Baldev Singh and Others vs State of Punjab

Arvind Kumar, J.—This appeal is directed against judgment and order dated 9.4.2003 passed by the Sessions Judge, Amritsar, whereby in case FIR No. 162 dated 20.8.2001 u/s 302 read with Section 34 IPC, Police Station ''C'' Division, Amritsar, the accused-appellants have been convicted u/s 302/34 IPC, for having committed the murder of Azad Kumar @ Jhaji and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 1000/- each and in default of payment of fine, to further undergo imprisonment for a period of six months each.

In brief, the prosecution case is that on 20.8.2001 complainant Sajan Kumar made statement before the police that on that day at about 11 A.M., his brother Azad Kumar alias Jhaji was sitting under the trees in Sakattri Bagh near water tank. When he (complainant) and his another brother, namely, Rajan Kumar had reached the said Sakattri Bagh, they saw accused Baldev Singh, Gulzar Singh and Sucha Singh coming to that place. On reaching there, all the three accused started hurling abuses at complainant''s brother, Azad Kumar alias Jhaji and when Azad Kumar @ Jhaji objected, they raised Lalkara stating he (Azad Kumar @ Jhaji) had picked up a quarrel with them few days ago and thereafter, accused Gulzar Singh and Sucha Singh caught hold of Azad Kumar @ Jhaji while accused Baldev Singh gave a blow with Chhuri, which he was having with him, in his stomach. As a result thereof, blood started oozing out of the said injury and then accused Gulzar Singh and Sucha gave fist blows on his mouth and nose and when he raised hue and cry, the accused fled away. Then Azad Kumar @ Jhaji was taken to the Civil Hospital where he was declared dead. On the statement of the complainant, a formal FIR vide Exhibit PH/3 came to be registered against the accused persons. Sub Inspector Gurdev Singh then reached the hospital and inquest report, Exhibit PB, was prepared for getting the post-mortem examination conducted. On inspection of place of incident by SI Gurdev Singh, blood stained earth was lifted therefrom and made into parcel which was sealed with his seal ''GS'' and taken into possession vide memo. Exhibit PM. Rough site plan, Exhibit PN, of the place of incident was prepared and statements of witnesses recorded. On the same day, the accused persons were arrested from Dana Mandi Bhagtanwala and a Chhuri was recovered from the possession of accused Baldev Singh. The sketch, Exhibit PE/2, was prepared of the Chhuri Exhibit P1, and the Chhuri was taken into possession vide memo. Exhibit PE/3 after making it into a parcel which was then sealed vide seal ''GS''. Upon completion of investigation of the case, accused-appellants were challaned. After being produced in Court, the accused Baldev Singh was charge-sheeted u/s 302 IPC while the accused, Gulzar Singh and Sucha Singh were charge-sheeted u/s 302 read with Section 34 IPC to which they pleaded not guilty and claimed trial.

The prosecution in order to prove the charge against the accused, examined PW-1 Dr. Guriqbal Singh, PW-2 Constable Gurnam Singh, PW-3 LC Ganga Singh, PW-4 Sajan Kumar, PW-5 Rajan Kumar, PW-6 Rishi Ram Draftsman, PW-7 Constable Prem Kumar, PW-8 Dr. Ashwani Kumar Sondhi and PW-9 SI Gurdev Singh and after tendering into evidence the report of the Forensic Science Laboratory vide Exhibit PQ, closed its evidence.

Thereafter, accused-appellants were examined u/s 313 Cr.P.C. and put incriminating evidence appearing against them to which they pleaded innocence and claimed false implication. However, no evidence in defence was led by them.

The learned Sessions Judge, Amritsar, vide his judgment and order held the accused-appellants guilty and convicted and sentenced them in the manner indicated above. Hence, the present appeal.

We have heard the learned Counsel for the parties.

The FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed including the names of actual culprits and the parts played by them, the weapons, if any, used as also the names of the eye-witnesses, if any. In the present case, the occurrence had taken place at about 11 A.M. in "Sakattri Bagh" and it has come in evidence that Azad Kumar @ Jhaji was first removed to General Hospital, Amritsar, where he was declared brought dead and upon an intimation, PW-9 SI Gurdev Singh reached the hospital and recorded the statement of PW-4 Sajan Kumar at 1.50 P.M. and the FIR was recorded at 2.10 PM and the special report was in the hands of the Illaqa Magistrate at 5.30 PM on the same day. The FIR is, thus, not delayed but rather prompt. The FIR contains the full narrative of the manner in which the occurrence had taken place and the names of the eye-witnesses and the accused-apellants and the weapon i.e. knife, used by accused-appellant Baldev Singh. Therefore, the argument that the FIR had been lodged after due consultations and deliberations, does not survive.

The entire case rests upon the statements of PW-4 Sajan Kumar (complainant) and PW-5 Rajan Kumar, who are brothers of the deceased. Their statements have been questioned on account of the relationship. No doubt, both the witnesses are related to the deceased but their relationship cannot be said to be suffice to discard their statements. A close relative cannot be characterized as an "interested witness" and there is also no absolute law that evidence of a relation witness is not entitled to any weight. The requirement is that his evidence has to be scrutinized carefully. It has come in evidence of PW-4 Sajan Kumar that on the date of occurrence, their brother Azad Kumar had gone to Sakattri Bagh just to pass time and when he and his brother Rajan Kumar had also gone there, they found that some persons were quarrelling with their brother Azad Kumar. He is also very categoric that they found Gulzar Singh and Sucha Singh had caught hold of their brother whereas Baldev Singh had given a knife blow in the chest of their brother and their brother had fallen down. He is also very categoric that when they reached there, Sucha Singh and Gulzar Singh were seen giving blows on the head and mouth of their brother Azad Kumar @ Jhaji with Karra which they were wearing. PW-5 Rajan Kumar has also stated almost in the similar fashion. His statement, thus, corroborates the statement of PW-4 Sajan Kumar on material particulars.

The statements of both the above-stated witnesses have also been assailed mainly on the ground that both of them have stated that they had not known the accused-appellants earlier to that and as such, how their names were reflected in the First Information Report, without there being any identification parade. The contention is meritless as this case has peculiar facts. In the instant case, it has come in the evidence of PW-4 Sajan Kumar and PW-5 Rajan Kumar that as a matter of fact, immediately after the occurrence, within 15 minutes the accused were apprehended by some other persons who were present there and as such, the accused persons were already with the police when the statement (Exhibit PH) of complainant, Sajan Kumar, came to be recorded, which is the basis of the FIR, meaning thereby that by the time the FIR was lodged, both these witnesses had already known the names of the assailants.

The defence, at this juncture, has referred to the statement of PW-9 SI Gurdev Singh to urge that according to the Investigating Officer, the accused-appellants were not arrested immediately after the occurrence; rather they were arrested late in the evening at 8.30 PM. No doubt, PW-9 SI Gurdev Singh has stated so in his statement but the same is not correct. In Paras Yadav v. State of Bihar (1999) Scc (Cri.) 104, it has been held that if the lapse or omission is committed by the investigating agency or because of negligence the prosecution evidence is required to be examined dehors such omissions to find out whether the said evidence is reliable or not, the contaminated conduct of officials should not stand in the way of evaluating the evidence by the courts; otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party. The decision in Paras Yadav''s case(supra) has been duly followed in Dhanaj Singh alias Shera and Ors. v. State of Punjab 2004 Scc (Cri.) 851, in this context. It has come in the evidence of PW-5 Rajan Kumar who has admitted in his cross-examination that the accused persons were already in the police station when the Parchi was given for taking their injured brother to the hospital. In this context, the statement of PW-8 Dr. Ashwani Kumar Sondhi, who initially examined Azad Kumar @ Jhaji, is very relevant. He has proved Exhibit PL, i.e. the application moved by ASI Amarjit Singh at 12.05 PM for conducting the medical examination of Azad Kumar @ Jhaji and he vide endorsement, Exhibit PL/1, opined that Azad Kumar @ Jhaji was brought dead at 12.05 PM and handed over the dead-body to ASI Amarjit Singh at 1.25 PM on the same day i.e. 20.8.2001. This ASI is not a stranger but as is evident from the statement of PW-9 SI Gurdev Singh, he had accompanied him to the hospital. It is only thereafter that the statement of Sajan Kumar was recorded at 1.50 PM which is the basis of the FIR. It has also been endorsed by PW-4 Sajan Kumar that the accused persons were already present in the police station when his statement was recorded by the police. Thus, the position is very clear that the accused had already been apprehended prior to the examination of Azad Kumar @ Jhaji and lodging of the FIR and as such, it was not a case of mistaken identity of the assailants, to say that the identification parade was necessary. The statement of PW-9 SI Gurdev Singh that the accused had been arrested at 8 P.M., also does not affect the case of the prosecution in view of the above-said discussion.

