IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CRA-D 84—DB of 2002 Date of decision: 22.09.2011 Dasondha Singh and others …..Appellants versus State of Punjab ……Respondent and Criminal Revision No.2272 of 2002 Kulwant Kaur …..Petitioner Versus Dasondha Singh and others ……Respondent CORAM: Hon’ble Mr.Justice Jasbir Singh Hon’ble Mrs.Justice Sabina Present: Mr.Vinod Ghai and Mr.J.B.S.Gill, Advocates for the appellants Ms.Gurveen Kaur, Addl.A.G. Punjab Mr.R.S.Rai, Senior Advocate with Mr.P.S.Ahluwalia, Advocate for the complainant/petitioner in revision Jasbir Singh, J. This order will dispose of Criminal Appeal No.D-84-DB of 2002 and Criminal Revision No.2272 of 2002, arising out of judgment dated 23.1.2002, passed by the Additional Sessions Judge, Hoshiarpur, convicting and sentencing the appellants-accused. Criminal revision has been filed with a prayer that heavy fine be imposed upon the appellants and the amount so realized be paid to the petitioner Kulwant Kaur wife of the deceased by way of compensation. CRA-D 84—DB of 2002 It was allegation against the appellants and five others that on 7.3.1999 at about 9.30 pm in village Mangarh, they have committed murder of Santokh Singh Sarpanch of the village. Against four others, namely, Karnail Singh @ Balla, Malkiat Singh, Jaspal Singh @ Bhola and Onkar Singh @ Kala, it was allegation that they had conspired with the appellants to kill the deceased. Finding no evidence against them, they were discharged before recording their statements under Section 313 Cr.P.C. Another accused, namely, Shambhu was declared a proclaimed offender. Process of law was set in motion on a statement made by Kulwant Kaur, wife of the deceased, which was recorded at about 1.00 a.m. on 8.3.1999. FIR (Ex.PA/2) was recorded in police station Dasuya at 1.45 a.m. Special report reached the Magistrate at Dasuya at 9.00 a.m. The case of the prosecution as noted by the trial Court reads thus:- “Briefly stated the case of the prosecution is that Santokh Singh deceased husband of PW Kulwant Kaur was the Sarpanch of village Mangarh. On 7.3.99 at about 9.30 PM PW Kulwant Kaur, her husband Santokh Singh deceased, their daughter Rajbir Kaur and grand daughter Parneet after taking meals were going to sleep. Rajbir Kaur had gone inside the room. PW Kulwant Kaur and her husband Santokh Singh deceased were about to sleep in the verandah of their house. They suddenly heard the sound of foot steps of some persons who entered their house after scaling the wall. PW Kulwant Kaur switch on the light of the verandah to see that some persons might have come to her husband on account of some dispute. In the meanwhile Kulwant Kaur has seen that accused Romi son of Sarwan Singh armed with Kirpan Gurpartap 2 CRA-D 84—DB of 2002 Singh son of Dilbag Singh, Dasondha Singh son of Gainda Singh and also Baljit Kaur wife of Onkar Singh resident of village Mangarh and one more person were present. She could not identify the 5th person present in their verandah. Accused Baljit Kaur raised lalkara that the mean Sarpanch should be taught a lesson for doing parvi of the case against them and at this accused Dasondha Singh and Gurpartap Singh caught hold of Santokh Singh from his arms while Santokh Singh was lying on cot. Accused Romi gave a blow with kirpan on the left side of chest of Santokh Singh. PW Kulwant Kaur raised raula and on hearing his raula their neighbour Gurbachan Singh son of Amin Chand switch on the light and came to their house and raised lalkara. On hearing lalkara of Gurbachan Singh, accused ran away. PW Kulwant Kaur with the help of Gurbachan Singh took Santokh Singh to civil hospital Dasuya where Santokh Singh was declared dead.” The investigating officer SI Ajay Singh (PW8), on getting information from PW1, namely, Kulwant Kaur, went to the spot and then to the hospital, prepared inquest report on the dead body and sent it for post- mortem examination, which was conducted by Dr.Jarnail Singh (PW2) on 8.3.1999 at 1.10 p.m. The witness has deposed that rigor mortis was well developed on all four limbs of the dead body. The following injuries were found on the person of the deceased:- “1. Incised wound 5 cm x 2 cm vertically lies in the midline of the upper part of epigastrium. 3 CRA-D 84—DB of 2002 2. There were two incised wounds each measuring 2.5 cm x 0.5 cm on back of left side of abdomen 3 cm above iliac crest and 3 cm from mid line. On dissection injury no.1 was traversing downward laterally and posterially to communicate with injury no.2 after cutting the underlying peritorium stomach mesentry and abdominal aorta partially. The peritorium cavity was full of blood and clots.” As per opinion, the injury was found ante mortem in nature and cause of death was hemorrhage and shock due to injury Nos.1 and 2, which were sufficient to cause death in an ordinary course of nature. In re- examination, this witness has stated that injury No.1 may be the entry wound and injury no.2 may be an exit wound. The investigating officer SI Ajay Singh took into his possession a cot and other articles from the place of occurrence. He also removed blood stained earth. The accused were arrested in due