Ram Singh and Others vs State of Punjab

I.S. Tiwana, J.—All the five appellants have been sentenced to life imprisonment and a fine of Rs. 5,000/- each under Sections 302/149, I.P.C., by the Additional Sessions Judge, Sangrur, for the murder of Nishawar Singh. Besides, this, they have also been convicted and sentenced to one year''s rigorous imprisonment u/s 148, I.P.C. what has been alleged and found established against them is as follows.

On September 7, 1986, at about 3.30/4 p.m. Sukhdev Singh, electrician, P.W. 10 came to rectify an electric fault on a pole near the residence of Nishawar Singh, deceased, located in his fields in the area of village Talwandi Malik. As Sukhdev Singh went up the pole, Lachhman Singh appellant who was sitting near the transformer, switched on the electric current. At that time Ram Singh appellant was also sitting in his fields close by. As a result of the electric shock, Sukhdev Singh, P.W., fell on the ground. Chhinder Kaur (P.W. 6), wife of Nishwar Singh, who was present in the courtyard of her house, having seen Sukhdev Singh falling down, raised an alarm that the electrician had died. Thereupon, Avtar Singh, P.W. 7, a brother-in-law of Nishwar Singh deceased, who too was present in the house, along with the latter and Chhinder Kaur, bodily lifted Sukhdev Singh into the courtyard of the house and thereafter he was taken by Nishawar Singh on his tractor to Samana.

Sometime nearabout 6.30 p.m. the same day, Chhinder Kaur, noticed Ram Singh and Lachhman Singh appellants armed with Gandasas and the remaining three, with Selas, passing by the side of their Dera (residential accommodation) while declaring that they would see Nishawar Singh for his taking Sukhdev Singh electrician (P.W. 10) to Samana. Thereupon Chhinder Kaur accompanied by Avtar Singh followed them towards the side wherefrom Nishawar Singh was to come. Soon thereafter they saw Nishawar Singh coming on the tractor on the drain bridge within the area of village Kahangarh. The appellants then encircled Nishawar Singh who alighted from his tractor. Then Ram Singh appellant gave six Gandasa blows to Nishawar Singh on his head, eye brow, jaw, chest, thigh and ear. Similarly, Lachhman Singh appellant gave Gandasa blows on the head, back of neck, right forearm, right knee and right ankle of Nishawar Singh. As he fell down, the other accused also gave more injuries to him with their respective weapons. Thereafter they made themselves scarce. As Chhinder Kaur and Avtar Singh P.Ws. went near Nishawar Singh, they found him dead. They remained sitting near the dead body right through the night and did not move from there, as per their stand, on account of fear. At about 4 a.m. Dalip Singh, P. W. 9, of village Talwandi Malik came to the spot. Leaving him there, Chhinder Kaur and Avtar Singh went to Police Station, Samana, District Patiala, to lodge the report. There she made her statement, Exhibit PE, which was recorded in DDR at No, 37. Later it was found that the occurrence had, as a matter of fact, taken place within the area of Police Station, Dirba, District Sangrur. Thereupon the Samana Police sent a message to Police Station, Dirba, who in turn informed ASI Chanan Singh (P.W. 11) in-charge, Police Post, Sular about it as it was closer to the place of occurrence. The A.S.I. along with the police force, came to the spot and there recorded the statement, Exhibit PM, of Chhinder Kaur, P.W. 6. He sent it with his endorsement Exhibit PM/1, to Police Station, Dirba, for the registration of a case and on the basis of the same, F.I.R. No. 120, dated 8th September, 1986 (Exhibit PM/2) was recorded at 12.45 p.m. Special report in this regard reached the Ilaqa Magistrate, Sunam, at a distance of about 15/16 miles, by 4. 40 p.m.

