Balkar Singh and ors. vs State of Punjab

S.S. Dewan, J.—This appeal is directed against the judgement dated November 18, 1986 of the Additional Sessions Judge, Amritsar, whereby,he convicted the appellants under Sections 148 and 302, 307 326, 324 and 423 read with Section 149, Indian Penal Code, for committing the murder of Darshan Singh deceased and for causing injuries to Jagir Singh and Kashmir Singh PWs and each of them was sentenced to various terms of imprisonment and fine. All the sentences so awarded to them were, however, ordered to run concurrently.

The motive for the crime is stated to be that a year prior to the present occurrence, Darshan Singh deceased had quarrelled with Pal Singh accused and others regarding which a case was still pending decision in the trial Court. Pal Singh accused nursed a grudge against the deceased on that score.

The prosecution case is that on 15.7.1985 at about 7. 0 P.M. Amrik Singh PW along with his brother Darshan Singh deceased, Jagir Singh and Kashmir Singh sons of Hari Singh were going to their fields known as `Chhonianwala Khat'' for irrigating the paddy crop. Jagir Singh, Kashmir Singh. and Darshan Singh were going ahead of Amrik Singh who was following them at a distance of about 3/4 karams. It is alleged that when they reached the metalled road near the bandh of the drain, all the accused namely, Pal Singh armed with a sua, Balkar Singh with a spear, Resham Singh with a dang, Jang Bahadur Singh with a. takua and and Jagtar Singh, Baldev Singh, Mukhtiar Singh and Kirpal Singh armed with kulharies emerged from behind the bandh. Kirpal Singh accused raised a lalkara that Darshan Singh should not be allowed to escape. Upon this, Pal Singh opened the attack by giving a sua blow to Darshan Singh on his left upper arm followed by Balkar Singh who gave a spear blow on his right shin. Jang Bahadur Singh then gave a takua blow from the reverse side on the left side of the upper lip of Darshan Singh followed by Jagtar Singh, who gave a takua blow from its sharp side on his right leg. Kirpal Singh gave a kulhari blow from its reverse side on his right leg above the knee followed by Mukhtiar Singh who gave a kulhari blow from its blunt side on his left leg. Resham Singh gave a dang blow on his left shoulder. When Darshan Singh fell down with his face downwards, Baldev Singh gave a kulhari blow on his right shoulder followed by Pal Singh who gave two sua blows on his left leg. Amrik Singh who witnessed the occurrence, ran away from the spot while raising raula `killed killed'', The accused also gave some injuries to Jagir Singh and Kashmir Singh PWs. After about 5/7 minutes of the incident, Amrik Singh returned to the place of occurrence and found Darshan Singh lying dead and Jagir Singh and Kashmir Singh PWs in injured condition. Sukhdev Singh and Baldev Singh sons of Jarnail Singh came to the spot after some time and then the injured were removed to the house of Amrik Singh. On the following morning leaving Gurmukh Singh near the dead body of Darshan Singh, Amrik Singh set out for the Police Station to lodge the report. On the way, he met Gurjinder Pal Singh Assistant SubInspector near the bus stand Panjwar where he made a statement Ex. PD before him and on the basis of that statement, formal F.I.R. Ex. ID 2 was recorded at Police Station, Jhabal at 6.05 A.M. on 16.7.1935. Gurjinder Pal Singh went to spot, held inquest and sent the dead body of Darshan Singh to the mortuary for autopsy. He also lifted bloods stained earth from the spot and prepared the visual plan of the place of occurrence. Inspector Gurdip Singh who took over the investigation from Gurjinder Pal Singh, arrested the accused on 24.7.1985 and 26.7.1985 and they suffered disclosure statements leading to the recoveries of their respective weapons from the specified place of concealment.