course of time and during investigation, Amandeep @ Romi (appellant No.2) made a disclosure statement, which led to the recovery of a weapon of offence (sword), which was also taken in possession against a recovery memo. On completion of investigation, final report was put in Court. The appellants and other accused were charge sheeted for commission of offences, as referred to above. They pleaded not guilty and claimed trial. In order to prove its case, the prosecution produced ten witnesses and also brought on record the documentary evidence. On conclusion of prosecution’s evidence, finding no proof against the four accused, namely, Karnail Singh @ Balla, Malkiat Singh, Jaspal Singh @ Bhola and Onkar Singh @ Kala, they were discharged and 4 CRA-D 84—DB of 2002 statements of the appellants were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. It was stated by them that they have been involved in this case on account of party faction in the village as they were opposing the deceased in the Panchayat elections and had also made complaints against him for embezzlement of Panchayat funds. They also placed some documents on record in defence. The trial Court on appraisal of evidence, found the appellants guilty for commission of offences with which they were charged. Vide the judgment and order dated 23.1.2002, they were convicted for commission of an offence under Section 302 IPC. They were also found guilty under Section 450 IPC, however, no sentence was imposed because they had already been found guilty for commission of an offence under Section 302 IPC. The appellants were sentenced to undergo imprisonment for life and also to pay a fine of Rs.5000/- each with a default clause. Mr.Vinod Ghai, Advocate appearing for the appellants, has vehemently contended that the prosecution has failed to show any motive on the part of the appellants to commit the crime and further by making reference to the time gap between the alleged occurrence and recording of an FIR, he argued that the alleged eye witnesses PW1 and PW3 were not present at the site of occurrence. He further argued that a large number of pesons were involved in this crime only because of party faction in the village, four had already been acquitted for want of evidence against them. Mr.Ghai further argued that it is not possible that appellant No.4 Baljit Kaur would come from a distance of one and a half kilometer, only to raise an exhortation at the time of commission of the alleged occurrence. He further stated that on the weapon of offence, no blood stain was detected. He also 5 CRA-D 84—DB of 2002 tried to found fault with the process of investigation conducted by the investigating officer by stating that his coming to the place of occurrence during night is doubtful because he had failed to pick many articles lying at the spot at that time, which were taken in possession on the next date. He prayed that appeal be accepted, judgment and order under challenge, be set aside and the appellants be acquitted of the charges framed against them. Prayer made has vehemently been opposed by Mr.R.S.Rai, Senior Advocate assisted by Mr.P.S.Ahluwalia, Advocate for the complainant. By making reference to the statements made by PW1 and PW3, he argued that both the witnesses have given a vivid eye witness account of the manner, in which, crime was committed. The presence of both the witnesses in the house was natural. The appellants scaled outer wall of the house, came determined to kill the deceased, who was sleeping. Appellant Nos.1 and 3 demobilized the deceased and appellant No.2 gave a blow with such a force that it pierced through and through the body of the deceased. Presence of Baljit Kaur, it is stated, was proved on record. She, out of enmity with the family of the deceased, had exhorted the others to commit the crime. He prayed that appeal, having no substance, be dismissed and revision petition filed by the complainant Kulwant Kaur be allowed and compensation be paid to her. After hearing counsel for the parties, we are of the opinion that in this case, the prosecution has successfully proved guilt of the appellants – accused. Santokh Singh was killed by the appellants-accused on 7.3.1999 at about 9.30 p.m. The clear picture as to how the crime was committed, is given by Kulwant Kaur (PW1) and Rajbir Kaur (PW3), wife and daughter of the deceased, respectively. In her statement, PW1 has 6 CRA-D 84—DB of 2002 stated that she along with the deceased, Rajbir Kaur and grand daughter Parneet were present in the house. After taking their meals, they had gone for sleep. She heard the voice of footsteps of some persons, who entered her house by scaling the wall, she switched on the lights and saw the appellant No.4 raising exhortation to kill the deceased. Appellant No.2 was armed with a sword and in her sight, appellant Nos.1 and 3 caught-hold of the deceased, then appellant No.2 gave thrust-wise blow of sword to the deceased, which resulted into his death. She raised hue and cry, which attracted PW4 Gurbachan Singh and others, which made the appellants to run away from the place. She took Santokh Singh to the civil hospital with the help of PW4 