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2010 DIGILAW 662 (PNJ)

Jaspal Alias Tota v. State Of Punjab

2010-01-27

HEMANT GUPTA, JASWANT SINGH

body2010
Judgment Jaswant Singh, J. 1. Convict-appellant Jaspal @ Tota is in appeal against the judgment and order dated 8.5.2001 passed by the learned Sessions Judge, Jalandhar, convicting him under Sec.449 and 302 IPC and sentencing him to undergo RI for ten years and to pay fine of Rs.5000/- or in default of payment of fine to undergo RI for further period of three months for the offence under Sec.449 IPC and for offence under Sec.302 imprisonment for life and to pay fine of Rs.5000/- or in default of payment of fine to undergo RI for further period of three months. Substantive sentences have been ordered to run concurrently. 2. Swaran Singh PW7- the complainant eye witness has stated in his statement ex. PK that he is resident of Village Khurampur, PS Mehatpur and has four children. The eldest son Jaspal Singh is married and living separately, the next was deceased Gurinderpal Singh @ Bittu, daughter Pammi and youngest son nachhatar. 3. The prosecution case as per FIR Ex. PK/2, recorded on the statement of complainant eye witness Swaran Singh PW7 on 8.9.1999 at 10.40 PM at Bus Stand mehatpur is that at about 8.30 PM, complainant eye-witness Swaran Singh PW7 alongwith his deceased son Gurinderpal Singh @ Bittu on hearing whistles in the street came out of their house. They found Sarbjit @ Sabba son of Malkiat Ram and Jaspal @ Tota son of Gurmej @ Bhullar blowing whistles while standing in the street. At this deceased Gurinderpal Singh @ Bittu advised both of them not to blow whistles and to go away, upon which Sarabjit @ Sabba and accused appellant Jaspal @ Tota threatened deceased that he will be taught a lesson for preventing them. After about half an hour i. e. at 9 PM when complainant eye-witness Swaran Singh PW7 and his deceased son Gurinderpal Singh @ Bittu were present in their house, accused appellant Jaspal @ Tota armed with datar (sickle) and Sarabjit @ Sabba, who was empty handed barged into their house. Thereafter, Sarabjit @ Sabba twisted the left arm of deceased Gurinderpal Singh @ Bittu which was brought to his (Bittus) back and exhorted accused appellant jaspal @ Tota to give sickle blow so as not to leave him alive that day. Thereafter, Sarabjit @ Sabba twisted the left arm of deceased Gurinderpal Singh @ Bittu which was brought to his (Bittus) back and exhorted accused appellant jaspal @ Tota to give sickle blow so as not to leave him alive that day. Upon this, accused appellant Jaspal @ Tota gave a sickle blow on the right side of chest of deceased Gurinderpal Singh @ bittu followed by another sickle blow under the left arm pit of the deceased. At this, Gurinderpal Singh @ Bittu, besmeared with blood, fell down on the ground. He was given two more sickle blows on his right foot by accused appellant Jaspal @ Tota besides receiving kick blows from both the assailants. Complainant eye-witness Swaran Singh PW7 and deceased Gurinderpal Singh @ Bittu raised alarm "mar ditta, mar ditta" which attracted Sarwan Ram (PW8 ). Deceased gurinderpal Singh @ Bittu was got released from the clutches of assailants by swaran Singh PW7 and Sarwan Ram s/o Girdhari Lal PW8. Thereafter the accused ran away from the spot alongwith their weapon. Deceased Gurinderpal Singh @ bittu was taken to Government Hospital, Mehatpur by PWs Swaran Singh and Sarwan ram s/o Girdhari Lal where he was declared brought dead. In this backdrop, police action was requested. 4. After recording the aforesaid statement Ex. PK of PW7 Swaran Singh, SI Piara singh PW12, through Constable Balwant Singh, sent ruqa Ex. PK/1 to PS Mehatpur for registration of a case and he himself proceeded to Primary Health Center, mehatpur accompanied by complainant eye witness Swaran Singh PW7 and his other companions. On the basis of ruqa Ex. PK/1 sent by SI Piara Singh PW12, recording of FIR Ex. PK/2 under Sections 302/34 which commenced at 11.30 PM was completed at 12.40 PM in PS Nakodar, situated at a distance of 5 kilometers from the place of occurrence. Special report was received by the Illaqa Magistrate at 2.15 AM on 9.9.1999. 