Full Judgment Text
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CASE NO.:
Appeal (crl.) 1474 of 2005
PETITIONER:
Paramjit Singh @ Mithu Singh
RESPONDENT:
State of Punjab Through Secretary (Home)
DATE OF JUDGMENT: 31/10/2007
BENCH:
P.P. Naolekar & B. Sudershan Reddy
JUDGMENT:
J U D G M E N T
B.Sudershan Reddy, J.
1. The appellant has preferred this appeal under Section
379 of the Code of Criminal Procedure read with provisions
of the Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970 impugning the judgment and order of
the High Court of Punjab and Haryana in Criminal Appeal
No. 25-DBA of 1995 whereby the High Court reversed the
judgment of acquittal against the appellant, who was tried
along with three other co-accused, recorded by the
Additional Sessions Judge, Sangrur in Sessions Case No. 44
of 1989. The High Court accordingly convicted the appellant
for the offence punishable under Section 302 read with 34
of the Indian Penal Code (IPC) and sentenced to undergo
imprisonment for life and to pay a fine of Rs. 5,000/-, in
default of payment, to undergo rigorous imprisonment for
six months.
2. The prosecution case, in brief, is that the accused
Mukhtiar Singh (A-1) and Gurdial Singh (A-2) and deceased
Harnek Singh were real brothers. The family consists of
eight brothers altogether. Deceased Harnek Singh along
with his wife Tej Kaur and son Gurmail Singh (PW-4) were
living jointly with one of his brother Amar Singh (PW-3).
Gurdev Singh and Dalbara Singh, two other brothers were
residing together whereas the others were residing
separately in their respective houses located in their
agricultural lands. Dalip Singh, father of Gurcharan Singh
(A-3) and Mithu Singh (A-4) were residing separately. Dalip
Singh is stated to have entered into an agreement to sell
his house to Babu Singh, Balak Singh and their sons but the
same could not be fructified into regular sale as Harnek
Singh had interfered in the deal. The accused accordingly
developed grudge as against Harnek Singh over his
unwarranted interference in the sale transaction.
3. On 6.5.1989 about 7.00 p.m. Amar Singh (PW-3) and
deceased Harnek Singh were going towards their houses in
the fields whereas Tej Kaur and Gurmail Singh (PW-4) were
already present in the house. The deceased Harnek Singh and
Amar Singh (PW-3) saw all the four accused standing outside
the house of Mukhtiar Singh(A-1). Mukhtiar Singh(A-1) was
armed with a Sumewali Dang, both Gurcharan Singh @ Charna
(A-3)and the appellant were armed with a gandasa each.
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Gurdial Singh (A-2) shouted a lalkara that Harnek Singh
should be taught a lesson for interfering in Dalip Singh\022s
property deal and he should be killed, on which the rest of
the three accused inflicted several injuries on Harnek
Singh. Amar Singh (PW-3) raised an alarm, which attracted
Tej Kaur and Gurmail Singh to the spot and they too
witnessed the incident. The accused ran away from the scene
of occurrence. Harnek Singh was first removed to his farm
house and then to the Civil Hospital, Longowal by Amar
Singh (PW-3). It was about 9.10 p.m. Dr. Rakesh Jain (PW-
6) having noticed the critical condition of Harnek Singh
immediately referred him to the Civil Hospital, Sangrur.
Dr. Rakesh Jain (PW-6) sent information to SHO, Police
Station, Longowal at about 9.25 p.m. Harnek Singh, however,
died soon after reaching the Civil Hospital, Sangrur. Amar
Singh (PW-3) along with his brother Gurdev Singh left the
hospital and reached the police station, Longowal at about
1.15 a.m. on 7.5.1989 and lodged First Information Report.
Gurmail Singh (PW-4) was at the hospital near the dead
body. The special report sent to the Illaqa Magistrate,
Sangrur reached at 5.00 a.m. The police on the completion
of the investigation filed charge sheet against Gurcharan
Singh @ Charna (A-3) for the offence punishable under
Section 302 of the IPC whereas the other accused were
charged under Section 302/34 of the IPC. The accused
pleaded not guilty.
