Bhajan Singh and ors. vs State of Punjab

S.S. Dewan, J.

The five appellants, namely, Bhajan Singh, Ajit Singh son of Banta Singh, Malkiat Singh and Ajit Singh sons of Gurbachan Singh and Mohinder Singh all residents of village Rurka Kalan were brought to trial for the murder of Jhalman Singh before the Court of Session, Jallandar. The learned Sessions Judge, Jallandar, by his judgment dated September 19, 1986, held the appellants guilty under Sections 148, 302 and 302/149 Indian Penal Code. Bhajan Singh appellant was convicted under Section 302, Indian Penal Code and the other four appellants were convicted under Sections 302 149, Indian Penal Code and each of them was sentenced to life imprisonment and a fine of Rs. 2,000/. They were also convicted under Section 148, Indian Penal Code and each one of them was sentenced to two years rigorous imprisonment. The substantive sentences of imprisonment awarded to the appellants were, however, ordered to run concurrently. They have challenged their convictions and sentences in this appeal.

The suggested motive for the crime is that there was long standing enmity between the parties because of civil and criminal litigation between them. The prosecution case in short is that on 7.4.1985 at about 7.30 p.m. Jhalman Singh deceased told his mother Dhan Kaur that he wanted to bring milk and she should bring a container to him for that purpose. When Jhalman Singh proceeded towards the shop of Mulkh Raj and had reached near the turning of the road, Bhajan Singh accused raised a lalkara and opened the attack by giving a gandasi blow on the head of Jhalman Singh followed by Ajit Singh accused who gave a kirpan blow on his forehead. The third blow was given by Malkiat Singh accused with a kirpan on his left eyebrow and thereafter Ajit Singh gave another kirpan blow on his right wrist. Mohinder Singh accused gave a Sabbal blow on the left arm of Jhalman Singh followed by Ajit Singh son of Banta Singh accused who gave two kirpan blows on his legs. Mohinder Singh accused gave a Sabbal blow on his right leg followed by Malkiat Singh accused who gave a kirpan blow on his left leg. In the meanwhile, Dhan Kaur and Mulkh Raj raised alarm and then all the accused bolted away from the spot with their respective weapons. Immediately after the occurrence, Puran Singh, father and Bachittar Singh, brother of the deceased reached the spot and Dhan Kaur apprised them of this incident. Bachittar Singh then brought a jeep and removed Jhalman Singh injured to the Civil Hospital, Jallandar. On receipt of intimation from the doctor, the Assistant Sub Inspector Dalbir Singh PW 13 went to the hospital to record the statement of Jhalman Singh. After obtaining the opinion of Dr. Dalvinder Singh Toor that Jhalman Singh was fit to make a statement, Dalbir Singh recorded the statement Ex. PN/12 of Jhalman Singh at 10.20 a.m. on 8.4.1985. On the basis of that statement, formal FIR Ex. PK/14 was recorded in Police Station, Goraya at 12.10 p.m. The accused were arrested on April 24, 1985.

Dr. S.S. Parmar PW 2 admitted Jhalman Singh injured in the Civil Hospital, Jallandar on 7.4.1985 at 9.20 p.m. Dr. P.S. Aneja PW 3 medically examined Jhalman Singh on the same day at 10.35 p.m. and found as many as 9 injuries on his person out of which seven were incised wounds and two lacerated wounds as detailed in the medicolegal report Ex. PB. Jhalman Singh expired in the hospital on 10.4.1985 at 10.15 p.m. The investigating Officer held inquest and sent the dead body of Jhalman Singh to the mortuary for autopsy.

Dr. Surinder Sharda PW 10 conducted autopsy on the dead body of Jhalman Singh on 11.4.1985 at 1.00 p.m. and found 8 injuries as detailed in the postmortem report Ex. PW. Death was opined to be due to injury No. 1 resulting in intra cranial haemorrhage, shock and impairment of cardiorespiratory system which was sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was stated to be within 72 hours and between death and postmortem within 24 hours. After necessary investigation, the accused were challaned and committed.

