IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 98-DB of 2000 DATE OF DECISION : 02.04.2009 Major Singh and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. H.S. Bhullar, Advocate, for the appellants. Mr. S.S. Gill, DAG, Punjab, for the respondent. * * * SATISH KUMAR MITTAL , J. 1. Appellants Major Singh (son) and Gian Kaur (mother) have filed this appeal against the judgment and order dated 9.2.2000, passed by Additional Sessions Judge, Gurdaspur, in case FIR No. 55 dated 31.12.1993 under Sections 302/336/324/323/34 IPC, registered at Police Station Ghuman. Appellant Major Singh has been convicted under Section 302 IPC and appellant Gian Kaur has been convicted under Section 302 read with Section 34 IPC, for committing the murder of Hardial Singh. Both of them have been sentenced to undergo imprisonment for life and to pay a fine of Rs. 5,000/- each. In default of payment of fine, they have been ordered to further undergo rigorous imprisonment for one year. They were tried along Crl. A. No. 98-DB of 2000 -2- with Dalbir Singh (father and husband of appellants Major Singh and Gian Kaur, respectively), who had died during the trial. 2. In this case, the aforesaid FIR was registered on the statement (Ex.PL) of Swinder Singh (brother of accused Dalbir Singh), which was recorded by the police on 31.12.1993 at 12.30 P.M. in Civil Government Dispensary Ghuman. In his statement, Swinder Singh stated that he was residing in a farm house constructed in the field outside his village Padday. His brother-in-law (Sala) Hardial Singh (deceased) resident of Jamalpur was also residing with him. On 30.12.1993 at about 4/4.30 A.M., he was cleaning his hands on the tubewell installed in his house, after attending the call of nature, and his brother-in-law Hardial Singh was cleaning his teeth with a `Dattan' near the lemon tree. Then accused Dalbir Singh armed with Dang, his son Major Singh armed with Datar and Gian Kaur came from their house with common intention, and on seeing him (Swinder Singh), Gian Kaur raised a Lalkara that he be taught a lesson for giving false information to the police against them. On that, he ran towards his house out of fear. Gian Kaur caught hold his brother-in-law Hardial Singh from his hair and accused Dalbir Singh gave Dang blows on the head, ears, upper lip, arms and on the left hand fingers of Hardial Singh. He fell down on the ground. Then accused Major Singh gave many blows on various parts of the body of Hardial Singh with Datar from its both sides. When Hardial Singh raised raula 'Mar Ditta Mar Ditta', then he and his elder brother-in-law Kulwant Singh, who had come to see him, went forward to intervene. Crl. A. No. 98-DB of 2000 -3- Thereupon, the assailants went towards their house along with their respective weapons. Afterwards, Dalbir Singh fired in air with his 12 bore double barrel licenced gun while standing in the courtyard of his house, in order to frighten them. He stated that the whole occurrence was seen by him and his brother-in-law Kulwant Singh. He further stated that he and his brother-in-law Kulwant Singh arranged a conveyance and got admitted Hardial Singh in Government Dispensary Ghuman for treatment, where Doctor gave him first aid and prepared Medico Legal Report. He further stated that the action be taken against the accused. 3. As per the prosecution version, injured Hardial Singh was taken to the Government Dispensary Ghuman, where he was treated by Dr. Shabeg Singh (PW.1). According to him, the injured was admitted in the Hospital at 9.30 A.M. on 30.12.1993 and he medico legaly examined injured Hardial Singh at the same time and found 25 injuries on his person. He opined that except injury No.7, all the injuries were caused with blunt weapons. The probable duration of the injuries was stated to be within 4 to 5 hours. He also sent a ruqa to the police. After receiving the ruqa, SI Atma Singh reached the Hospital and sought opinion of the Doctor about the fitness of the injured to make statement. Vide endorsement Ex.PB/1, the Doctor declared the injured unfit to make statement. On the next day i.e. on 31.12.1993, again the opinion of the Doctor was sought about the fitness of the injured to make statement, but the Doctor vide endorsement Ex.PB/2 again declared him unfit to make statement. Thereafter, SI Atma Singh Crl. A. No. 98-DB of 2000 -4- recorded the statement Ex.PL of Swinder Singh, on the basis of which FIR was recorded under Sections 336/ 324/323/34 IPC. He went to the place of occurrence and prepared the rough site plan Ex.PV with correct marginal notes. During the investigation, three empty cartridges Ex.P1 to Ex.P3 were found near the place of occurrence, which were taken into police possession vide recovery memo Ex.PX. On 1.1.1994, 2.1.1994 and 3.1.1994 again, opinion of the Doctor was sought about the fitness of the injured to make statement, but every time, Doctor declared the injured unfit to make statement. On 3.1.1994, the injured was referred to Civil Hospital, Batala, where he died. After his death, the offence under Section 302 IPC was added. The inquest report Ex.PK was prepared and the post mortem of the deceased was got conducted. 