Hari Singh and Another vs State of Punjab

R.K. Nehru, J.—Hari Singh, his son Sardul Singh, both residents of Ropar, Vijay Kumar, resident of village Damowal, and Nasib Chand resident of Dialpur, Police Station Subhanpur, were sent up to stand their trial under Sections 302, 392 and 307 read with Section 34 of the Indian Penal Code, before the Court of Sessions at Jalandhar, for causing the death of Pritam Singh and murderous assault on Jagtar Singh PW-10, while committing robbery armed with deadly weapons. The learned Additional Sessions Judge, Jalandhar, on the basis of evidence on record, acquitted accused Sardul Singh and Vijay Kumar, of the above charges, while Hari Singh and Nasib Chand were held guilty for the abovesaid charges and were accordingly convicted and sentenced on various counts in the following terms, vide judgment dated February 26, 1986:--

Under Section 307/34, IPC -- Rigorous imprisonment for a period of four years and also to pay a fine of Rs. 500/-, in default payment thereof, to further undergo R.I, for six months;

Under Section 392, IPC - Rigorous imprisonment for a period of three years; and

Under Section 394, IPC - Rigorous imprisonment for a period of four years and also to pay a fine of Rs. 500/-, in default payment thereof, to further undergo R.I. for six months.

The substantive sentences, however, were ordered to run concurrently.

Feeling aggrieved, Hari Singh and Nasib Chand appellants have challenged their conviction and sentence by filing the present criminal appeal.

According to prosecution version, Gurdev Kaur PW-5 is the wife of Pritam Singh deceased. Jagtar Singh PW-10 is the victim of murderous assault and, Prem Singh PW-11, is his brother. The occurrence leading to the alleged murder of Pritam Singh deceased, murderous assault on Jagtar Singh, while committing robbery is stated to have taken place on the night between 6th and 7th February, 1985 at the outskirts of village Jamsher, within the jurisdiction of Police Station Sadari Jalandhar, which is about 13 kilometer from the alleged place of occurrence. The case was registered at the Police Station concerned at 3.05 p.m. on 7-2-1985 under F.I.R. Ex. PH/1 on the basis of statement Ex. PH made by Gurdev Kaur PW-5 at about 2.15 p.m. the same day to S.I. Sarup Singh PW-16 at the bus stand of village of occurrence. The special report reached the Illaqa Magistrate concerned at 3.45 p.m. on 7-2-1985. The prosecution story as can be gathered from the evidence led during the trial is that Pritam Singh deceased had gone out of house on 6-2-1985 and did not return till late night. Gurdev Kaur PW-5 and her daughters searched for him unsuccessfully throughout the night. On the morning of 7-2-1985 they again started searching for him. At about 1.00/1.30 p.m., while they were going on the road leading to village Chachowal, they found the deceased lying murdered in the wheat crop field. Leaving her daughters near the dead body, Gurdev Kaur left for Police Station Sadar, Jalandhar, when she met S.I. Sarup Singh PW-16 at the bus stand of her village. She made statement Ex. PH to this police officer, who despatched the same to the police station concerned, where the case was registered under normal FIR Ex. PH/1. PW-16 went to the spot, held inquest proceedings Ex. PN on the deadbody of Pritam Singh, and sent it for autopsy to Civil Hospital, Jalandhar, where the autopsy was performed by Dr. Mandip Singh Sethi, PW-17, at 11.45 a.m. on 8-2-1985. The doctor found as many as 19 stab injuries on the various parts of the deadbody vide post-mortem examination report Ex. PCC. All the injuries were ante-mortem and were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was stated to be instantaneous, while that between death and post-mortem examination within 24 hours.

