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2010 DIGILAW 454 (PNJ)

Mehar Singh v. State Of Punjab

2010-01-19

HEMANT GUPTA, JASWANT SINGH

body2010
Judgment Jaswant Singh, J. 1. This order shall dispose of two Criminal Appeals arising out of the judgment dated 24.8.2001 passed by learned Additional Sessions Judge, Amritsar convicting the accused-appellants in Crl. A. No.508-DB of 2001 and crl. A. No.876-DB of 2003 for the offence under Sections 302/323/34 IPC. Vide separate order of even date, accused-appellants Kulwant singh @ Bau, Lakhwinder Singh @ Kinda and Mehar Singh @ Mehma were sentenced to undergo imprisonment for life and a fine of Rs.1000/- each and in case of default of payment of fine further rigorous imprisonment for three months for offence punishable under Section 302/34 IPC. All the aforesaid three accused-appellants were further sentenced to undergo rigorous imprisonment for six months for the offence under Section 323/34 IPC for inflicting injuries on Bhagga Singh and Tarsem Singh. Accused-appellant Baljinder Singh @ Ladi was sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- and in case of default of payment of fine further rigorous imprisonment for six months. He was further sentenced to undergo rigorous imprisonment for six months for an offence under Section 323/34 IPC for inflicting injuries on the deceased Bhagga Singh. 2. Accused-appellant Mehar Singh @ Mehma, it appears has inadvertently filed another appeal bearing Crl. A. No.876-DB of 2003 through a separate Advocate against the aforesaid order/judgment of conviction and sentence dated 24.8.2001 passed by the learned Additional Sessions Judge, Amritsar. 3. Case of the prosecution is unfolded by the statement (Ex. PE) given by balwinder Kaur (PW4) W/o Bhagga Singh, Mazbhi to SI/sho Paramjit Singh (PW8), police Station-Valtoha, Tehsil Patti, District Amritsar on 12.7.1998 at 7.40 AM in the area of Bus Stand Valtoha. Balwinder Kaur (PW4) stated that she was resident of Village Valtoha and was married with Bhagga Singh son of Kala Singh mazbhi, R/o Valtoha about 30 years back from the date of occurrence. She stated that she has six children out of which three are sons and three are daughters. As per her statement, at some distance from their residence, they had a common site where her husbands elder brother Jagga Singh resided, who had died about 8/9 years back from the date of occurrence and Charno W/o Jagga Singh got re-married with Mehar Singh @ Mehmi, who was now residing in the residential site of Jagga Singh. As per her statement, at some distance from their residence, they had a common site where her husbands elder brother Jagga Singh resided, who had died about 8/9 years back from the date of occurrence and Charno W/o Jagga Singh got re-married with Mehar Singh @ Mehmi, who was now residing in the residential site of Jagga Singh. Adjoining to this site, her husband purchased vacant plot, where they had constructed a pucca kotha (Room ). She stated that on 11.7.1998 at about 8.00 PM, she along with her husband Bhagga Singh tried to stretch electric wire for lighting of electric bulbs from the electric wire, which crossed from house of said Jagga singh. Mehar Singh alias Mehma obstructed her husband to stretch wire and they exchanged hot words. In the meantime, Lakhwinder Singh @ Chhinda S/o Jagga singh armed with Paawa, Baljinder Singh @ Ladi son of Jagga Singh armed with safedon baton R/o Valtoha and Kulwant Singh @ Bua S/o Swaran Singh Mazbhi R/o saido at Valtoha (at that time) armed with Balla, who were already present in the house, came there. Mehar Singh @ Mehma said that Bhagga Singh should be taught a lesson for taking kundi connection daily from the top of wire. On this, Kulwant Singh @ Bau gave a Balla blow to her husband Bhagga Singh, which hit on his head towards right side and her husband fell down on the ground and lakhwinder Singh @ Chhinda gave Paawa blow on her husband Bhagga Singh while lying down, which hit on his left eye. Again Baljinder Singh @ Ladi gave two safidon dang blows on her husband while lying, which hit on his shoulders. In the meantime, her son Tarsem Singh came there on hearing raula and Mehar Singh @ Mehma picked up the sickle lying in the courtyard and gave blow on her son tarsem Singh, which hit on his palm of left hand and gave second sickle blow on her son Tarsem Singh, which hit on the upper part of hip of left side. She raised alarm mar Ditta Mar Ditta and the assailants ran away from the spot along with their respective weapons. She raised alarm mar Ditta Mar Ditta and the assailants ran away from the spot along with their respective weapons. Balwinder Singh S/o Gurdip Singh Mazbhi, kabal Singh son of Inder Singh Mazbhi R/o valtoha came at the spot on hearing raula and made arrangement of vehicle and took her husband Bhagga Singh to Civil Hospital, Patti, where the doctor treated her husband but condition of her husband became worse and the doctor referred her husband to Guru Nanak Hospital, Amritsar. She stated that her husband died in the way and they came back to their house. 