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2003 DIGILAW 243 (HP)

MOHINDER SINGH v. STATE OF HIMACHAL PRADESH

2003-08-21

K.C.SOOD, M.R.VERMA

body2003
JUDGMENT Kuldip Chand Sood, J.—This appeal by Mohinder Singh, appellant, hereinafter referred to as " Al", arises out of the judgment of learned Additional Sessions Judge, Shimla dated April 11, 2001 in Sessions Trial No. 22-S/7 of 2000 whereby Al has been convicted for killing his brother Balbir Singh under Section 302 of the Indian Penal Code and sentenced to suffer imprisonment for life and pay a fine of rupees 5,000. In case of default in the payment of fine, Al is to suffer simple imprisonment for six months. Dissatisfied with his conviction, Al has filed the present appeal. Prosecution case : 2. Mohinder Singh (Al), deceased Balbir Singh, Rajinder Singh (PW1) and Prem Raj (PW 7) were real brothers. Prem Raj, at the relevant time, was employed in a Hotel at Rampur. Al, PW1 Rajinder Singh and deceased Balbir Singh were living in village Rohal in Tehsil Chirgaon of District Shimla. There was a dispute between the brothers in respect of the land left by their father between Mohinder Singh on one hand and the other three brothers on the other. Al was living separately from his brothers after the death of his father. 3. On June 19, 2000, Rajinder Singh (PW 1) and his brother Balbir Singh were in their house. Al, accompanied by Dalip Singh, his brother-in-law, hereinafter referred to as A2, came to the house of Rajinder Singh and Balbir Singh. They started abusing them and hurling stones towards he house. Balbir Singh asked Al and A2 to stop hurling stones. Al got infuriated and fired at Balbir Singh with a gun he was carrying. Balbir Singh was shot on his face and neck. Balbir Singh fell down and succumbed to the injuries. Both Al and A2 entered the house, took away some clothes, utensils and papers of the property of their father. Rajinder Singh shifted the dead body from verandah to the room. Locked the room and went to Surinder Singh, member of the Gram Panchayat to inform him about the incident. Surinder Singh did not come to the spot and told Rajinder Singh that he would come next day morning. Rajinder Singh was scared and did not return back to his house. He went to the house of his fathers sister Ganga Mani at Chinchawara village. He spent the night there. Surinder Singh did not come to the spot and told Rajinder Singh that he would come next day morning. Rajinder Singh was scared and did not return back to his house. He went to the house of his fathers sister Ganga Mani at Chinchawara village. He spent the night there. In the morning, Rajinder Singh came to Rohru and telephonically informed Prem Raj, his brother, about the incident. He went to Rohru to lodge the report with the Police at that place but Al was following him and threatened Rajinder Singh not to do so. He thereafter came to Police Post at Chirgaon and lodged the report (Exhibit PW 12/A) with the Police Post Chirgaon. On the basis of this report, FIR Exhibit PW 12/B was registered at Police Station, Rohru. 4. During the investigation, Al made a disclosure statement pursuant to which the Gun Ext. P3, the weapon of offence, was recovered. The dead body was subjected to post-mortem on June 22, 2000 by Dr. PC. Gupta, then Senior Medical Officer, Civil Hospital, Rohru. He found four lead pallets, one large and three small, having been embedded on the left side of the neck. Another four lead pallets, one large and three small were found embedded on the middle of the neck just above the cervical spine. Dr. Gupta described the wounds in the following words : "Wound of Entrance : Round wound of 8 mm to 1 cm. diameter over right side neck about 6 cms. Infero-posterior to angle of mandible; Edges of wounds are inverted surrounded by a dark ring with two zones the inner of grease and outer of abrasion. Wound of Exit :—An oval wound nearing about 1.5 cm. size in length on left side of neck about 6 cms. Infer posterior to angle of mandible. Edges irregular. Bleeding had occurred from both wounds within neck and clothes soiled with blood. Bleed from nasal and oral cavity was present. On dis-section, three pellets were recovered from the side of exist, but, other pellets could not be removed. Both the carotid arteries had ruptured and pool of blood was presenting the neck. Memberance of the brain were congested. Larynx and trachea were full of blood. Heart chambers were empty. Stomach was congested and was full of red colored material. 5. On dis-section, three pellets were recovered from the side of exist, but, other pellets could not be removed. Both the carotid arteries had ruptured and pool of blood was presenting the neck. Memberance of the brain were congested. Larynx and trachea were full of blood. Heart chambers were empty. Stomach was congested and was full of red colored material. 5. In the opinion of the Doctor, the deceased expired due to gun shot injury leading to rupture of both carotid arteries and shock, within five minutes of the injury. The post mortem report is placed on the record as Exhibit PA. 6. The entire prosecution case admittedly rests on the ocular evidence of Rajinder Singh as corroborated by medical evidence and the other witnesses. 