Dr. Surwan Singh Ratta PW 3 medically examined Kashmir Singh and Jagir Singh PWs on 16.7.1985 at about 9.45 A.M. and found as many as 13 injuries on the former and I I injuries on the latter and out of them injury No. 1 on the person of Kashmir Singh was found to be grievous while the rest were simple in nature and injury No. 2 on the person of Jagir Singh was found to be grievous and the rest were simple. in nature as detailed in the medicolegal reports Exs. PF and PG respectively. Dr. Ranbir Singh Pannu PW 2 examined the injuries of Jagir Singh on 28.8 1985 and he found callous formation at the lateral end of devide. Dr Pritpal Kaur PW I conducted autopsy on the dead body of Darshan Singh on 16.7.1985 at 1.00 P. M. and found as many as I I injuries as detailed in the postmortem report Ex. PM. Death was opined to be due to shock and haemorrhage as a result of multiple injuries, which were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was stated to be immediate and between death and postmortem within about 24 hours. After necessary investigation, the accused were challaned and committed.

The ocular testimony consists of Amrik Singh PW 6, Jagir Singh PW 7 and Kashmir Singh PW 8. Gurjinder Pal Singh Assistant Sub Inspector PW 10 and Gurdip Singh Inspector PW 11 are the Investigating Officers in the case. When examined under Section 313, Criminal Procedure Code. the accused denied the prosecution allegation and pleaded false implication in the case but led no evidence in defence.

before we come to the evidence in the case, it has to be decided first on the touchstone of probabilities in view of the rather unusual prosecution story which has been spun out and has been detailed in the above resume of facts. The learned counsel for the appellants rightly and forcefully assailed the prosecution, version and pigeonboled it by pointing out a variety of unusual and improbable circumstances, which all occurring together cannot easily be termed as mere coincidences.

At the very outset, the presence of Amrik Singh PW 6, who is the brother of Darshan Singh deceased and a first informant in the case, has been rightly made the subject of pointed criticism. It is significant to note here that Amrik Singh is man of dubious character. He has admitted at the trial that his name figured in bundle `A'' of Police Station, Jhabal and he was arrested bythe police in smuggling cases.

The whole story that when Darshan Singh deceased accompanied by Amrik Singh, Kashmir Singh and Jagir Singh PWs. was going towards his field to irrigate his paddy crops, they were assaulted by the appellants, appears to be too farcical to be accepted at its face value. It is significant to note that Amrik Singh PW who is the brother of the deceased, was standing at a distance of about 4 or 5 karams. from the place of occurrence and was raising alarm but he has not received any injury on his person. It seems unlikely and unacceptable that if he was present, he would not have attempted to intervene and protect his helpless brother from being butchered before his eyes in the manner alleged. Again, the presence of Kashmir Singh and Jagir Singh at the alleged place of occurrence appears to be more imaginative than factual. Kashmir Singh PW 8 has stated at the trial that prior to the present occurrence he and his brother Jagir Singh had to go to their house and the others (Darshan Singh and Amrik Singh) had to irrigate their paddy fields. It is thus manifest that the reason for the presence of Amrik Singh and the other witnesses at the alleged place of occurrences appears to have a hollow air about it at very outset apart from the intrinsically vital defects in their testimony. Amrik Singh stated at the trial for the first time that he ran away from the place of occurrence immediately after his brother was assaulted by the appellants and he returned again to the spot after about 5/7 minutes of the occurrence. It is, thus manifest that this witness had made deliberate improvement at the trial and the same cannot be dismissed as amounting merely to omissions. Jagir Singh and Kashmir Singh PWs are stated to have sustained injuries at the alleged time and place of occurrence but it is queer and strange that Amrik Singh never visited the hospital to enquire about their health. The mode and the manner in which this witness is alleged to have witnessed the occurrence does not appear to us as easily acceptable.