4. The prosecution in order to establish its case relied
on the evidence of Dr. K.S. Raikhy (PW-1), who performed
the post-mortem examination on the dead body and found six
injuries thereon, three incised and three lacerated; Amar
Singh (PW-3) and Gurmail Singh (PW-4), the two eye
witnesses; ASI, Malikat Singh (PW-5), the Investigating
Officer and Dr. Rakesh Jain (PW-6) who first received the
injured at Civil Hospital, Longowal.
5. The trial court upon appreciation of evidence
available on record acquitted all the accused of the
charges. The trial court recorded finding that the presence
of the eye-witnesses Amar Singh (PW-3) and Gurmail Singh
(PW-4) was unlikely as they were not stamped witnesses and
had not intervened at the time when Harnek Singh was being
belaboured. The court also found that Gurmail Singh (PW-4)
had apparently not been present at the spot as his ocular
version did not correspond with the medical evidence with
regard to the number and situs of the injuries on the dead
body. The trial court also referred to the contents in the
DDR (Exh. DX/1) in which it is stated that the accused were
armed with Sotis and there was no reference to any of the
accused armed with gandasa and accordingly held this
important circumstance itself nullify the prosecution
story. The trial court also held that there was delay in
lodging the First Information Report. The trial court
accordingly acquitted all the accused giving them the
benefit of doubt.
6. The High Court upon re-appreciation of evidence found
that there was no delay in lodging the First Information
Report. The High Court also reversed the finding recorded
by the trial court as regards the presence of the eye-
witnesses as it came to the conclusion that there is no
reason to doubt the presence of Amar Singh (PW-3) and
Gurmail Singh (PW-4) at the scene of occurrence. The High
Court took the view that the presence of eye-witnesses was
absolutely natural and they had good reason for being
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present at the scene of offence. The High Court relied
upon the First Information Report in which it has been
mentioned that the accused were armed with gandasas and
dangs. The High Court found the DDR (Exh. DX/1) is the
photocopy of the original which was not produced in the
court. Be it noted that the prosecution had closed its
evidence on 22.9.1993 and the statements of all the accused
under Section 313 Cr.P.C. had thereafter been recorded and
it is only thereafter the accused moved an application to
recall Amar Singh (PW-3) and Iqbal Rai (PW-7) who had
recorded the DDR (Exh. DX/1) which was allowed by the trial
court. The application was ordered about 4 years after the
closure of evidence. The High Court upon appreciation of
the evidence, however, found that the so-called entry made
in the DDR (Exh. DX/1) by itself may not make any
difference to the prosecution case inasmuch as the evidence
of Iqbal Rai (PW-7) clearly reveals that the First
Information Report had been recorded first and entries in
the DDR were made thereafter. The High Court also found
that the injuries found on the body of the deceased were
inflicted by sharp cutting weapons which finds support from
the medical evidence. The High Court in conclusion held:
\023As per the ocular version, injuries 1,3
and 4 are incised wounds, which had
allegedly been caused by Gurcharan Singh
and Mithu accused and injury No. 2 by
Gurcharan Singh whereas injury No. 5 had
been attributed to Mukhtiar Singh accused.
There is no clear cut evidence as to who
had caused injury No. 6, which had been
detected by Dr. K.S. Raikhy (PW-1) at the
time of post-mortem examination. We also
observe that the Gandasa is a cutting
weapon with a Lathi attached to it. It is,
therefore, possible that a Gandasa could
have been used Lathiwise as well while
causing the lacerated injuries. Mukhtiar
Singh, who was armed with a Dang, has been
attributed one simple lacerated wound 3 cm
x 3 cm in dimension. He is, therefore,
entitled to claim some benefit in an appeal
against acquittal for an incident, which
happened in the year 1989. Gurdial Singh
was unarmed and only a Lalkara has been
attributed to him. To be on the safe side,
he too must be dealt with in the same
manner as Mukhtiar Singh.
We accordingly dismiss the appeal qua
Mukhtiar Singh and Gurdial Singh. We,
however, find that case against Gurcharan
Singh and Mithu stands proved beyond doubt.
The appeal qua them is allowed. Gurcharan
Singh is held guilty for an offence
punishable under Section 302 of the Indian
Penal Code whereas Mithu Singh is held
guilty for the offence punishable under
Section 302/34 thereof. They are sentenced
to undergo imprisonment for life and to
pay a fine of Rs. 5,000/- each and in
default of payment of fine, to undergo
rigorous imprisonment for six months each.