7. The defence version as put in the cross-examination of the various witnesses is that it was Balbir Singh deceased who brought the gun from his room and tried to kill Al. Rajinder Singh intervened and tried to snatch away the gun from Balbir Singh, the gun in the process was accidentally shot into the neck of Balbir Singh. 8. Learned trial Judge on the appreciation of the evidence convicted Al, as noticed earlier, and acquitted A2, as no evidence was available against him. 9. We heard Mr. G.D. Verma, learned Senior Counsel instructed by Mr. Romesh Verma and Mr. Ashok Chaudhary, learned Additional Advocate General. We have also been taken through the evidence on record. 10. Mr. G.D. Verma, learned Senior Counsel assailed the conviction of the accused on the grounds: (a) Unexplained delay in lodging of the First Information Report; (b) Un-natural conduct of complainant Rajinder Singh in going to the house of his fathers sister; (c) No acceptable evidence is available on record to connect the accused with the commission of the offence; (d) The version of the accused that gun was accidentally fired by Al when he was trying to snatch the gun from the deceased is probablised from evidence. 11. On the other hand, Mr. Chaudhary, learned Additional Advocate General stressed that the ocular evidence of Rajinder Singh is reliable, inspires confidence and has fully been corroborated by medical evidence and other evidence on record. The defence version is not probablised in view of the medical evidence. 12. It may be noticed that the fact that deceased Balbir Singh died due to the gun shot injury is not in dispute. The defence version is not probablised in view of the medical evidence. 12. It may be noticed that the fact that deceased Balbir Singh died due to the gun shot injury is not in dispute. The only dispute is that how the gun was fired. 13. Before we deal with the contentions raised by Mr. Verma, learned Senior Counsel, we may look into the evidence on which prosecution rely. 14. It is the evidence of Rajinder Singh (PW1) that on the fateful evening, he alongwith deceased was sitting in his house. Al armed with a gun, accompanied by A2 came to his house and started hurling stones and abusing him and deceased. Balbir Singh asked the accused to stop hurling stones. At this, Mohinder Singh, pulled his gun and fired at deceased Balbir Singh on his face and neck. Balbir Singh fell down. Accused entered the house, took away certain documents, clothes, utensils as well as the gun. Rajinder Singh shifted the dead body inside the room, locked the room and went to Surinder Singh, member of the Gram Panchayat to report to him the occurrence. Surinder Singh told him that he would come to the spot next morning. Rajinder Singh was scared and therefore, instead of going back to the house, went to the house of his fathers sister Ganga Mani at village Chinchawara. On the next day, he informed his brother Prem Raj (PW 7) about the incident and then reported the matter to the police at Chirgaon. Initially, he came to Rohru to lodge the report with the Police Station at Rohru but Al had followed him and threatened him at Rohru that if he lodges the report with the police, he would kill him too. In the circumstances, he came to Chirgaon and lodged the report with Police Post at Chirgaon. It is his evidence that when stones were being pelted by Al and A2, Negi Ram and Om Parkash were also present at some distance in their Khali an. Some other persons too were working in the fields at some distance. He had clarified that he could not report the incident to the Police Station at Rohru as Mohinder Singh was continuously following him. The police came next day morning, inspected the spot, took into possession wooden Jhallar with pallet marks, collected bloodstains from the floor, took possession the pallets which were on the spot. He had clarified that he could not report the incident to the Police Station at Rohru as Mohinder Singh was continuously following him. The police came next day morning, inspected the spot, took into possession wooden Jhallar with pallet marks, collected bloodstains from the floor, took possession the pallets which were on the spot. Mohinder Singh was arrested and interrogated. It is his evidence that Mohinder Singh made a disclosure statement to the Police stating that he had kept the gun, the weapon of offence, in Kuthar of the roof of the house of the complainant. It was from Kuthar that Mohinder Singh brought the gun and handed it over to the police. In cross-examination, this witness is categorical that when the gunshot was fired, there was no one present at the place of occurrence nor did any body came to his house. It is his evidence that he went to Panchayat Member Surinder Singh at village Talwari and reported the incident to him and thereafter, he returned back to his house, kept the dead body inside the room and went to village Chinehwara. On the next day, he