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2001 DIGILAW 145 (PNJ)

Balwinder Singh Alias Gudu v. State Of Punjab

2001-01-29

A.S.GARG, HARJIT SINGH BEDI

body2001
Judgment A.S.Garg, J. 1. It is quite common and now almost a recognised tendency amongst the people that many a time they involve persons other than the actual offenders. Therefore, it is difficult task for the Courts to distinguish between the two types of offenders facing the trial. Amongst array of accused persons may be that they are innocent but if the evidence reflects that the few left one are really involved in the crime, they cannot escape the responsibility. The Courts have to separate the grain from the chaff so that the justice is done and may be that all the persons arrayed may not be exonerated if the evidence exists against a few. 2. Jit Singh a land owner and agriculturist belonging to village Bareta, within the area of Police Station, Bareta, District Mansa had earlier married with Jaswant Kaur, the appellant and then Narinder Kaur, the deceased. From the first wife Jaswant Kaur i.e. one of the appellants, he got two sons namely Balwinder Singh Bhagta Singh and three daughters. From the second wife he had a son namely, Kulwant Singh P.W. 2. Kulwant Singh and Narinder Kaur lived in village Maur Kalan. They had shifted the present village i.e. Bareta a year or so before the occurrence. There was a land dispute regarding the property of Jit Singh between the two ladies and by way of a civil suit a decree Ex.PT was obtained by Kulwant Singh P.W.2. This led to a bad blood between the two widows and their respective sons and the daughters supported the claim of their own mother. On 20.4.1995, at about 2.00 or 2.30 p.m. a conspiracy was alleged to have been hatched amongst the five appellants i.e. the two sons and two daughters and the widow of Jit Singh the Narinder Kaur, the second wife, who was trying to be a source of trouble and was putting the appellants in unnecessary litigation and was trying to usurp their land be eliminated. This conversation was heard by Gajjan Singh P.W. 4 and Karam Singh P.W. 7. In pursuance of the said conspiracy Balwinder Singh armed with a 12 bore gun, Bhagta Singh armed with a dang and Jaswant Kaur, Harinder Kaur and Balbir Kaur unarmed lifted Narinder Kaur from near the shop of one Mohinder Singh Lalari and took her towards the canal bank. In pursuance of the said conspiracy Balwinder Singh armed with a 12 bore gun, Bhagta Singh armed with a dang and Jaswant Kaur, Harinder Kaur and Balbir Kaur unarmed lifted Narinder Kaur from near the shop of one Mohinder Singh Lalari and took her towards the canal bank. Kulwant Singh P.W. 2 tried to rescue his mother. Balwinder Singh aimed his gun towards him and told that his mother was going to be taught a lesson and that he too would also not be spared. He out of fear went towards village Maur Kalan. Jaswant Kaur caught hold of Narinder Kaur from her arm while Harinder Kaur caught her from other arm and Balbir Kaur caught hold of legs of Narinder Kaur and threw her in the canal in the presence of Billu Singh P.W. 3 and Gajjan Singh P.W. 4. 3. Kulwant Singh P.W. 2 made a statement Ex.PD before SI Kesar Singh P.W. 9 and on its basis formal FIR Ex.PD under Sections 364/148/149 of the Indian Penal Code was registered at Police Station at 4.30 p.m. on 20.4.1995. Special report was sent to the learned Ilaqa Magistrate. Thereafter the aforesaid Sub-Inspector accompanied by SI Ujagar Singh P.W. 8 went to scene of occurrence and prepared site plan Ex.DA and recorded the statement of the prosecution witnesses. Search for Narinder Kaur was made by the police party. The dead body of Narinder Kaur was recovered from the canal just ahead of village Dhanpura bridge at 12.30 p.m. on 21.4.1995. The same was taken out and got identified from the prosecution witnesses. Ruqa Ex.PE was sent to the police station for change of offence to that under Section 302 of the Indian Penal Code. Inquest report Ex.PC was prepared on the dead body of Narinder Kaur and the dead body was sent for postmortem. The belongings of the deceased were taken into possession vide memo Ex.PO. He arrested Jaswant Kaur, Harinder Kaur and Balbir Kaur. Their personal search memo Ex.PQ was prepared. On 28.4.1995 Balwinder Singh and Bhagta Singh accused were arrested. The investigation was later on entrusted to SI Ujagar Singh PW.8. He interrogated Balwinder Singh and Bhagta Singh accused on 30.4.1995. In pursuance of his disclosure statement Ex.PM Bhagta Singh got recovered one dang Ex.P13 which was taken into possession vide memo Ex.PN/2. Their personal search memo Ex.PQ was prepared. On 28.4.1995 Balwinder Singh and Bhagta Singh accused were arrested. The investigation was later on entrusted to SI Ujagar Singh PW.8. He interrogated Balwinder Singh and Bhagta Singh accused on 30.4.1995. In pursuance of his disclosure statement Ex.PM Bhagta Singh got recovered one dang Ex.P13 which was taken into possession vide memo Ex.PN/2. Similarly, in pursuance of his disclosure statement Ex.PN, Balwinder Singh got recovered one 12 bore DBBL gun Ex.P12 along with licence and seven live cartridges which were taken into possession vide memo Ex.PN/1. After completion of the investigation, the accused were put to trial. 