Amrik Singh vs State of Punjab

K.S. Tiwana, J.

Gurdev Singh deceased residence of village Rogla, District Sangrur and Amrik Singh appellant were uterine brothers. The sister of Amrik Singh appellant was married to the elder brother of Kapur Singh accused. Joginder Singh and Geja Singh accused are from the brotherhood of Kapur Singh accused.

Amrik Singh appellant had an impression that the land which fell to his share in the family partition was of inferior quality as compared to that of Gurdev Singh deceased. For that reason he had a ranocur in his mind against Gurdev Singh deceased.

On 11.11.1983 at about 8.00 p.m., Gurdev Singh deceased alongwith his son Darshan Singh PW4 was coming back to his house from his field. He had a small bundle of cotton with him. When they were near the Mata Rani, and some distance from the house of Amrik Singh appellant the latter and Kapur Singh accused armed with Gandasis accociated them. The accused started causing injuries to Gurdev Singh deceased with their weapons. Darshan Singh PW4 ran to his house and informed his mother Amarjit Kaur PW3 about this. Amarjit Kaur PW3, who was baking Chapatis ran out and came near the place of occurrence and saw Amrik Singh and Kapur Singh accused assaulting her husband. Geja Singh and Joginder Singh accused also came out of the house of Amrik Singh appellant and exhorted their companions to do away with Gurdev Singh, Gurdev Singh deceased was a Nihang and used to carry a spear with him. He tried to cause injuries to Amrik Singh with his spear. Amrik Singh appellant flung Gandasi blow which hit the handle of the spear and Gurdev Singh received the injury. Gurdev Singh fell down. Babu Singh, uncle of Gurdev Singh, had also witnessed the occurrence. The accused left the place of occurrence. Coming near Amarjit Singh found her husband Gurdev Singh dead. She went to Police Station Dirba and made first information report at 9.30 p.m. on the same evening.

Harbans Singh SubInspector of Police PW5, after recording the FIR went to the place of occurrence and prepared the inquest report on the dead body of Gurdev Singh. He picked up the spear Exhibit P3, which was lying near the dead body. Bloodstained earth, some human hair and the bundle of cotton were also taken into possession. Dr. Ashok Kumar Jindal PW1 on 12.11.1983 at 11.30 A.M. conducted autopsy on the dead body of Gurdev Singh and found the following injuries :

"1. Incised wound 4" x 1" x 11/2" on front above right eye brow.

Incised wound 4" x 11/2" on crown of skull in AP direction.

An incised wound above right elbow 2" x 2" muscle deep.

An incised wound above right little finger cutting also ring finger from its rot.

An abrasion 5" x 1/2" horizontal on front and middle of right chest.

An abrasion on the lateral side of thigh in its middle. On dissection of skull, both the injuries, of skull were cutting through the skull bones brain matter and there was subdural haematoma."

The death of Gurdev Singh in the opinion of the doctor was the result of shock and haemorrhage caused by the antemortem injuries, which were sufficient in the ordinary course of nature to cause his death. The death was instantaneous and the time between death and the postmortem examination was about 24 hours.

Amrik Singh appellant was arrested from the hospital on 13.11.1983. He was interrogated in the hospital regarding the weapon of offence. Amrik Singh appellant gave information about the Gandasi which was ultimately recovered on 19.11.1983 by Harbans Singh SubInspector PW5. The other accused also was arrested and Gandasi Exhibit P2 was recovered from Kapur Singh.

At the trial Amarjit Kaur PW3 testified that the feeling of Amrik Singh appellant that inferior quality of land was given to him during partition, was the cause for the commission of the offence. She and her son Darshan Singh PW4 deposed as eyewitnesses of occurrence. Gurdial Singh was given up as having been won over by the accused. The rest of the prosecution witnesses examined at the trial were of formal nature.

When examined at the close of prosecution case, Amrik Singh appellant denied the case in the manner it was set up against him. He stated :

"Gurdev Singh, deceased was desperate character and he was challenged in murder case previously. He was after my life. On the date of occurrence, I had gone to my cotton field and to make a hedge after cutting branches of a kikar tree with a Kulhari Gurdev Singh or his family never resided at village Rogla. In the evening when I was returning with a bundle of cotton I was way (sic) near my house by Gurdev Singh, who raised a lalkara that I should not be spared. He aimed a barchha blow towards me but I saved myself by getting aside. He aimed another blow and I tried to disarm him by giving Kulhari blow on his hand and elbow, but Gurdev Singh persisted and he gave blow in my thigh and apprehending that he would not leave me alive, I gave 23 blows in quick succession to him to save myself. I went to police Station and informed S.I. Harbans Singh, who directed me to get myself medically examined at village Kahrian where I got myself medically examined and was admitted there."''

The accused on 12.12.1984 however, filed an application that the statement which he made under Section 313 Cr.P.C. was not correct as he had made that statements at the instance of his relatives. In this application he stated that he never gave any injuries to Gurdev Singh deceased. In fact he had received injuries at his hands.

Dr. Sarup Singh DW1 proved the medical examination of Amrik Singh accused which he conducted on 12.11.1983 at 5.00 a.m. He found the following injuries :

"1. A transverse penetrating wound 3 cm X 3/4 X 3 cm in the right inguinal region. It was 39 cms above the upper border of right patella and its lateral end is 7 cm below and medial to the anterior iliac spine. Fresh bleeding was rushing out of the wound.

A abrasion I cm x cm on the lateal aspect of left index finger and I cm above the base of the finger."