again visited his house and went to Rohru and Chirgaon. There is nothing material in the cross examination of this witness, which may dent his version. In cross examination, he maintained that both Al and A2 were in Khaliyan of the house at a distance of 10 to 15 mtrs from him and his brother. He indeed admitted that he does not remember the exact time when his brother was killed. Suggestion that the gun did not belong to Al is denied. He also denied that there was no quarrel regarding property between Al Mohinder Singh and the other brothers. He denied the suggestion that it was Balbir Singh deceased who took out the gun from his room and pointed the same at Al Mohinder Singh and he (Rajinder Singh) tried to snatch the gun from the deceased and in the process, gun accidentally was fired and as a result Balbir Singh received injuries and ultimately died. He denied that it was after deliberations that he made out a colored version as was given to the police. 15. He denied that it was after deliberations that he made out a colored version as was given to the police. 15. This evidence of Rajinder Singh finds support from the medical evidence, to which we shall advert little later, as also from the evidence of Negi Ram though he was declared hostile and cross-examined by the learned Public Prosecutor. It the evidence of Negi Ram (PW 4) that on the fateful evening, he was working in his fields. The house of deceased Balbir Singh is on the lower side of his fields. He heard gun shot being fired and when he came down, he saw Mohinder Singh carrying a gun in his hand. He also corroborates that A2 Dalip Singh was also present at that place and no other person was present. It is his evidence that accused Mohinder Singh openly challenged that if there were any supporter of Balbir deceased, they should also come forward. He thereafter left for his house. In cross-examination, he candidly states that he did not see Al firing the gun. It is his evidence that when he reached the spot, the accused were at a distance of 25 feet from deceased Balbir Singh. He denied the specific suggestion of the defence that Rajinder Singh tried to snatch the gun from the hands of the deceased and it accidentally went off. It clearly emerges from the evidence of this witness that: (a) Al was carrying a gun in his hand; (b) Gun was fired though not in the presence of this witness; (c) PW 1 Rajinder Singh, Al and A2 were the only persons present on the spot and none else; (d) Defence version that gun went off accidentally is not correct. 16. This evidence corroborates the evidence of Rajinder Singh (PW 1) in all material aspects. The fact, Al was carrying gun in his hand corroborates the evidence of Rajinder Singh that Al fired the gun at the deceased Balbir Singh. 17. Prem Raj (PW 7), brother of deceased and Rajinder Singh stated that on June 19, 2000, he was informed on telephone at Rampur by his brother Rajinder Singh that Al, his brother, has killed their brother Balbir Singh by a gun shot and that he should return home immediately. He also states that his brother Mohinder Singh also rang him up to say that he should come immediately. He also states that his brother Mohinder Singh also rang him up to say that he should come immediately. He could not reach home on the same day, as he was unable to get any bus. However, he reached home next day This evidence too corroborates the version given by Rajinder Singh. Had the gun been fired by accident in scuffle. Al would have stated so when he rang up Prem Raj next day of the occurrence. The defence version thus appears to be after thought. 18. Dr. PC. Gupta (PW 3) in his cross-examination is categorical that the gun, weapon of offence, was fired from a distance of about 4 mtrs. which means from a distance of about 16 to 20 feets. This evidence corroborates the evidence of Rajinder Singh that the gun was fired from 20 feet or so and is not compatible with the defence version that the gun accidentally got fired in the scuffle. In scuffle the range of fire would not have been more than 13 inches or so. This medical evidence negates the defence version. 19. We may now deal with the contentions raised by learned Senior Counsel for the accused. (a) Unexplained delay in lodging the FIR : It is true that the First Information Report was lodged with the Police at Police Post, Chirgaon just after 24 hours. The occurrence took place at about 4.00 p.m. on June 19, 2000 whereas, the report was lodged at 5.15 p.m. on June 20, 2000 as is apparent from the Daily Diary of Police Post Chirgaon dated June 20, 2000 extract whereof is Exhibit PW 12/A. This delay cannot be said to be unexplained or deliberate. It is the evidence of Rajinder Singh (PW 1) that immediately after the occurrence, he went to Surinder Singh, Member Gram Panchayat to inform him about the same. However, Surinder Singh refused to come to his house and told him that he would come the next day morning. It is his further evidence that he was scared and went to the house of his fathers sister at village Chinchwara and told his brother-in-law about the