The fine, if paid, shall be paid to Tej
Kaur, the widow of the deceased.\024
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7. This appeal has been preferred by Mithu Singh (A-4)
alone.
8. The learned counsel appearing for the appellant
submitted that the entries made in the DDR in which it has
been mentioned that the accused were armed with Sotis
completely falsify the prosecution story. The learned
counsel made an attempt to contend that the entries were
first made in the DDR based on the First Information
Report made by Amar Singh (PW-3) and only thereafter the
First Information Report has been recorded making
improvements to implicate the accused in the case. The
learned counsel also contended that the presence of Amar
Singh (PW-3) and Gurmail Singh (PW-4) at the scene of
occurrence is highly doubtful for they did not intervene
when the deceased was being attacked. It was also contended
that two injuries were simple in nature out of which one is
alleged to have been caused by the appellant herein and,
therefore, there is no evidence of any common intention to
kill the deceased.
9. The learned counsel for the State of Punjab submitted
that the common intention is evident from the fact that the
appellant was armed with deadly weapon and it is immaterial
as to the nature of the injuries inflicted by the appellant
on the body of the deceased. The learned counsel supported
the findings of the High Court.
10. We have considered the submissions made during the
course of hearing of the appeal and perused the evidence
available on record.
11. We shall first deal with the contention with regard to
delay in lodging the First Information Report. The
evidence available on record reveals that the incident took
place on 6.5.1989 at 7.00 p.m in village Longowal. The
distance between village and police station is about 3 kms.
It is in the evidence of Amar Singh (PW-3) and Gurcharan
Singh (PW-4) that they had immediately removed critically
injured Harnek Singh to their farm house and thereafter to
the Primary Health Center, Longowal in a bullock cart and
reached there at 9.10 p.m. Dr. Rakesh Jain (PW-6) who
attended the injured sent the ruqa (Exh. PN) to the police
station, Longowal at 9.25 p.m.. Having regard to the
grievous nature of injuries and condition of the victim Dr.
Rakesh Jain (PW-6) referred the injured to the Civil
Hospital, Sangrur. The evidence of Dr. Rakesh Jain (PW-6)
in this regard remains unimpeached and there is absolutely
no reason to disbelieve any portion of his evidence. It is
Amar Singh (PW-3) who took the injured to the Civil
Hospital at Longowal and thereafter to the Hospital at
Sangrur where the injured succumbed to injuries. It is only
thereafter Amar Singh (PW-3) went to police station which
is at a distance of about 9-10 kms. from the hospital and
lodged First Information Report. Amar Singh (PW-3) was
present not only at the scene of offence but accompanied
the injured to Civil Hospital, Longowal and thereafter to
the Hospital at Sangrur. It is only after Harnek Singh
died in the hospital Amar Singh (PW-3) left to police
station to lodge First Information Report at 1.15 a.m on
7.5.1989. The special report sent by the police reached the
Illaqa Magistrate at 5.00 a.m. In order to determine
whether the FIR was lodged at the time it is alleged to
have been recorded, the courts normally look for certain
external checks. One of the checks is the receipt of the
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copy of the FIR, called a special report, by the Illaqa
Magistrate. In this case, the report has been received by
the Illaqa Magistrate in time. The second external check
equally important is the sending of the copy of the FIR
along with the dead body and its reference in the inquest
report. This requirement is also complied with in the
present case. The inquest report clearly refers to the
lodging of the First Information Report by Amar Singh (PW-
3) at 1.15 a.m. on 7.5.1989 in Police Station, Longowal and
it also refers to the registration of the First Information
Report and dispatch of special report for their delivery to
the concerned authorities. Thereafter, Malkiat Singh, ASI
(PW-5) along with some constables and Amar Singh (PW-3)
rushed to the Civil Hospital, Sangrur where the inquest
report has been prepared. The sequence of events clearly
reveals that there was any unexplained and unreasonable
delay in lodging the FIR. In the circumstances, it cannot
be said that the FIR was ante-timed and brought into
existence after some deliberations.
12. We do not find any merit in the contention that the
entries made in the DDR (Exh. DX/1) in which it has been
mentioned that the accused were armed with Sotis falsify
the First Information Report lodged by Amar Singh (PW-3).