4. Dr. Kuldeep Raj, PW.1 conducted postmortem on the dead body of Narinder Kaur on 21.4.1995 at 3.45 p.m. and found the following injuries :- (1) Abrasion brownish 1 x 0.5 cms on dorsum of left hand near base of index finger. (2) Abrasion 2 in numbers 1 x 0.5 cm each on dorsum of right hand brownish in colour and at base of big and ring finger. In the opinion of the doctor the death was due to asphyxia as a result of drowning which was sufficient to cause death in the ordinary course of nature. Ex.PA is the copy of the post mortem report. 5 At the trial, the appellants took up the plea that they were innocent and they have been involved falsely because of the conspiracy of Gajjan Singh and Billu Singh and Himat Singh as they wanted to take forcible possession of the land which had come in their possession after litigating with the complainant side. According to them in fact Narinder Kaur was crossing the canal from one bank to another and walking on a plank of wood and fell down in the canal. It was, therefore, that the situation was being exploited. The learned trial Judge after considering the occular testimony of the aforesaid witnesses coupled with the medical evidence and taking into account the entire situation convicted the appellants Balwinder Singh and Bhagta Singh under Section 120-B of the Indian Penal Code and sentenced them to undergo rigorous imprisonment for three years. All the appellants, namely, Balwinder Singh, Bhagta Singh, Jaswant Kaur, Harinder Kaur and Balbir Kaur were convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year each. All the appellants, namely, Balwinder Singh, Bhagta Singh, Jaswant Kaur, Harinder Kaur and Balbir Kaur were convicted under Section 148 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year each. All the appellants were further convicted under Section 364 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1000/- each. In default of payment of fine each of them was ordered to undergo further rigorous imprisonment for two months. They were further convicted under Section 302 read with Section 149 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 2000/- each. In default of payment of fine each of them was ordered to undergo further rigorous imprisonment for three months. Balwinder Singh appellant was also convicted under Section 506 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for one year. All the substantive sentences were ordered to run concurrently. 6. The learned counsel for the appellants has taken us through the oral testimony of the eye witnesses. Kulwant Singh P.W. 2 is the son of the deceased and he was well deposed against the appellants-accused about the land dispute and claimed that he was present along with his mother near the shop of Mohinder Singh Lalari from where she was bodily lifted and taken away by the appellants. He was cross-examined at great length. Obviously when the mother of the complainant had been thrown into the canal, it would have obviously taken some time to take the body out and still DDR is lodged at 4.30 p.m. to the effect that she was found to be missing and then the main FIR was recorded at 12.30 pm. on 21.4.1995. This time could have been taken in routine for the complainant to reach the Police Station. The cross-examination of this witness does not reflect anything therein to make him incredible. The other witnesses Billu Singh P.W. 3 and Gajjan Singh P.W. 4 have also supported the prosecution case. In the initial statement Billu Singh P.W. 3 thought of not to support the prosecution case but ultimately he supported the case of the prosecution and has clearly stated that the deceased was drowned in the canal being dragged. The other witnesses Billu Singh P.W. 3 and Gajjan Singh P.W. 4 have also supported the prosecution case. In the initial statement Billu Singh P.W. 3 thought of not to support the prosecution case but ultimately he supported the case of the prosecution and has clearly stated that the deceased was drowned in the canal being dragged. He denied the suggestion that he was called in the Police Station and a report was got registered from him. Gajjan Singh P.W. 4 also stated on oath that the deceased was drowned in the canal. 