Balwant Singh vs The State of Punjab

D.B. Lal, J.—For the murder of one Parkash of Palahi, Balwant Singh, Nahar Singh and Dev alias Gurdev Singh were indicted for the offence u/s 302 read with section 34 of the Indian Penal Code. Since Dev alias Gurdev Singh absconded, Balwant Singh and Nahar Singh were tried by the Additional Sessions Judge, Jullundur. However, Nahar Singh was acquitted while Balwant Singh was convicted for that offence and sentenced to imprisonment for life and to pay a fine of Rs. 500/-, in default of payment of fine to further undergo rigorous imprisonment for six months. He was further convicted u/s 27 of the Arms Act and sentenced to rigorous imprisonment for three years.

The prosecution case was, that the deceased Parkash with his brother Dass Ram, had gone from their field in village Meonwal on July 12, 1973, at about 9.00 P.M. to the village market to purchase articles. These articles were purchased from the shop of one Shankar stated to be their relation, and since it had grown late they took their food at the shop of Shankar. Both of them returned from the shop at about 11.00 P.M. and while they were on their way to the village, they came across Dev alias Gurdev Singh (since absconding) who was driving a tractor with a trolly. The other two accused Balwant Singh and Nahar Singh occupied the trolly portion of the tractor. Both Dass Ram and Parkash got in the trolly as they wanted a lift upto their village. When the tractor reached near the well where the two brothers resided, they asked Gurdev to stop the tractor. Dass Ram got down from the trolly while Parkash was in the process of coming down. At that time, it was stated that Balwant Singh and Nahar Singh accused demanded money from him for purchasing a bottle of liquor. The deceased Parkash regretted his inability as he did not possess the money. Upon that Balwant Singh and Nahar Singh started giving fist blows to Parkash alleging that had given him a lift and consequent thereto he had to pay something to them. Nahar Singh caught hold of Parkash from the neck and Balwant Singh accused who possessed a rifle gave several blows on the head of Parkash by the butt-end of the rifle. It was stated that during the course of beating, the rifle was also fired by Balwant Singh and some injury was caused on the leg of Parkash. As many as 16 injuries were caused by Balwant Singh on the person of Parkash and when the latter fell down injured he was pushed off the trolly. Thereafter Balwant Singh asked Gurdev Singh to drive away the tractor. He also fired several times from his ritle to scare away the people. Sardara, P. W. 10 who had arrived at the well of the deceased also witnessed the occurrence. Subsequently both Dass Ram and Sardara brought the injured Parkash to the Hospital at Phillaur which was at a distance of 5 kilometers from Meonwal. They reached the Hospital at about 1-30 A.M. and Dr. Faqir Chand, P. W, 1 attended to the injuries of Parkash. He found four contused wounds and lacerated wounds on the region of the head of which one had caused depressed fracture of the frontal bone over an area of 1"x�". Nearly all the wounds were bone deep. The Doctor also found two lacerated wounds over the left leg and these two wounds were inter-connected as the injuries were continuous. According to the Doctor the two lacerated wounds were the result of the gun shot fired by Balwant Singh. Besides, these six lacerated and contused wounds, there were six contusions, two abrasions and one swelling. At 2-10 A.M. Parkash died in the Hospital. Intimation regarding his injuries to the police station was sent by the Doctor under Ex. P. 2. Thereafter upon his death a further intimation was sent to the police under Ex. P. 3. However, Dass Ram got instituted the first information report (First Information Report) at 2-25 A.M. at the police station, Philiaur. The investigating officer Kapur Singh, Assistant Sub-Inspector, P. W. 11 reached the Hospital at about 3 00 A.M. He prepared the inquest and asked for the autopsy of the corpus which was performed by Dr. Faquir Chand, P. W. 1 at 12-00 noon on the next day. Thereafter the investigating officer came to the village. He could not find any blood-stained earth as it had rained, the season being rainy. The investigating officer arrested Balwant Singh at 2-30 P.M. from his house and got recovered the rifle Ex. M.O. 1 and six live cartridges from him. His licence Ex. M.O. 2 was also taken. The shirt and Chadder of the accused were found stained with blood and the same were recovered. The tractor and its trolly were also seized and some blood was detected over the grass contained inside the trolly. Three empty cartridges were recovered from the trolly and these were subsequently compared with the markings over the rifle and the report was received to the effect that these empties were fired from the said rifle. On these facts and allegations the two accused Balwant Singh and Nahar Singh were sent up to stand at the trial Nahar Singh was however, acquitted but Balwant Singh was convicted and sentenced in the manner said above. He has felt aggrieved of his conviction and sentence and has preferred this appeal. Dev alias Gurdev Singh, however, remained absconding.