4. On the basis of Balwinder Kaurs statement, FIR No.105 dated 12.7.1998 (Ex. PE/2) was recorded at Police Station Valtoha against the accused. SI/sho paramjit Singh (PW8) inspected the spot and prepared inquest report on the dead body of Bhagga Singh deceased. Dead body was sent for post mortem examination. He prepared rough site plan (Ex. PF) of the place of occurrence. On the disclosure statements of accused Kulwant Singh and Baljinder Singh @ Ladi, weapons of offence i. e Balla (Ex. PL/1) and danda were recovered and taken into possession after their arrest on 28.7.1998. Then on the disclosure statements of accused Lakhwinder Singh and Mehar Singh @ Mehma, alleged Pawwa and Sickle were got recovered and were taken into possession as Ex. PN/1 and Ex. PO/1. Copy of the report of Post Mortem is recorded as Ex. PB. After presentation of challan, charge under Sections 302/323/34 IPC was framed against the appellants-accused to which they pleaded not guilty and claimed trial. 5. The prosecution, to prove their case, examined eight witnesses and led documentary evidence. 6. Accused Kulwant Singh in his statement under Sec.313 Cr. P. C stated that he was falsely implicated in connivance with the police and the complainant. He belongs to different village and was on visiting terms with the accused-Mehar singh and on that count he has been falsely implicated whereas accused Mehar Singh, Baljinder Singh and Lakhwinder singh stated in their respective statements under Sec.313 Cr. P. C that FIR is ante dated and ante timed. Complainant wanted to grab their properties, therefore, the similar plea of false implication was taken in the case. Accused kulwant Singh produced DW1 Dilbagh Singh for his plea of alibi and documents exhibits D.1 and D.2 in his evidence. 7. P. C that FIR is ante dated and ante timed. Complainant wanted to grab their properties, therefore, the similar plea of false implication was taken in the case. Accused kulwant Singh produced DW1 Dilbagh Singh for his plea of alibi and documents exhibits D.1 and D.2 in his evidence. 7. On the basis of the oral and documentary evidence proved on record, learned additional Sessions Judge, Amritsar vide his judgment/order dated 24.8.2001 found all the accused guilty of murder of Bhagga Singh resulting in their conviction and sentence. 8. Learned counsel for the appellants have argued that there is an inordinate and unexplained delay in lodging the FIR and such delay has been used to foist a false case upon the appellants-accused. It was then contended that there are material discrepancies between the ocular version and the medical evidence, which go to the root of the matter. In support, reliance was placed on two injuries found on the dead body by the Doctor conducting the post mortem in contradiction to four injuries stated in the ocular version. It was then argued that the presence of eye-witness Tarsem Singh (PW5) at the place of occurrence was highly doubtful as instead of admitted two, eight injuries were found by the Doctor on his person and that too after almost 36 hours of the occurrence. It was further contended that even the testimony of other eye-witness i. e complainant (PW4)-Balwinder Kaur was un-reliable and conduct unnatural and, therefore no conviction could be sustained. It was also argued that the entire investigations are tainted as in spite of there being residential area and presence of so many persons, no independent witnesses were associated. On the other hand, learned state counsel argued that the presence of the wife and the son at the place of occurrence is most natural and their version qua the manner in which injuries have been inflicted is consistent. He further argued that the delay in lodging the FIR has been duly explained as the whole attention was diverted towards removing the injured Bhagga Singh to Civil Hospital, Patti from where he was referred to guru Nanak Hospital, Amritsar. He unfortunately died on the way and the dead body was brought back home and thereafter the matter was reported in the morning. Under these circumstances, some delay was natural. 9. He unfortunately died on the way and the dead body was brought back home and thereafter the matter was reported in the morning. Under these circumstances, some delay was natural. 9. We have heard learned counsel for the appellants and learned Deputy Advocate general for the State of Punjab and with their able assistance perused the evidence. 