Dhan Kaur PW 1 furnished the ocular account of the event Mulkh Raj, another eye witness of the occurrence was however, given up by the prosecution as having been won over by the accused. The Assistant Sub Inspector Dalbir Singh PW 13 was the main Investigating Officer in the case. The remaining evidence was of formal nature. When examined under Section 313, Criminal Procedure Code, the accused denied the prosecution allegations and pleaded false implication in the case. Bhajan Singh accused, however, gave his counter version in the following terms :

"Master Devi Chand of my village owned agricultural land in my village which was under cultivation of Puran Singh father of Jhalman Singh deceased. Devi Chand filed ejectment proceedings and Puran Singh was ejected under the orders of the Court. Thereafter, I and my brothers purchased one fourth share of the said land in the name of our wives and the remaining three fourth share was purchased by Arjan Singh Lambardar, in the names of his son and wife as well as Malkiat Singh and Ajit Singh coaccused purchased a share out of the said land and the name of their wives. jarnail Singh and Sadhu Singh also got one fourth share in names of their wives. The possession was delivered to the vendees. Puran Singh filed a civil suit for injunction against Devi Chand, myself which was dismissed and the appeal filed against the said judgment was also dismissed. Ten days after the dismissal of the first suit by the trial Court, Puran Singh filed another suit for injunction against me, my brothers, coaccused Malkiat Singh and Ajit Singh as well as Jarnail Singh, Sadhu and Arjan Singh. That suit was also dismissed and the appeal filed against the said judgment was also dismissed. The police instituted proceedings under Section 145, Cr.P.C. regarding the said land against myself and Puran Singh. SDM Phillaur held myself in possession of the land and the appeal filed by Puran Singh was dismissed by the Addl. Sessions Judge on 2.3.1984. Puran Singh, his sons, brother and servant attacked us in the said land on 2.3.1984 after his appeal was dismissed. In that incident, my brother Gurmit Singh, Arjan Singh and my coaccused Ajit Singh my brother were injured and my brother Gurmit Singh subsequently died. Puran Singh having failed to obtain possession of the land, transferred in our names, had falsely involved me, my brother Ajit Singh and other coaccused in this case. The khasra girdawari entries of the said land are in my name. Puran Singh also filed application for correction of Khasra Girdawari which was also dismissed. All the litigations have ended in my favour and in favour of my brother."

Besides tendering into evidence documents Ex. DD and DE, Sub Inspector Darshan Singh was examined by the accused in defence. Assistant Sub Inspector Dalbir Singh, Amarjit Singh Ahlmad and Head Constable Bahadur Singh were examined by the Court as Court witnesses.

After hearing the learned counsel for the parties and after perusing the evidence as also the judgment of the trial Court, we are of the opinion that this appeal must succeed.

Dhan Kaur PW 1 who is the solitary eyewitness to the occurrence examined by the prosecution, has no doubt narrated the story which has been summarised above but she is the mother of Jhalman Singh deceased. Though there can be no presumption against her veracity because of her being relation of the deceased, yet having regard to the human nature as it is, she is undoubtedly interested in supporting the prosecution version. As such, her statement has to be scrutinised strictly before the same can be acted upon. The salient issue that, therefore, arises here is whether the evidence of Dhan Kaur is of a nature and quality which could command implicit acceptance in other words, whether this witness satisfies the stringent test laid down by their Lordships of the Supreme court in Vadivelu Thevar v. The State of Madras, AIR, 1957 SC 614. Their Lordships have reiterated their earlier view again in Ram Rattan and others v. The State of Rajasthan, AIR 1962 SC. 424.

We are firmly of the view that for the reasons appearing hereinafter, the solitary testimony of Dhan Kaur PW 1 does not measure upto the strict standards of proof beyond reasonable doubt which alone can be necessary foundation for a conviction on the charge of murder. Once the abovesaid finding is sanctified, then certain necessary logical results flow therefrom which cannot but seriously damage the fabric of the prosecution case. It deserves recollection that Dhan Kaur PW firmly took up the stand that the incident took place at about 7.00 p.m. when her son Jhalman Singh wanted her to bring him a container so that he may bring milk and that by the time she brought a dolu (container) Jhalman Singh had proceeded towards the shop of halwai and she followed him with the container. According to her, this incident took place at about 7.30 p.m. when Jhalman Singh deceased called out his mother and asked her to give him a dolu meant for milk and in the meantime, all the accused variously armed came there and attacked him with their respective weapons. Therefore, the mode and the manner in which Dhan Kaur is alleged to have witnessed the emergence of the accused and the subsequent murder does not appear to us as absolutely acceptable. It is significant that neither this witness raised any commotion nor attempted to intervene and protect her helpless son being butchered before her eyes in the manner alleged. It is significant to note that the parties were inimically disposed towards each other because of civil and criminal litigations going on between them. It is borne out from the record that for the murder of Gurmit Singh, brother of Bhajan Singh accused, Jhalman deceased and his brothers, Bachittar Singh, Gurdev Singh, Sukhdev Singh and their uncle Pritam Singh were challaned. A cross hurt case was also registered regarding the same occurrence against the accused except Mohinder Singh. Bachittar Singh PW and his parents were cited as witnesses for the prosecution. That murder case and the cross hurt case were stated to be pending trial during the days of this occurrence In such a situation, the accused would not possibly leave Dhan Kaur PW untouched either because she would be partisan or biased against the accused. A version given by Dhan Kaur could only be accepted if supported by absolutely unimpeachable and totally impartial evidence. That is indeed wholly lacking in the present case. She has no doubt attributed specific parts to all the accused but when we turn to her crossexamination, it is remarkable that on a material point she made deliberate improvement. She claimed to have stated before the police that immediately after the occurrence her husband Puran Singh and son Bachittar Singh came to the spot and she, Jhalman Singh deceased and Mulkh Raj narrated the occurrence to them. She was confronted with her statement Ex. DA where such assertion was conspicuous by its absence. Bachittar Singh PW 4 has categorically stated at the trial that his mother did not tell him the names of the assailants of Jhalman Singh at that time. The conduct of Dhan Kaur at the alleged time of occurrence and thereafter is also not immune from censure. Neither she accompanied the deceased to the hospital on the alleged day of occurrence nor she visited the hospital on the following day to enquire about the health of her son. Neither she made any attempt to lodge the report with the police herself nor she requested anybody in the village to lodge the report at Police Station Goraya. In this view of the matter, the testimony of Dhan Kaur cannot be accepted as credible and when no corroboration of her testimony is available on the record, her solitary statement per se does not, in our opinion, constitute evidence of the requisite standard, on the basis of which it can be found much less safely that the accused were the assailants who caused injuries to Jhalmal Singh.

