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2003 DIGILAW 993 (PNJ)

State of Punjab v. Bachan Singh

2003-07-22

AMAR DUTT, HARJIT SINGH BEDI

body2003
JUDGMENT H.S. Bedi, J. - This appeal arises out of the following facts :- Babu Singh (deceased) was residing with his brother Hardev Singh (PW-1) in village Maholi Kalan, Police Station, Ahmedgarh. They used to have the meals with their nephew Gursharan Singh (PW-2) son of their deceased brother Sucha Singh. On 25.11.1993 at about 6.00 A.M. Babu Singh and Hardev Singh were lying asleep in their house when Bachan Singh accused came there and tried to open the door and on being unable to do so, went up to the roof of the house and started damaging the Banera. Hardev Singh climbed to the roof-top and asked the accused as to why he was demolishing the Banera. On this, Bachan Singh, who was armed with a soti, gave a blow to Hardev Singh on his shoulder. On hearing his noise, Babu Singh also came up on the roof and intervened. On this, Bachan Singh gave a soti blow on Babu Singh, which hit him on his right eye, neck and fore-head. In the meanwhile, Gursharan Singh (PW-2) also came to the house carrying tea and both the witnesses raised an alarm, whereupon Bachan Singh pushed Babu Singh down from the roof of the house, killing him at the spot. The matter was first reported to the Sarpanch, Chand Singh and Panch Sadhu Singh and thereafter leaving Gursharan Singh near the dead body, Hardev Singh PW accompanied by the aforesaid members of the panchayat left for the police station but as they reached near the canal bridge came across a police party headed by ASI Nirmal Singh. Hardev Singh then made a statement (Exh. PA) to him and on its basis, a FIR under Section 304 of the Indian Penal Code was registered at Police Station, Ahmedpur at 8.30 A.M. with the special report being delivered to the Illaqa Magistrate at 10.00 A.M. On the completion of the investigation, the accused was charged for offence punishable under Section 304 of the Indian Penal Code and as he pleaded not guilty, was brought to trial. 2. The prosecution in support of its case examined two eye-witnesses PW-1 Hardev Singh and PW-2 Gursharan Singh; PW-3 Dr. Gurpal Singh, who had conducted the post mortem examination; and PW-4 Gurnam Singh, Draftsman. 2. The prosecution in support of its case examined two eye-witnesses PW-1 Hardev Singh and PW-2 Gursharan Singh; PW-3 Dr. Gurpal Singh, who had conducted the post mortem examination; and PW-4 Gurnam Singh, Draftsman. The remaining evidence of the prosecution was closed by order of the Court as the prosecution had failed to conclude its evidence in spite of several opportunities granted to it. 3. The prosecution case was then put to the accused and his statement under Section 313 or the Code of Criminal Procedure was recorded, in which the accused denied the allegations levelled against him and pleaded false implication. 4. The trial Court held that the prosecution evidence rested exclusively on the statements of PW-1 Hardev Singh and PW-2 Gursharan Singh, the two alleged eye-witnesses. The Court then went on to the evidence of Hardev Singh and observed that several improvements had been made by him in his statement made to the police and his evidence given in Court and in particular noticed that in the earlier statement the main injuries were stated to have been caused to the deceased with a soti, but some effort had been made to change the story to show that they had been caused on account of the fall from the roof. Likewise, the Court found that the manner and the time at which the accused had been arrested was also not clear from the evidence of Hardev Singh as he had given a different story at different times. The Court further observed that the evidence of Gursharan Singh PW did not inspire confidence in the light of the fact that he too had been discrepant as to the manner in which the incident has happened and the time when the police had come to the spot. The Court further observed that it had come in the evidence of Hardev Singh that as it was dark at the time of the incident and the assailant had covered his face with a blanket, it had not been possible for him to identify the assailant by face and he had done so only by his voice and as such the identity of the accused was also in doubt. The Court also notes that the evidence with regard to the arrest of the accused was also not worthy of belief as Hardev Singh and Gursharan Singh P.Ws. The Court also notes that the evidence with regard to the arrest of the accused was also not worthy of belief as Hardev Singh and Gursharan Singh P.Ws. had stated that he was arrested on 25.11.1993, whereas ASI Nirmal Singh, the Investigating Officer of the case had shown in the record that the accused was arrested on 28.11.1993. The Court accordingly, vide its judgment dated 10.10.1994, acquitted the accused. The present appeal against acquittal has been filed by the State of Punjab. 5. We have considered the findings recorded by the trial Court and the evidence on which they have based in the light of the principles as laid down by the Honble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166 and Kashi Ram v. State of M.P., 2001(4) RCR(Criminal) 556. We find that several reasons have been recorded by the trial Court in making an order of acquittal; they are (i) no categoric identification of the accused; (ii) the medical evidence being at variance with the ocular testimony; (iii) material discrepancies between the two alleged eye-witnesses inter se and their statements made in the Court vis-a- vis the statements made to the police in the course of the investigation. We find that each of these matters have been dealt with minutely by the trial Court and a positive finding of fact has been recorded that the prosecution case suffered from grave infirmities. We find that in particular reference must be made to the fact that the medical evidence does not corroborate the ocular version and that is the reason why Hardev Singh PW had attempted to change the story as to how the incident had happened while making his statement in the Court. We also find that there was no categoric identification of the accused as Hardev Singh admitted that the assailant had been wrapped up in a blanket and his face could not be seen and that he had identified him from his voice. To our mind, this mode of identification is clearly indeterminate. We accordingly find no merit in the appeal. It is accordingly dismissed. Appeal dismissed.