The prosecution case further proceeds that on 6-2-1985 Jagtar Singh PW-10, at about 7.30 p.m. was going from his village Jamsher to his village Chachowal on the bicycle of his brother Prem Singh PW-11. When he reached near the wheat crop field of Rup Lal, all the four accused appeared there. Hari Singh accused-appellant was armed with a Sota, Sardul Singh accused was armed with a spring actuated knife, while Vijay Kumar accused, and Nasib Chand accused-appellant were armed with a chhura each. On the exhortation of Hari Singh accused-appellant, to catch hold of Jagtar Singh PW-10, to snatch away his belongings and to kill him, all the four accused dragged him to the field of Mehnga Singh. Nasib Chand and Sardul Singh accused caused one blow each with their weapons on his back. Hari Singh accused-appellant inflicted 3-4 Sota blows on the back and head. On receipt of these injuries, when Jagtar Singh PW-10 fell down, Vijay Kumar accused muffled his face with a Thathi (a strip of cloth meant for setting the beard). Sardul Singh accused snatched the wrist watch Ex. P-l, currency notes of Rs. 50/-. Hari Singh accused-appellant then remarked to his co-accused that Jagtar Singh had died and that they should proceed further. At that time the accused also inflicted injuries on another person, who died at the spot on account of those injuries. While leaving the spot, they took away both the bicycles--one belonging to Jagtar Singh PW-10 and the other that of Pritam Singh deceased. Jagtar Singh PW-10 raised alarm which attracted to the spot, his brother Prem Singh PW-11 and Joginder Singh. Joginder Singh removed the thathi from the face of Jagtar Singh, who was then removed to Primary Health Centre, Jasmer, where he was medically examined and treated at 9.35 p.m. on 6-2-1985 but as his condition was precarious, he was taken to Civil Hospital, Jalandhar, on being referred by the doctor concerned. The doctor at Primary Health Centre, Jasmer, found the following six injuries on the person of Jagtar Singh PW-10:-

(1) An incised wound 2.75 cm long x 0.75 cm wide x 6.00 cm deep on the left side of back, 12.5 cm below left lower end of scapula. Wound was bleeding.

(2) An incised wound 2.75 cm long x .5 cm wide x 4 cm deep on the back, 9 cm inner to lower end of left scapula. The wound was bleeding;

(3) An abrasion 0.5 cm x 0.5 cm on the back of chest, 5 cm above the lower end of left scapula;

(4) A lacerated wound 1 cm x 0.5 cm and muscle deep on the front aspect of right forearm, in its middle 1 / 3rd;

(5) A lacerated wound 0.75 cm x 0.50 cm x muscle deep. 2 cm inner to injury No. 4;

(6) Both upper and lower lips were swollen in their left half but no laceration of inner surface.

Injuries Nos. 1 and 2 were kept under observation, while the remaining injuries were declared simple; caused within a duration of six hours. The attendants of the injured took him to Jalandhar and got admitted in Bawa Nursing Home, Jalandhar City, where he was treated and operated upon by Dr. H. S. Bawa PW-1 on 7-2-1985.

On 7-2-1985 on receipt of MLR of Jagtar Singh Ex. PE, S. 1. Sarup Singh PW-16 went to Bawa Nursing Home, Jalandhar City, and on his enquiries, the doctor declared him as unfit to make a statement. Ultimately, Jagtar Singh PW-10 was declared fit to make a statement on 12-2-1985 at 6.00 p.m. and accordingly, PW-16 S.I. Sarup Singh examined Jagtar Singh u/s 161, Cr.P.C.

Hari Singh accused-appellant was arrested in this case on 18-2-1985. He was interrogated by S. I. Sarup Singh PW-16 on 21-2-1985, when the former came out with a disclosure statement Ex. PY and in consequence thereof got recovered Kripan Ex. P-2, which was sealed and seized after preparing a sketch of it.

Inspector Kultar Singh arrested Vijay Kumar accused and interrogated him, who came out with a disclosure statement Ex. PM and in consequence thereof, got recovered blood-stained dagger Ex. P-1/ A and bicycle of ''Atlas'' make which were also seized.

Nasib Chand accused-appellant, on 24-2-1985, while confined in police lock-up came out with a disclosure statement Ex. PBB, which led to the recovery of a dagger from near the Ganda Nallah, adjacent to the railway track going towards Nakodar in the area of village Pholriwal. Blood-stained dagger Ex. P-9 was taken into police possession after drawing its sketch.