The time and the manner of recording the First Information Report in the present case are again matters which are not above suspicion. The learned defence counsel has firmly contended that the present case was framed in the village after enquiries by the police some time later on 8.4.1985. It is an admitted fact that after getting Jhalman Singh deceased admitted in the Civil Hospital, Jallandar at about 10.00 p.m. on 7.4.1985, neither Puran Singh nor Bachittar Singh attempted to lodge the report at Police Station, Goraya. None of these witnesses even attempted to lodge the report with the Incharge Police Post in the hospital. The case was registered in the Police Station, Goraya on 8.4.1985 at about 12.10 p.m. on the statement allegedly made by Jhalman Singh deceased on the same day at about 10.00 a.m. Whatever may be said regarding that stance, 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 could name the appellants for the murder of Jhalman Singh.

The genuineness of the dying declaration Ex. PN/12 alleged to have been recorded by Dalbir Singh Assistant Sub Inspector (PW 13) is also not free from doubt. The occurrence took place at about 7.30 p.m. on 7.4.1985 whereas the dying declaration is stated to have been recorded at about 10.20 a.m. on 8.4.1985. The deceased expired on 10.4.1985 at about 10.15 p.m. Dr. B.S. Parmar PW 2 has clearly stated that when he attended the deceased on 8.4.1985 at about 9.00 a.m., at that time he was semiconscious. Dr. Dalvinder Singh Toor PW 11 has stated that on the enquiry made by Dalbir Singh Assistant Sub Inspector on 8.4.1985 at about 10.20 a.m., he had opined that Jhalman Singh was fit to make a statement. According to Dr. Toor, Dr. Parmar had examined the deceased at about 1.00 p.m. but there is no reliable evidence on the record to hold whether prior to 1.00 p.m. Jhalman Singh had regained consciousness or not. The nature and extent of injuries, sustained by the deceased would indicate that out of 9 injuries on the head and face, in case of injury No. 1 outer table of the skull bone was cut and some of his injuries also bled profusely. In such a situation, Jhalman Singh would not have remained in a fit condition to make statement Ex. PN/12. In this state of affairs, we find it exceedingly difficult to place reliance on the dying declaration which appears to us to have been recorded in the circumstances, which do not inspire confidence. The possibility of the deceased having been influenced by his father and brother in making the dying declaration cannot reasonably and safely be ruled out.

There is one more circumstance which militates against the prosecution. Sub Inspector Darshan Singh DW 1 has admitted that there is a cutting in the police proceedings recorded at the end of dying declaration at Ex. PN/3 and the word `signature'' has been scored off and instead words `thumb impression was affixed are written. He has also admitted that the ink in which the aforesaid correction in Ex. PN/3 has been made is different from the shade of ink with which Ex. PN/3 was originally written. Thus, the dying declaration Ex. PN/12 allegedly made by the deceased becomes a auspicious document on this ground also.

For the aforementioned reasons, we hold that the solitary and uncorroborated evidence of Dhan Kaur PW is so riddled with infirmities that it is not possible to place implicit reliance on the same. That being so, the appellants have to be accorded benefit of reasonable doubt and the appeal is hence allowed and their convictions and sentences are set aside.