The time of occurrence and the pervading darkness at the time of the murder is one of the crucial factors herein. Jagir Singh PW 7 has categorically stated at the trial that it had grown dark when they were taken to the house of Amrik Singh PW and it may be about 8 P. M. at that time. Kashmir Singh PW 8 has stated that it was rainy season and cloudy on that day. Amrik Singh has given the time of occurrence as 8 P.M. in F.I.R. The witnesses are obviously trying to clutch at a straw by suggesting that the occurrence took place at about 7 or 7.30 P.M and they could identify the assailants in such a situation. On behalf of the appellants it has been rightly and forcefully argued that in a blind murder on a dark night where the assailants had remained unidentified, Amrik Singh a close relation of the deceased obviously has been patently persuaded to come forward as eyewitness. The difficulty in the identification, of the assailants in view of the time, place and manner of the occurrence is indeed patent on the present record. The defence was. therefore, on, strong ground in urging that the appellants who are related inter se were either named primarily on suspicion or perhaps implicated for being on the wrong side of the police in a case where the actual assailants had gone unidentified.

The eyewitness account, improbable and incredible as it is, appears to be totally falsified when tested on the anvil of the conclusive circumstantial evidence in this case. All he three eyewitnesses, namely, Amrik Singh, Jagir Singh and Kashmir Singh are virtually unanimous that Pal Singh had given sua blows to the deceased on his left upper arm and right chin. These injuries correspond to injuries Nos. 2, 3 and 9 as mentioned in the Postmortem report Ex. PA. These three injuries are vertically placed incised wounds which according to Dr. Pritpal Kaur PW I were caused by a sharp pointed weapon. We have seen sua Ex. P. 14 and that its edge being blunt, these injuries could not have been caused with the same sua.

The occurrence took place at about 8 P.M. on 15.7,1985 and the report was lodged on 16.7.1985 at 6.05 A.M. The copy of the First Information Report reached the Ilaqa Magistrate at 10 A.M. on the same day. The police station was hardly at a distance of about 6 miles from the place of occurrence. There, however, cannot be any doubt in our mind that it could not be said with equanimity that the First Information Report was not a delayed one. It is borne out from the evidence of Amrik Singh and the other eyewitnesses that there were tractors and motorcycles available in the village but none of them made any attempt to lodge the report at the Police Station for about ten hours. Amrik Singh claims to have met Gurjinder Pal Singh Assistant Sub Inspector near the busstand Panjwar at about 6 A.M. And made a statement before him and on the basis of that statement, the F.I.R. was registered at the police station whereas according to Kashmir Singh PW, Amrik Singh brought the Assistant Sub Inspector to his home at about 5 A.M. and narrated the whole incident to him and thereafter the Assistant Sub. Inspector read over That statement to him and he (Amrik Singh) signed it in token of its correctness. Whatever may be said regarding that since it appears to be plain that the First Information Report in the present case does not rule out the possibility of considerable delay and the opportunity of consultation and confabulation before the investigating agency may have found itself compelled to name the appellants as the culprits for the murder within the village precincts itself.

There is another fact which stands out prominently as a circumstance which may be said to tilt the scale in favour of the appellants. The Investigating Officer has admitted that the names of the eyewitnesses and the place of occurrence do not find mention in the Daily Diary Entry No. 50 of 16.7.1985 (Ex. DC.) We thus find that all the safeguards which may go to show that the facts about the occurrence were disclosed at the earliest time at which it purports to have been done, are lacking in this case and this cannot be a mere coincidence. There is in the circumstances considerable force in the argument of the learned defence counsel that the First Information Report, was prepared after great delay and the facts of the occurrence were not disclosed promptly.

The above discussion would show that the false witnesses to the occurrence had been introduced to the case and there was an attempt to implicate innocent persons in the case. When the investigation is found to be tainted, the whole of the prosecution case becomes open to serious doubt and challenges. All that can be said for the prosecution is that it may be that the appellants had committed the crime but as observed by Gajendragadkar, J., as he then was, in Sarwan Singh Rattan Singh v. State of Punjab AIR 1957 S.C. 637, there is a long way to travel between may be true and must be true and this whole distance has to be travelled by the prosecution. In the view we have taken upon the evidence we are of opinion that the only safeguard for the Court would be to reject the prosecution case as not proved. Giving the appellants the benefit of doubt, we allow this appeal, set aside their convictions and sentences and acquit them The result is unfortunate but it cannot be helped. it is a pity that a brutal murder is going unpunished.