The appellants were apprehended by ASI Chanan Singh on September 14, 1986. On September 16, 1986, he interrogated Ram Singh, Lachhman Singh and Sham Singh appellants in the presence of Anokh Singh, P.W. 8 and they in pursuance of their respective statements u/s 27 of the Evidence Act, got the weapons of offence, Exhibits P9, P10 and P8, recovered. Similarly when the remaining two appellants, i.e., Joginder Singh and Ginder Singh, were interrogated by the said ASI on 18-9-1986 again in the presence of Anokh Singh P.W., they in pursuance of their statements u/s 27 of the Evidence Act, got recovered their weapons of offence, Exhibits P7 and P6 respectively. With the completion of other investigative formalities, he sent up the accused for trial which resulted in their conviction as already noticed in the opening part of the judgment.

The stand of the appellants u/s 313, Cr P.C. was of false implication on account of enmity pre-existing between the two parties.

As is well indicated by the above detailed narration of facts, the trial Court, for holding the appellants guilty, has solely relied upon the evidence of Chhinder Kaur and Avtar Singh, P.Ws. 6 and 7 respectively, as corroborated by the medical evidence and the recovery of the weapons of offence from them.

To assail their conviction, what has strenuously been urged by Mr. Ghai, learned Senior Advocate for the appellants, is that :--

(i) P.Ws. 6 and 7 are not the witnesses of the occurrence.

(ii) Statement of Chhinder Kaur, Exhibit PM, is hit by the provisions of Section 162 of the Code of Criminal Procedure and thus cannot be looked into for any purpose.

(iii) The alleged recoveries of the weapons of offence is only a fake affair.

Having given our anxious consideration to the entire matter in the light of the evidence on record. We find considerable merit in the contentions noticed at (i) and (iii).

The post-occurrence conduct of the two eye-witnesses, namely, Chhinder Kaur and Avtar Singh, makes their presence at the place of occurrence highly doubtful. As pointed out above, they claimed to have followed the assailants, i.e., the appellants, who passed by the side of their Dera while proclaiming that they would see how Nishawar Singh dared to take Sukhdev Singh, electrician, P.W. 10 to Samana and then after watching the injuries being given to the deceased, they kept sitting there for the whole of night; neither intervening to rescue Nishawar Singh nor raising any hue and cry or running for help to anybody; nor even coming back to the Dera which as per the statement of Avtar Singh P.W. 7, was only at a distance of 10 killas from the spot; nor anybody from the Dera going to the spot to find out the whereabouts or well being of Chhinder Kaur, Avtar Singh or Nishawar Singh. These facts and circumstances assume importance when the following facts which are available from the statements of these two prosecution witnesses are taken notice of.

P.W. 6. Chhinder Kaur.

Avtar Singh P.W. 7 is the husband of Milan, another sister of Nishawar Singh. ...A daughter named Baljit Kaur aged about 15 years, is my eldest child from the loins of Gurcharan Singh. A son Harpreet is next to her. He is younger by 1 or 1 1/2 years. Then there is another daughter named Gurpreet, and she is younger by 1 or 1 1/2 years to the son. Pritam Kaur is the other wife of Nishawar Singh. Jinder is the elder child, i.e., daughter of Pritam Kaur from Nishawar Singh. The next is his son named Gurbhej, aged about 17 years. The next is the daughter named Rajwinder, aged about 16 years and the next is daughter named Lakhwinder aged about 15 years, and then is the son named Sehajpal, aged about 9/10 years. Palwinder Singh is the brother of Pritam Kaur. Palwinder Singh had been residing in our Dera since many years. His father also resides in our Dera since many years. We had kept no seeri and Palwinder Singh used to do cultivation. There are 3/4 rooms in the Dera. Both the families of Nishawar Singh, as well as Palwinder Singh and his father used to reside with Nishawar Singh in this Dera...I had stated in my statement Exhibit PE that on the very day at about 6.30 p.m. Ram Singh and Lachhman Singh armed with gandasas, Sham Singh, Ginder Singh, and Jinder Singh armed with Selas were passing by our Dera and were declaring that Nishawar Singh had taken Sukhdev Singh and they would see to him and thereafter I called Avtar Singh and told him that all the five accused had gone towards the side of Nishawar and that we should also follow them. (Confronted with statement Ex. PE, wherein it is not so recorded). ...I had stated in my statement Ex. PE that I and Avtar Singh had seen the occurrence. (Confronted with statement Ex. PE, wherein it is merely mentioned that she told the police that all the accused had murdered Nishawar Singh near Alampur-Kahangarh bridge, after detaining his tractor). ...I had stated in my statement Ex. PM that Ram Singh accused had given gandasa blows to Nishawar Singh in his head and eye-brow. (Confronted with statement Ex. PM, wherein it is not so recorded). I had stated in my statement Ex. PM that Lachhman Singh accused had given a gandasa blows on the back of neck of Nishawar Singh also. (Confronted with statement Ex. PM, wherein it is not so recorded). ...I did not state in my statement Ex. PM that being alone in the Dera, we did not go to lodge the report at the P.S. during the night due to fear. (Confronted with portion B to B of statement Ex. PM wherein it is so recorded).