The learned Sessions Judge, Sangrur disbelieved the prosecution case regarding the motive. He also did not believe the prosecution case against Kapur Singh, Joginder Singh and Geja Singh accused and acquitted them. Amrik Singh was convicted under Section 302 IPC for the murder of Gurdev Singh and sentenced to undergo imprisonment for life and pay a fine of Rs. 1000/, in default of payment of fine he was further sentenced to undergo R.I. for six months.

Feeling dissatisfied with the order of conviction, Amrik Singh appellant has come to this Court in appeal.

The prosecution has examined Amrik Singh PW3 widow of Gurdev Singh deceased and Dharshan Singh PW4, his son, as eyewitnesses to the occurrence. The circumstances on the file indicate that none of these witnesses had seen the assault on Gurdev Singh deceased. It is admitted by the witnesses that the daughter of Amrik Singh is married at village Khanal, at a distance of 2/3 miles from the village Rogla. Darshan Singh PW4 admitted that has sister came to village Rogla about two hours after the occurrence. He further admitted that he had come to village Rogla with his sister. If that statement of Darshan Singh PW4 is correct then he had not witnessed the occurrence. He admitted in his crossexamination that his mother Amarjit Kaur PW3 had tutored him the statement which he had made at the trial. He is a child of nine years of age. Such witnesses are of dangerous type. Whatever things are told to them they memorise those very quickly and believe in all sincerity about their existence. When questioned, they project themselves as eyewitnesses to those events, which they have not actually seen and repeat the turtored things in a parrot like manner. In this case we have Dharshan Singh PW4 of that type who admitted that he had come with his sister from village Khanal two hours after the occurrence and was tutored by his mother to repeat in court the statement told to him. This leaves no room for doubt that he had not witnessed the occurrence.

The case of Amarjit Kaur PW3 is that she was preparing Chapatis in her house. She came to the place of occurrence or the information of her son Gurdev Singh PW4. If Dharshan Singh PW4 was not there, he could not convey information to Amarjit Kaur PW3, and there was no question of her coming out of her house to witness the assault on her husband. When we disbelieve the presence of Dharshan Singh PW4 the very source which brought her out of her house becomes nonexistent. There was no other reason for her to come out of the house.

From the various improvements made in her statement she is demonstrated to be an unreliable witness. Her claim at the trial was that Kapur Singh also had caused injuries to Gurdev Singh. She also named Joginder Singh and Geja Singh as the companions of Amrik Singh, who exhorted him to finish Gurdev Singh. In the FIR she did not mention names of these accused. To explain this omission she tried to say that for fear of the accused she did not name them. She gave a general description of the assault by Amrik Singh appellant which could fit in the story. In the FIR she did not name Babu Singh, whom she tried to introduce as an eyewitness at the trial. She tried to make concealment about her past. She had litigation at Mansa. She tried to deny the statement made by her. She persisted in denying that the statement made in those proceedings till she was confronted with her statement recorded in the case. She also tried to deny her marriage with one Pritam Singh. She also tried to say that her maternal grandparents were not Harijans which fact she had admitted, in her statement in the Civil Suit at Mansa. She stated that she could not identify the accused in the test identification parade as she was threatened by the Magistrate holding the parade. Such a conduct from a Magistrate is not expected. She made this statement only to cover up her failure to pick up the accused correctly at the test identification parade. These features in her statement go to show that she had no regard for truth and did not hesitate in speaking false utterance while in the witnessbox.

Her place of residence in the site plan is shown at a distance of 40 yards from the place where Gurdev Singh was injured. She claimed to have seen the occurrence in the light fitted on the house of Amrik Singh appellant Darshan Singh contradicted her by saying that after the arrival at the place of occurrence the police fitted bulbs on the house of Amrik Singh and other places. When there was no light on the house of Amrik Singh appellant there was expected to be darkness around and nobody could see anything at a distance of 40 yards.

From the overall assessment of the prosecution evidence, we find that neither Amarjit Kaur PW3 nor Darshan Singh PW4 had witnessed the occurrence and they have been introduced as false witnesses being the relatives of the deceased.

The accused in his statement under Section 313 Cr.P.C. admitted the occurrence in which after suffering injuries he had caused injuries to the deceased. He made an application to the Court to retrace from the statement, but we do not find any reason to discredit his statement which he made under Section 313 Cr.P.C. on 7.12.1984. This statement cannot be utilised against him as it does not amount to admission of the guilt. He made a statement exculpating himself. This cannot be used to base his conviction especially when we have disbelieved the eyewitness account.

There is another impediment in the way of the prosecution in asking the Court to uphold the conviction. Amrik Singh appellant was vicariously charged with the other accused for an offence under Section 302 read with Section 34 IPC. At the conclusion of the trial he has been convicted for the substantive offence under Section 302 IPC holding him solely responsible for the murder of Gurdev Singh. This could not be done by the learned trial Judge. The charge is framed under Code of Criminal Procedure to apprise the accused, the accusation which he had to face and answer at the trial. In these proceeding Amrik Singh was never charged to face the substantive charge of murder under Section 302 IPC. He was to meet the charge only for the vicarious liability under Section 302 read with section 34 IPC. He arranged his defence only to meet the charge of vicarious liability and not in his capacity as a substantive offender or the sole person responsible for the charge of murder under Section 302 IPC. It cannot be expected that in view of the charge he was to prepare defence for the substantive charge. Prejudice is caused to the accused if he is dealt with the manner as has been done by the trial Court. Nanak Chand v. State of Punjab, AIR 1955 SC 274 is an authority in support of proposition. We are, therefore, of the view that the conviction of the appellant because of this defect also vitiated.

For the foregoing reasons, finding no acceptable evidence in this case to support the charge of murder against Amrik Singh appellant, we accept the appeal, set aside his conviction and acquit him of the charge.