Bagh Singh vs State of Punjab

V. K. Bali, J.

Bagh Singh son of Chuhar Singh has filed Criminal Appeal No. 16lDB of 1989 against judgment dated December 6, 1988 rendered by Sessions Judge, Bhatinda vide which he was convicted under Section 302 IPC and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/ in default thereof, to further suffer rigorous imprisonment for two months. The State of Punjab, being aggrieved against the same very judgment, qua acquittal of Darshan Singh son of Gurdial Singh, who was tried alongwith Bagh Singh with the aid of Section 34IPC has filed Criminal Appeal No. 418 DBA of 1989. The judgment will dispose of both the appeals as common questions of facts and law are involved in these appeals.

Before, however, the merits of two appeals are commented upon, it will be useful to give brief but necessary narration of facts culminating into trial of Bagh Singh and Darshan Singh resulting into conviction of the former and acquittal of the latter. The prosecution story is unfolded by Surjit Singh who in his statement dated February 20, 1987 which was recorded by Balkar Singh, S.I. SHO thus stated that he was resident of village Aklian Kalan and had five brothers. The eldest brother Malkiat Singh and his second brother Gurcharan Singh were residing separately whereas he alongwith Gurtej Singh were residing together. The other two brothers Gurjant Singh and Nachattar Singh were residing together. Whereas his other brothers were busy in agriculture he alongwith his brother Gurjant Singh only used to graze sheep. Gurjant Singh had illicit relations with one Pammi wife of appellant Bagh Singh and after getting the statement of Pammi recorded in the Court at Mansa, he had kept her with him at his house as his wife. This was not to the liking of appellant Bagh Singh and not only that he was sore over the fact that his wife had been enticed away by Gurjant Singh, he also nursed a grudge against Gurjant Singh for that reason. On the day of occurrence i.e on February 20, 1987 at about 5.30, 600 P. M., his brother Gurjant Singh after grazing the sheep was going to the house of Gurmail Singh son of Joginder Singh and incidentally he was following him at a close distance. When his brother Gurjant Singh reached near the house of one Ram Sarup son of Roshan Lal and Krishan Mahant appellant Bagh Singh armed with a Gandasa" and his coaccused Darshan Singh son of Gurdial Singh also armed with a "Gandasa" came from the opposite direction in the street and on seeing Gurjant Singh, both of them raised a "Lalkara" that Gurjant Singh should be taught a lesson for keeping Pammi at his house. Gurjant Singh finding himself confronted with situation which he could not resist tried to slip away but that opportunity was not provided to him by appellant Bagh Singh and his coaccused Darshan Singh. Darshan Singh took Gurjant Singh into his grip and felled him in the street. While Gurjant Singh was lying down in the street, appellant Bagh Singh gave a "Gandasa" blow from sharp side on his neck which, however, hit him on the line of his ear. Bagh Singh repeated the "Gandasa" blow again from the sharp side on the bead of Gurjant Singh, whereafter Darshan Singh released his grip and followed Bagh Singh by giving a "Gandasa" blow on the bead of Gurjant Singh. As this was not sufficient, both of them continued inflicting, "Gandasa" blows on the head of Gurjant Singh. Surjit Singh is stated to have been then raised noise which attracted Gurtej Singh, brother of Surjit Singh and one Raj Singh son of Mukand resident of the same village. Before, however, remedial steps could be taken by the three persons who were attracted to the scene of occurrence, appellant Bagh Singh and his coaccused Darshan Singh took to their heals. Surjit Singh narrated the incident to Balbior Singh Sarpanch of the village and after leaving Chowkidar Hari Singh at the spot to guard the dead body of Gurjant Singh. he alonwith Babu Ram Panch went to the Police Station where he lodged the report which, as referred to above, was recorded by Baikar Singh, S. I/SHO. The police registered the First Information Report Ex. IG on the basis of statement made by Surjit Singh and the Moharrir Head Constable of the police station was directed to send special reports to the higher authorities whereas S. I. SHO alongwith ASI. Amalak Singh, HC. Tek Singh and some other constables proceeded to the spot in a Government jeep. It is pertinent to mention here that the narration given immediately where the First Information Report ends with regard to steps taken by the police shows such steps like that the First Information Report was registered. Moharrir Head Constable was directed to send special reports to the higher authorities and the S.I. and others proceeded to the spot. There is no mention that the version given by Surjit Singh was recorded in the Daily Diary. While on the spot, the police prepared inquest report Ex. PC and despatched the dead body of Gurant Singh for postmortem examination. Two turbans Ex. P7 and Ex. P3 and blood stained earth were also taken into possession.