Avtar Singh, P.W. 7.

While deposing about the lodging of report Exhibit PE by Chhinder Kaur in Police Station, Samana, he stated :--

Munshi had recorded what Chhinder Kaur had stated. I had also told the names of the accused to the Munshi. We had told the Munshi that Nishawar Singh was murdered by these accused. We had not told anything else to the Munshi. My thumb impression was obtained at Samana P.S. on the writing recorded by Munshi.

I do not remember if I had stated in my statement before the police that we had stayed with the dead body weeping and crying during the night and did not go to any place during the night due to fear, and at about 4 a.m. Dalip Singh came there. (Confronted with statement Mark E, wherein it is only stated that they did not go to the P.S. during the night dye to fear being alone in the Dera and remaining is not mentioned). ... ... ... ... Kahangarh is at a distance of about 1 kilometre from the spot. No person passed through the spot after the occurrence during night. The Kacha road, where the occurrence had taken place leads to Alampur, Kularan and Samana. The Dera is at a distance of about 10 killas from the spot. We did not go to Dera and nor any person came from Dera to the spot during the night.... The Samana Police did not tell us at Samana that they were sending intimation to the Dirba Police, as they did not know at that time that occurrence had taken place within the jurisdiction of P.S. Dirba. The Samana police had told us on the spot that the occurrence bad taken place within the jurisdiction of Dirba Police.

... ... ... ...

My village Popala is at a distance of 50/55 kilometres from the spot.

No doubt it is true that the evidence of these witnesses cannot be thrown out. merely on the ground of their relationship with the deceased, yet that by itself also does not furnish any guarantee of their truthfulness. They apparently are not the natural and probable witnesses of the occurrence. It appears too much to believe (even if the arrival of Avtar Singh in the Dera on that very day is to be accepted as probable) that the appellants would have made their intention known to the people in the Dera by declaring that they were going to waylay Nishawar Singh to teach him a lesson for taking Sukhdev Singh, electrician, to Samana and thus inducing and ensuring that these witnesses should follow them right up to the scene of occurrence. Equally unbelievable appears to be the fact that these witnesses had quietly and calmly watched the deceased being injured, without even raising a hue and cry for help or running to the Dera which was not far off from that place. It is part of their statements that a number of persons including the grown up ones were living in that Dera. The conduct of the inmates of the Dera also appears to be rather strange; they never bothered to know about the well-being or whereabouts of Chhinder Kaur, Avtar Singh or Nishawar Singh who had not returned to the Dera during the night. Equally unacceptable is their stand that they kept sitting near the dead body throughout the night. Rather the underlined portions of their statements clearly indicate that during the night they remained in the Dera and were not at the place of occurrence. This stand of the defence is all the more probabilised by the statement of Dalip Singh, P.W. 9, who according to P.Ws. 6 and 7 was left at the spot when they had gone to Samana to inform the police. This is what Dalip Singh has deposed in this regard :--

Nishawar Singh deceased was hailing from our village. On 7-9-1986, again said on 8-9-1986, I learnt about the death of Nishawar Singh. Then I went to crossing of path leading from Alamgarh to Kahangrh over the drain.

... ... ...

It was dawn time i.e. the sun was about to rise when I learnt about the death of Nishawar Singh. When ? went outside the village Abadi in the morning I learnt from the people about the death.

... ... ... ...

I was related to Nishawar Singh. My maternal uncle''s son is married to the daughter of Sinder Kaur from the loin of Gurcharan Singh, her previous husband.