After completion of necessary investigation, all the four accused were sent up to stand their trial leading to the conviction and sentence of Hari Singh and Nasib Chand appellants in the terms stated above, while acquittal of their co-accused Vijay Kumar and Sardul Singh.

The material prosecution evidence to prove the guilt of the accused-appellant, in this case, consists of Gurdev Kaur PW-5, PW-10 Jagtar Singh, PW-11 Prem Singh and PW-16 S. I. Sarup Singh. The remaining evidence is not of much importance and is of a subsidiary nature.

When examined u/s 313, Cr.P.C. the accused denied the prosecution allegations and pleaded their false involvement in the crime. Hari Singh accused-appellant explained his innocence in the following terms :-

"I am innocent. I had long standing enmity with Shingara Singh and therefore, left the village in 1968 and settled in Distt. Ropar. After I left the village Shingara Singh falsely implicated me in case FIR No, 494 dated 18-10-1969 PS Sadar relating to death of one Bahadur Singh. As I did not know anything about that case, I could not appear before police or Court and was declared as P.O. in that case. I was arrested in that case on 10-2-1985 and was tried by this learned Court and acquitted on 19-3-1986. After my arrest in the above noted case, I was falsely involved in the present blind murder case. I and my co-accused were also involved in another blind FIR No. 76 dated 11-2-1985 u/s 307, IPC etc. in which also Shingara Singh is PW against us. That case is also pending before this Court."

I have heard the learned counsel for the appellants, learned State counsel and have gone through the evidence and other material on record with their assistance.

The learned counsel for the appellants has submitted that the learned trial Judge was not justified to record the finding of conviction impugned on the basis of the evidence led by the prosecution which is not only infirm in character but also goes counter to the medical evidence and emits foul smell in the fair investigation on the part of the police.

On consideration of the over-all material on record, I find merit in this submission of the learned counsel for the appellants.

Jagtar Singh PW-10, who is in fact the principal witness in this case, deposed that on 6-2-1985 at about 7.30 p.m. all the four accused had caused him injuries with their respective weapons besides causing injuries to another person who had died on receipt of those injuries. The learned trial Judge has rightly disbelieved the testimony of Jagtar Singh PW-10 that the death of Pritam Singh and murderous assault on Jagtar Singh is not the outcome of one occurrence, which allegedly took place on 6-2-1985. This is the right approach of the trial Court because according to Dr. Mandip Singh Sethi PW-17, the death was instantaneous and the deceased had died at about 2.15 p.m. on 7-2-1985. In case the testimony of PW-10 regarding the death of Pritam Singh deceased having taken place on 6-2-1985 is disbelieved, then there appears to be no other reliable evidence to support the testimony of Jagtar Singh PW-10 that these were the accused who had committed the crime. So far as Gurdev Kaur PW-5 is concerned, her evidence does not help the prosecution to any logical conclusion because the FIR lodged by her, and on the basis of which investigation was carried out, does not name any person as the assailant in this case. The prosecution has tried to connect the accused for the murder of Pritam Singh deceased by relying upon the recovery of bicycle, on which the deceased had allegedly gone out of his house on 6-2-1985 but this part of the prosecution story regarding recovery of various articles to connect the accused does not appear to be convincing and the circumstance on record go a long way to prove these recoveries as nothing but fabrication.

Further, as per the prosecution case, accused Hari Singh, Vijay Kumar and Nasib Chand were arrested on 18-2-1985, 21-2-1985 and 22-2-1985 respectively by the police. It is the categorical statement of Gurdev Kaur PW-5 in her cross-examination, which has not been challenged by the prosecution, that the accused were arrested by the police 3 or 4 days after the occurrence. Assuming for the sake of argument that the occurrence had taken place on 7-2-1985, then in view of the testimony of Gurdev Kaur PW-5, they must be in the custody of police either on 11th or 12th February, 1985. If the accused were already in custody much prior to the dates on which they have been shown to have ''been arrested by the police, then there is Considerable force in the contention of the learned counsel for the appellants that the intervening period between their actual detention and the one shown by the police, was utilized in framing up false recoveries to connect the accused with the murder of Pritam Singh as well as the murderous assault on Jagtar Singh PW-10.

