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2002 DIGILAW 641 (PNJ)

State Of Punjab v. Kikkar Singh

2002-07-08

HEMANT GUPTA, R.L.ANAND

body2002
Judgment R.L.Anand, J. 1. State of Punjab has filed the present appeal and it has been directed against the judgment dated 3.2.1990, passed by the Court of Sessions Judge, Faridkot, who acquitted Shri Kikkar Singh son of Shri Gurdial Singh, an old man of 77 years, resident of village Bishnandi of the charge under Section 302 of the Indian Penal Code. 2. The brief facts of the case are that on 1.1.1989, Amarjit Kaur deceased along with her husband Kala Singh and other members of the family, including Kikkar Singh accused, were plucking Narma in the field of one Mohinder Singh son of Kalu Singh. Accused Kikkar Singh picked up a quarrel with the deceased Smt. Amarjit Kaur. Thereafter, accused and the deceased returned to their houses in the evening. At about 9.30 P.M. it is the story of the prosecution that when Smt. Amarjit Kaur deceased ws standing in the street, accused Kikkar Singh appeared there and he started abusing the family members of the deceased upon which the deceased asked the accused not to do so. In the meanwhile, the wife of the accused also came there. At that time Kikkar Singh accused was holding a Gandasa in his hand. He gave one Gandasa blow on the head of the deceased who raised alarm which attracted Shri Mohinder Singh PW, who intervened and rescued the deceased from the clutches of the accused. It is also the story of the prosecution that the deceased sustained injuries on the left wrist and fingers. Amarjit Kaur was taken to the hospital. The police was informed. The Investigating Officer came there and he recorded the statement of Smt. Amarjit Kaur Ex. PM and the same was forwarded to the police-station for the registration of the case on the basis of which formal FIR Ex. PQ was registered. Before recording the statement of Smt. Amarjit Kaur, the Investigating Officer sought the opinion of the doctor vide request Ex. PC and the doctor gave his opinion Ex. PC/1 and declared the patient fit to make a statement on 2.1.1989 at 9.30 A.M. While lying admitted in the hospital, the condition of Smt. Amarjit Kaur had become serious as a result of which she was referred to Medical College, Faridkot for better treatment. Amarjit Kaur expired on 8.1.1989 at 7.00 P.M. as a result of which the offence was changed under Section 302 I.P.C. 3. Amarjit Kaur expired on 8.1.1989 at 7.00 P.M. as a result of which the offence was changed under Section 302 I.P.C. 3. On 2.1.1989, PW-1 Dr. Hakumat Rai, Assistant Professor Forensic Medicine, G.G.S. Medical College, Faridkot, examined the deceased and found the following injuries on her person :- 1. Incised wound 13 cm x 2.5 cm obliquely placed starting from the right side of the top of head coming downwards to the left of forehead. Margins were inflamed. Clotted was present at the wound and the margins. Underlying bone was cut and lying open in the wound. Fracture was communicating to the exterior with would i.e. compound fracture was present. Left upper eye lid was swollen and bluish. 2. Incised wound 2 cm x .5cm on the back of left forearm obliquely placed 4 cm from the wrist joint. Margins showed inflammation. The wound was skin deep. 3. Incised wound 1 cm x .5 cm on the back and radial border of middle phalanx of index finger obliquely placed. Skin deep. 4. Injury No. 1 was kept under observation for surgeon opinion and X-ray examination while injuries No. 2 and 3 were declared simple. As per the opinion of the doctor, the weapon used was sharp edged and the duration of the injuries was within 24 hours. Ex. PB is the medico-legal report and Ex. PB/1 is the diagram showing the receipts of the injuries. The doctor also certified on the application Ex. PC that the injured was fit to make the statement. On the basis of his opinion Ex. PC/1, made on Ex. PC, the statement of the injured was recorded. 5. Dr. Ram Niwas, PW-4, conducted the X-ray examination on the person of Smt. Amarjit Kaur and a fracture of frontal partial bone was detected. He gave his opinion Ex. PH in this regard. Exs. PH/1 and PH/2 are the relevant skigrams. 6. Dr. K.K. Aggarwal, PW-2, conducted the postmortem examination on the dead body of Amarjit Kaur on 9.1.1989 at 9.30 A.M. and he found the following injuries on her person : 1. A linear stitched wound 14 cm in length with 13 stitches intact and five removed stitches were present on left side of forehead. 