The prosecution relied upon several witnesses of whom the important ones were the two eye witnesses Dass Ram P. W. 9 and Sardara, P. W. 10. Dr. Faquir Chand, P.W. 1 came to prove the injuries and has stated that these were sufficient in the ordinary course of nature to cause the death. Pritam Singh, P.W. 8 was the witness for the recoveries effected from Balwant Singh. Udho Ram, Constable P. W. 5 came to state about the delay which was caused in the receipt of the special report by the Magistrate. Kapur Singh, Assistant Sub-Inspector, P. W. 11 was produced as the investigating officer.

Balwant Singh accused also produced 4 witnesses of whom Sarwan Singh, D. W. 1 and Shmt. Puran Kaurm D. W. 2 stated about a certain complaint sent to the authorities against one Iqbal Singh, Assistant Sub-Inspector, who according to them wanted to trespass upon their land. One Amarjit Singh, D. W. 3 stated that the tractor and the trolly were sold to Pritam Singh, who was produced as D W. 4, meaning thereby that the tractor and the trolly never belonged to Balwant Singh.

The learned Additional Sessions Judge believed the prosecution version so far as Balwant Singh was concerned and convicted him for an offence u/s 302 of the Indian Penal Code and also u/s 27 of the Arms Act.

Shri H.S. Sandhu, the learned counsel for appellant Balwant Singh contended in the foremost that the special report in the instant case was delayed and further that the daily diary abstract report No. 43, did not contain the substance of the information relating to the commission of the offence. Although the first information report was recorded at 2-15 A.M., yet it could reach the Magistrate at 10-40 A.M. Udho Ram, Constable, P. W. 5, however, stated that he was deputed at 4-00 A.M. to carry the special report to the residence of the Magistrate. It was heavily raining at that time and as such he reached the residence of the Magistrate at 5-00 A.M. He knocked at the door of the Magistrate, but there was no response. Therefore, he again went to his residence at 7-00 A.M. and he was informed that the Magistrate was taking his bath and he should carry the report to the Court. Thereafter, he delivered the report in the Court premises at 9-45 A.M. Then the learned counsel for the appellant referred to Rule 24.5 of Chapter XXIV, Volume 3 of the Punjab Police Rules, 1959 which indicates that the necessary details including the time etc. should be noted down over the report itself. This was of course not done in the present case. Besides, the learned counsel submitted that the report No. 43 of the daily diary did not contain the names of the witnesses; though it mentioned the firing of the shots by Balwant Singh. These two details having been omitted rather indicate that the substance of the information received was not noted down in the daily diary abstract and as such, according to the learned counsel, there was no compliance of section 154 of the Criminal Procedure Code. In fact there are three reports in the daily diary Nos. 41, 42 and 43 which may have been referred to. Report No. 41 was written on the basis of Ex. P. 2 and it indicated that Parkash had arrived at the Hospital in an injured condition. Report No. 42 pertained to the death of Parkash and it was based on Ex. P. 3. In that report the name of the accused was also mentioned. The learned counsel pointed out that the name of the accused could not be written in that report. To us it does not appear to be of any significant feature, because Parkash had arrived at the Hospital. The patient died subsequently, the eyewitnesses were there and the name of the accused must have been taken at the Hospital and information might have trickled down to the police station. Report No. 43 was prepared at that very time when the first information report was recorded and it is this report for which exception is taken by the learned counsel and it is submitted that the substance of the information received was not noted down in that report. However, the first information report was complete in every respect, in as much as the name of the accused, the names of the witnesses and the manner in which the assault was perpetrated, were all mentioned in the first information report. The learned counsel submitted that due to late arrival of the special report the first information report could not be stated to be recorded at 2-15 A.M. but was possibly recorded at a later stage. Since the substance of the information received was not mentioned in report No. 43, according to the learned counsel no value should be attached to the narration made in the first information report. In that connection the learned counsel referred to a Division Bench decision of this Court in Pal Singh v. The State Cr. No. 837 of 1970, Cr. Appeal No. 837 of 1970 decided on November 2, 1970. Their Lordships were no doubt considering section 154 of the Criminal Procedure Code and its alleged contravention at the hands of the prosecuting agency. In that connection, they observed after considering the facts and circumstances made out in that case, that the omission of material particulars from the daily diary entry was the result of non availability of that material and was not the result of negligence committed by the investigating agency. In other words, if in a particular case the Commissions made out in the entry are due to the negligence of the investigating agency, the case would stand on a different footing. Therefore, the real test would be if any material was not available and hence the substance was not found written in report No. 43. Their Lordships further observed that any irregularity committed by the investigating agency while writing the daily diary or while preparing the first information report, according to the version stated before them by the person concerned would only compel the Court to scrutinise the evidence "with the utmost caution." Therefore, in our opinion any irregularity committed by the investigating agency in the preparation of these documents would only ask us to sift the prosecution evidence with utmost caution. Nothing can be stated beyound that. The first information report is not a document of substantive evidence. It can only be utilised for corroborating or contradicting the person who chose to institute the first information report. Therefore, considering the argument of the learned counsel at its face value, we have only to put ourselves on guard and we shall scrutinse the statemsnt of the cye-witness Dass Ram, P. W. 9 and Sardara, P.w. 10 with greater scrutiny and with greater caution

