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2008 DIGILAW 2169 (PNJ)

Balbir Singh S/o Sarwan Singh v. State of Punjab

2008-12-19

SHAM SUNDER

body2008
JUDGMENT Sham Sunder, J 1. This judgment shall dispose of Criminal Appeal No.85-SB of 1994, filed by Balbir Singh, accused (now appellant), against the judgment of conviction, and the order of sentence dated 4.2.1994, rendered by the Court of Addl. Sessions Judge, Barnala, vide which it convicted Balbir Singh, accused/appellant, for the offence, punishable under Section 307 IPC, and sentenced him, to undergo rigorous imprisonment, for a period of five years, and to pay a fine of Rs.2000/-, and in default of payment of the same, to undergo rigorous imprisonment for another period of one year, and Criminal Revision No.263 of 1994, filed by Ajmer Singh, complainant/revision-petitioner, against the judgment of acquittal of Darshan Singh, Dev Singh and Malkiat Singh. The trial Court, however, acquitted Darshan Singh, Dev Singh and Malkiat Singh, accused. 2. The facts, in brief, are that on 10.5.1991, at about 8.00 PM, Dalbar Singh, and his son Shamsher Singh, were present, in their house, in village Chhiniwal Kalan. The house of Sarwan Singh, is in front of their house. They heard noise, from the house of Sarwan Singh. Dalbar Singh, and his son Shamsher Singh, came out of their house, and entered the house of Sarwan Singh. Atma Singh, brother of Dalbar Singh, was already present there. They found Balbir Singh and Malkiat Singh, both sons of Sarwan Singh, fighting with each other. Balbir Singh had a gandasa, in his hand, and Malkiat Singh, a soti. Shamsher Singh, stepped forward to separate them. He caught hold Balbir Singh, of his arms, and asked him, as to why, they were fighting with each other. Thereupon, Balbir Singh told Shamsher Singh, that he would be taught a lesson for helping Malkiat Singh. Balbir Singh, accused, gave a gandassa blow, on the head of Shamsher Singh, as a result whereof, he fell down. When Shamsher Singh, was lying, on the ground, Balbir Singh, accused, gave another gandassa blow, on his head. Alarm was raised. In the meanwhile, Darshan Singh, accused, also came there. Balbir Singh, accused, ran away, after causing injuries, on the person of Shamsher Singh. Dalbar Singh, his brother Atma Ram, and Darshan Singh, brought Shamsher Singh, to Civil Hospital, Barnala, and got him admitted there. Since, his condition was critical, he was referred to Ludhiana, for better treatment. Alarm was raised. In the meanwhile, Darshan Singh, accused, also came there. Balbir Singh, accused, ran away, after causing injuries, on the person of Shamsher Singh. Dalbar Singh, his brother Atma Ram, and Darshan Singh, brought Shamsher Singh, to Civil Hospital, Barnala, and got him admitted there. Since, his condition was critical, he was referred to Ludhiana, for better treatment. When Shamsher Singh, was under-treatment, at Ludhiana, Dalbar Singh, went to the Police Station on 12.5.1991, and made his statement, on the basis whereof, DDR was recorded. Subsequently, on receipt of the report of the Doctor, FIR, on the basis of the said report, was registered, on 28.5.1991. The case was investigated by Jaswinder Singh, ASI. Balbir Singh, accused, was arrested. The statements of the witnesses were recorded. After the completion of investigation, he was challaned. 3. In the meanwhile, a private complaint, with regard to the same incident, was filed by Ajmer Singh, brother of Shamsher Singh, which was committed to the Court of Sessions. In the complaint, it was stated that that on 10.5.1991, at about 8.00 PM, when Shamsher Singh, was present in his house, a noise was heard, from the house of Sarwan Singh and Bagga Singh. Hearing that noise, Shamsher Singh, went to the house of Bagga Singh and Sarwan Singh, and found all the four accused, namely Balbir Singh, Darshan Singh, Dev Singh and Malkiat Singh, quarrelling with each other, after taking liquor. Shamsher Singh, asked them, not to quarrel, with each other, whereupon Darshan Singh, accused, took Shamsher Singh, in the fold of his arms, and the other three accused, namely Dev Singh, Balbir Singh and Malkiat Singh, caused injuries, on the person of Shamsher Singh with gandasas. Shamsher Singh, sustained 4 injuries, on his person. When alarm was raised, Sohan Singh and Atma Singh, who were passing through the street, in front of that house, were attracted to the spot, and they rescued Shamsher Singh, from the accused, with great difficulty. Shamsher Singh, was left in his house, wherefrom, he was taken by Darshan Singh, accused, to Civil Hospital, Barnala. Subsequently, he was referred to CMC Hospital, Ludhiana, for better treatment, on 11.5.1991. Jugraj Singh, brother of Shamsher Singh, informed the Police of Police Station Mahal Kalan, about this occurrence, but they did not take any action. Immediately, Sadhu