We have already noted that the original of the DDR has not
been filed into the court and what has been filed was only
a photocopy and that too at the instance of the accused
after four years of the closure of evidence. It is clearly
evident from the statement of Iqbal Rai (PW-7) that the
First Information Report was recorded first and the DDR
thereafter. He further stated that the DDR had been
recorded on the basis of the facts recorded in the First
Information Report. We find it difficult to comprehend as
to how totally a different version is found in DDR which
is said to be a photocopy of DDR. There is obviously
something more than meets the eye. The contention that
under the Punjab Police Rules information must be reduced
to writing and be entered in the police station daily diary
and only thereafter the First Information Report is to be
issued is absolutely untenable. The relevant rule says:
\023Every information covered by Section 154
Criminal Procedure Code must be reduced to
writing as provided in that Section and the
substance thereof must be entered in the
police station daily diary which is the book
provided for the purpose.\024
A bare reading of the rule makes it clear that every
information relating to the commission of a cognizable
offence, if given orally to an officer-in-charge of a
police station shall be reduced to writing and the
substance thereof shall be entered in a book to be kept in
such form as may be prescribed and only thereafter in the
Police Station diary.
13. Chapter XII of the Code of Criminal Procedure, 1973
deals with information to the police and their powers to
investigate. Investigation into allegations relating to
commission of a cognizable offence starts on information
given to an Officer-in-charge of a Police Station and
recorded under Section 154 of the Code. If from information
so received or otherwise, the Officer-in-charge of the
Police Station, if satisfied that such information
discloses the commission of a cognizable offence, shall
either investigate the case himself or direct the
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investigation to any police officer subordinate to him,
in the manner provided by the Code. The procedure as
regards the registration of information relating to the
commission of a cognizable offence and the procedure for
investigation is structured and regulated by Chapter XII of
the Code. The procedure prescribed is required to be
followed scrupulously by the Officer-in-charge of the
Police Station. The Punjab Police Rules do not in any
manner override the provisions of the Code of Criminal
Procedure. The said rules are meant for the guidance of the
Police Officers in the State and supplement the provisions
of the Code of Criminal Procedure but not supplant them. In
our considered opinion the truth and veracity of contents
of the FIR cannot in all cases be tested with a reference
to the entries made in the police station daily diary which
is maintained under the Punjab Police Rules. This
avoidable controversy need not detain us any further since
it is well settled that even a defect, if any, found in
investigation, however, serious has no direct bearing on
the competence or the procedure relating to the cognizance
or the trial. A defect or procedural irregularity, if any,
in investigation itself cannot vitiate and nullify the
trial based on such erroneous investigation.
14. Amar Singh (PW-3) clearly and categorically stated
that the entries in the DDR had been recorded on the basis
of the facts given in the First Information Report. It is
difficult to place any reliance upon the photocopy of the
DDR that was produced before the court after four years of
the closure of evidence. There is no explanation as to the
fate of original DDR. It is not possible to doubt the
timing and contents of FIR based on the entries made in
DDR. We have serious doubts about the genuineness of the
very document DDR. We wish to say no more on this aspect of
the matter.
15. In our considered opinion there is no basis to contend
that Amar Singh (PW-3) and Gurmail Singh (PW-4) were not
present at the scene of offence and did not witness the
incident. The contention was that Amar Singh (PW-3) and
Gurmail Singh (PW-4) had not intervened to save Harnek
Singh when he was being attacked by the accused. The
evidence available on record reveals that Amar Singh (PW-3)
and deceased Harnek Singh had almost reached their house
when they had been way laid by the accused. The appellant
and Gurcharan Singh (A-3) were armed with gandasas and
Mukhtiar Singh (A-1) with a dang. As has been rightly
observed by the High Court that it would be well nigh
impossible to apply a universal yard stick as to how a
person would react to a given situation. The presence of
Amar Singh (PW-3) and Gurmail Singh (PW-4) cannot be
doubted on the ground that they have not made any attempt
to rescue the deceased. We cannot ignore the fact that the
accused were armed with deadly weapons and the same may
have deterred PW-3 and PW-4 in making any attempt to rescue
the victim when he was under attack.