7. The learned counsel for the appellants has argued that the statements of these witnesses are discrepant and therefore they are not reliable. He has urged that Kulwant Singh did not state that Balwinder Singh had aimed the gun at him to scare him away; that he also did not say that the ladies also lifted the deceased; he also did not say that he himself went to village Jalbera after the occurrence. These are just omissions and cannot be taken seriously to discredit the whole version of this witness. The learned counsel also urged that the story of the prosecution as such was highly improbable when they were armed with gun they were not required to throw the deceased in the canal and would have dragged her here and there. The principle of falsus in uno, falsus in omnibus is not applicable and is a confirmed principle of appreciation of evidence as held by the Apex Court in Bava Hajee Hamsa and others V/s. State of Kerala, AIR 1974 SC 902, that the maxim falsus in uno falsus in omnibus should not be mechanically applied in India. The mere fact that the evidence of some witnesses was unsafe for convicting one of the accused was no ground for rejecting the whole body of their testimony with regard to other accused. Reference in this regard may also be made to the authority of the Apex Court in Rai Singh v. The State of Haryana, AIR 1971 SC 2505, wherein it was held that the witnesses who have been disbelieved in respect of the acts imputed to the accused cannot be relied upon for convicting the offender has merely to be stated to be rejected. It is now well settled that in such case the Court has to appraise the evidence to see to what extent it is worthy of acceptance and merely because in one respect the Court considers it unsafe to rely on the testimony of a witness it does not necessarily follow as a matter of law that it must be discarded in all other respects as well. The Court has to sift the evidence with care in each case and on full consideration of all the relevant material circumstances to come to a conclusion which part of the testimony of the witness to accept and which to reject. 8. So far as this aspect of the case is concerned, we are agreeable with the learned counsel for the appellants that the ladies, namely, Jaswant Kaur, Harinder Kaur and Balbir Kaur might not have joined the act with which the deceased was drowned. The argument finds corroboration from the extra- judicial confession made by the two appellants before Himat Singh P.W.6 wherein only the extra-judicial confession is confined to the two appellants Balwinder Singh and Bhagta Singh appellants-accused. The learned counsel for the appellant has further urged that the two witnesses, namely, Billu Singh P.W. 3 and Gajjan Singh P.W.4 who heard the conspiracy being hatched did not inform the police immediately. He also urged that Himat Singh P.W.6 himself was dismissed by the Shiromani Gurdwara Parbandhak Committee on corruption charges. The alleged conspiracy was brought about on 19.4.1995 in the evening while the occurrence has taken place on 20.4.1995 and there was hardly any time to approach the police as such. Therefore, we are of the opinion that the conduct of the witnesses that they did not report immediately is significant in the given circumstances. It depends all on the awareness of the witness and with seriousness the witnesses had taken the conspiracy about which they over-heard. One cannot expect the promptness from ones own point of view. It depends on the various circumstances in which such a witness is put a given time. There was a strong motive for the appellant Balwinder Singh and Bhagta Singh that they were not tolerating the conduct of the deceased that she was putting hindrances in the way of the appellants in getting them the property and they obviously thought that there was no way out except to eliminate her. There was a strong motive for the appellant Balwinder Singh and Bhagta Singh that they were not tolerating the conduct of the deceased that she was putting hindrances in the way of the appellants in getting them the property and they obviously thought that there was no way out except to eliminate her. Rather there appears to be no circumstance from any defence various (witness ?) that there was actually any plank in the canal or for what purpose the deceased was crossing the canal from over a plank. If the prosecution witnesses had really not been somewhere near by nobody would have known of the fact that the deceased had fallen in the canal and nobody has been able to trace her out. So this fact is quite significant and supports the prosecution case that the witnesses were there and they pointed out the offence committed by the two appellants namely Balwinder Singh and Bhagta Singh. 9. We, therefore, feel inclined, however, to accept the plea of the defence that the case as regards three appellants, namely, Jaswant Kaur, Harinder Kaur and Balbir Kaur appears to be doubtful and, therefore, the appeal qua them is allowed and they are acquitted of the charges framed against them. However, the conviction and sentence of Balwinder Singh and Bhagta Singh appellants on the testimony of eye witnesses Billu Singh P.W.3, Gajjan Singh P.W.4 and Himat Singh P.W.6 before whom the extra-judicial confession was made, is upheld and the appeal qua them is dismissed.