Singh, Panch, was also informed about the same. 4. Subsequently, he was referred to CMC Hospital, Ludhiana, for better treatment, on 11.5.1991. Jugraj Singh, brother of Shamsher Singh, informed the Police of Police Station Mahal Kalan, about this occurrence, but they did not take any action. Immediately, Sadhu Singh, Panch, was also informed about the same. 4. The copies of the documents, in the challan case, as also in the complaint case, as per the provisions of law, were supplied to the accused, by the Court of the Committing Magistrate. After the cases were received by commitment, in the Court of Sessions, the same were clubbed together, for the purpose of trial, as the same pertained to the same occurrence. 5. Charge, under Section 307 IPC, against Balbir Singh, accused, and under Section 307 read with Section 34 IPC, against Darshan Singh, Dev Singh, and Malkiat Singh, accused, was framed, to which they pleaded not guilty, and claimed judicial trial. 6. The prosecution, in support of its case, examined Dr. Gurdeep Singh, Registered Medical Practitioner, Barnala (PW-1), who on 10.5.1991, at about 9.10 PM, when he was posted as Medical Officer, in Civil Hospital, Barnala, medico-legally examined Shamsher Singh, and found the following injuries, on his person : 1. Lacerated wound 4cm x 0.5cm x 0.75cm on the right side of the head, and the top, 3.5cm to the right of mid line and 7cm above the anterior hair line. Fresh bleeding was present. X-ray was advised. 2. An area of de-pression measuring 6cm x 3cm on the left side of top of head, 0.5cm to the left of mid line and 8cm above the anterior hair line. X-ray was advised. Both the injuries, were caused with blunt weapon, within a probable duration of 6 hours. He further stated that he referred Shamsher Singh to DMC Ludhiana. 6-A. Dr. Jerry Joshua, Registrar Department of Surgery, CMC Hospital, Ludhiana, was examined as PW-4. He stated that Shamsher Singh was admitted on 11.5.1991, at about 6.00 PM. He further stated that he was having lacerated wound on the scalp. Intimation to that effect was sent to the Police by Dr. George Abrahim, vide letter Ex.PE. He, on examination, found the following injuries, on the person of Shamsher Singh :- “He was having incised injury of 24 hours duration. It was open head injury, alongwith cerebral contusion with depressed fracture of right parietal bone. His left upper limb was suffering from monoperesis. George Abrahim, vide letter Ex.PE. He, on examination, found the following injuries, on the person of Shamsher Singh :- “He was having incised injury of 24 hours duration. It was open head injury, alongwith cerebral contusion with depressed fracture of right parietal bone. His left upper limb was suffering from monoperesis. Injuries No.1 to 3, were dangerous to life, and the last one was grievous in nature.” These were declared dangerous to life, caused by blunt or sharp edged instrument, as opined by the Doctor, vide his report, Ex.PG. 6-B. Shamsher Singh, injured, appeared as PW-2. He deposed that injuries, on his head, were caused by the accused. Sohan Singh, (PW-3), stated that when they reached the place of occurrence, they found Shamsher Singh lying injured, and none of the accused was present. Bahadur Singh, Patwari Halqa, Chhiniwal Kalan (PW-5), prepared Ex.PK, site plan. Atma Singh (PW-8), deposed, with regard to the causing of injuries, on the person of Shamsher Singh, by the accused. Sadhu Singh (PW-9), stated that when he accompanied Ajmer Singh, to the place of occurrence, he found Shamsher Singh bleeding from his head profusely, in the courtyard of his house. Ajmer Singh, (PW-7), filed the complaint, Ex.PP. Jaswinder Singh, SI/SHO, P.S.Morinda, (PW-6), (at the relevant time, posted as ASI, P.S. Mahal Kalan), is the Investigating Officer, who investigated the challan case. 6-C. Thereafter, the Addl. Public Prosecutor for the State, closed the prosecution evidence. 7. The statements of the accused, under Section 313 Cr.P.C., were recorded, and they were put all the incriminating circumstances, appearing against them, in the prosecution evidence. They pleaded false implication. 7-A. Balbir Singh, accused, in his statement, under Section 313 Cr.P.C., stated that he was falsely implicated, in the instant case, due to enmity. He further stated that Shamsher Singh received injuries, by falling from the stair-case. 7-B. Darshan Singh, Dev Singh, and Malkiat Singh, accused, (since acquitted), also took up the same plea, as was taken up, by Balbir Singh, accused, in his statement, under Section 313 Cr.P.C. The accused, however, did not lead any evidence, in their defence. 8. After hearing the Addl. 7-B. Darshan Singh, Dev Singh, and Malkiat Singh, accused, (since acquitted), also took up the same plea, as was taken up, by Balbir Singh, accused, in his statement, under Section 313 Cr.P.C. The accused, however, did not lead any evidence, in their defence. 