5. On reaching Primary Health Center, Mehatpur, PW 12 SI Piara Singh found the dead body of Gurinderpal Singh @ Bittu lying there. He prepared inquest report ex. PG of the dead body in the presence of Jaspal Singh PW (given up as unnecessary by Public Prosecutor vide statement dated 7.8.2000) and Swaran singh PW7. After sending the dead body to Civil Hospital, Nakodar, for post mortem examination vide request Ex. He prepared inquest report ex. PG of the dead body in the presence of Jaspal Singh PW (given up as unnecessary by Public Prosecutor vide statement dated 7.8.2000) and Swaran singh PW7. After sending the dead body to Civil Hospital, Nakodar, for post mortem examination vide request Ex. PE- through HC Pirthipal Singh and Constable balwinder Singh- PW12 SI Piara Singh himself went to the place of occurrence. From there he picked up blood stained earth, made it into a sealed parcel and took the same into possession vide memo Ex. PD. He prepared rough site plan ex. PX of the place of occurrence and thereafter conducted raid at the house of the accused persons who were not found present there. Clothes of deceased gurinderpal Singh @ Bittu, produced by HC Pirthipal Singh, were taken into possession by PW 12 SI Piara Singh vide memo Ex. PS and converted into a sealed parcel. On reaching Police Station, PW12 deposited the sealed parcels with MHC jagjit Singh. 6. On 10.9.1999, on receiving secret information, PW 12 SI Piara Singh, at the pointing out of Darshan Singh, arrested accused appellant Jaspal @ Tota and sarabjit @ Sabba from the bus shelter. Thereafter, further investigation was carried out by PW11 ASI Sarup Singh. He conducted personal search of both the accused and prepared personal search memos Ex. PU and PV of accused appellant Jaspal @ Tota and Sarbjit Singh @ Sabba respectively. On his interrogation on 12.9.1999 accused Jaspal @ Tota made a disclosure statement Ex. PL that he had kept concealed a datar in the roof of a shann (thatched roof) in the sarkare and he led the police party to the place of concealment from where a blood stained datar was recovered which was taken into possession vide recovery memo Ex. PM and Ex. PL/1 is the rough sketch of the same. Rough site plan of the place of recovery of datar is Ex. PV/1. The said datar was deposited with the MHC in a sealed parcel. 7. After completion of the investigation challan was submitted in the court. The learned Sessions Judge, Jalandhar charged both the accused under Section 302 read with Sec.34 IPC, to which charges the accused pleaded not guilty and claimed trial. 8. The prosecution in support of its case examined various witnesses. Thereafter, statements of accused under Sec.313 Cr. 7. After completion of the investigation challan was submitted in the court. The learned Sessions Judge, Jalandhar charged both the accused under Section 302 read with Sec.34 IPC, to which charges the accused pleaded not guilty and claimed trial. 8. The prosecution in support of its case examined various witnesses. Thereafter, statements of accused under Sec.313 Cr. P. C. , were recorded, in which they denied prosecution allegations against them and stated that they were innocent and had been falsely implicated due to enmity. They described PWs as false. They further stated that the witnesses were relatives and friends of the deceased, who was having enmity with several persons in the Village and was murdered by some unknown person. Accused appellant Jaspal @ Tota denied any recovery having been effected from him. In their defence, they did not lead any evidence. 9. The learned Additional Sessions Judge, after hearing both sides and evaluating the evidence, acquitted co-accused Sarabjit @ Sabba of the charges levelled against him holding that his mere presence, if any, will not be sufficient to convict him with the aid of Sec.34 and that prosecution case against him was not proved beyond doubt. However, accused-appellant Jaspal @ tota was held guilty for the commission of offence under Sec.449 and 302 ipc and accordingly convicted and sentenced, as stated above. 10. We have heard learned counsel for the parties and with their able assistance have gone through the evidence. 11. Learned counsel for the appellant has argued that in view of the acquittal of co-accused Sarbjit @ Sabba the appellant on the basis of the same evidence also deserves similar treatment. 