4. On 4.1.1994 at 12.15 P.M., Dr. Gurpal Singh (PW.2) conducted the post mortem of the deceased. He opined that the cause of death was due to pulmonary embolism with cerebral anoxia. All the injuries were stated to be ante-mortem in nature and sufficient to cause death in the ordinary course of nature. 5. On 11.1.1994, accused Dalbir Singh and Gian Kaur were produced by Sarpanch of village Padday before SI Atma Singh. Accused Dalbir Singh produced .12 bore gun Ex.P4 along with two live cartridges Ex.P5 and Ex.P6 and one licence Ex.P7, which were taken into possession by SI Atma Singh vide recovery memo Ex.PZ. During interrogation, on 13.1.1994, accused Dalbir Singh in pursuance of his disclosure statement Crl. A. No. 98-DB of 2000 -5- Ex.PAA got recovered a Dang from the heap of Parali in the presence of witnesses HC Balwinder Singh and complainant Swinder Singh and the same was taken into police possession vide recovery memo Ex.PBB. On 16.1.1994, accused Major Singh was produced by the Sarpanch and during interrogation, on 18.1.1994, in pursuance of his disclosure statement Ex.PDD, he got recovered a Datar Ex.P8 from the heap of wheat chaff in the presence of the same witnesses, which was taken into police possession vide recovery memo Ex.PEE. 6. After completion of investigation, the challan was presented in the court. Accused Major Singh and Dalbir Singh were charged under Section 302 IPC, whereas accused Gian Kaur was charged under Section 302 read with Section 34 IPC. Accused Dalbir Singh (who died during the trial) was further charged under Section 336 IPC. All the accused did not plead guilty to the charge and claimed trial. 7. In support of its case, the prosecution examined 12 witnesses. PW.1 Dr. Shabeg Singh, who medico legally examined Hardial Singh, proved the MLR Ex.PA. PW.2 Dr. Gurpal Singh, who conducted post mortem on the dead body of deceased Hardial Singh, proved the post mortem report Ex.PH. PW.3 Swinder Singh (complainant) and PW.4 Kulwant Singh are the eye witnesses. PW.5 Gurcharan Singh Head Constable, who tested the .12 bore DBBL gun in this case, proved his report Ex.PQ to the effect that the gun was fit for firing. PW.6 Prem Nath Constable, who tested two .12 bore cartridges, proved his report Ex.PR to Crl. A. No. 98-DB of 2000 -6- the effect that the cartridges were fit for fire purposes. PW.7Ajaib Singh Patwari is the formal witness, who proved the site plans Ex.PS, Ex.PT and Ex.PU. PW.8 SI Atma Singh is the Investigating Officer in this case. PW.9 Ashok Kumar, Reader to Tehsildar, Batala proved gun licence Ex.P9 in the name of accused Dalbir Singh. PW.10 HC Tirath Singh is the formal witness, who proved his affidavit Ex.PGG. PW.11 Bhagwan Dass, Sub Station Operator brought the record and proved the certificate Ex.PHH to the effect that on 30.12.1993, the electricity supply was on from 11 K.V. Kotli Feeder. PW.12 Dr. Inderjit Singh proved the X-ray report Ex.PF. 8. Accused Major Singh and Gian Kaur, in their statements under Section 313 Cr.P.C. denied the prosecution allegations and pleaded false implication. They took the plea that on the day of occurrence, they were present in their house and when at about 2/3 A.M., there was hue and cry from the house of complainant Swinder Singh, in order to scare away the miscreants, accused Dalbir Singh fired in the air while standing in their house. In defence, the accused examined DW.1 HC Manohar Singh, who stated that the Roznamcha pertaining to December, 1993 to January, 1994, was not available in the Police Station, as the same was already destroyed. DW.2 Kuljit Singh MHC also stated that the Daily Diary of December, 1993 and January, 1994 was destroyed. 