16. It is true that Gurmail Singh (PW-4) had not been
able to spell out accurately the situs of the injuries on
the dead body but the same would not make his presence
doubtful. The victim was under attack from a group of
persons armed with deadly weapons. He must have made
attempts to save himself from the attack and in the process
may have not remained static without moving one way or the
other. One cannot expect that in such a situation the
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witness would graphically describe the nature of injuries
and spell out accurately the situs of the injuries on the
body of the victim. Their presence at the scene of offence
is evident from the First Information Report itself which
was lodged by Amar Singh (PW-3) himself. The fact remains
Harnek Singh had been way laid by the four accused and
thereafter inflicted several blows with the gandasas and
dang.
17. It is required to notice that Dr. K.S. Raikhy (PW-1)
had found six injuries on the dead body at the time of
post-mortem examination. The injuries found on the body
were:
1. Incised wound 12 cms x 5 cms x
bone deep on the right parieto-
temporal region, wound placed
obliquely bone cut and brain
matter and mengis protruding
through the wound; dark clotted
blood was present on the wound. On
dissection underlying bone was
cut, mengis cut. The brain matter
protruding through the wound
haematoma was present.
2. Lacerated wound 3 cms x 2 cms on
the left clevicular region. The
wound was skin deep. On dissection
underlying bone was intact.
Haematoma was present.
3. Incised wound 3 cms x 2 cms x 1 cm
on the posterior lateral aspect of
left forearm 2 cms above the wrist
joint. Dark blood clot was
present. On dissection the
underlying bone was intact
haematoma was present.
4. Incised wound 10 cms x 3 cms x
bone deep on the antero lateral
aspect of left leg, wound placed
obliquely 3 cms below the knee
joint. Dark blood clot was present
in the wound. On dissection the
underlying tibia bone was cut.
Haematoma was present.
5. Lacerated wound 3 cms x 3 cms x
skin deep on the anterior aspect
of left leg 10 cms below the
tibial tuberosity. Dark blood clot
was present. On dissection the
underlying bone was intact.
6. Lacerated wound 4 cms x 2 cms x
bone deep on the antero lateral
aspect of right leg 3 cms below
the tibial tuberosity. Dark blood
clot was present. On dissection
the underlying bone was intact.
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It is in the evidence of PW-3 that Gurcharan Singh
inflicted injury No. 1 by giving a gandasa blow on the
head of the victim and whereas the appellant herein
inflicted injury Nos. 3 and 4 gandasa blows on his right
leg below the knee and another blow on the left side of the
chest using the reverse side of the gandasa. The appellant
was armed with deadly weapon namely gandasa. Dr. K.S.
Raikhy (PW-1) stated in his evidence that the cause of
death was shock and haemorrhage and all the injuries were
ate-mortem in nature. It is further stated by him that
injury No. 1 itself was sufficient to cause death in the
ordinary course of nature.
18. The learned counsel for the appellants further
submitted that the injuries inflicted by the appellant were
not sufficient to cause the death of the victim and,
therefore, the common intention to kill is not evident and
therefore, he cannot be convicted for the offence
punishable under Section 302 read with Section 34 of the
IPC. We are unable to agree. The evidence of PW-3 and 4
the direct witnesses is consistent and they had deposed
that the appellant inflicted injuries with gandasa to kill
the deceased. The fact that the appellant inflicted
injuries with the deadly weapon itself shows that he had
also shared the common intention. In order to convict the
person vicariously under Section 34, it is not necessary to
prove that each and every one of them had indulged in such
overt act inflicting deadly injuries. It is enough if the
material available on record discloses that the overt act
of one or more of the accused was or were done in
furtherance of common intention. The common intention
shared by the appellant is evident from the fact that he
was armed with deadly weapon and inflicted two injuries on
the victim. All the accused attacked the deceased and
caused injuries in furtherance of the common intention to
murder the deceased. In such a situation the nature of
injuries inflicted by the appellant on the victim and
whether those injuries were sufficient in the ordinary
course to cause death pales into insignificance. The
appellant was not a curious onlooker and had not
accompanied the assailant who gave a deadly blow out of any
ideal curiosity. Each one of them is liable for that act of
murder as if the act of murder was done by each one of
them. It is true that if the High Court had adopted this
reasoning even Mukhtiar Singh (A-1) and Gurdial Singh (A-2)
could not have escaped from conviction. However, we do not
propose to express any firm opinion on that aspect of the
matter since there is no appeal by the State against their
acquittal.
19. For the aforesaid reasons we find no merit in this
appeal. The appeal shall accordingly stand dismissed.