8. After hearing the Addl. Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence, on record, the trial Court, convicted and sentenced Balbir Singh, accused, by believing the version, given by Dalbar Singh, to the Police, and disbeliving the version, contained in the complaint, and acquitted Darshan Singh, Dev Singh, and Malkiat Singh, accused, as stated hereinabove. 9. Feeling aggrieved, against the judgment of conviction, and the order of sentence, rendered by the trial Court, the instant appeal, was filed by Balbir Singh, appellant, whereas, Criminal Revision No.263 of 1994, was filed by the complainant, against the judgment of acquittal of Darshan Singh, Dev Singh, and Malkiat Singh, accused. 10. I have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 11. The Counsel for the appellant, at the very outset, submitted that that Dalbar Singh, first informant, was not examined by the prosecution, and, as such, the trial Court was wrong, in coming to the conclusion, that Balbir Singh, committed the offence, punishable under Section 307 IPC. He further submitted that the first informant, in the name of Dalbar Singh, could be said to be the most material witness, and his non-examination, must cause dent, in the prosecution story, as the FIR could not be said to be a substantive piece of evidence. It is, no doubt, true that it was Dalbar Singh, who lodged the FIR, on the basis whereof, in the first instance, DDR, copy whereof, Ex.PN, was entered, and later on, the FIR, Ex.PM, was registered. It was not that Dalbar Singh, was not intentionally examined by the prosecution. It is evident, that Dalbar Singh had been won over by the accused. Accordingly, vide statement dated 26.7.1993, he was given up, as such, by the Addl. Public Prosecutor for the State. The question arises, as to whether, the Court could record conviction, and award sentence, on the basis of the evidence of other prosecution witnesses, including the eye-witnesses, other than the first informant. Accordingly, vide statement dated 26.7.1993, he was given up, as such, by the Addl. Public Prosecutor for the State. The question arises, as to whether, the Court could record conviction, and award sentence, on the basis of the evidence of other prosecution witnesses, including the eye-witnesses, other than the first informant. It is, no doubt, true that the first informant, could be said to be a very important witness, who could unfold the case. At the same time, the injured, and the eye-witnesses, cannot be said to be less important, as they being present, at the time of occurrence, can certainly unfold the case of the prosecution. Since, in the instant case, Dalbar Singh, had been won over, by the accused, the Addl. Public Prosecutor for the State, in my opinion, took a wise decision, in giving him up, as such, vide his statement, dated 26.7.1993. The Addl. Public Prosecutor for the State, very well knew that, in case, this witness was examined, he would not support the case of the prosecution, but on the other hand, damage its case. The Public Prosecutor for the State, is the master of the case. It is for him, to decide, as to which witness, he wanted to examine, and, as to which witness, he did not want to examine. The Addl. Public Prosecutor for the State, in the instant case, exercised the discretion, vested in him, in a bona-fide manner. It could not be said that the Addl. Public Prosecutor for the State, in this case, exercised the discrtion, vested in him, in an arbitary and capricious manner. However, the other ocular evidence, produced by the prosecution, duly supported by the medical evidence, was held to be cogent, convincing, and reliable, by the trial Court. Acting on the same, the trial Court was right, in recording conviction, and awarding sentence. Non-examination of Dalbar Singh, in the circumstances, narrated above, did not cause any dent, in the prosecution case. In Masalti Vs. Acting on the same, the trial Court was right, in recording conviction, and awarding sentence. Non-examination of Dalbar Singh, in the circumstances, narrated above, did not cause any dent, in the prosecution case. In Masalti Vs. State of Uttar Pradesh, AIR 1965 (S.C.) 202, a four Judge Bench of the Apex Court, held that it is, undoubtedly, the duty of the prosecution, to lay before the Court, all material witnesses, available to it, whose evidence is necessary for unfolding its case, but it would be unsound to lay down it, as a general rule, that every witness, must be examined, even though his evidence, may not be very material or, even if, it is known that he has been won over or terrorized. The principle of law, laid down, in the aforesaid authority, is fully applicable to the facts of the present case. In these circumstances, mere non-examination of Dalbar Singh, first informant, when the evidence of the prosecution witnesses, is cogent, convincing, and reliable, and there was no reason, on their part to falsely implicate the accused, no doubt, is cast on the prosecution story. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 12. It was next submitted by the Counsel for the appellant, that once the version set up in the complaint, was held to be unreliable, by the trial Court, it could not place reliance, on the version set up, in the FIR, by Dalbar Singh, who was not examined, by acting on the statements of Shamsher Singh and other eye-witnesses. The submission of the Counsel for the appellant, in this regard, does not appear to be correct. The trial Court categorically held that the complaint was filed by the complainant, after about 18 days of the occurrence, and there was sufficient time, to fabricate the story, by implicating the innocent persons. The trial Court was right in holding that, in the version set up, in the FIR, as also in the complaint, specific injuries were attributed with gandasa, to Balbir Singh, accused, on the head of Shamsher Singh, and it was not that in one version, he was named as an accused, and in the other version, his name was excluded. The trial Court was right in holding that, in the version set up, in the FIR, as also in the complaint, specific injuries were attributed with gandasa, to Balbir Singh, accused, on the head of Shamsher Singh, and it was not that in one version, he was named as an accused, and in the other version, his name was excluded. The mere fact that the trial Court, disbelieved the version set up, in the complaint, did not mean that it could not rely upon the version set up, in the FIR, and duly proved, through the statement, of Shamsher Singh, corroborated by the medical evidence. A witness may be false, in respect of certain features of the case, but he may be true, in respect of other features of the case. Maxim falsus in uno, falsus in omnibus, i.e. false in one thing, false in other things, is not applicable to this part of the Country. The Court is required to scrutinize the evidence, and if any part of the statement of a witness, is found to be unreliable, the same can be rejected, and the other part of his evidence, which is found to be reliable, can be accepted, if duly corroborated, through the other evidence. The trial Court was, thus, right in placing reliance on the evidence of the prosecution witnesses, in so far as the participation of Balbir Singh, accused, in the commission of crime, was concerned. No fault can be found, with the finding, recorded by the trial Court, convicting him (Balbir Singh, accused), and awarding him sentence. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected. 13. Not only this, there was a strong motive with Balbir Singh, accused, to cause injuries, on the head of Shamsher Singh. Shamsher Singh (PW-2), during the course of his cross-examination, stated that Balbir Singh, gave a gandasa blow, on his head, saying that he would be taught a lesson for informing the Police, against his (Balbir Singh) act of distilling illicit liquor. Since, Balbir Singh, accused, suspected that Shamsher Singh, had informed against him, to the Police, that he was distilling illicit liquor, and defaming him, he could be said to be the most aggrieved person, and, on account of this enmity, he caused injuries, on the person of Shamsher Singh. Since, Balbir Singh, accused, suspected that Shamsher Singh, had informed against him, to the Police, that he was distilling illicit liquor, and defaming him, he could be said to be the most aggrieved person, and, on account of this enmity, he caused injuries, on the person of Shamsher Singh. The motive, therefore, clearly proved, the commission of offence, by Balbir Singh, accused. 14. Now coming to the revision petition, it may be stated here that the same has been filed by the complainant, against the acquittal of Darshan Singh, Dev Singh, and Malkiat Singh, accused. No appeal was filed by the State, against the acquittal of the said accused. No legal infirmity could be pointed out by the Counsel for the revision-petitioner, either in the procedure or in the conduct of the trial, by the trial Court. In these circumstances, there is no justification for the High Court to interfere in exercise of its revisional jurisdiction, with the findings of the trial Court. The High Court, in its revisional jurisdiction is not required to reappreciate the evidence to reach a finding different from the trial Court. At the instance of a private party, the Court exercises only limited jurisdiction and cannot constitute itself into the appellate Court. The scope of revision against acquittal, was well discussed by the Apex Court in a judgment rendered in Bindeshwari Prasad Singh @ B.P.Singh and others Vs. State of Bihar (Now Jharkhand) and another 2002 (4) RCR (Criminal) 