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2023 DIGILAW 2167 (PNJ)

Swinder Singh @ Ninder Singh v. State of Punjab

2023-07-14

HARPREET SINGH BRAR

body2023
JUDGMENT : HARPREET SINGH BRAR, J. [1] The above-said two appeals have been preferred against the judgment of conviction and order of sentence dated 11.10.2013 passed by the Ld. Addl. Sessions Judge, Tarn Taran, whereby the appellants were convicted under Section 460 of Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of 10 years each and to pay a fine of Rs.20,000/- each. In default of payment of fine, the appellants were ordered to undergo further rigorous imprisonment for a period of one year each. These appeals are being disposed of by this common judgment as they have arisen out of the same judgment. [2] Criminal Appeal No.S-1063-SB-2014 was admitted by this Court on 11.03.2014 and Criminal Appeal No.S-333-SB-2014 was admitted by this Court on 07.05.2014 respectively. Recovery of fine was ordered to remain stayed during the pendency of the appeals. A perusal of the orders suspending the sentence of the appellants during pendency of the present appeal indicates that each of the appellants has undergone more than 04 years of incarceration. FACTUAL BACKGROUND [3] The brief facts of the prosecution case are that during the intervening night of 17/18th January, 2010 the complainant, namely, Kulwant Kaur wife of Sohan Singh was sleeping in the courtyard of her house along with her husband and youngest son Arvinder and the electric bulb was on. At about 1.30/2.00 p.m., the complainant and her husband woke up on hearing some noise and they found two unidentified persons standing near their cots. The husband of the complainant-Sohan Singh confronted them and asked for what purpose they had come there. When these persons tried to run away, Sohan Singh, husband of the complainant tried to catch them when one of the intruders, armed with a pistol gave a blow with the edge of that pistol near the nose of Sohan Singh. Thereafter, one of the intruders fired a shot at Sohan Singh which hit him at his stomach and he died on the spot after receiving the bullet injury. The complainant Kulwant Kaur and his son Arvinder Singh, both had witnessed the entire occurrence. They raised alarm and both the intruders ran away towards the outer gate. On hearing the firing of a gun shot, brother-inlaw Surjit Singh and nephew Baldev Singh of the complainant along with one Swaran Singh came inside the house of the complainant. The complainant Kulwant Kaur and his son Arvinder Singh, both had witnessed the entire occurrence. They raised alarm and both the intruders ran away towards the outer gate. On hearing the firing of a gun shot, brother-inlaw Surjit Singh and nephew Baldev Singh of the complainant along with one Swaran Singh came inside the house of the complainant. Both the intruders had entered the house of the complainant with an intention to commit robbery and in the process, they had killed her husband Sohan Singh. [4] On the basis of complainant's statement Ex.PA, an FIR was registered. The dead body was sent for postmortem examination. On 15.02.2010, complainant-Kulwant Kaur suffered a supplementary statement to the effect that she could not narrate the real sequence of events as she was frightened. On 18.01.2010, in fact, she had noticed that two persons namely Surjit Singh alias Seeta armed with 12 bore pistol and Nishan Singh had entered her house. These two persons were their neighbours and they started scuffling with her husband Sohan Singh and in the meantime, Swinder Singh alias Ninder Singh armed with pistol, Harjit Singh armed with Gandasi, Karaj Singh alias Baba armed with pistol and Kabal Singh alias Dodhi armed with Kirpan came inside the house. Surjit Singh alias Seeta gave a blow with the edge of pistol on the nose of Sohan Singh and then he fired a shot with his pistol which hit Sohan Singh in his abdomen and then he fired another shot in the air. Sohan Singh, on receiving the gunshot injury, died at the spot and all the assailants fled away from the spot with their respective weapons. [5] The statements of Jeon Singh and Surjit Singh son of Pritam Singh were also recorded on 15.02.2010 to the effect that on the date of occurrence they had seen the accused in the evening making some plans and around 1.30/2.00 a.m. they heard the noise of a shot being fired and also saw all the accused coming out of the house of Sohan Singh but due to fear they did not narrate this incident to anyone. The police after arresting all the accused filed final report under Section 173 Cr.P.C. for the commission of offence punishable under Section 460 of the Indian Penal Code. [6] The prosecution has examined PW1-Kulwant Kaur (complainant), PW2-Arvinder Singh (son of the complainant), PW3-Dr. The police after arresting all the accused filed final report under Section 173 Cr.P.C. for the commission of offence punishable under Section 460 of the Indian Penal Code. [6] The prosecution has examined PW1-Kulwant Kaur (complainant), PW2-Arvinder Singh (son of the complainant), PW3-Dr. Satwinder Singh, Medical Officer who proved the postmortem report of Sohan Singh as Ex.P.2, PW5-Jeon Singh and PW6-Surjit