Full Judgment Text
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CASE NO.:
Appeal (crl.) 916 of 2003
PETITIONER:
Harjinder Singh @ Bhola
RESPONDENT:
State of Punjab
DATE OF JUDGMENT: 27/07/2004
BENCH:
P.VENKATARAMA REDDI & B.P. SINGH.
JUDGMENT:
J U D G M E N T
P.VENKATARAMA REDDI, J.
Three persons including the appellant herein, were charged
for the murder of Gurpreet Singh on the night of 30th January,
1994, at village Ranguwal. The appellant together with one
Manjit Singh was charged under Section 302 IPC, read with
Section 34 IPC. It appears that the second accused Manjit Singh
has been absconding and the trial proceeded only against the
appellant. The other accused, namely Sohan Singh, who was
charged under Section 302 read with Section 109 IPC, died
during the course of trial. The Sessions Court convicted the
appellant under Section 302 read with Section 34 I.P.C and
sentenced him to life imprisonment. The High Court upheld the
conviction and dismissed the appeal.
The prosecution case, as revealed by the FIR lodged by
Mohinder Singh, the father of the deceased and his deposition in
Court is as under:
On the crucial date, when the informant (P.W.3) returned
to his house at about 7 p.m., his wife told him that their son
Gurpreet Singh left the house at about 5 p.m in the company of
the two accused as the accused wanted his presence at Jorahan
Village for settling the dispute between Jarnail Singh and Ranjit
Singh (P.W.4). As his son did not return till 7.30 p.m., Mohinder
Singh (P.W.3) decided to search for him and he first went to
village Jorahan. Ranjit Singh (P.W.4) also joined him in the
search at Jorahan which according to the evidence of the
Investigating Officer (P.W.11) is at a distance of about 1.5 kms.
from Ranguwal. Not finding him there, P.W.3 and P.W.4 were
coming back to Village Ranguwal. It was about 10 p.m (9 or 9.15
p.m as per the deposition) when they reached the Primary School
at Ranguwal. They witnessed the attack on the deceased by the
two accused in front of the Primary School building. The
appellant placed a ’Pharna’ (scarf) around the neck of the
deceased after pushing him down to the ground and he continued
to press the neck with Pharna. The other accused namely, Manjit
Singh took out knife from his pocket and inflicted injuries on the
face of the deceased. At that stage P.Ws. 3 and 4 raised hue and
cry. They were warned and threatened to leave the place. Soon
after the accused left the place, P.Ws. 3 and 4 were able to go to
the spot and noticed that Gurpreet Singh succumbed to the
injuries. P.W.3 claimed to have witnessed the occurrence in
moonlight and also with the aid of a torch. Some persons
including Chowkidar Nahar Singh and his servant Pritam Singh
came to the spot immediately after the occurrence. Leaving
them with the dead body, P.Ws. 3 and 4 set out to the police
station on motorcycle (moped) for reporting the matter.
The motive is said to be that the deceased was helping
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Ranjit Singh (P.W.4) and the appellant was helping his cousin
Jarnail Singh in a dispute relating to a plot in Village Joharan.
It comes out in evidence that P.W.11 Sub Inspector of Police
was found at the Nakabandi at a distance of about 2.5 kms. from
the Village Ranguwal and he recorded the statement of P.W.3 at
11.20 p.m and sent the same to the Police Station through the
Constable and the FIR was drawn up at 11.45 p.m by the Head
Constable. The inquest was held on the dead body on the same
night at about 2 a.m. In the course of inquest it was found that
there was a bluish mark on the neck apart from the injuries on
the eyebrows and cheeks. The Pharna wrapped around the neck
was also noticed, but it was not produced before the Court. The
post mortem was conducted on 31.1.1994 at 10.30 a.m. by the
Medical Officer (P.W.10) attached to S.S.C. Khatran. He noticed
five lacerated wounds and two incised wounds on the dead body.