incident. On the next day, he went to Rohru to lodge report at Police Station and inform his brother Prem Raj. Al followed him at Rohru and threatened him that if he reported the matter to the Police, he would be done to death. On the next day, he went to Rohru to lodge report at Police Station and inform his brother Prem Raj. Al followed him at Rohru and threatened him that if he reported the matter to the Police, he would be done to death. He then came to Chirgaon. Al again followed him to Chirgaon. However, after some time, Al returned back to Rohru and it was only then he could get courage to go to the Police to lodge the report. In the fact situation, in our view, there is no unexplained delay in the lodging of the FIR. Even in the report lodged with the Police Post (PW12/A), Rajinder Singh clearly stated that when he came to Rohru to lodge the report, he was threatened by Al Mohinder Singh that if he lodges the report with the Police, he would be done to death and, therefore, he had come to Chirgaon to lodge the report. (b) Unnatural conduct of the complainant Rajinder Singh. Learned Senior Counsel contended that the conduct of Rajinder Singh in going to the house of his fathers sister instead of going to the Police Station is unnatural. There is no merit in the submission. Rajinder Singh has unequivocally explained that after having killed his brother Balbir Singh, Al Mohinder Singh threatened him that if he discloses the incident fb any person, he would be done to death and, therefore, he was scared and did not return back to his house after having reported the matter to the Member Panchayat Surinder Singh and instead, went to the house of his fathers sister at village Chinchwara and left next day morning to Rohru to lodge the report and inform his other brother Prem Raj by telephone who was working at Rampur. There is nothing unnatural in the conduct of Rajinder Singh. (c) No acceptable evidence to connect the accused. We have already discussed the evidence of Rajinder Singh on which the prosecution case rests and the evidence, which furnishes corroboration to the version given by Rajinder Singh. It is true that certain minor discrepancies have crept in the evidence of Rajinder Singh but those discrepancies are not material and do not in any manner dent the prosecution case. We have already discussed the evidence of Rajinder Singh on which the prosecution case rests and the evidence, which furnishes corroboration to the version given by Rajinder Singh. It is true that certain minor discrepancies have crept in the evidence of Rajinder Singh but those discrepancies are not material and do not in any manner dent the prosecution case. Learned Senior counsel pointed out that Rajinder Singh in his examination-in-chief stated that after .Al and A2 left the place of occurrence, he kept the dead body in the room, locked the room and went to the house of Surinder Singh Member Gram Panchayat, whereas, in the cross-examination, he stated that he kept the dead body in the room after having returned back to his house from the house of Surinder Singh and it was thereafter, he went to village Chinchwara. He also points out that in the examination-in-chief, Rajinder Singh stated that Negi Ram and Om Parkash were present at some distance in their Khalyan and some other person was also working in the fields at the time of occurrence but in cross-examination, he stated that no body witnessed the occurrence nor any body visited his house on that day. 20. In our view, these contradictions or discrepancies cannot be said to be material. In fact the discrepancy pointed out cannot be said to be a discrepancy What Rajinder Singh stated in cross-examination was that Negi Ram and Om Parkash were present in their Khalyan at some distance from the spot and that some other persons were working in the fields. This does not mean that, all these persons witnessed the occurrence. So far the discrepancy regarding shifting of the dead body of Balbir Singh in the room is concerned, this is not material at all. These kinds of discrepancies are bound to occur with the passage of time. As observed by this Court in Lekh Ram and others v. State of H.P. Criminal Appeal No. 148 of 2001 decided on July 7, 2003, a case must be viewed from the broad and reasonable probabilities. Normal discrepancies are bound to crop in with passage of time, errors of observation, errors of memory, mental disposition and perception of the witness. The kind of discrepancy pointed out by the learned Senior Counsel is not such which renders the evidence of ocular witness Rajinder Singh unreliable or unworthy of credit. Normal discrepancies are bound to crop in with passage of time, errors of observation, errors of memory, mental disposition and perception of the witness. The kind of discrepancy pointed out by the learned Senior Counsel is not such which renders the evidence of ocular witness Rajinder Singh unreliable or unworthy of credit. It is only material discrepancies, not expected of normal human being, which put a Court to caution and in given circumstances may render the ocular evidence unworthy of reliance. Merely because in cross-examination Rajinder Singh stated that he kept the dead body after having returned from the house of Surinder Singh, Member Panchayat, though in examination-in-chief he stated that he did so before going to the house of Surinder Singh, would not render the evidence of this witness unreliable. The sub stratum of the evidence remains intact and convincing. 