9. After considering the evidence led by the parties and hearing the counsel for the parties, the trial court, while relying upon the statements of two eye witnesses and the other connected evidence, held that accused Crl. A. No. 98-DB of 2000 -7- Dalbir Singh (who died during trial) and Major Singh caused 25 injuries on the person of Hardial Singh, as a result of which, he died. It was also held that accused Gian Kaur caught hold Hardial Singh from his long hairs, in order to facilitate the other accused to commit his murder. Thus, it was held that all the accused with their common intention committed the murder of Hardial Singh. The proceedings against accused Dalbir Singh were abated on account of his death during the pendency of trial. Accused Major Singh was held guilty under Section 302 IPC and accused Gian Kaur was held guilty under Section 302 read with Section 34 IPC. Accordingly, they were convicted and sentenced, as indicated in the first paragraph of this judgment. 10. Learned counsel for the appellants raised several contentions in order to assail the impugned judgment and order, passed by the trial court against the appellants. Firstly, he submitted that in the present case, the FIR was lodged after a delay of 30 hours from the time of the alleged occurrence. He submitted that as per the version of PW.3 Swinder Singh and PW.4 Kulwant Singh, the two eye witnesses, the alleged occurrence took place at 4/5 A.M. on 30.12.1993 and Hardial Singh (injured at that time) was taken to the Govt. Dispensary, Ghuman by them at 7/7.30 A.M. and he was medico legally examined at 9.30 A.M. The Doctor sent ruqa to the police and in response thereto, the police reached the Govt. Dispensary immediately thereafter. Learned counsel submitted that though the Doctor had opined that the injured was unfit to make statement, but as per the Crl. A. No. 98-DB of 2000 -8- statement of Dr. Shabeg Singh, the injured was conscious and remained conscious throughout his treatment, but his statement was not recorded. Learned counsel further argued that both the eye witnesses were present in the Govt. Dispensary, Ghuman and were available to the police, but their statements were also not recorded till the next day i.e. 31.12.1993, when at 12.40 P.M., statement of complainant Swinder Singh was recorded. Learned counsel argued that this inordinate delay in registering the FIR has not been satisfactorily explained by the prosecution. He submitted that 30 hours time was used by the complainant and the police to concoct a false version and to implicate the innocent persons and also to plant false witnesses. He submitted that by taking advantage of the said delay in lodging the FIR, PW.3 Swinder Singh and PW.4 Kulwant Singh, the alleged eye witnesses of the occurrence, were planted, as actually they had not seen the occurrence. PW.4 Kulwant Singh, who is the real brother of the deceased, was called from his village Jamalpur, which was only at a distance of 5 Kms. from the place of occurrence, and thereafter, he was planted as a witness and by concocting a false version, all the three members of the family were falsely implicated for the alleged crime, which they did not commit. Secondly, learned counsel argued that the prosecution version given by PW.3 Swinder Singh and PW.4 Kulwant Singh is highly improbable and absurd and is not reliable. He submitted that both the witnesses are highly interested witnesses and they are inimical towards the accused family. Admittedly, the complainant was cultivating more than 2 acres of land belonging to accused Crl. A. No. 98-DB of 2000 -9- Dalbir Singh and in order to grab the said land, the entire family has been falsely implicated. Learned counsel submitted that the conduct of these witnesses was highly un-natural. At the time of the alleged occurrence, they did not try to save Hardial Singh from the accused, who were only armed with Dang and Datar. The explanation given by these two witnesses that they were got scared by the accused by firing cannot be accepted, because as per the prosecution version, accused Dalbir Singh fired from the courtyard of his house, where they went after causing injuries to Hardial Singh. Thirdly, learned counsel argued that the presence of PW.4 Kulwant Singh at the time of the alleged occurrence was highly doubtful. Actually, he was called lateron in the Govt. Dispensary, Ghuman, and was named as a witness of the occurrence. Learned counsel further submitted that statement of this witness in the Court does not inspire any confidence. Though he is alleged to have seen the occurrence, but he did not report the matter to the police. His statement was recorded by the police only on 3.1.1994. Learned counsel further argued that PW.4 Kulwant Singh is not reliable witness. He is telling lie on every point and has made many improvements, which clearly indicate that he had not seen the alleged occurrence. Learned counsel submitted that this witness is untruthful, who has changed his version many times. 