The appellant and his coaccused Darshan Singh were arrested on March 7, 1987 and from the possession of appellant Bagh Singh, "Guandasa" Ex. PI was taken into possession vide recovery memo Ex. PJ challan against the appellant and his coaccused Darshan Singh was put in the Court and their trial ultimately resulted into conviction of Bagh Singh appellant and acquittal of Darshan Singh as has been fully indicated above.

The prosecution endeavoured to bring home the offence against appellant Bagh Singh and his co accused Darshan Singh on the basis of eye witness account given by Surjit Singh PW5 and Gurtej Singh PW6. The way and mariner in which the investigation had proceeded in the case was accounted for balkar Singh PW7.

The plea of appellant Bagh Singh was that he was innocent and that deceased Gurjant Singh was a had character and not only that he had abducted his wife Pammi, he had also illegal and illicit connections with several other ladies and on account if the fact that he was a had character, he had number of enemies in the village. He further stated that he was implicated in this case on account of suspicion alone. However, no evidence in defence was led by appellant Bagh Singh.

Dr. Bhushan Kumar PW1 who conducted autopsy the body of Gujant Singh on February 21, 1987 had found the following six injuries on his person :

Incised would 6" x 1" horizontally placed on the nape of the neck, below the occipital protuberance. Clotted blood was present. On dissection, vertebral bodies and spinus processes of cervical vertebrae 3rd and 4th were found cut. and medulla oblongata was also found cut.

Incised wound 9" x 2" x 1" above injury No. 1 over back of skull extending from left parietal region, occipital and middle of pinna of right car was cut and on to the right cheek, 11/2" below the middle of lower eye lid. Clotted. blood was present. On dissection, brain matter was coming out and muscles of mandible of cheek were found cut. Underlying bone of skull was found fractured.

An oblique incised 5"x1" wound on the right side of skull extending from temporal, parietal and occipital regions. Clotted blood was present.

Vertical incised 4"x1" I" wound on the right parietal region, 29'' left to inquiry No. 3. Clotted blood was present. On dissection of injuries No. 3 and 4, underlying skull bones were found fractured and brain matter coming out of brain cavity,

Contusion 4" x 1/2" on the back of left scapula, obliquely placed, reddish in colour.

4 contusions 1/4"x 1/4" each on the left deltoid region, reddish in colour.

In the opinion of doctor PW1, the cause of death was shock and haemorrhage due to the injuries sustained which were sufficient to cause death in the ordinary course of nature. Further, the perusal of injuries reproduced above would show that whereas injuries No. 1 to 4 were caused by sharp/edged weapon injuries No. 5 and 6 were caused by blunt weapon. In so far as injury No. 6 is concerned, that in itself describes four contusions which are of the dimensions of 1/4" x 1/4" each. The doctor was shown "Gandasa" said to have been recovered from appellant Bagh Singh which is Ex. P1 and inasmuch as the same had an iron piece fitted with a nail on the back, the doctor opined that in case blow was given from the back side of Gandasa" Ex. P1, imprint of iron piece will be formed in case that portion was to strike against the part of the body where the injury was given. It is pertinent to mention here that the description of injuries given above did not show imprint of iron piece, on any of the injuries and in particular on injuries No. 5 and 6.

With the assistance of learned counsel for the parties, we have. gone through the entire record of the case. Whereas it is the contention of learned defence counsel appearing on behalf of Bagh Singh appellant that the two eye witnesses Surjit Singh and Gurtej Singh were not present at the time of occurrence for the reason that their evidence is discrepant and is even in sharp contrast to the medical evidence, the learned State counsel. on the other hand, has made all out efforts to show that PW5 and PW6 were natural witnesses of the occurrence and even though they were closely related to deceased Gurjant Singh, the statements given by them were straight forward and thus inspired confidence. Inasmuch as success or otherwise of the prosecution mainly depends upon the ocular account of incident given by PW5 and PW6 as also inasmuch as two witnesses aforesaid are teal brothers of deceased Gurjant Singh, their evidence requires to be scrutinized with abundant caution particularly so when the background of the case is such that any untoward incident involving Gurjant Singh would automatically turn their suspicion on Bagh Singh appellant. The first test to lend assurance to their testimony would be to find out as whether their names were mentioned in the Daily Diary Report which was necessarily, required to be recorded before registration of the case It is not disputed that to ensure prompt disclosure of facts of occurrence it is necessary to enter the substance of the report in a book prescribed by the State Government apart from the first information report register in ''which practically full report is reproduced. This requirement flows from Section 154 of the Code of Criminal Procedure which reads as under :

"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 by him or under his direction, and be read over to the informant; and every such information, whether given in writing or reduced to writing as aforesaid shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as ''the State Government may prescribe in this behalf."