21. The Apex Court in Krishna Mochi and others v. State of Bihar, (2002) 6 Supreme Court Cases 81, ruled : ".....A witness may not stand the test of cross-examination, which may be sometimes, because he is bucolic person and is not able to understand the question put to him by the skilful cross-examiner and at times under the stress of cross-examination, certain answers are snatched from him. When a rustic or illiterate witness faces an astute lawyer, there is bound to be imbalance and, therefore, minor discrepancies have to be ignored....." 22. In the present case too, witness Rajinder Singh an illiterate rustic witness as he was could not withstand the skilful cross-examination of the lawyer and the answer was snatched from him in the cross-examination. 23. The evidence of Rajinder Singh, as discussed earlier, is fully corroborated by the medical evidence and evidence of Negi Ram, which dearly proves that the deceased was killed by Al. The version of the accused that accused was killed in a scuffle between Rajinder Singh and deceased when Rajinder Singh tried to snatch the gun from the deceased is not probablised from the evidence on record. The medical evidence does not support the version of the accused as discussed earlier. It is significant to note that accused in his statement under Section 313 of the Code of Criminal Procedure when called upon to explain the circumstances appearing against him did not say that the gun fired accidentally in a scuffle between the deceased and Rajinder Singh (PW 1). 24. It is significant to note that accused in his statement under Section 313 of the Code of Criminal Procedure when called upon to explain the circumstances appearing against him did not say that the gun fired accidentally in a scuffle between the deceased and Rajinder Singh (PW 1). 24. The defence examined Shri Jhina Nand (DW 1) in support of its case. It is the evidence of Jhina Nand that on the fateful evening, he was taking water from the water source outside village Thana which is near the house of deceased Balbir Singh. At that time, Rajinder Singh and Balbir Singh were in their house and he saw Mohinder Singh coming from the other side with a bag of "Jaon". On seeing Mohinder Singh, Rajinder Singh and Balbir Singh started abusing him. Mohinder Singh did not say a word. In the meanwhile, Balbir Singh brought a gun from his house. Rajinder Singh tried to snatch the gun and in the process, the gun went off injuring Balbir Singh who fell down and died. To a court question, he candidly admitted that he did not state the fact of Balbir Singh having died in scuffle to any person nor did he report this to any one. He also stated that he did not go to the house of Balbir Singh even when he saw that he died of gunshot. He admitted that even when he came to know that Al and A2 have been booked for the murder of Balbir Singh and were in Jail, he did not tell to any person or any police authority during all these nine months that Balbir Singh died due to accidental gun shot fired in a scuffle between Rajinder Singh and Balbir Singh. To believe this witness is to believe incredible. It is significant to note that accused did not put either to Rajinder Singh or Negi Ram that Jhina Nand (DW1) was present on the spot at the time of occurrence. 25. The other witness examined by the defence is Dalip Singh who is the husband of the fathers sister of Rajinder Singh. It is significant to note that accused did not put either to Rajinder Singh or Negi Ram that Jhina Nand (DW1) was present on the spot at the time of occurrence. 25. The other witness examined by the defence is Dalip Singh who is the husband of the fathers sister of Rajinder Singh. According to him, Rajinder Singh visited his house on the night of June 18, 2000 and told him that he had a quarrel with his brother Balbir Singh and when he tried to snatch the gun from the hands of his brother, the gun accidentally fired as a result of which Balbir Singh died. This is not even the case of the defence. It is not even suggested by the defence that there was any quarrel between Balbir Singh and Rajinder Singh. He also admitted that he did not tell about this to any person including the Police authorities till he was examined in the Court though he knew that Al and A2 were lodged in jail for the murder of Balbir Singh. The evidence of these two defence witnesses is neither credible nor worthy of reliance and their testimony has rightly been rejected by the learned trial Judge. 26. In the face of the evidence on record, the conviction of the accused cannot be faulted with. No other point was urged before us. We find no merit in this appeal, which is dismissed. Appeal dismissed.