Gurbachan Singh, where he was declared brought dead. Despite lengthy cross examination, nothing positive has been elicited from this witness, which may help the appellants-accused. Furthermore, the version given by Kulwant Kaur (PW1) has been re-iterated and authenticated by Rajbir Kaur (PW3). It appears that the appellants, after conniving with each other, came to the house of the deceased, entered it by scaling the wall, with determination to kill the deceased. Merely because appellant No.4 is a lady, it cannot be presumed that she cannot scale the wall, which was only five feet high. Otherwise also, there is sufficient evidence on record that on account of some litigation inter-se the parties, she had a grudge against the deceased. She has been making complaints and it was allegation against the deceased that he had falsely implicated her family members in a criminal case. It is an eye witness account. The motive, otherwise also, is not very material but in the present case, the motive to kill the deceased, is proved on record. So far as delay in lodging the FIR is concerned, this Court feels that it is not very material. The murder is stated to have been committed at 7 CRA-D 84—DB of 2002 9.30 p.m. After making arrangement for the conveyance, the deceased was taken to the hospital at Dasuya, which is at a distance of about seven kilometers. It has come in the evidence of PW1 and PW4 that they reached the hospital at about 11.00 p.m. Some time might have been taken by the doctor to examine the deceased and declare him as brought dead. As per evidence on record, the statement of the Kulwant Kaur (PW1) was recorded by the Investigating Officer at 1.00 a.m. and FIR (Ex.PA/2) was recorded at 1.45 a.m. on 8.3.1999. Special report was received by a Magistrate at Dasuya at 9.00 a.m. The time schedule mentioned above, we feel, is natural to be taken up in such like process. The family members are supposed to be under stress, and may be waiting the others to come before they may rush to the police officials for registration of a case. This little bit delay is normal and cannot be treated as fatal to the case of the prosecution. Next contention of Mr.Ghai that no blood was found on the sword and as such, this weapon cannot be connected with the alleged offence, is liable to be rejected. The following articles were taken into possession by the investigating officer:- “I. Chadar II(A) Kamiz (B) Pajama III Battary IV Shawl V Blood VI Sample of earth etc. VII Earth etc. VIII Kirpan” Above articles were analyzed by the chemical examiner to know the existence of blood thereon and after examination, vide report (Ex.PU) of the chemical examiner, it was observed as under:- 8 CRA-D 84—DB of 2002 “Stains as indicated on sketches overleaf were found on exhibits No.I, II(A), II(B) and No.VIII. Those marked ‘X’ were tested and found to be of blood & pieces and scrapings therefrom were sent to Serologist Govt. of India. Blood was found on exhibits No.III, V and No.VII. And pieces were sent to Serologist Govt. of India. No blood was found on exhibits No.IV & No.VI was sent as control.” A reading of the above conclusion makes it very clear that the stains on the sword contain blood. Blood was not found only on shawl and sample of earth etc. The recovery of weapon of offence was made on a disclosure statement made by the appellant No.2 and the same has rightly been relied by the trial Court. Gurbachan Singh (PW4), who is a neighbour, has also categorically stated that he had seen the appellants-accused running from the spot. Minor discrepancies here and there in the statements of the prosecution witnesses, in view of overwhelming evidence on record, are liable to be ignored. The trial Court also noticed the suggestions made by the appellants at the time of cross-examination of the prosecution witnesses. After analyzing the same, it was said that there is nothing on record to show that Santokh Singh deceased had enmity with any other person in the village except the appellants-accused. It was rightly opined that case of the appellants that fatal blow was given to the deceased by his servant, was also not proved on record. Under no circumstances, the family members will spare the real culprit. In view of facts mentioned above, we feel that the prosecution was successful in bringing home guilt of the appellants –accused. The trial Court has successfully separated the truth from falsehood when passing an order of discharge qua the four other accused. Merely because some articles 9 CRA-D 84—DB of 2002 were not taken in possession by the investigating officer at his first visit, in view of evidence on record, it cannot be said that at night he had not gone to the place of occurrence. May be due to some oversight, few articles lying next to the dead body were not picked up at that time. Mr.Rai has failed to make out any case for enhancement of amount of fine. In view of above, no case is made out for interference. Accordingly, Criminal Appeal No.D-84-DB of 2002 and Criminal Revision No.2272 of 2002 are dismissed. A copy of this order be placed on the file of connected case. (Jasbir Singh) Judge 22.09.2011 (Sabina) gk Judge 10