Singh also corroborated their statements made before the police regarding seeing the accused persons fleeing away from the house of Sohan Singh armed with weapons after the occurrence. Investigating Officer SI/SHO-Sawinder Singh was examined as PW12 and ASI Jaspal Singh as PW13 who partly investigated the case and proved the report of FSL Ex.PW13 to establish that the empty cartridges recovered from the spot were fired from the pistol recovered from the possession of accused Surjit Singh alias Seeta. CONTENTIONS [7] The learned counsel for the appellant(s) has contended that the learned trial Court has misread the entire evidence and has not taken into consideration the shortcomings in the prosecution case and that it has not been able to prove the case beyond reasonable shadow of doubt against the appellants. The initial version given by the complainant-Kulwant Kaur (PW1) immediately after the occurrence was with regard to two unidentified persons intruding into her house for committing robbery. The FIR was registered on 18.01.2010 and on 15.02.2010 she recorded her supplementary statement and made a complete u-turn from her initial statement and named six persons as accused. [8] Similarly, the learned counsel for the appellant(s) contends that the testimony of Jeon Singh (PW5) and Surjit Singh (PW6) is highly suspicious and no explanation is forthcoming why they had kept mum till 15.02.2010. [9] On the other hand, learned State counsel has contended that the prosecution had duly proved its case. The weapon of offence was recovered from Surjit Singh alias Seeta and husband of the complainant-Sohan Singh had died due to the injury caused by the fire arm. Two eye-witnesses i.e. Kulwant Kaur (PW1) and her son Arvinder Singh (PW2) have duly supported the case of the prosecution and also identified all the appellants present in the Court during the trial of the case and the testimony of the witnesses finds full corroboration from the medical evidence and, as such, all the appellants have been rightly convicted by the learned trial Court. OBSERVATION AND ANALYSIS [10] Having heard learned counsel for the parties and carefully examining the evidence led by the prosecution with their able assistance, this Court is of the considered opinion that these appeals deserve to be allowed. [11] The complainant-Kulwant Kaur (PW1) in her supplementary statement recorded on 15.02.2010 had named Surjit Singh alias Seeta (since deceased) and Nishan Singh who were present near the cots and these two persons were residing in her neighborhood. The version of the complainant does not inspire confidence with regard to the identity of above-said two accused. It is not discernible from the record that if the assailants were the neighbours of the complainant, why they were not named either by the complainant-Kulwant Kaur (PW-1) or by her son Arvinder Singh (PW2) in their statements recorded on 18.01.2010. [12] The initial version of the complainant- Kulwant Kaur (PW1) was to the extent that two intruders had entered into her house for the purpose of committing robbery and on 15.02.2010 she made a complete u-turn from her earlier statement and named six persons as accused. While appearing as PW1, complainant- Kulwant Kaur made improvements and she was duly confronted with her earlier statement made on 18.01.2010 in her cross-examination. [13] In her statement as PW1-Kulwant Kaur deposed that she along with her son Arvinder Singh and husband Sohan Singh woke up and all of them scuffled with the assailants but the perusal of the record indicates that no injury was found on her person or on the person of her son Arvinder Singh to show any sign of scuffle. PW2-Arvinder Singh also did not disclose the identity of any accused at the time of his initial statement Ex. D.2. PW3-Dr. Satwinder Singh in his affidavit Ex. P.1 described the injuries received by Sohan Singh and also proved his postmortem report as Ex.P.2. The details of the injuries as under:- “Injuries:- i. Lacerated wound 3.5 x 3.5 cm on left hypochonderium region along margin of the wound grease collar present. Margins of the wound blackened and charred. Gut lying outside the wound margins ON Dissection multiple perforations in the instestine in the duodenum, jejunum and illium, colon. Free flow of blood (Full off) present in the abdominal cavity. Multiple lacerations along the mesenteric border. Four pellets recovered from the mesenteric border and intestinal mucosa. Margins of the wound blackened and charred. Gut lying outside the wound margins ON Dissection multiple perforations in the instestine in the duodenum, jejunum and illium, colon. Free flow of blood (Full off) present in the abdominal cavity. Multiple lacerations along the mesenteric border. Four pellets recovered from the mesenteric border and intestinal mucosa. Intenstinal walls ragged, burning, blackning and tattooing along the path of missile. Cap mode of plastic also recovered from the abdominal cavity in the epigastrium region. ii. An abrasion 1 x 0.5 cm cover the right and upper part of chest. iii. 8 teeth bite marks present over the antero-lateral, aspect of right thigh mid one third. iv. An abrasion 1 x 5 x 1cm mark on right ankle. v. Superficial