12. The argument is wholly misconceived. The only role attributed to co-accused sarbjit @ Sabba is that that he twisted the left arm of the deceased Bittu and then asked the appellant Jaspal Singh @ Tota to give a datar blow to deceased and that he should not be left alive. Further role attributed to him is that after Bittu had fallen down on receiving sickle blow he was given kick blows by sarabjit @ Sabba. PW-2 Dr. Navpreet Singh, who had conducted the post mortem examination on next day of occurrence had found only five incised wounds and it was specifically opined by him that there was no lacerated wound, abrasion or contusion on the person of the deceased. PW-2 Dr. Navpreet Singh, who had conducted the post mortem examination on next day of occurrence had found only five incised wounds and it was specifically opined by him that there was no lacerated wound, abrasion or contusion on the person of the deceased. The learned trial Court on the basis of aforesaid evidence and the fact that sarbjit @ Sabba was not armed with any weapon, has held that his mere presence, if any, will not be sufficient to take the help of Sec.34 IPC and as a matter of abundant caution it was further held that prosecution case against sarbjit @ Sabba is not proved beyond reasonable doubt and hence acquitted him of the charge. On the contrary, the case against the appellant is of clear cut and consistent nature about the manner in which he inflicted fatal injuries which is supported by medical evidence of PW2 Dr. Navpreet Singh. Therefore, the contention of the learned counsel is outrightly rejected. 13. It was then argued by the learned counsel for the appellant that occurrence had taken place in a residential area situated in the heart of the village and yet no independent witness had been joined. It is well accepted that non-association of independent witnesses by itself is not sufficient to reject the prosecution case if the witnesses associated, who may be relatives, are natural and truthful. In this case the testimony of PW7 Swaran Singh is reliable, which is further corroborated by the medical evidence. PW8 Sarwan Ram although was declared hostile yet from his testimony the case of the prosecution is fully corroborated. It is also well accepted by the Courts that there is a general tendency of the residents of an area not to associate themselves with the investigation for the fear of unnecessary harassment by the police and by the protracted procedures in courts apart from inviting the wrath of the accused party. Therefore, this contention is also rejected. 14. The next argument raised on behalf of the appellant was that Swaran Singh pw7, the alleged eye witness was not present at the place of occurrence as has been stated by PW8 Sarwan Ram, another eye witness and therefore, there is an infirmity in the evidence which raises a doubt in the prosecution version. 15. Pw7 Swaran Singh is the father of the deceased. 15. Pw7 Swaran Singh is the father of the deceased. He has deposed that on 8.9.1999 at about 9 pm he alongwith his son Gurinderpal Singh @ Bittu was present in their house when they heard noise of whistling in the street. They both went out and saw accused Jaspal @ Tota and Sarabjit @ Sabba standing there and whistling. His son asked them to stop as their was a household of ladies and girls. At this the accused said that they will teach him a lesson after sometime. Then after about half an hour they both came back and entered the house. Jaspal @ Tota was armed with a datar and Sarbjit @ Sabba was empty handed but raising lalkaras. Then Sarabjit @ Sabba twisted left arm of his son and Jaspal @ Tota gave a datar blow hitting Gurinderpal Singh @ Bittu on right side of his chest. He gave another blow hitting Bittu on the left side of waist. Upon this, Bittu fell down on the ground and accused Jaspal @ Tota gave further datar blows on his person while he was lying fallen. He further stated that he and Bittu raised raula "mar ditta, mar ditta", and Sarwan Ram PW8 had come to the spot. Thereafter, accused with his weapon ran away by going on the roof. Soon after the occurrence injured Gurinderpal @ Bittu was taken to PHC mehatpur at about 9.45 pm as per the testimony of PW1 Dr. Sukhwinder Kaur, Medical Officer posted there. Although Sarwan ram PW8 in his statement has stated that Swaran Singh PW7 was not present there at the time of occurrence, however, in his deposition he has clearly stated that he had seen Jaspal @ Tota inflicting injuries on the person of Gurinderpal @ Bittu on the right side of his chest and left side of the waist. In his cross examination by the Public Prosecutor he stated that "it is correct that when I reached mother of the deceased Gurinderpal was not there in the house but swaran Singh was there. It is correct that injuries were caused in the presence of Swaran Singh. It is correct that I had deposed about the presence of the mother in the house and coming of Swaran Singh later on just as I was perplexed. It is correct that injuries were caused in the presence of Swaran Singh. It is correct that I had deposed about the presence of the mother in the house and coming of Swaran Singh later on just as I was perplexed. " Therefore, in our opinion, no reliance can be placed on the version of PW8 Sarwan Ram to suggest that PW7 Swaran Singh was not present at the place of occurrence. It is further apparent from the record that PW7 Swaran singh has a butcher shop which is only 100 yards from his residence. It is not unnatural for him to be present at the house at the time of occurrence. The version of PW7 is consistent and finds corroboration from the testimony of other witnesses as also the medical evidence. 