The learned counsel for the state brought to our notice a decision of which the report is State v. Hukam Chand and another ILR (1974) Del 419. In that case a Division Bench of the Court was confronted with a situation where a substance of the information received was not recorded the daily diary, although there was evidence to show that the report had been made at the given time. It was held that section 154 of the Code of Criminal Procedure and the consequent police regulation in that regard are only meant to secure assurance in respect of a certain report having been made at a certain time; if these guarantees are otherwise present the omission of the concerned Police Officer to record the substance of the report in the daily diary can hardly be of any significance. That apart if the ocular account given by the eye-witnesses is believed by the Court, that could be a strong circumstance to dislodge any doubt which may emanate from any such irregularity committed by the investigating agency. The crux of the matter would then fall upon the statement of the two eye-witnesses, Dass Ram, P. W. 9 and Sardara, P. W. 10. We have carefully gone through the statements of these two eye witnesses and nothing can be pointed out as to why they should not have been believed. Dass Ram, P. W. 9 was actually accompanying Parkash and he was very much in the trolly and got down from it immediately before the assault was perpetrated. Sardara, P. W. 10 is the uncle of the deceased. He had gone to the well to consult the brother regarding the betrothal ceremony of his son He had, therefore, every occasion to go to the spot. The deceased did raise the alarm and Sardara being nearby naturally came and saw the occurrence. The defence of the accused was that one Iqbal Singh, Assistant Sub-Inspector against whom his mother had sent a complaint was pulling the string meaning thereby that it was Iqbal Singh who procured these two eye-witnesses. However, not one question was asked from the witnesses themselves as to what influence Iqbal Singh Sub-Inspector exercised over them. It does not stand to reason that Iqbal Singh, Sub-Inspector would have succeeded in bringing forward these two witnesses to set up a false story from one end to the other. If absolute reliance can be placed on the testimony of Dass Ram, P. W. 9 and Sardara, P. W. 10 the two eye-witnesses as the learned trial Judge has done, we do not consider that the irrgularties if any committed while recording the daily diary abstract of report No. 43, would be of any significance. The injuries received by the deceased and as opined by Dr. Faqir Chand clearly prove the intention. One of the contused wounds caused depressed fracture of the frontal bone and the Doctor very much stated in Court that injuries Nos. 1 and 2 the lacerated wound over the leg could be due to the shot fired by Balwant Singh. The learned counsel for the appellant pointed out that the Doctor stated during investigation that injuries Nos. 1 and 2 could not be caused by a fire shot. That was obviously an incorrect statement. The very nature of the two injuries point out that the same could be due to a fire shot which according to the eye-witnesses was made by Balwant Singh.

The learned counsel then pointed out that no blood was found on the spot, but for that the explanation was there. According to the investigating officer heavy rain had fallen and that was why blood stains were not detected.

Mr. Sandhu, learned counsel for the appellant then urged that the case would fall u/s 304 and not u/s 302 of the Indian Penal Code, but we do not consider it to be so. The intention of the appellant was more than clear when he perpetrated attack upon the person of Parkash. He caused six contused wounds and lacerated wounds, besides several contusions and abrasions The learned counsel argued that individually one injury was not sufficient to cause the death but the Doctor very much stated that cumulatively these injuries gave shock and caused haemorrhage which resulted into death. According to the Doctor these injuries were sufficient in the ordinary course of nature to cause death. Balwant Singh was armed with the rifle. Besides giving repeated blows by the but and of the rifle, he also fired a few shots. One of the shots pierced the leg and caused injuries Nos. 1 and 2, the lacerated wounds. The post conduct of the accused by firing in the blank and thus causing dread to the witnesses also speaks against him. In our opinion, therefore, the case was clearly one in which the appellant intended to cause the death of Parkash and his conduct sufficiently indicates that he perpetrated repeated blows which ultimately resulted in the death of Parkash. The learned trial Judge was, therefore, right in coming to the conclusion that the offence was made out u/s 302 of the India Penal Code. No exception can be taken to the sentence awarded

The appeal is thus without any merit and the same is hereby dismissed. The appellant is on bail. He has to surrender forthwith to serve out the sentence.