Bhag Singh vs The State of Haryana

S.S. Dewan, J.—Bhag Singh accused stands convicted u/s 302 read with section 34 and Section 458, Indian Penal Code, by the order of the Sessions Judge, Hissar, dated 30-9-1973 He has been sentenced to life imprisonment and a fine of Rs. 200/ or in default to undergo rigorous imprisonment for six months under the first count and two years rigorous imprisonment under the second count. Both the substantive sentences have been ordered to run concurrently. His co accused Sampuran Singh and Manjit Singh have been given the benefit of doubt and acquitted.

Bhag Singh accused was married to Dalip Kaur (now deceased) and five sons were born out of this wedlock. The accused had land in two villages namely, Desu Malkana and Tangrali. He started suspecting his wife Dalip Kaur to be having illicit liaison with his brother Karnail Singh and on that account there was estrangement between the accused and his wife. About two years prior to the present occurrence, the accused started living with his brother Roop Singh Thereafter, he left the village and started living with Sampuran Singh and Manjit Singh, brothers of the deceased. It is stated that Sampuran Singh and Manjit Singh were also not happy with Smt. Dalip Kaur for her having illicit relations with Karnail Singh About four days prior so the present occurrence, Bhag Singh and his co-accused Sampuran Singh and Manjit Singh (Since acquitted), started working in the per of Roop Singh. A day prior to this occurrence, the accused Bhag Singh cultivated the land which was in the possession of his son Harbhajan Singh and Kaur Singh etc, but the latter again cultivated the same and that was stated to be the immediate cause of this occurrence.

The prosecution case in brief is that on the night intervening 9/10.5.1974, Nichhatar Singh son of Bhag Singh accused had gone to irrigate the filelds of Gulzar Singh Mistry. Dalip Kaur had bolted her house from inside. All the three accused scaled over the well at about mid night. Bhag Singh was armed with a sword, while his co-accused were armed with gandasa. Sampuran Singh gave a qandasa blow on the nock of Dalip Kaur. When Dalip Kaur received injuries, Sampuran Singh caught hold Dalip Kaur by her arms. Manjit Singh held her legs and Bhag Singh started rubbing his sword by placing it on her neck Dalip Kaur died as a result of the said injury and then all the three accused decamped. This occurrence was witnessed by Harbhajan Singh and Kaur Singh who were lying on the cots in the same premises These witnesses being frightened, kept quiet till morning. In the morning, Harbhajan Singh went to Karnail Singh and narrated the whole incident to him Karnail Singh sent for Nichhatar Singh and narrated the incident to Gurdev Singh and Partap Singh. Harbhajan Singh alongwith Gurdev Singh and Partap Singh went to Police post Kalanvali and made a statement to Head Constable Beant Singh (P.W. 16) On the basis of that statement, first Information Report Exhibit PA/1, was recorded at Police Station Baragudha, at 10.30 A.M. on 10.3 1974 The Head Constable went to the house of the deceased, held inquest and recovered blood stained earth and other articles from the spot. The dead body was dispatched to the Mortuary for autopsy. Assistant Sub-Inspector Devi Dass took over the investigation from the Head Constable at about 12 noon. The accused were arrested on 17.5.1974 On interrogation by the Investigation Officer, Bhag Singh, Sampuran Singh and Manjit Singh made disclosure statements, Exhibits PL, PM and PN in the presence of Gurdev Singh and Karnail Singh and in pursuance of those Statements, they got recovered Kirpan and gandasas from the specified places of concealment.

Dr. K.V. Singh (P.W. 15) conducted autopsy on the dead body of Dalip Kaur on 10.5.1974 and found an injury of the following description:--

An incised would starting from mid of the chin right side and going downward and backward reaching up to mid line of the back of neck in its middle, wound measured 7" X 2" in the centre. On further exploration, muscles and big vessels of the neck en the right side were cut The wound had gone further deep severing the traced, thorax cartilage esophagus, cervical verities between 3rd and 4th and spinal cord completely. The neck is attached to the tongue on left side by skin and muscles Vessels of the right side were also saved Person was average built, eyes closed, mouth partly opened, pas mortem staining present on the back, rigor mortis was present in all the limbs, no signs of decomposition.

The death was opined to be due to shock and hemorrhage injury was stated to be ante mortem and was sufficient to cause death in the ordinary course of nature. The time that elapsed between injury and death was opined to be within a few minutes and between death and post mortem about 18 hours. After the completion of the investigation the accused was challaned and committed.

At the trial, Harbhajan Singh (P.W. 1) and Kaur Singh (P.W. 2) gave the eye witness account of the occurrence. Karnail Singh (P.W. 11) deposed to have been informed about this occurrence by Harbhajan Singh. Gurdev Singh (P. W. 13) deposed to the recovery of weapons at the instance of the accused Head Constable Beant Singh (P.W. 16) and Assistant Sub-Inspector Devi Dass (P.W. 17) deposed to the investigation part of the prosecution case. Rest of the evidence was of the formal nature.