The Medical Officer (P.W.10), who was examined, stated that
there was a bruise-reddish brown in colour on either side of the
neck in the front. The neck was found tilted towards the left side,
faecal matter was present in the Pyjama, hyoid bone was found
fractured and the cartilage was broken. He stated that the
deceased could have received injuries at about 5 p.m. the
previous day. He gave the opinion that the death was on account
of strangulation. However, he did not notice any ligature mark or
any sort of injury on the back of the neck.
It is contended by the learned counsel for the appellant that
the death by strangulation has not been established by the
medical evidence brought on record. The absence of ligature
marks and the symptoms associated with the asphyxia has been
highlighted to substantiate his argument. On this aspect, the
High Court was of the view that the absence of ligature marks
was not conclusive and the fact that the bruise-reddish brown in
colour, was found on the two sides of the neck together with the
evidence of fracture of hyoid bone established the death by
strangulation. The High Court also commented that the medical
witness was not cross examined challenging his opinion. We
need not probe into the correctness of the medical opinion as
regards the cause of death i.e. whether the death could be by
strangulation as we are of the view that the eye witnesses’
account is not reliable and it is not safe to act on their testimony.
P.Ws. 3 and 4, apart from being close relatives of the
deceased, happen to be the chance witnesses. It looks as
though the assailants were all the while waiting for P.Ws. 3 and 4
to reach the spot and witness the incident. Of course, for the
mere reason that they are chance witnesses, their evidence
cannot be discarded if we find assurance from the prosecution
evidence pointing to the guilt of the accused. We, however, feel
that their evidence should have been more carefully analysed
and evaluated, which the High Court failed to do.
Right from the origin of the prosecution story, we find a
number of irreconcilable versions and contradictions on certain
material aspects which throw any amount of doubt on the
veracity of the evidence tendered by P.Ws. 3 and 4. According to
the version of the mother of the deceased (P.W.6), the accused
persons took the deceased with them at about 5 p.m. This fact
was brought to the notice of her husband when he returned home
at about 7 p.m. This is what P.W.3 also says. P.W.3 stated that
he left for Jorahan Village at about 7.30 p.m. to find his son. He
met P.W.4 (Ranjit Singh) there and both of them searched, but
could not find his son. They returned to Ranguwal after 9 p.m.
While on the way, they saw the incident near the Primary School.
But we have the evidence of P.W.5 (Granthi of the Gurudwara of
Village Jorahan) according to whom, he at the instance of P.W.3
made the announcement over the loud-speaker before sunset
about the missing person\027Gurpreet Singh. P.W.4 also states
that P.W.3 met him before sunset. As it was the peak winter
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month of January, the sunset should have been at about 5.30
p.m. This version of P.Ws. 5 and 4 does not, therefore, fit into the
version of P.Ws. 3 and 6 that they became apprehensive of the
safety of the deceased at about 7 p.m. and thereafter P.W.3 left
the house at 7.30 p.m. in search of his missing son.
Why P.W. 3 should weave a story that he came to know
that his son was missing only after he went home at 7.00 p.m. is
an unanswered question. Apparently P.W. 3 did not come
forward with a truthful version. Keeping this background in view,
let us turn to the evidence of P.W.4 who is the other eye
witness. P.W. 4 stated in the cross-examination that the sun was
setting when P.W. 3 met him. According to P.W. 4, the incident
took place at 7.00 p.m. when they reached Ranguwal village.
Thus, P.W.3’s evidence and his version in F.I.R. goes directly
contrary to the evidence of P.Ws. 4 and 5 in regard to the time of
occurrence and the knowledge about missing of his son. It
remains unexplained as to why the prosecution came forward
with an inconsistent and distorted version of the time at which
P.W. 3 came to know about his missing son and the actual timing
of the occurrence. The High Court brushed aside the argument
regarding the variation in regard to the time, observing as
follows:
"The witnesses belong to a small village and are not
educated. The mere fact that there is some variation in
point of time when the occurrence took place would not be
fatal to the case of the prosecution".