If the stand of P.Ws. 6 and 7 that neither anybody had passed from near the dead body or met them daring the night nor they had so informed anybody is accepted, then how was it that Dalip Singh, P.W. 9 came to know about the death of Nishawar Singh in the village itself. It sounds probable that it was in the early morning of 8th September, 1986 that the dead body of Nishawar Singh was noticed by somebody and he informed the people in the village and this information ultimately reached the residents of the Dera of Nishawar Singh including P.W. 7 Chhinder Kaur and Avtar Singh, if he was there. Further, the contents of the earliest statement, Exhibit PE, made by Chhinder Kaur in Police Station, Samana, completely belies her evidence in Court. In this statement all that has been stated is that her husband Nishawar Singh had been killed by the appellants, with sharp weapons after stopping his tractor on the Katcha path, Alampur-Kahangarh, near the drain bridge. No other detail of the incident as deposed to by her in Court or as maintained by Avtar Singh, P.W. 7 is noticed in this report. In the light of these facts and circumstances we find it highly difficult to attribute the guilt to the appellants.

Equally unreliable appears to be the evidence with regard to the recoveries of weapons of offence. These recoveries, as already indicated, are witnessed by ASI Chanan P.W. 11 and Anokh Singh, P.W. 8. Anokh Singh is not only a close relation of Chhinder Kaur and is resident, of a distant village Banarsi, but it looks strange and too much of a coincidence that he was present on both the occasions, i.e., 16th September, 1986 and 18th September, 1986 when the accused appellants were interrogated by ASI Chanan Singh and they got their weapons of offence recovered. On the face of it it looks to be a manipulated affair. We, therefore, discard this evidence also.

Though in the light of the abovenoted conclusions of ours we hardly need dilate on the remaining contentions of Mr. Ghai as noticed at (ii) above, yet we find it difficult to hold that the F.I.R. Exhibit PM/2 in the case is hit by the provisions of Section 162 of the Code of Criminal Procedure. This is so for the short reason that it was not recorded "during the course of an investigation" and rather it preceded the investigation of the case. The submission of Mr. Ghai that the investigation in the instant case had commenced with the recording of the report Exhibit PE by the Samana Police, cannot be accepted as the said police had no jurisdiction to investigate the case and in fact did nothing in the matter except to formulate the opinion that the place of occurrence was outside the area of Police Station, Samana, District Patiala, and formed part of the area of Police Station, Dirba, District Sangrur. It is no doubt true that the Criminal Procedure Code is silent as to the correct procedure to be adopted by a Station House Officer who receives information of the commission of a cognizable offence outside his station''s limits, but it does not prevent him from receiving and recording the information in accordance with the rules and then to send the information to the police station concerned for conducting investigation in accordance with the provisions of Section 157, Cr. P.C. If such an information is sent to the latter police station, it would certainly form the F.I.R. with the police station which has the jurisdiction to conduct the investigation. The first information or first information report is though not mentioned in the Code anywhere, yet it has always been understood to mean the first information in point of time received by the police for purposes of conducting the investigation. So more than one information can never possibly be treated as first information for the purposes of the Code. It only means the first information in point of time which reaches the authority competent to investigate or order an investigation. In the instant case, the report Exhibit PE as such never reached the Police Station, Dirba, before the recording of the F.I.R. Exhibit PM/2 on the basis of the statement Exhibit PM of Chhinder Kaur, P.W. 6. Therefore, this latter mentioned report has to be treated as the F.I.R. in the case with Police Station, Dirba, which police was only competent to investigate the matter. Similarly, the report Exhibit PE having preceded the registration of a case or the advent of the investigation in the case is not hit by the provisions of Section 162, Cr.P.C. Both these statements could and have rightly been used by the prosecution and the defence for purposes of corroboration and contradiction of the evidence, of the prosecution witnesses. With these observations we repel this stand of Mr. Ghai.

For the reasons recorded above, it is patent that the charge levelled against the appellants has not been proved beyond reasonable doubt and, therefore, they are acquitted of the same. Since they are on bail, their bail bonds are cancelled and they are set at liberty.