant to redress the grievance of the latter that the quality of the land which fell to their share in a partition was inferior. It was after the further exchange, as between the appellants on the one hand and PW-3 Harbans Singh on the other hand, that the latter had improved the quality of that land. It was obvious that the appellants entertained a feeling of envy towards the first Criminal Appeal No.910-SB of 1998 -6- **** informant and they had an eye upon the improved land under the cultivation of first informant. The favourable announcement of the Girdwari correction provided the proverbial combustible material to the appellants who have been proved on record to have announced thereafter that announcement of the verdict of the revenue officer notwithstanding, they would not allow the first informant to enter upon the land qua which Khasra girdwaries entries had been ordered to be corrected. It cannot, thus, be said with any justification that the appellant had no motive to commit the impugned crime. Learned counsel, appearing on behalf of the appellant, then argued with certain degree of vehemence that the first informant had substantially improved upon the initial notification of facts to the police by adding portion A to A in the FIR. In support of the averment that the portion aforementioned had been added subsequently, reliance was placed upon the testimony of DW-2-Handwriting Expert whose testimony is supportive of the averment aforementioned. The cue to the controversy is available in the statement of none else or other than the first informant himself. When he was confronted with the portion A to A with a charge that he had made that addition subsequently, he made a categorical statement in the context which is reproduced hereunder for facility of reference:- “I had told the Thanedar that the accused had pressed the head of my uncle on the ground 2-3 times. That fact was not initially recorded by the Thanedar but it was later on recorded when it was read out to me and I pointed it out to the Thanedar before putting my signature.” A First Information Report, though important as being the frist notification of the facts to the police, cannot be said to be conclusive in Criminal Appeal No.910-SB of 1998 -7- **** itself. There may be certain facts which do not find mention in the FIR but evidence supportive thereof transpires in the course of investigation. Likewise, if a first informant notifies an offence to the police, the contents thereof are read over to him. He finds that some material part had been left out. In that eventuality, he would well within his rights to offer the necessary correction/addition. That is what precisely had been done in this case by PW-3-Harbans Singh and he had duly initialled that addition. I do not, thus, find anything unusual in the addition of portion A to A to statement Ex. PF. The present is, thus, a case where the medical segment is fully supportive of ocular segment. There also is evidence a plenty of the fact that the appellant Jagtar Singh had a motive to do away with Surinder Singh who tried to intervene in the impugned occurrence and to come to the aid of PW-3 Harbans Singh. There was no inordinate delay in the notification of offence to the police. From all angles, the prosecution presentation is worthy of acceptance. It had been very appropriately accepted by the learned Trial Judge qua appellant Jagtar Singh. The finding of indictment recorded by the learned Trial Judge qua appellant Jagtar Singh, and also the reasoning noticed in support thereof, deserves affirmation and it is so held accordingly. In the light of foregoing discussion, the appeal filed by Ajaib Singh shall stand allowed. Appellant Ajaib Singh shall, stand acquitted of the charge. The appeal filed by appellant Jagtar Singh shall stand dismissed. December 22, 2009 (S. D. ANAND) Pka JUDGE