2 cm above lateral part of left eye-brows and going upwards and to the right side, of top of head, on right parietal area. 11 cm above right pinna. Obliquely placed. A linear stitched wound 14 cm in length with 13 stitches intact and five removed stitches were present on left side of forehead. 2 cm above lateral part of left eye-brows and going upwards and to the right side, of top of head, on right parietal area. 11 cm above right pinna. Obliquely placed. Margins were united almost with each others. Hairs around the injuries were shaved. Slight left black eye was present. 2. A stitched wound 2 cm in length with one stitch was present on back of left of forearm. 4 cm above the wrist joint. Obliquely placed on medial aspect. 3. A linear wound 1 cm in length with margins almost united with each other was present on middle phalanx of left index finger on its posterior aspect. 7. On dissection of the scalp, it was found by the doctor that there was cut fracture on the skull involving both tables of skull. The doctor further opined that the injuries were ante-mortem in nature and injury No. 1 which caused extensive damage to the brain was sufficient to cause death in the ordinary course of nature. The time elapsed between injury and death was about one week and between death and post mortem it was within 24 hours. Ex. PF is the correct carbon copy of the post-mortem report while Ex. PF/1 is the pictorial diagram showing the receipts of the injuries. 8. The investigation in this case was taken up by the Investigating Officer who firstly recorded the statement of Amarjit Kaur and the case was registered under Section 304 of the Indian Penal Code. Subsequently, the offence was changed under Section 302 of the Indian Penal Code. He visited the place of occurrence and prepared rough site plan. He also prepared the inquest report of the dead body and it was despatched to the doctor for post-mortem examination, vide Ex. PD. He recorded the statements of the witness. He also took into possession one piece of cloth stained with blood vide recovery mem Ex. PR. After the post-mortem examination, the clothes of the deceased were taken into possession vide memo Ex. P5. 9. The accused was interrogated about weapon of offence and he produced Gandasa in the presence of Shri Gurdev Singh and the same was taken into possession vide recovery memo Ex. PT. Ex. PU is the sketch of the blade of the Gandasa. After the post-mortem examination, the clothes of the deceased were taken into possession vide memo Ex. P5. 9. The accused was interrogated about weapon of offence and he produced Gandasa in the presence of Shri Gurdev Singh and the same was taken into possession vide recovery memo Ex. PT. Ex. PU is the sketch of the blade of the Gandasa. On completion of the investigation the Gandasa was sent to the Office of Chemical Examiner who submitted his report Ex. PV and came to the conclusion that the Gandasa was stained with blood. Vide report Ex. PW the Serologist gave the opinion that human blood was found on the contents of the sample. 10. On completion of the investigation of the case, accused was challaned in the Court of Area Magistrate, who supplied the copies of the documents to the accused as per law and vide order dated 24.4.1999, he committed the accused to the Court of Sessions to face the trial under Section 302/324 of the Indian Penal Code. 11. Vide order dated 1.8.1989, the learned Sessions Judge, Faridkot, framed a charge under Section 302 of the Indian Penal Code against the accused, which was read over and explained to the accused to which he pleaded not guilty and claimed trial. 12. In order to prove the charge, the prosecution examined Dr. Hakumat Rai, PW-1, who medically examined Smt. Amarjit Kaur; Dr. K.K. Aggarwal, PW-2, who conducted the post mortem examination; Dr. Usha Kapoor, PW-3 who informed the police about the arrival of the injured in the hospital; Dr. Ram Niwas, PW-4 who conducted the X-ray examination and Sh. Jai Devi, PW-5, who informed the police about the death of Smt. Amar Jit Kaur. 13. Gurbachan Singh PW-6 is the draftsman who went to the spot at the instance of the police and prepared the scaled site plan Ex. PL with correct marginal notes on the pointing of Mohinder Singh. Kala Singh PW-7 is the witness of the recovery of the Khesi Ex. P.1. The prosecution also tendered into evidence the statements of formal witness by way of affidavits. The investigating Officer, Shri Kuljit Singh, ASI, appeared as PW-13. Finally the prosecution tendered into evidence the report of the Chemical Examiner and closed the case. 14. The statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances, if any, were put to the accused. The investigating Officer, Shri Kuljit Singh, ASI, appeared as PW-13. Finally the prosecution tendered into evidence the report of the Chemical Examiner and closed the case. 14. The statement of the accused was recorded under Section 313 Cr.P.C. and all the incriminating circumstances, if any, were put to the accused. He denied those circumstances and stated that he was falsely implicated as there was a dispute regarding the property with his brothers. However, he did not lead any evidence in defence. 