abrasion 1 x 0.5 cm mid 1/3 antero-lateral left leg. vi. Lacerated wound over the left side of nose 3 x 0.5 cm (c-shaped wound) mouth of the C lying towards medial canthus of left eye. Opinion regarding death. Death in this case is due to fire arm injury, which caused multiple intestinal perforation and leads to haemorrhage in the abdominal cavity. Injury No.1 is sufficient to cause death in ordinary course of nature.” [14] A perusal of the affidavit of PW3-Dr. Satwinder Singh would indicate that deceased Sohan Singh had suffered six injuries, out of which one injury was of eight teeth bite marks which were found to be present on his right thigh. As per the ocular version, Surjit Singh alias Seeta had given one injury near the nose of Sohan Singh (deceased) with the edge of his pistol and, thereafter, he fired a shot which hit him in his abdomen. [15] There is no evidence as to how and in which manner the deceased Sohan Singh suffered the remaining injuries especially the eight teeth bite marks found on his right thigh. The testimonies of PW5-Jeon Singh and PW6- Surjit Singh are also doubtful. They have not been able to explain as to why on 18.01.2010, at 1.30/2.00 a.m. when the winter was at its peak, they were present outside the house of complainant-Kulwant Kaur (PW1) and why they kept mum for 27 days in informing the police or any other respectable member of the village after witnessing the occurrence. They have not been able to explain as to why on 18.01.2010, at 1.30/2.00 a.m. when the winter was at its peak, they were present outside the house of complainant-Kulwant Kaur (PW1) and why they kept mum for 27 days in informing the police or any other respectable member of the village after witnessing the occurrence. [16] Jeon Singh while deposing as PW5 had stated that after the occurrence he went to the house of complainant-PW1 Kulwant Kaur and remained there till the arrival of the police but none of the eye-witnesses or the police official had pointed out with regard to his presence at the place of occurrence in the intervening night of 17/18.01.2010. Moreover, the appellants were identified only during trial and admittedly no identification parade in terms of Section 54 (A) of Cr.P.C. was conducted in this case at any stage and first time identification of the accused at the time of the trial would not establish the identity of the assailants. [17] A perusal of the record shows that after the occurrence in the morning, the sniffer dogs of police also carried out the detection process and if the assailants were living in the neighborhood of the complainant, then their presence could have been detected. The medical version does not fully corroborate the ocular version of the prosecution and, as such, the appellants are entitled to the benefit of doubt. Perusal of the evidence does not attribute any overt act to any of the assailants except accused Surjit Singh, who has been specifically attributed a gunshot injury in the abdomen and injury near the nose of deceased Sohan Singh with the edge of pistol. [18] It is a settled law that FIR is neither a substantive piece of evidence nor an encyclopedia to carry every detail of the case of the prosecution. At the same time it has its own probative value for the purpose of recording a finding of a relevant fact on the basis of corroboration. Thus, it is an important piece of evidence for the corroboration of the oral evidence adduced during the trial. Any omission or delay in spelling out the circumstances in which the alleged crime has taken place including detailing the name of the accused and part played by them specially when the accused are known to the witnesses, would make the prosecution case questionable. Any omission or delay in spelling out the circumstances in which the alleged crime has taken place including detailing the name of the accused and part played by them specially when the accused are known to the witnesses, would make the prosecution case questionable. A two Judge Bench of the Hon’ble Supreme Court in Maharaj Singh vs. State of Uttar Pradesh, 1994(5) SCC 188 , speaking through Justice Dr. A.S. Anand has observed the following :- “12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after-thought. On account of delay, the FIR not only gets benefit of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story.” [19] The Hon’ble Supreme Court has examined the importance of naming the accused persons in the FIR and has laid down the ratio that any inordinate and unexplained delay in supplying vital information with regard to the identity of the accused would suffocate the case of the prosecution. In the present case, the FIR was lodged on 18.01.2010 on the statement of PW1– Kulwant Kaur and she has not named of any of the accused in the FIR. Similarly the other eye witness PW2–Arwinder Singh has not named any accused in his statement. There is an unexplained interval between lodging of the FIR on 18.01.2010 and the supplementary statement recorded on 15.02.2010 disclosing the name of the accused. This delay in naming the accused can be overlooked if there is a reasonable explanation. [20] A two Judge Bench of the Hon’ble Supreme Court in Rotash vs. State of Rajasthan, 