The case of Gulzar Singh and Sucha Singh, appellants, is distinguishable. It is well-settled that the principle of "falsus in uno falsus in omnibus" is not acceptable principle. It is well known fact that in our country, very often the prosecution implicates not only the real assailants but also implicates innocent persons so as to spread the net wide. The Court can always find out that who are the real assailants and who are not. In other words, it is the duty of the Court to separate grain from the chaff. There has been a tendency of the witnesses to attribute some over-act to implicate more persons with the real assailants. This exactly has been done in the present case. It has come in the statements of PW-4 Sajan Kumar and PW-5 Rajan Kumar that Gulzar Singh and Sucha Singh had given blows on the head and mouth of Azad Kumar @ Jhaji with Karra which they were wearing. This runs counter to the medical evidence. PW-1 Dr. Guriqbal Singh who had conducted the post-mortem examination on the dead-body of Azad Kumar @ Jhaji, had found only one injury on the abdomen of the deceased and had not found any injury on the head and mouth. Thus, the medical evidence does not corroborate the ocular account so far as attribution of injuries to Gulzar Singh and Sucha Singh is concerned. Gulzar Singh is the real brother of Baldev Singh whereas Sucha Singh is their associate and obviously, in order to widen the net to implicate more persons, they have been named while attributing some kind of injuries. Their participation in the commission of crime looks to be suspicious, especially when the medical evidence does not support the ocular account and as such, their case is not proved beyond any reasonable doubt and they thus, deserve acquittal.

So far as the case of appellant Baldev Singh is concerned, it has been amply proved from the statements of PW-4 Sajan Kumar and PW-5 Rajan Kumar that he had given stab injury to deceased Azad Singh @ Jhaji . The medical evidence also supports the ocular account in this context.

The only argument that has been addressed by the Counsel for appellant, Baldev Singh, is that he has caused only one stab injury and the blow had not been repeated and as such, it lacks intention to cause death and accordingly, it is a case of culpable homicide not amounting to murder. The contention is meritless. The intention to cause death can be gathered generally from the circumstances and the facts of each case. The nature of intention must be gathered from the kind of weapon used, the part of body hit, the amount of force employed and the circumstances attendant upon the death. There is no justification for the assertion that the giving of a solitary blow on the vital part of the body resulting into death always necessarily attracts the provisions of culpable homicide not amounting to murder. In the instant case, there had been no provocation given from the side of the deceased. Accused Baldev Singh had given a stab injury with a dagger on the vital part, i.e. stomach of the deceased. The medical evidence suggests that the force used was heavy. The injury has been opined to be sufficient to cause death in the ordinary course of nature. Thus, the intention to cause death or at all events intention of causing bodily injury which is sufficient in the ordinary course of nature, is made out. Accused-appellant Baldev Singh thus, has rightly been convicted u/s 302 IPC. No interference is called for in his case.

Consequently, the present appeal qua the accused-appellants, namely, Gulzar Singh and Sucha Singh is allowed and they stand acquitted of the charges, They be set at liberty if not required in any other case.

In the case of accused-appellant Baldev Singh, the appeal stands dismissed.