61. In the said authority their Lordships of the Apex Court observed that in the absence of any legal infirmity either in the procedure or in the conduct of the trial, there was no justification for the High Court to interfere in exercise of its revisional jurisdiction. In Bindeshwari Prasad Singh's case (supra), Their Lordships also placed reliance on D.Stephens Vs. Nosibolla AIR 1951 Supreme Court 196, K.C.Reddy Vs. State of Andhra Pradesh AIR 1962 SC 1788, Akalu Ahir and others Vs. Ramdeo Ram (1973) 2 SCC 583, Patakalapti Narayana Gajapathi Raju and others Vs. Bonapalli Peda Appadu and another, AIR 1975 SC 1854, and Mahendra Pratap Singh Vs. Sarju Singh AIR 1968 SC 707. Similar principle of law was laid down in Gurmail Singh Vs. Boga Singh and others, 2005(1) RCR (Criminal), 623. Ramdeo Ram (1973) 2 SCC 583, Patakalapti Narayana Gajapathi Raju and others Vs. Bonapalli Peda Appadu and another, AIR 1975 SC 1854, and Mahendra Pratap Singh Vs. Sarju Singh AIR 1968 SC 707. Similar principle of law was laid down in Gurmail Singh Vs. Boga Singh and others, 2005(1) RCR (Criminal), 623. The finding of the trial Court acquitting Darshan Singh, Dev Singh, and Malkiat Singh, accused, as also the evidence on record, have been perused by this Court. The trial Court, in my considered opinion, was right, in coming to the conclusion, that the participation of Darshan Singh, Dev Singh, and Malkiat Singh, accused, in the commission of crime, was most improbable and unnatural. In para No.17, of its judgment, the trial Court rightly held that FIR was registered on 28.5.1991, on the basis of report, Ex.PN, lodged by Dalbar Singh, on 12.5.1991, whereas, the version in the complaint was given, for the first time, by Ajmer Singh, on 28.5.1991. The trial Court held that no explaination was furnished by the complainant, for delay in filing the complaint. The trial Court was, thus, right in coming to the conclusion, that the complaint was filed after due deliberations, and consultation, and, therefore, the version in the complaint, did not appear to be correct, but an afterthought. The trial Court was also right in holding in Para No.17, that Shamsher Singh, (PW-2), who though supported the version, given by his brother, in the complaint, had not given the same version, before the Police, in his statement, which was recorded, under Section 161 Cr.P.C., on 28.5.1991, after he had come back, from the hospital. It was further held by the trial Court, that, therefore, Shamsher Singh, contradicted his own statement, Ex.DB, with which he was duly confronted. The trial Court was also right in holding that Atma Singh, who corroborated the version of Shamsher Singh, had given some other version, to the Police, in his statement, under Section 161 Cr.P.C., Ex.DB, with which he was duly confronted, and that version was, in tune with the version given by Shamsher Singh, to the Police. The trial Court was also right in holding that Atma Singh, who corroborated the version of Shamsher Singh, had given some other version, to the Police, in his statement, under Section 161 Cr.P.C., Ex.DB, with which he was duly confronted, and that version was, in tune with the version given by Shamsher Singh, to the Police. In these circumstances, it was held by the trial Court, that since Shamsher Singh and Atma Singh, were making shifting statements, at different times, with regard to the occurrence, which were highly belated, it could not be said that Darshan Singh, Dev Singh, and Malkiat Singh, accused, caused injuries, on the person of Shamsher Singh. The finding of the trial Court, in acquitting Darshan Singh, Dev Singh, and Malkiat Singh, accused,, do not suffer from any factual infirmity, illegality, or perversity. In such a situation, no interference is called for, with such a finding of the trial Court, regarding the acquittal of Darshan Singh, Dev Singh, and Malkiat Singh, accused. The revision-petition is, thus, liable to be dismissed. 15. In view of the above discussion, it is held that the judgment of conviction, and the order of sentence, rendered by the trial Court, qua Balbir Singh, and the judgment of acquittal, rendered by the trial Court, qua Darshan Singh, Dev Singh, and Malkiat Singh, are based on the correct appreciation of evidence, and law, on the point. The same do not warrant any interference, and are liable to be upheld. The revision-petition is, however, liable to be dismissed. 16. For the reasons recorded, hereinbefore, criminal appeal No.85-SB of 1994 and criminal revision No.263 of 1994 being devoid of merit, are dismissed. The judgment of conviction, and the order of sentence, rendered by the trial Court, qua Balbir Singh, accused/appellant, are upheld. The Chief Judicial Magistrate, Barnala, shall take necessary steps, in accordance with the provisions of law, to comply the judgment with due promptitude. Appeal dismissed.