Smt. S. Kaur vs Baldev Singh and Others

The appeal is filed by the complainant against the judgment of the Punjab and Haryana High Court who had allowed the appeal of the respondents who had been convicted by the Sessions Judge. Sangrur under Sections 302/34 IPC and had been sentenced to imprisonment for life and to pay a fine of ` 3000/- and in default to undergo R. I. for one year.

According to the prosecution on 4-10-84, Kirpal Singh, deceased, was killed in his field at about 12 noon. The case of the prosecution is that in the morning Satinder Kaur (PW-3) - the 17 years old daughter of Kirpal Singh went to their field at about 7.30 a.m. to pick cotton. Kirpal Singh, deceased, reached the fields at about noon time on his tractor. Near the tubewell a room has been constructed where, on the arrival of her father. PW. 3 prepared tea. After finishing tea PW-3 picked up the utensile and started cleaning taking water from the tubewell. At that time, Baldev Singh, respondent No. 1 armed with a gandasa, Shar Singh, respondent No. 2 armed with a Takwa and one more person viz., Tara Singh armed with a gandasa appeared at the scene. Baldev Singh is reported to have shouted that Kirpal Singh should not be left alive whereupon Kirpal Singh tried to run out of the room, but was surrounded by the accused. Each of the accused is alleged to have given a blow each on the head of Kirpal Singh who fell down, whereupon respondent No. 1 gave two more gandasa blows on the front side of his neck. Nand Singh PW-4 who was irrigating his land, which was adjoining the tubewell, came running and he also saw the attack on the deceased. Thereafter the accused ran away from the scene of occurrence.

Nand Singh (PW-4) went to the village and informed the relatives of Kirpal Singh about the incident. Thereafter Satinder Kaur (PW-3) and Gurbax Singh, her uncle, started for police station Sherpur. The First Information Report (hereinafter referred to as the FIR) was recorded at the police station by ASI Kirpal Singh at 2.30 p.m. on that very day, i.e. 4-10-84. In the said FIR the aforesaid incident was narrated and it was specifically mentioned that attack on Kirpal Singh deceased was witnessed by Satinder Kaur (PW-3) as well as Nand Singh (PW-4). The copy of the FIR was then sent to the Magistrate Sangrur and the same was carried by PW-7. In the endorsement which is made by the magistrate the time of receipt of the FIR is indicated as being 6 p.m. and it was also mentioned in two places that the date of receipt is 5th October, 1984 which was then corrected and initialled by the magistrate himself as 4th October, 1984.

The three accused were then arrested and sent for trial. The main evidence on behalf of the prosecution, apart from the FIR which had been filed, was the eye-witnesses account of Satinder Kaur (PW-3) and Nand Singh (PW-4). The trial Court vide its judgment dated October 10, 1985 accepted the veracity of the eyewitness account and came to the conclusion that the three accused had committed the murder of Kirpal Singh and it found them guilty under Sections 302/34 IPC and awarded the above mentioned sentence.

The accused thereafter filed appeal before the High Court. While examining the evidence of PWs 3 and 4, the High Court observed that PW 3 had stated that no one else had witnessed the incident when her father was attacked. It also noted that in her statement she had failed to give the name of the third accused who had assaulted her father and it was observed that it would have been natural that she would have enquired from Nand Singh (PW 4) and other persons about the identity of the third accused. One more circumstance which was taken into consideration by the High Court in coming to the conclusion that PW. 3 may not have been present at the place of occurrence was that in his statement under Section 161 Cr. P.C. Nand Singh (PW. 4) had not stated that Satinder Kaur (PW. 3) had witnessed the occurrence. The statement of PW. 4 was not accepted by the High Court because, firstly, Satinder Kaur PW. 4 had not mentioned that Nand Singh (PW.4) had witnessed the occurrence. The High Court also noticed the change in the date from 5th October to 4th October which had been made by the Magistrate on receipt of the FIR. According to the Court, if this had been an individual act of correctness of a bona fide clerical mistake, then it could be ignored, but in the light of the failure of Nand Singh to name Satinder Kaur as an eye-witness before the police the High Court concluded that the FIR was not as prompt as the prosecution wanted the Court to believe. It, therefore, concluded that the FIR was recorded some time later. The High Court then recorded the finding that the two principal witnesses viz., PWS. 3 and 4 may not have been present at the scene of occurrence and, therefore, the accused were given the benefit of doubt and their appeals were accepted.

The State, curiously enough, chose not to file any appeal against the decision of the High Court. Special Leave Petition was filed by Satinder Kaur (PW. 3) and this Court admitted the Special Leave Petition only in so far as it related to Baldev Singh and Sher Singh. The Special Leave Petition against Tara Singh was dismissed.

Learned counsel for the parties have taken us through the entire evidence on the record. In our opinion, the conclusion which has been arrived at by the High Court was one which was impossible to reach.