16. It was next argued that PW2 Dr. Navpreet Singh found five injuries and injury no.1 was an incised wound outside the pinna of left ear which has not been explained in the FIR. It was also argued that PW8 Sarwan Ram was introduced as a chance witness and therefore, no reliance on his testimony can be placed. 17. It is also well settled that an FIR is not a complete encyclopedia of all the injuries and a slight discrepancy would not be material. In the present case the eye witness account more or less is in conformity with the medical evidence. It has also come in evidence that PW8 Sarwan Ram resides about 100 yards away from the place of occurrence and has a butcher shop adjoining the shop of PW7 Swaran Singh. Therefore, it is also not unnatural and improbable for him to be present in the street at the relevant point of time and enter the house where the occurrence took place and witness the same. Therefore, the arguments raised are devoid of any merit and hence rejected. 18. It was then contended that no reliance can be placed on the recovery made in pursuance to the alleged disclosure statement made on 12.9.1999, after the arrest of accused Jaspal @ Tota on 10.9.1999 as the disclosure statement could not be said to be voluntary having been made on the third day of his interrogation. In support, reference was made to para 12 of the judgment rendered by Honble the Supreme Court in Rammi @ Rameshwar vs. State of Madhya pradesh, 1999 (4) RCR (Criminal) 246. In support, reference was made to para 12 of the judgment rendered by Honble the Supreme Court in Rammi @ Rameshwar vs. State of Madhya pradesh, 1999 (4) RCR (Criminal) 246. 19. On examining the cited judgment we find that the facts of that case are distinguishable. In that case the Investigating Officer had stated in his evidence that the accused were arrested on the succeeding day of occurrence from a public place and they were interrogated by him. However, to the contrary pw12, driver of the bus had stated in his evidence that after he reached the police station on the same evening of occurrence he saw the three accused inside the police station. It is in this context that the Court found that there was material discrepancy regarding the time when the police took the accused in custody. If PW13, the Investigating officer was correct and accused were arrested on the succeeding day of occurrence then the accused had the occasion to conceal the weapon but if PW-12 was correct then the accused would have been interrogated on the same day of occurrence in which case they would not have had such an opportunity to conceal the weapon. It is in relation to this scrutiny that the Court did not place any reliance on the evidence of PW13, the Investigating Officer regarding the recovery of weapon at the instance of the accused, and held that the same was not voluntary. In the present case, admittedly both the accused were arrested after two days of the occurrence i. e. on 10.9.1999. It has come in the evidence of PW7 Swaran Singh that accused Jaspal @ Tota had fled with his weapon from the roof of his house. He further, in his cross examination, has admitted that the house of the accused Jaspal @ Tota adjoins his house. He had made a shann near the common wall. He has also stated that Jaspal @ Tota had got recovered a blood stained datar Ex. P1 in his presence, on 12.9.1999. It is further discernible from the testimony of ASI Sarup Singh, PW11, who had interrogated the accused Jaspal @ Tota on 12.9.1999 and before whom the said disclosure statement and recovery of blood stained datar was effected. He has also stated that Jaspal @ Tota had got recovered a blood stained datar Ex. P1 in his presence, on 12.9.1999. It is further discernible from the testimony of ASI Sarup Singh, PW11, who had interrogated the accused Jaspal @ Tota on 12.9.1999 and before whom the said disclosure statement and recovery of blood stained datar was effected. He further in his cross examination stated that Jaspal @ Tota was interrogated on 10.9.1999 and no time was there for his interrogation on 11.9.1999 and then he was interrogated on 12.9.1999 at 10 am in the police station whereupon in the presence of PW7 Swaran Singh he made the disclosure statement and was taken to village at about 11 am and recovery of datar was effected from the roof of shann, 1-1/2 feet away from the common wall. Thus, in the facts of the case in hand where the accused had every opportunity to conceal the weapon of offence it cannot be said that his disclosure statement was not voluntary. Even otherwise it cannot be accepted as a proposition of law that the disclosure would not be voluntary if the same is made on the third day of interrogation. Therefore, this argument is also rejected. 20. It was also argued that opinion of the Doctor was not sought as to whether the injuries found on the person of deceased Bittu could be inflicted with sickle as it was not shown to him. Reliance was placed on para 8 of the judgment of Honble the Supreme Court in Ishwar Singh V/s. The State of U. P. , AIR 1976 SC 2423. We have gone through the judgment and find that the facts of the same are distinguishable. In the reported case there were five armed accused. One was armed with a ballam and the rest with lathis. The complainant and the victim were also armed with lathis and both sides suffered injuries. The post mortem examination of the deceased therein had revealed a punctured wound as well as lacerated and abrasions. The doctor who had conducted the post mortem, in his cross examination, admitted that he did not know the difference between a ballam and a bhala. The complainant and the victim were also armed with lathis and both sides suffered injuries. The post mortem examination of the deceased therein had revealed a punctured wound as well as lacerated and abrasions. The doctor who had conducted the post mortem, in his cross examination, admitted that he did not know the difference between a ballam and a bhala. It is in this context that it was observed that had the doctor seen the weapons seized from the house of the parties it might have been possible for him to say which of that caused the fatal injury. It was further observed that it was the duty of the prosecution and no less of the Court to see that the alleged weapon of offence was shown to the medical witness and invited his opinion as it was impossible to say with certainty in that case whether the injury was caused with ballam or bhala and who had actually caused the injury. In the case in hand, the situation is entirely different. The eye witness version has specifically attributed the injuries caused by sickle which is fully corroborated by presence of five incised wounds on the person of the deceased found by PW2 Dr. Navpreet Singh who conducted the post mortem. The sickle was got recovered by the appellant which was found to be stained with human blood as per FSL report Ex PY. Moreover, the place of occurrence is also established by the FSL Report as the earth lifted from there was also stained with human blood. Therefore, there is absolutely no discrepancy in the medical evidence or eye witness account of the PWs. 21. On examination of the material available on record we further find that the accused appellant had a motive to kill the deceased. It has come on record that deceased, complainant and the accused were neighbours and their relations were strained as is reflected from suggestion put to PW7 Swaran Singh and also stated by Jaspal Singh in his statement under Sec.313 Cr. PC. It has been proved that prior to the occurrence accused Jaspal @ Tota alongwith Sarbjit @ Sabba were found whistling in the street in front of the house of the complainant. The deceased had asked the accused to stop whistling and to go away as their was a household of ladies and girls. PC. It has been proved that prior to the occurrence accused Jaspal @ Tota alongwith Sarbjit @ Sabba were found whistling in the street in front of the house of the complainant. The deceased had asked the accused to stop whistling and to go away as their was a household of ladies and girls. Upon this, the accused had threatened the deceased that he will be taught a lesson for preventing them. Thereafter, the accused came back armed with a sickle and entered their house with an intention to cause harm to the deceased, who succumbed to the sickle blows inflicted by accused appellant jaspal @ Tota. 22. No other point was raised. 23. For the reasons recorded above,finding no merit in this appeal the same is hereby dismissed.