The accused when examined u/s 313, Criminal Procedure Code, denied the allegations of the prosecution and pleaded innocence. Bhag Singh pleaded that Karnail Singh had illicit liaison with hi? wife (Bhag Singh''s) Dalip Kaur and wanted to grab his land and the house and en that account ha falsely implicated him in this case The accuse, however, led no evidence in their defence.

The trial Court on the basis of the material pleased before it, acquitted Sampuran Singh and Manjit Singh and convicted and sentenced Bhag Singh as indicated above Hence the present appeal at his instance.

The facts enumerated above make it clear that the crucial question that has to be determined in this case is whether the evidence of Harbhajan Singh and Kaur Singh can be relied upon for the purpose of convicting Sampuran Singh and Manjit Singh or upholding the conviction of Bhag Singh They are the only two witnesses who according to the prosecution, actually witnessed the murder of their mother and saw the assailants. It is of course clear that the fact that Dalip Kaur was murdered on the night between the 10th and 11th May, 1974, in her house by the assailants who entered the house by scaling over the wall, is amply proved by the prosecution evidence. The point that needs to be examined is whether these three persons were the culprits who committed the crime. Harbhajan Singh and Kaur Singh are young boys whose ages were recorded as 16 and 10 years at the time when they were examined in the Court of Sessions in May, 1975, so at the time of the incident they were only 15 and 9 years of age While a child with this age can often be expected to give out a true version because of his innocence but there is always the danger in accepting the evidence of such a witness that under influence he might have been coached to give out a version by persons who may have influence on him. In this case there are a number of circumstances which in our opinion, indicate that it will not be quite safe to rely on the evidence of these two child witnesses The evidence of these witnesses is full of material discrepancies and their conduct at the alleged time of occurrence and thereafter was not immune from censure. It is true that Harbhajan Singh and Kaur Singh have attributed specific part to the appellant and his co-accused Sampuran Singh and Manjit Singh (since acquitted) but when we turn to their cross-examination it is remarkable that on almost material points they have made deliberate improvements. Harbhajan Singh claims to have stated in his report Exhibit PA that his father Bhag Singh (now appellant) was living with his maternal uncle Sampuran Singh for the last about l� years prior to this occurrence, that Bhag Singh used to say his (Harbhajan Singh''s) mother had illicit connections with Karnail Singh ; that he narrated the incident to Gurdev Singh and Partap Singh, that he informed his brother Nachhattar Singh about this occurrence, that his mother was murdered because Bhag Singh wanted to take possession of the land, that the accused had come to his house half an hour after Nachhattar Singh left his house a day prior to the present occurrence that the accused had gone and cultivated the land and sown cotton crop there but they (Harbhajan Singh etc) had gone and ploughed the land agene and undone what had been done by them. Kaur Singh P.W. claimed to have stated before the police that his brother Nachhattar Singh had gone to irrigate the land of Gulzar Singh Mistri, that he and Gurcharan Singh had gone to call Karnail Singh to come to the spat, that his maternal uncles (Sampuran Singh and Manjit Singh) came to his house about 6 months earlier. The witnesses were confronted with their statements Exhibits PA and DA where these assertions were found conspicuous by their absence. Harbhajan Singh denied to have stated in his report Exhibit PA that his father Bhag Singh was not on good terms with hit mother Dalip Kaur because she had illicit connections with his uncle Karnail Singh. He was confronted with his statement where it was found mentioned. It is thus manifest that Harbhajan Singh and Kaur Singh had made deliberate improvements and the same cannot be dismissed as amounting merely to omissions. If these improvements and contradictions are considered together it would appear that the witnesses though they art unsophisticated are clever enough to make improvements on a point which they thought material and that it a very serious infirmity particularly in this type of case According to Harbhajan Singh. Bhag Singh and his companions had muffled their faces at the alleged time of occurrence, whereas Kaur Singh stated that they had not covered their faces. The serious conflict in the evidence or this point raises a grave doubt even about the presence of these witnesses at the spot. Harbhajan Singh and Kaur Singh are stated to be wide awake when the appellant and his two companions entered the house by scaling over the wall. How strange it is that they saw the appellant and his companions coming inside their house from a distance of about 20 feet from their cots but they did not wake up their mother. They did not talk with each other when the assailants left the spot. Neither Harbhajan Singh nor Kaur Singh attempted to go out of the house to inform their neighbour�s Roop Singh and Partap Singh about this incident. House of their uncle Karnail Singh was at a distance of about 40 karams from their house. He was also not informed about this occurrence during the night time. It is not their case that they were threatened by the assailants at the alleged time of occurrence They could not, therefore, be under any fear at the time when the assailants left their house It is in the evidence of these witnesses that Kaur Singh went to his uncle Karnail Singh to inform him about this occurrence after sunrise Karnail Singh (P.W. 11) has no doubt stated at the trial that Kaur Singh narrated the incident to him denouncing Bhag Singh, Sampuran Singh and Manjit Singh as the culprits, the weapons used by them and the other details of the incident. It is pertinent to notice here that the statement of Karnail Singh was recorded at the time of inquest which was completed at about 12 noon. It was no where mentioned therein that he was informed by his nephew Kaur Singh about this incident or that Bhag Singh, Sampuran Singh and Manjit Singh were the culprits, the weapons used by them and the other details of the occurrence Therefore, we find that Karnail Singh does not stand the necessary test of judicial scrutiny and we are left with the impression that he is not a trustworthy witness