The High Court came to the conclusion that the FIR was recorded at a point of time later than what was indicated. The time of recording of the FIR is important because the said report contains an account of the occurrence and specifically contains the names of the two eyewitnesses viz., Satinder Kaur and Nand Singh (PWs. 3 and 4). The only reason for the High Court to have come to the conclusion that the FIR was recorded later is that the figure 5 was altered to figure 4 by the Magistrate when he received the copy of the FIR. From this, for the High Court to conclude that there has been an ante date of the FIR is a conclusion which we fail to see how it can possibly arrived at. There is no doubt that the figure ''5'' has been altered to figure ''4''. The High Court, however, overlooked the fact that the police constable (PW. 7) who took out the FIR to the Magistrate had made an entry number 14 at 4.25 p.m. in the Daily Diary on 4-10-84 to the effect that he was taking the copy of the FIR to be delivered to the Magistrate. In the Daily Diary there is also the recording of the fact that the police constable after having delivered the FIR, had come back to the police station the following morning. There is no correction as far as time of 6 p.m. which is recorded. This being so, it is obvious that the report could not have reached the Magistrate at 6 p.m. on the 5th October, 1984 when PW. 7 had come back, after giving copy of the report to the Magistrate on the morning of 5th October, 1984. Furthermore the change in the date has been initialled by the Magistrate. There is no circumstance which will go to show that the Magistrate manipulated the official record and initialled a wrong date solely with a view to help the prosecution. The conclusion arrived at by the High Court with regard to the time when the FIR was lodged is clearly without any basis.

Once we come to the conclusion that the FIR was lodged on the date of the incident within 21/2 hours of the killing of Kirpal Singh, it would lend corroboration to the evidence of PWs 3 and 4. We find that PW. 3 has clearly narrated the circumstances under which she had gone to the fields in the morning of 4th October, 1984 for picking cotton. She said the assailants attacking her father and on her shouting Nand Singh (PW. 4) came to the place where the victim had fallen. The evidence of these two eyewitnesses, i.e., PWs. 3 and 4 clearly corroborates each other and the account given by them is similar to the one which was mentioned in the FIR which was recorded with the police station at 2.30 p.m.

The evidence of these two witnesses is also corroborated by the medical evidence which shows the injuries which were inflicted on Kirpal Singh deceased. The High Court as well as Mr. Sushil Kumar, learned senior counsel has pointed out that PW. 4 did not mention that Satinder Kaur (PW. 3) had seen the occurrence in his statement recorded under Section 161 Cr. P. C. It was therefore, submitted that because of this omission, which amounted to a contradiction the Court must draw the conclusion that PW. 3 was not present there.

We are unable to accept this submission for two reasons. Firstly, seeing the statement under Section 161 Cr. P. C. we find that the omission cannot be regarded as being a contradiction. According to the explanation to Section 162 Cr. P. C. an omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact.

What is important to see is the context in which the statement under Section 161 Cr. P. C. was recorded and then to find whether the omission was such so as to be regarded as a contradiction. The statement of PW. 4, which was recorded by the police under Section 161 Cr. P. C., related only to the incident of actual attack by the three assailants of Kirpal Singh. The statement does not mention as to who were the persons who witnessed this incident apart from PW-4. Had such statement mentioned that some persons had witnessed the incident but the name of PW. 3 was not recorded, then, possibly it could be regarded as a contradiction because the context then would have been with regard to the people who witnessed the incident. To give another example, if in the said statement only two assailants were named and in his evidence in Court PW. 4 was to name the third assailant also, then it could be said that the omission to name the third assailant in the statement under Section 161 Cr. P. C. amounted to a clear contradiction. But this is not the case here, because the context in which the statement was made related only to the actual assault in Kirpal Singh and no more. The second reason, which is more material, is that assuming that there is a contradiction in the statement of PW. 4 as recorded under Section 161 Cr. P.C. with his testimony in Court, that statement under Section 161 Cr. P. C. cannot be a ground for coming to the conclusion that PW. 3 was not present at the scene of occurrence. An alleged contradiction in the Section 161 statement of PW-4. where the name of PW. 3 is not mentioned as being a person who had witnessed the incident, cannot be regarded as evidence or a reason for the Court to conclude that she was not present at the time when the incident occurred.

In our opinion the judgment of the High Court is full of surmises and conjectures and is not based on evidence at all. There is no reason as to why the testimony of PWs. 3 and 4, duly corroborated by the FIR which was lodged soon after the incident had occurred should not have been accepted in toto. We have no hesitation in setting aside the judgment of the High Court. The result of this would be that the judgment of the Sessions Court is restored and the respondents Baldev Singh and Sher Singh are found to be guilty for having committed the murder of Kirpal Singh on 4-10-84 in furtherance of their common intention and they are accordingly sentenced under Sections 302/34 IPC to undergo imprisonment for life and to pay a fine of ` 3000/- and in default thereof to further undergo R.I. for one year. The respondents who are on bail shall now surrender to their bail bonds to serve out the remainder of their sentence.