11. The learned counsel further submitted that PW.3 Swinder Singh had categorically stated that on 30.12.1993, his statement was recorded by the police, but the said statement has been withheld by the prosecution. This Crl. A. No. 98-DB of 2000 -10- fact creates a doubt in the entire prosecution version. 12. Regarding the alleged participation and involvement of accused Gian Kaur, learned counsel submitted that she has been falsely implicated in this case. As per the prosecution version, she was empty handed and only raised Lalkara and caught hold Hardial Singh from his hair. As far as participation of this accused is concerned, statements of the two eye witnesses are contradictory. He submitted that the role attributed to this accused is self contradictory. If she had caught hold the hairs of the deceased, then several injuries could not have been caused on the body of the deceased. Therefore, the false implication of this accused cannot be ruled out. In the last, learned counsel argued that in the facts and circumstances of the case, the alleged offence does not fall within the definition of `murder'. Undisputedly, all the injuries on the person of the deceased were on non-vital parts of the body. Most of the injuries were declared simple. As per the prosecution witnesses, accused Dalbir Singh was having gun at the time of the alleged occurrence, but the same was not used. All this indicates that there was no intention of the accused to cause death of Hardial Singh, who was brother-in-law of the complainant. He further submitted that in the instant case, the deceased has not died due to the injuries suffered by him. The post mortem report and the statement of Dr. Gurpal Singh (PW.2) indicates that he died due to heart problem after three days of the alleged occurrence. Thus, the prosecution has failed to prove that the homicidal death in the present case amounts to murder. Crl. A. No. 98-DB of 2000 -11- Therefore, if the accused are liable to be convicted at all, they are to be convicted and sentenced only under Section 304 IPC. 13. On the other hand, counsel for the respondent-State argued that the prosecution has fully proved its case against the accused beyond shadow of a reasonable doubt. The delay in the registration of FIR has been fully explained by the prosecution. In this regard, he argued that on receipt of the ruqa from the Hospital, the Investigating Officer reached the Govt. Dispensary on the same day i.e. on 30.12.1993, but since the Doctor declared the injured unfit to make statement, therefore, his statement could not be recorded. So far as the recording of statement of complainant Swinder Singh is concerned, he was not available to the police on that day and thereafter, on the next day i.e. on 31.12.1993, when again the Doctor declared the injured unfit to make statement, the statement of complainant was recorded at 12.40 P.M. He further submitted that the presence of both the eye witnesses at the time and place of occurrence is natural and they had witnessed the entire occurrence, as has been stated by them in their statements. He further submitted that it has also been proved beyond shadow of a reasonable doubt that accused Gian Kaur raised Lalkara and caught Hardial Singh from his hairs to facilitate the other accused to cause him injuries with Dang and Datar. He submitted that the prosecution has further proved that the accused have committed the murder of the deceased Hardial Singh and the appellants have been rightly convicted and sentenced by the trial court. Crl. A. No. 98-DB of 2000 -12- 14. According to the prosecution version, the alleged incident had taken place on 30.12.1993 at about 4/5 A.M. in the courtyard of the house of PW3 Swinder Singh. The house of the accused is situated adjacent to the house of the complainant. The deceased Hardial Singh, brother-in-law of Swinder Singh, was residing with him and helping him in cultivation. According to PW3 Swinder Singh, the accused were having suspicion that he had given false information against them to the police. For that reason, they were having a grudge against him. PW3 Swinder Singh has stated in the court that on 30.12.1993 at about 5 A.M., when he along with Hardial Singh was present on the tubewell, situated in his farm house, Dalbir Singh armed with Dang, Major Singh armed with Datar and Gian Kaur came there. Gian Kaur raised lalkara that he be taught a lesson for giving false information to the police against them. On that, he ran towards his house out of fear. Then Gian Kaur caught hold his brother-in-law Hardial Singh from his hairs and accused Dalbir Singh caused several injuries with his Dang. When Hardial Singh fell down on the ground, accused Major Singh gave many blows with Datar from its both sides on various parts of the body