The occurrence is alleged to have taken place at about 12 or 12. 30 midnight on the night intervening 10/11th May 1974 Harbhajan Singh accompanied by Gurdev Singh Sarpanch and Partap Singh Lambardar, left for Police Post Kalianwali at about 8 A.M. and lodged a report at about 8 30 A.M. Police Post Kalianwali is at a distance of about 2� miles from village Desu Malkana. On the basis of that report the first information report was registered at Police Station Baragudha at 10.30 AM The special report reached the Ilaqa Magistrate at (sic) at 2.25 P.M. It is in the evidence of Assistant Sub-Inspector Devi Dass (P.W. 17) that he reached the spot at about 11.30 or 12 A.M. whereas according to Karnail Singh (P.W. 11) the police came to the spot at about 9 AM It is thus not clear as to at what time the report was lodged with the police It is rather strange and queer that Harbhajan Singh and Kaur Singh kept their lips tight for about 7 or 8 hours and made no attempt to lodge the report at Police Post Kalianwali which was at a distance of about 2 and 2� miles from their village. First information report ma criminal case is an extremely vital and valuable piece of evidence for the purpose of corroboration the oral evidence adduced at the trial. The importance of the above report can hardily be over estimated from the stand-point of the accused. The object of insisting upon prompt lodging of there report to the police in respect of a commission of an offence is to obstinately information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part paved by them, as well as the names of the eye witnesses present at the scene of occurrence Delay in lodging the first information ion reports quiet often result to embellishment which is a creature of after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of colored version, exaggerated account or connected story as a result of deliberation and consultation, it is therefore, essential that the delay in lodging of the first information report should be satisfactorily explained. In the present case Harbhajan Singh and Kaur Singh were present when the assailants made murderous assault on the deceased The house of their uncle was hardily at a distance of 40 Karams from their house but no body went to inform him during the night. Neither of them made any report to the Sarpanch or the police for more than 7 of 8 hours of the occurrence. There was sufficient time for the witness who are undoubtedly inimical to the appellant and his companions to deliberate an prepare a false case not only against Manjit Singh and Sampuran Singh who have been acquitted but against the appellant also The said circumstance in our opinion would raise considerable doubt regarding the veracity of the evidence of these two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the appellant.

It is in the evidence of Harbhajan Singh and Kaur Singh P.Ws. that Sampuran Singh gave a gandasa blow on the neck of their mother Dalip Kaur When Dalip Kaur started writhing with pain, Manjit Singh caught hold of her legs, Sampuran Singh held her arms and Bhag Singh started rubbing his kirpan on the wound of her neck so that she may not remain alive. Dr. K.V. Singh (P.W. 15) who conducted autopsy on the dead body of Dalip Kaur, opined that it was not possible to rub the injury with a sword as found on the person of the deceased. That shows that the medical evidence is in direct conflict with the ocular testimony. All that shows that the eye witnesses were not shy of making material improvements at the trial and were capable of mounding their statements. In this state of affairs possibility cannot be over ruled that the deceased might have been assaulted by some unknown persons and caused her fatal blows.

Therefore on a careful consideration of the entire evidence and the circumstances of the case we find that the statements of the alleged eye witness do not stand the necessary test of judicial scrutiny and they have not appeared to us to be reliable witnesses and we are not satisfied that the version stated by them is credible The aforesaid circumstances speak sufficiently in favour of the defence version of the appellant in his statement u/s 313, Criminal Procedure Code that Karnail Singh, had illicit connections with Dalip Kaur deceased and he wanted to grab his land and house.

The prosecution version sounds extremely improbable leaving many things in the womb of mystery. On this state of things when we are left with the impression that the eye witness are fake and have rot spoken the truth, no verdict of guiit can be recorded against the appellant. It is a matter of great regret and concern of this Court that for the diabolical murder of Dalip Kaur no body would be punished. But the inclination to punish the accused has got to be checked if the Court is not sure of his guilt. The responsibility for the failure of the conviction most squarely rest on the prosecution witnesses and those who were incharge of the prosecution Consequently, we accept the appeal of the appellant, sec aside his conviction and the sentence and acquit him. The appellant is on bail. He need not surrender to his bail bounds.