10. Balwinder Kaur (PW4)-complainant widow of the deceased has deposed that around 8.00 PM at the kotha (Room) on the plot adjacent to the house of Jagga singh, where the accused reside (except Kulwant Singh @ Bau, who was visiting his friend Mehar Singh), her husband Bhagga Singh started fixing electric wire by attaching a kundi connection from the electric wire, which was passing from the house of the accused Mehar Singh. Mehar Singh raised a lalkara that a lesson "for fixing the wire be taught" upon which Kulwant Singh @ Bau gave a balla blow on the head of Bhagga Singh. Lakhwinder Singh @ Kinda S/o Jagga singh gave a paawa blow on the right side of the cheek of Bhagga Singh, balwinder Singh @ Ladi gave two Safeda stick blow on the back side of Bhagga singh. Mehar Singh gave a sickle blow on the hand of his son-Tarsem Singh and on his phalanx of right side. She then deposed that her son-Tarsem Singh came thereafter after hearing the noise. She further deposed that after raising of the raula and accused had fled away, bhagga Singh was removed in a car to Civil Hospital, Patti, where the Doctor referred him to Guru Nanak Dev Hospital, Amritsar and on the way, Bhagga Singh died and t4he dead body was brought back to the house. In her cross-examination, she has admitted that the police station is at a distance of 2 furlongs from the place of occurrence. She has firstly said that Bhagga Singh died in the way to the Hospital at Patti, then again said that he had died on the way to the Hospital. She has admitted in her cross-examination that she cannot give the name of Doctor, who referred Bhagga singh to the hospital at Amritsar nor can she tell the time, when they returned back home. She has further admitted that during the night, she neither informed the police nor the Sarpanch or member panchayat or any other office bearer of the occurrence. She has further admitted that during the night, she neither informed the police nor the Sarpanch or member panchayat or any other office bearer of the occurrence. She has further admitted that the place of occurrence is at about 250 yards from their residential house. She has further submitted that she reported the matter to the police at 12.00 noon and the police reached the spot at 2.30 PM and the dead body was lying in the house, when the police came. She has admitted that the dead-body was removed in a tractor trolley to the police station and thereafter, the same was taken to Patti. She has also admitted in her cross- examination that the accused were arrested on the next day of the occurrence. She further admitted tehat she has not seen Kulwant singh prior to the occurrence. It is also admitted that Mehar Singh came into possession of the property of his cousin Jagga Singh and Bhagga Singh was not liking this fact. She has further stated that the police took into the electric wire in possession, which was the bone of contention. She has further admitted that accused Balwinder Singh and Lakhwinder Singh @ kinda are the sons of Jagga Singh and thus nephew of Bhagga Singh (since deceased ). 11. Pw5-tarsem Singh has deposed in his examination-in-chief on the same lines as that of his mother PW4-complainant, however, he has said that prior to the inflicting of the blows and raising of lalkara, there was an altercation, which took place and on hearing the noise, he had reached the spot, where it was dark and there was no light. He has specifically deposed that Mehar Singh gave two sickle blows, which hit on his left hand and left phalanx. In his cross-examination, he also admitted that the distance between the police station and place of occurrence is 250 yards and that the injured Bhagga Singh had been removed in a car to the Civil Hospital, Patti, where they reached at about 9.30 pm after starting from village at about 8.30 PM. He has further stated in his cross-examination that his father died on the way to the hospital at Patti and then again stated that he died on the way to the hospital at Amritsar. He has further stated in his cross-examination that his father died on the way to the hospital at Patti and then again stated that he died on the way to the hospital at Amritsar. He also admitted that he cannot give name of the Doctor, who referred injured Bhagga singh to the hospital at Amritsar and, the matter was not reported to the police or any Sarpanch or office bearer of the village regarding the occurrence during the night. He has further, in his cross-examination, stated that the FIR was recorded at 12.00 noon and the police did not take into possession the electric wire for which there was a dispute. 12. Pw2 Dr. Jaswant Singh, Medical Officer, Civil Hospital, Patti conducted the post mortem of the dead body on 12.7.1998 at 1.55 PM, which was brought by Head constable Mukhtiar Singh and Constable Kulbir Singh and identified by Balwinder singh and Tarsem Singh (PW5 ). He found two injuries on the dead body; i) Defused swelling with blackening of left eye over left side of the forehead and around the eyes, ii) A lacerted wound over the left side of the forehead above the middle of the eyebrow with defused swelling. A linear fracture of 10 cm on the right side of fronto-parietal region was also found. In his opinion, death was caused due to shock and haemorrhage due to injuries No.1 and 2 which were ante mortem and sufficient to cause death in ordinary course of nature. Probable time between injuries and death was 1 to 6 hours and between death and post mortem was 12 to 24 hours. 13. Pw1-dr. Sukhwinder Singh Sandhu, Medical Officer, PHC Valtoha medico-legally examined Tarsem Singh-PW5 on 13.7.1998 at 5.30 AM and found eight injuries on his person, which were caused by a blunt weapon and were simple in nature. The same being suffered by fall on hard surface could not be ruled out was admitted in his cross examination. 