of Hardial Singh. When he and his elder brother-in-law Kulwant Singh, who had come to see him, came forward to intervene, then the assailants threatened them, while standing in their verandah, by firing from the gun in the air. According to him, Dalbir Singh and Major Singh caused as many as 25 injuries on the person of Hardial Singh. The statement of PW3 Swinder Singh has been corroborated by PW.4 Kulwant Singh, who had also seen Crl. A. No. 98-DB of 2000 -13- the alleged occurrence. In his statement, he has stated that on 29.12.1993, he had come to village Padday in order to see his sister and brother-in-law. On 30.12.1993 at about 5 A.M., he was sleeping in the house of his brother-in- law Swinder Singh. When he heard the noise of HardialSingh, he woke up and came out of the house and saw that Hardial Singh was lying on the ground and Dalbir Singh armed with Dang and Major Singh armed with Datar were present there. Gian Kaur was also standing there. He stated that Dalbir Singh and Major Singh were inflicting injuries to Hardial Singh and in his presence, Major Singh gave Datar blows to Hardial Singh on his leg and other parts of the body. He further stated that when he and Swinder Singh came forward to rescue Hardial Singh, Dalbir Singh fired shot with . 12 bore DBBL gun. On that, they did not go ahead out of fear. Both the eye witnesses have categorically stated that after the alleged incident, when the accused ran away from the scene with their weapons, they arranged a tonga and took injured Hardial Singh to Civil Hospital, Ghuman. They had gone at about 7/7.30 A.M. Dr. Shabeg Singh (PW.1), who had treated and medico legally examined the injured, has stated that the injured was brought to the Hospital by his brother Kulwant Singh. The ocular version given by these two witnesses, who had seen accused Dalbir Singh and Major Singh causing injuries to Hardial Singh, has been corroborated by the medical evidence. PW.1 Dr. Shabeg Singh medico legally examined injured Hardial Singh on 30.12.1993 at 9.30 A.M. He found as many as 25 injuries on his person. He opined that except injury No.7, all the injuries were caused with blunt Crl. A. No. 98-DB of 2000 -14- weapons. The probable duration of the injuries was stated to be within 4 to 5 hours. He further stated that injury No.7 could be caused from the sharp side of a Datar and rest of the injuries could have been caused by a Dang or any other blunt object, including the wrong side of a Datar. This witness has further stated that the patient remain admitted in their Hospital upto 3.1.1994, when he was referred to Civil Hospital, Batala. It is undisputed fact that the injured was taken to Civil Hospital, Batala, where he died on 3.1.1994. PW.2 Dr. Gurpal Singh conducted the post mortem of the deceased on 4.1.1994 at 12.15 P.M. and opined that the cause of death was due to pulmonary embolism with cerebral anoxia. He found that all the injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. During investigation, on 13.1.1994, accused Dalbir Singh in pursuance of his disclosure statement Ex.PAA got recovered a Dang from the heap of Parali, which was taken into police possession vide recovery memo Ex.PBB. Similarly, on 18.1.1994, in pursuance of his disclosure statement Ex.PDD, accused Major Singh got recovered a Datar from the heap of wheat chaff, which was taken into police possession vide recovery memo Ex.PEE. These recoveries have also been proved by PW.3 Swinder Singh complainant (witness of the recovery memos) and PW.8 SI Atma Singh, the Investigating Officer of the case. 15. Now the question arising for consideration is : whether the version given by PW.3 Swinder Singh and PW.4 Kulwant Singh is reliable and trust-worthy and whether they were present at the time of the alleged Crl. A. No. 98-DB of 2000 -15- occurrence and had seen the occurrence, as stated by them? 16. Counsel for the appellants vehemently argued that the whole version given by the aforesaid two alleged eye witnesses is wholly improbable, abnormal and unreliable. According to him, these witnesses are the planted witnesses, who had not seen the alleged occurrence. In this regard, learned counsel put much emphasis on the delay in lodging the FIR, which is 30 hours from the alleged occurrence. According to the learned counsel, this inordinate delay has not been explained. We have examined this aspect of the matter and are of the opinion that in the instant case, merely because the FIR was registered after a delay of 30 hours, it cannot be concluded that the prosecution has planted the aforesaid witnesses or has concocted the entire prosecution version. Apparently, the delay of 30 hours