15. The learned trial court finally came to the conclusion that the prosecution has not been able to prove the charge and the reasons of acquittal have been given in para No. 7 of the judgment, which are reproduced as follows :- "The sole eye witness in this case was Mohinder Singh son of Jaggar Singh but he was given up by the prosecution as having been won over by the accused. The only evidence left in this case is the first information report. The learned P.P. has vehemently argued that this first information report, which was recorded on the statement of the injured, be termed as dying declaration and this dying declaration, coupled with the medical evidence and recovery of the Gandasa, fully proves the case against the accused. I have considered this contention of the P.P. and find it to be devoid of any force, as the only independent eye-witnesses was given up. So, we are left with the copy of the FIR. It is well established principle of law that the first information report is not a substantive piece of evidence. It can only be used for corroborative purposes and can be confronted with the statement of the marker thereof. Amarjit Kaur remained in the hospital for full one week and it has come in the evidence that her condition became serious. Then, in this view of the matter, the prosecution could record her dying declaration in the presence of the doctor or the Magistrate, if available, but the prosecution did not record any dying declaration. The argument of the learned P.P. that the first information report be termed as dying declaration cannot be accepted in this view of the discussion above. According to the doctor, Amarjit Kaur had heart attack also immediately prior to her death. This also proves that the cause of death is not the injury but the cardiac arrest of Amarjit Kaur. The argument of the learned P.P. that the first information report be termed as dying declaration cannot be accepted in this view of the discussion above. According to the doctor, Amarjit Kaur had heart attack also immediately prior to her death. This also proves that the cause of death is not the injury but the cardiac arrest of Amarjit Kaur. So, the medical evidence also does not prove the case of the prosecution. 16. Not satisfied with the judgment of acquittal, the present appeal by the State of Punjab has been filed which we dispose of with the assistance rendered by the counsel for the parties. 17. The story of the prosecution proceeds on the premises that deceased Amarjit Kaur along with her husband Kala Singh and other members of the family including Kikkar Singh accused, was plucking Narma crop in the field of one Mohinder Singh, where they picked up a quarrel. The story of the prosecution further proceeds that when the deceased was standing in the street, she was attacked by the accused with the help of a Gandasa. When the deceased raised an alarm, Mohinder Singh PW came at the spot and rescued the injured from the clutches of the accused. In this manner, we can say that the occurrence was allegedly witnessed by Shri Mohinder Singh son of Shri Jaggar Singh, who came to the spot on hearing the commotion which allegedly took place between the deceased and the accused. The entire episode can be divided into two parts, firstly, that in the morning of the fateful day, a dispute took place between the deceased and the accused. There is no corroboration to this part of the story of the prosecution. The prosecution did not examine any witness to prove the alleged occurrence which took place in the Narma crop of Shri Mohinder Singh. Even Mohinder Singh has not been examined in the trial Court. 18. Be that as it may, reverting to the actual occurrence, it is the case of the prosecution that on hearing the altercation which took place immediately preceding to the actual occurrence, one Shri Mohinder Singh son of Jaggar Singh came there. This witness too was given up by the prosecution in the trial Court on the usual plea that he had been won over by the accused. This witness too was given up by the prosecution in the trial Court on the usual plea that he had been won over by the accused. Thus, we can say that the prosecution has failed to lead any oral evidence which might prove the first part of the transaction and the actual occurrence. 