14. From a conjoint and careful examination of the oral testimonies of PW4 and pw5, the alleged eye-witnesses and the aforesaid medical evidence, it emerges that there are material contradictions, which go to the root of the matter in demolishing the prosecution version. 14. From a conjoint and careful examination of the oral testimonies of PW4 and pw5, the alleged eye-witnesses and the aforesaid medical evidence, it emerges that there are material contradictions, which go to the root of the matter in demolishing the prosecution version. PW4- complainant has deposed that after raising lalkara, accused had inflicted the injuries and Tarsem Singh came thereafter on hearing the noise whereas Tarsem Singh has stated that after the lalkara, an altercation had taken place and upon hearing the altercation, he had come at the spot and thereafter has given a vivid description of the occurrence at a place, where it admittedly was dark and there was no light. PW4 has admitted in her cross examination that their residential house from the place of occurrence is at a distance of about 250 yards, therefore, besides the above discrepancy of his arrival at the spot, it is beyond comprehension as to how he could hear the raula from his house at such a distance. PW2-Dr. Jaswant Singh, who conducted the post mortem on 12.7.1998 at 1.55 PM at Civil Hospital, Patti has deposed that the body brought before him was identified by Balwinder Singh and Tarsem Singh. He also found two injuries on the dead body namely on the left side of forehead and around the eye and the other on the right side of the forehead 1 cm above the middle of the eyebrow. The injuries found on the body do not match with the number of injuries stated in the ocular version of PW4 and PW5. The prosecution has tried to explain it by introduction of a injury report Ex. PJ prepared by the investigating Officer Paramjit Singh (PW8 ). In inquest report prepared on 12.7.1998 by the said I. O against column No.10 relating to injuries, it was recorded that "mark of blue on the left eye and Mark of blue on the dead body towards back side of shoulder". It has come on record in the deposition of the investigating Officer-PW8 that the body had been sent for post-mortem at 10.30 a. M after the conduct of the inquest report and we have seen that the post-mortem was conducted at 1.55 PM, therefore, it appears that the said injury report Ex. It has come on record in the deposition of the investigating Officer-PW8 that the body had been sent for post-mortem at 10.30 a. M after the conduct of the inquest report and we have seen that the post-mortem was conducted at 1.55 PM, therefore, it appears that the said injury report Ex. PJ upon which no reliance can be placed at all, was invented/fabricated at a later stage to provide support to the ocular version. We further find that when Tarsem Singh was present at the Civil Hospital, Patti on the night of 11.7.1998 with injured Bhagga Singh and in the afternoon of 12.7.1998 with the dead body, then as to why he was not got examined for the injuries suffered by him during the same occurrence is difficult to comprehend. It is further interesting to observe that Tarsem Singh has been examined at primary Health Centre at Village Valtoha itself at 5.30 AM on 13.7.1998 and instead of admitted two injuries on his left hand by sickle, eight injuries have been found on his person including the one on his head and that too all of them simple in nature and caused with a blunt weapon. Thus, in our opinion, the presence of PW5-Tarsem Singh, a stamped witness at the place of occurrence is highly unlikely and his testimony is unreliable and does not inspire confidence. 15. As regards the presence of other eye-witness (PW4)- complainant also there are serious doubts. The testimony of PW4- complainant also suffers from the same inconsistency regarding injuries. Apart from that, she had specifically admitted in her cross-examination that the police had taken into possession the electric wire, which was the bone of contention or the genesis of the occurrence on that date. It is apparent from the record that no memo of it being taken into possession was made nor was actually taken into possession as is clear from the deposition of the Investigating Officer-PW8. PW4- in her cross-examination has given the time of reporting the matter to the police as 12.00 noon and the fact of police reaching the spot is 2.30 PM. PW4 in her first version after the occurrence to the police (Ex. PE)has clearly stated that a Doctor had treated her husband and in view of his worsening condition, he was referred by the Doctor to Guru Nanak Hospital at Amritsar. PW4 in her first version after the occurrence to the police (Ex. PE)has clearly stated that a Doctor had treated her husband and in view of his worsening condition, he was referred by the Doctor to Guru Nanak Hospital at Amritsar. PW4 like PW5 has also in her cross examination has failed to give the name of the said Doctor, especially when the dead body was taken to the same hospital on the next day for post mortem. The Investigating Officer-PW8 has also not brought this fact into his investigation, which in our view, was very material, because the doctor of the Civil Hospital, Patti would have certainly sent a ruqa to the nearest police station. Therefore, we find that there are material inconsistencies and contradictions in the evidence of PW4 and her testimony also can not be relied being a untruthful witness. 