The matter does not rest there and even the relevant provision of Punjab Police Rules i. e. Rule 24.1 requires the substance of the report to be entered in the daily diary. The relevant part of the rule reads as under :

"Every 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 . It is only information which raises a reasonable suspicion of the commission of a cognizable offence within the jurisdiction of the police officer to whom it is given which compels actions under Section, 157 Criminal Procedure Code."

It shall, thus, be made out from the mandatory provisions of law quoted above that the substance of First Information Report requires to be entered in the Daily Diary Register which obviously has to contain the name of the accused, if known and the witnesses who have seen the occurrence. In the light of this if we examine the statement of PW7 Balkar Singh Inspector who recorded the First Information Report and investigated the matter, the presence of PW5 and PW6 6 at the place of occurrence would become highly doubtful. The aforesaid witness is no uncertain terms has stated in his crossexamination that in report No. 23 dated February 20, 1987 in the Daily Diary Register of Police Station Nehianwala the names of the eye witnesses have not been mentioned. After holding ''the prosecution has failed in the first test with regard to the presence of the eyewit at the time and place of occurrence, we would like to focus our attention to find out contradictions, if any in the version of PW5 and PW6 and the medical evidence.

"A perusal of First Information Report which contains all the details quoted in the earlier part of judgment would show that informant Surjit Singh had nowhere stated that some of the injuries or for that matter even one injury to Gujant Singh was caused by the reverse side of the "Gandasas" by either of the accused. However when PW5 and PW6 came in the witness box, they deposed that two injuries were caused by the reverse sides of the Gandasas". It is obvious that they changed their version with a view to bring the same in tune with other medical evidence inasmuch as injuries No. 5 and 6 could be caused only by blunt weapon here too they could not succeed much for the reason what the "Gandasa" found to have been recovered from the appellant had an iron "Patti" with a nail fitted on it and in all probability the mark of nail or "Patti" would have been formed if the "Gandasa" was used from the reverse side. Besides also absolute assurance cannot he drawn from the testimony of these two witnesses for the reason that where as PW5 did not disclose any reason why he was following Gurjant Singh the reason given by PW6 that he was to purchase "Dal" which he stated was not available with the shop keeper and he had not actually purchased the same, makes their presence at the spot highly suspect. Again whereas in the First information Report it is clearly stated that PW6 arrived at the scene of occurence when almost all the injuries had since been inflicted upon Gurjant Singh, a definite improvement was made at the time of trial when both PW5 and PW6 stated that whereas PW5 was following Gurjant Singh who was very close to him. PW6 was at a distance of 25/30 yards. It is admitted at all ends and it is also proved through the site plan prepared by the Investigating officer that the place of occurrence is surrounded by number of residential houses and shops. It is very strange to note that Gurjant Singh was murdered at a time when in all likelihood all the villagers must have returned back to their houses from the fields yet none was attracted to the scene of occurrence or even heard anything about it.

The motive attributed to appellant Bagh Singh would not in itself be enough to conclude that he alone with his coaccused committed the murder of Gurjant Singh. This is so in particular when it is proved on the record of the case that Pammi after making statement in the Court, started residing with Gurjant Singh about 10/11 months prior to the date of occur. It is proved on the record of case that appellant Bagh Singh was living with his two children of tender age and in all probability had reconciled with the unfortunate incident perhaps with a view to look after the children. In so far as recovery of "Gandasa" is concerned the same was recovered vide memo Ex PJ which shows attestation of Nachattar Singh, besides that of Constable Tek Singh. Nachattar Singh was not examined on the plea that he has been won over by the accused whereas Head Constable Tek Singh was not examined on the plea that he was unnecessary. We fail to understand as to how Head Constable Tek Singh become an unnecessary witness particularly when independent witness was alleged to have been won over by the accused.

The aforesaid facts and circumstances make the prosecution case doubtful resulting into giving benefit of doubt to appellant Bagh Singh with an obvious consequence of his acquittal. We thus, set aside the order, of conviction and sentence passed by Sessions Judge Bhatinda and accept his anneal. In so far as the appeal filed by the State of Punjab against the acquittal of Darshan Singh is concerned in view of the fact that we have found the prosecution story doubtful there would be no scope for any arguments on behalf of appellantState. Appeal No 418DBA of 1989 filed by the State of Punjab against the acquittal of Darshan Singh is, thus, dismissed.