19. The learned counsel appearing on behalf of the State submitted that the statement of the injured Smt. Amarjit Kaur was recorded by the police after taking the opinion Ex. PC/1 from Dr. Hakumat Rai, who categorically deposed that the patient was fit to make the statement. In these circumstances, the statement PN, should be treated as a dying declaration of the deceased under Section 32 of the Indian Evidence Act and under the law there is no bar to record a finding of conviction on the basis of the dying declaration. 20. The contention raised by the learned counsel appearing on behalf of the State is partly correct to the extent that the statement Ex. PN can be treated as a dying declaration within the meaning of Section 32 of the Indian Evidence Act but equally is the settled law of the land that before a dying declaration is to be acted upon, it must be proved on the record that the said dying declaration inspires confidence in the mind of the Court. As we stated above, the occurrence was witnessed by Shri Mohinder Singh son of Shri Jaggar Singh but he has not been examined by the prosecution. 21. It is further the case of the prosecution that earlier incident which took place in the fields, has also been witnessed by several persons. There is no corroboration to that incident also. Admittedly, the occurrence took place on 1.1.1989. The deceased remained admitted in the hospital up to 8.1.1989 and it has come in the evidence that the condition of the deceased became serious and for that reason she was referred to the better hospital. When there is a reasonable gap between the incident and the death of the deceased and when it ws already come in evidence that the condition of the injured deteriorated with the passage of time, what was the difficulty on the part of the Investigating Officer in not making a request to the Judicial Magistrate to record the dying declaration of the deceased after getting the opinion of the doctor. Had such an effort been made by the Investigating Officer it would have gone a long way to help the Court so that its confidence may be inspired by such action of the Investigating Officer. As we all know that FIR is not a substantive piece of evidence but it can only be looked into as a piece of corroboration to the statement of the maker thereof. 22. The sole point for determination in this case would be whether this court should give the finding of conviction on the sole alleged incriminating factor of FIR by treating it as a dying declaration. We are of the considered opinion that in view of the circumstances of the case, the bald statement of the injured Smt. Amarjit Kaur is not sufficient to record the finding of guilt specially when there is no evidence that the entire statement of the injured was recorded in the presence of the doctor. As we stated above that the Investigating Officer did not make any effort to approach the Magistrate for recording the dying declaration of the injured/deceased. 23. We are disposing an appeal against the acquittal. While disposing of such matters, the rule of prudence demands of the High Court to give proper weight and consideration to the views of the trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of doubt, and the slowness of the appellate Court in reversing a finding of seeing the witnesses. In other words, it is as extensive as in any appeal against conviction. Once, we rule out that the statement of Smt. Amarjit Kaur recorded by the police does not inspire confidence, then there is no other incriminating circumstance against the accused except the recovery of weapon, which in our opinion, alone is not sufficient to record the conviction. There is a yawning gap between the allegations and the proof. This gap has to be bridged by the prosecution by leading cogent, reliable and satisfactory evidence. In the absence of any such evidence, we are of the considered view that there is no illegality or material irregularity on the part of the trial Court in the appreciation of the evidence. 24. This gap has to be bridged by the prosecution by leading cogent, reliable and satisfactory evidence. In the absence of any such evidence, we are of the considered view that there is no illegality or material irregularity on the part of the trial Court in the appreciation of the evidence. 24. Resultantly, we are not inclined to interfere in the impugned judgment of the trial Court and by affirming the same, we dismiss this appeal.