It may be that some allowance has to be given for the
variation in time but the variation in this case is so vast (7.00
p.m. to 10.00 p.m.) that it cannot be attributed merely to the
inability of the witnesses hailing from the village to give correct
time. We find that P.W.3 appended his signatures to the
deposition in Hindi and he is described as ’Lamberdar’ by P.W. 5
and P.W. 4 signed in English. So, they are not illiterate persons,
though living in a village. It is difficult to assume that they will
not have the idea of time.
The time of incident assumes some importance in the instant
case for the reason that the report was given to the police at
about 11.20 p.m. If the occurrence had been witnessed at 7.00
p.m. as per P.W.4’s version, there would then be a gap of 3 =
hrs. to 4 hrs. Probably to cover up this delay, P.W. 3 has come
forward with the story that the incident happened between 9.00
and 10.00 p.m.
Another important factor is that Chowkidar Nahar Singh
and P.W.3’s servant Pritam Singh who gathered on the spot
allegedly after the incident and were put on guard of the dead
body were not examined. Though one of them was cited as
witness, he was given up by the public prosecutor as being
unnecessary. The evidence of the persons who gathered
immediately after the occurrence on hearing the alleged cries of
P.Ws.3 & 4 would have been valuable piece of evidence to serve
as corroboration of the account given by the direct witnesses,
especially when the presence of the alleged eye witnesses at the
spot was too much of a coincidence. No reason is forthcoming for
not examining them. This is another serious lapse which casts a
doubt on the prosecution case.
When we come to the actual account of P.Ws. 3 & 4
regarding the incident which they are supposed to have observed
with the aid of moonlight, we have serious doubt whether P.Ws.
3 & 4 could have observed the details of attack in the manner in
which they narrated. In view of the alleged threats, they dared
not to go close to the actual spot of assault. In fact if they were
in a position to go close to the spot, they would have made some
endeavor to resist the attack. That is the natural course of
human conduct. Therefore, standing at a respectable distance for
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fear of being assaulted, it is doubtful whether they were in a
position to observe each and every detail of the alleged
occurrence, that too in the moonlight. As far as P.W. 3 is
concerned, there is any amount of doubt as regards his eye
sight. While being examined in the Court, he admitted that he
had weak eye sight and could not tell whether any person was
sitting near the wall or on his right side. P.W. 4 stated that P.W.
3 got his eye operation done after the incident. In all probability,
eye sight problem would have been there even at the time of the
incident which was 3 years earlier. Be that as it may, considering
the situation and other circumstances it is doubtful whether P.Ws.
3 & 4 would be in a position to give graphic details of the alleged
incident. Their version in this regard cannot be considered to be
credible. True, even in the absence of giving such details, if
P.Ws. 3 & 4 had seen the accused attacking the victim and
immediately thereafter found him dead, it would have been
sufficient to establish the prosecution case. We have only
adverted to the fact that P.Ws. 3 & 4 would not have been in a
position to observe the details to demonstrate that they were
prepared to sacrifice the truth to support the prosecution.
The evidence of P.W. 6 is evidently meant to build up the
"last seen" evidence. Her version that at the instance of the two
accused the victim left the house is open to serious doubt. If her
version is truthful, one would expect P.W. 3 contacting the two
accused or their leader. It was nobody’s case that P.W 3 went to
the houses of those persons and tried to make inquiries. It is
seen from the deposition of P.W. 6 that her statement was
recorded on 6.4.1994 i.e. about three months later, for
which no explanation is forthcoming.
The foregoing discussion leads us to conclude that the
Trial Court and the High Court did not consider certain
material aspects apparent from the evidence and there was
almost a mechanical acceptance of the evidence of the two
chance witnesses whose evidence should have been
evaluated with greater care and caution. As pointed out by
this Court in Satbir Vs. Surat Singh & Anr. [1997 (4)
SCC 192], a "cautious and close scrutiny" of the evidence of
chance witnesses should inform the approach of the Court.
In these circumstances, this Court need not feel bound to
accept the findings. The overall picture we get on a critical
examination of the prosecution evidence is that PWs 3 & 4
were introduced as eye-witnesses only after the dead body
was found.
The appeal is, therefore, allowed. The conviction and
sentence against the appellant is set aside. The appellant is
directed to be released forthwith.