2006(12) SCC 64 , speaking through Justice S.B. Sinha, has dealt with the similar issue and has observed the following:- “15. The First Information Report, as is well known, is not an encyclopedia of the entire case. It need not contain all the details. [20] A two Judge Bench of the Hon’ble Supreme Court in Rotash vs. State of Rajasthan, 2006(12) SCC 64 , speaking through Justice S.B. Sinha, has dealt with the similar issue and has observed the following:- “15. The First Information Report, as is well known, is not an encyclopedia of the entire case. It need not contain all the details. We, however, although did not intend to ignore the importance of naming of an accused in the First Information Report, but herein we have seen that he had been named in the earliest possible opportunity. Even assuming that P.W.1 did not name him in the First Information Report, we do not find any reason to disbelieve the statement of Mooli Devi-P.W.6. The question is as to whether a person was implicated by way of an after-thought or not must be judged having regard to the entire factual scenario obtaining in the case.” [21] In the present case there is neither any explanation for the delay of 27 days in naming the accused when they were neighbours and residents of the same village nor any other circumstance was brought on record which could remotely suggest that the witnesses have named the accused at the earliest possible opportunity. [22] A two Judge Bench of the Hon’ble Supreme Court in Kirender Sarkar and others vs. State of Assam, AIR 2009 SC 2513 speaking through Justice Dr. Arijit Pasayat held as follows:- “FIR is not substantive evidence and cannot be used for contradicting testimony of the eye witnesses except that may be used for the purpose of contradicting the maker of the report. Thought the importance of naming the accused persons in the FIR cannot be ignored, but names of the accused persons have to be named at the earliest possible opportunity. The question is whether a person was impleaded by way of afterthought or not must be judged regard to the entire factual scenario in each case.” [23] A two Judge Bench of the Hon’ble Supreme Court in Ram Kumar Pande vs. State of M.P., AIR 1975 SC 1026 , speaking through Justice MH Beg, held as follows: - “9. No doubt an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. No doubt an F.I.R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But, in this case, it had been made by the father of the murdered boy to whom all the important facts of the occurrence, so far as they were known up to 9.15 p.m. on 23-3-1970, were bound to have been communicated. If his daughters had seen the appellant inflicting a blow on Harbinder Singh, the father would certainly have mentioned it in the F.I.R. We think that omissions of such important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case.” [24] A two Judge Bench of the Hon’ble Supreme Court in Thulia Kali vs. The State of T.N., 1973 AIR (Supreme Court) 501, speaking through Justice H.R. Khanna, has observed the following: - “First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay of the report not only gets bereft of the advantage of spontaneity danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained.” [25] Therefore, unexplained delay in naming the accused in the present case would render the prosecution case unreliable and there is probability of manipulation regarding the commission and number of people involved in execution of the alleged offence and such unexplained delay is always looked at with suspicion and it would not be safe to convict the accused on the basis of such evidence which goes to the root of controversy. In this regard reliance is placed on Mousam Singha Roy vs. State of West Bengal, (2003) 12 SCC 377 , where a two Judge bench of the Hon’ble Supreme Court, speaking through Justice Santosh Hegde, has observed that it is a settled principle of criminal jurisprudence that more serious the offence, stricter the degree of proof, since a higher degree of assurance is required to convict the accused. CONCLUSION [26] This Court is of the considered opinion that there is hardly any evidence which would indicate the complicity of appellants in the present case. There is no overt act or specific attribution by the complainant or any of the witnesses with regard to the role played by each of the appellants. Only Surjit Singh @ Seeta has been attributed specific injury on the left side of nose with the edge of pistol and a fire arm injury on the abdomen of deceased Sohan Singh. Surjit Singh @ Seeta has already expired during the pendency of the trial. As such, all appellants are liable to be acquitted. [27] In view of the above discussion, both the appeals are allowed and the impugned judgment of conviction and order of sentence dated 11.10.2013 passed by the learned Addl. Sessions Judge, Tarn Taran, is set aside and all the appellants are acquitted of the charges framed against them. [28] All pending application(s), if any, are disposed of accordingly. [29] The case property, if any, may be dealt with as per rules after the expiry of period of limitation for filing the appeal. Record of the case be sent back to the Court below.