16. As regards the contention regarding delay in lodging the FIR, it has come on record that the police station from the place of occurrence or the residential house, where the dead body was brought back is not more than 2 furlangs. It has also been admitted that the complainant had access to a car in which the injured Bhagga Singh was first taken to the civil hospital, Patti and then towards Amritsar and when he died his dead body was brought back during the night. It has been admitted that during the entire night, the occurrence was neither disclosed to the police nor to any panchayat member. It is also apparent from the testimonies that Kabul Singh and Balwinder Singh had arranged for the car and only Balwinder Singh had accompanied the complainant PW4 and pw5 and the injured Bhagga Singh to Civil Hospital, Patti. Kabul Singh, thus, was in the village from 9.30 PM onwards. Co-villagers Kashmir Singh and joginder Singh also appear to be close to the complainant party as they have been cited as witnesses to the disclosure statements and recoveries of the weapons of offence. In such circumstances, the conduct of the witnesses in lodging the FIR after such a delay is quite unnatural, which raises a legitimate inference that the prosecution version is highly doubtful. 17. The lackadaisical investigations conducted by the Inspector Paramjit Singh, i. O-PW8 are also revealing. No bloodstained earth from the place of occurrence was lifted. In such circumstances, the conduct of the witnesses in lodging the FIR after such a delay is quite unnatural, which raises a legitimate inference that the prosecution version is highly doubtful. 17. The lackadaisical investigations conducted by the Inspector Paramjit Singh, i. O-PW8 are also revealing. No bloodstained earth from the place of occurrence was lifted. The explanation given by the Paramjit Singh I. O that on the intervening night of the commission of the offence i. e 11/12.7.1998, there was rainfall, however, this fact has not been corroborated by any other witness. Neither the electric wire, which was being attached for the kundi connection, which was the genesis of the occurrence, was not taken into possession nor the doctor, who allegedly examined the injured Bhagga Singh at Civil Hospital, Patti and then referred him to Guru nanak Hospital, Amritsar, was joined in the investigation raising a doubt as to whether the dead body was ever taken to Patti that night. Admittedly the clothes of the deceased were also not sent for chemical examination. The cited witnesses of recovery upon disclosure statements of the accused namely Joginder singh and Kashmir Singh were also not got examined. Even the weapons of offence namely Balla, Sickle, Paawa and Safeda stick are of the kind, which are easily available in villages Thus, not proving the recoveries nor connecting these to the accused persons has resulted into being fatal to the prosecution case. 18. It has come in the evidence of complainant-PW4 wife of the deceased that the re-marriage of Charno, the widow of Jagga Singh, the brother of the deceased, to accused Mehar Singh was not to the liking of her deceased husband as he had become incharge of the property of Jagga Singh. Balwinder Singh and lakhwinder Singh, the other two accused are real sons of Jagga Singh and were now happily residing with Mehar Singh and their mother Charno. It is well accepted that the motive is a double edged sword, and in our opinion the false implication of the accused persons cannot be ruled out in view of such circumstances. 19. In view of the aforesaid discussion, we find that the learned trial Court has wrongly relied on the testimonies of PW4 and PW5 and Ex. It is well accepted that the motive is a double edged sword, and in our opinion the false implication of the accused persons cannot be ruled out in view of such circumstances. 19. In view of the aforesaid discussion, we find that the learned trial Court has wrongly relied on the testimonies of PW4 and PW5 and Ex. PJ to record a finding that the accused-appellants are guilty of murder of said Bhagga Singh and causing injuries to Tarsem Singh-PW5, as in our considered opinion, the prosecution has not been able to prove their case against the accused as charged beyond reasonable doubt. Therefore, the crl. A. No.508-DB of 2001 is allowed and the judgment/order dated 24.8.2001 passed by the learned trial Court are set aside and by giving the benefit of doubt to the accused, they are acquitted of all charges. 20. Another appeal bearing Crl. A. No.876-DB of 2007 filed by accused-appellant mehar Singh is disposed of in view of decision passed in Crl. A. No.508-DB of 2001.