Another circumstance which runs counter to the prosecution case is that the statement of Jagtar Singh PW-10 was recorded for the first time and that too u/s 161, Cr.P.C. only, whereas as per the testimony of Gurdev Kaur PW-5, the accused were in police custody prior to 12th February, 1985 and in that case, the possibility on the part of the police in bringing out a concocted version about the involvement of the accused cannot totally be ruled out.

It is the prosecution case that after Jagtar Singh PW-10 was assaulted, he was removed to Bawa Nursing Home, Jalandhar by his brother Prem Singh PW-11 and Joginder Singh. Dr. Bawa has stated that as per the information supplied to him by the attendant who brought Jagtar Singh PW-10, the injured was reported to be a case of assault by some unknown person and which fact was even mentioned by him in the relevant record of the Nursing Home. It means that the assailants in this case were not known when Jagtar Singh R.10 was admitted in Bawa Nursing Home, Jalandhar on 7-2-1985 at 12.50 a.m. (mid-night). It has also been admitted by Dr. Bawa in the end of his cross-examination that he was not unconscious at that time. Thus, there is no reason to disbelieve the testimony of Dr. Bawa who has an axe to grind either way. His testimony finds support from-the statement of Prem Singh PW-11 who is no other person than the real brother of Jagtar Singh PW-10, when he stated that on reaching Bawa Nursing Home, the doctor concerned had enquired from him as to how Jagtar Singh had received the injuries. Dr. Bawa has stated that the attendant had informed him that Jagtar Singh had been stabbed by some unknown person near his village. Although Prem Singh PW-11 had denied the suggestion of defence that he had informed the doctor about Jagtar Singh having been stabbed by some unknown person near his village but he admitted that the doctor concerned had asked him as to how Jagtar Singh PW-10 in fact received the injuries. The abnormal conduct of Prem Singh PW-11 that on seeing his real brother having been assaulted by the accused, lie did not take any step to contact the police, although according to him, he had sent Joginder Singh PW to inform his relations, certainly makes his testimony as highly incredible. It has come in the testimony of Prem Singh PW-11 that when he reached the place of occurrence on 7-2-1985, at about 4 p.m., the dead body of the deceased was lying there and SI Sarup Singh PW-16 was present there. Had there been any truth in the version of Prem Singh PW-11, then there is no explanation brought on record as to why his statement could not be recorded by the Investigating Officer during the course of investigation or at the time of inquest proceedings on the dead body, more so, when he deposed that after making his statement, he left for his village, the police and the dead body were still at the spot. In this case, not only the FIR is blank but the same is true about the inquest report, where there is no mention either of the assailants or of any witness to the alleged occurrence.

In the above background, it is not safe to rely on the testimony of Jagtar Singh PW-10 because his statement was recorded after 5 or 6 days of the alleged occurrence and as such his testimony suffers from inherent weakness on the basis of which, it is difficult for the court to hold the accused guilty and as such possibility of plantation of false recoveries against them cannot be ruled out. Once the trial Court has disbelieved the testimony of Jagtar Singh PW-10 and has held that the occurrence leading to murderous assault on him is certainly different from the one leading to the murder of Pritam Singh deceased, there was no scope for the trial Judge to adopt a policy of "pick and choose" by holding the appellants as those who had caused injuries to Jagtar Singh and at the same time rejecting his testimony regarding the deceased having been assaulted by them in that very occurrence.

Once the trial Court has rejected the prosecution evidence regarding the involvement of Hari Singh and Nasib Chand in the crime, then the case of the appellants on that very evidence cannot be discriminated from those of their co-accused, so acquitted by the trial Court.

There is also no explanation worth the name on record if the investigating agency had taken any steps to arrange for the test identification parade of the accused. From the above circumstances, the only inference that can safely be drawn is that the prosecution version is all shrouded with mystery and the prosecution has been groping in dark till the last and it did not have any definite material before them to ascertain as if it was a single incident or two different occurrences.

In the result, I accept the appeal, set aside the impugned judgment of conviction and order of sentence and acquit the accused-appellants of the charges with which they stood convicted.