Darshan Singh vs State of Haryana

N.K. Kapoor, J.

Both these appeals are against the order of the Additional Sessions Judge, Sirsa dated 1.9.1989 convicting and sentencing the appellants. Vide the impugned judgment, all the four appellants (in both the appeals, i.e. Darshan son of Jagira, Raja son of Jangira, Raja son of Jangira, Darshan Singh son of Bira and Jaggi son of Pilla Singh) were convicted under section 302/34 of the Indian Penal Code and sentenced to rigorous imprisonment for life and a fine of Rs. 2000/ each in default of payment of fine to further undergo rigorous imprisonment for three years. Raja was also convicted under section 324 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for two years. His other three co accused have also been convicted under section 324/34 of the Indian Penal Code an sentenced to undergo rigorous imprisonment for one year. Darshan son of Bira was convicted under section 323 of the Indian Penal Code ans sentenced to undergo rigorous imprisonment for one year and his three co accused, namely, Darshan son of Jangira, Raja and Jaggi under section 323/34 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for a period of six months each.

The facts of the present case, in brief are that on 30th of August, 1988, at about 9 p.m., Jagga Singh (PW4) and his brother Dunger Singh (now deceased) were returning after having a talk with Gurcharan Singh about votes to their house and hardly reached near the house of Gurdial Singh that they saw Raja son of Jangira, Darshan son of Jangira, Jaggi son of Pilla Singh and Darshan Singh son of Bira Mazhabi Sikh by caste, residents of Singh pura on the way. All these persons were armed with gandasas. As per statement of Jagga Singh, his brother Dunger was a head of him. On seeing them all the four above mentioned persons remarked that Jagga Singh and Dunger Singh be taught lesson for getting recovered chura post from them.. Immediately after saying so, Raja gave gandasa blow to Dunger hitting him on his head. Thereafter Darshan son of Jangira gave another blow on the head of Dunger Singh who fell down. Accused Jaggi gave gandasa blow to Dunger which hit him on his face. Jagga Singh (PW4) raised alarm`mar diya mar diya'' and hearing this noise, his brother Nachhattar Singh and one Jang Singh son of Bugar Singh, residents of the village reached the spot, Within their sight also, Jaggi accused gave another gandasa blow to Dunger while he was lying gallen. With a view to shelter his brother from the blows of the accused, Dunger fell on his brother. Thereafter Raja gave a gandasa blow that hit Jagga on the back of his head. Darshan Singh gave gandasa blow lathiwise on the back of the waist of Jagga Singh (PW4). Thereafter all the accused gave blows to Dunger from the blunt side of their gandasas. Dunger succumbed to the injuries at the spot. Jagga Singh arranged jeep of Sukhdev Singh and took deadbody of Dunger to Kalanwali hospital. Since the Doctor was not available there, he took the deadbody to Odhan hospital. On the same day i.e. 30th of August, 1988, at about 11.45 p.m., Jagga Singh was medically examined by Dr. O.P. Chanania (PW1) who found the following injuries on his person :

"1. An incised wound 4cm x1 cm x bone deep or the left occipito parietal are of head 11/2 cm lateral to the mid line. The corresponding hair were cut. There was clotted blood in the wound. Xray advised.

A contusion 8 cm x 5 cm on the back of left lumber region lying transversely just lateral to the mid line. It was reddish in colour. Xray advised."

According to the doctor, injury No. 1 was caused by sharp weapon and injury No. 2 was with blunt weapon. PW1 Dr. O.P. Chanania sent ruqa Ex. PB to Police Post Odhan regarding the arrival of the dead body of Sunger Singh son of Tulsi Singha and injured Jagga Singh son of Tulsi Singh on 30th August, 1988 at 11.40 p.m. The case was referred to him by P.H.C. Kalanwali, as medical officer there was on leave. On receipt of this ruqa, Sub Inspector Banwari Lal (PW8) went to the Primary Health Centre, Odhan and made request Ex. PL to Dr. Chanania (PW1) as to whether Jagga Singh injured was fit to make a statement. The doctor found him fit to make the statement and gave his opinion to the same effect at 11.50 p.m. on 30th August, 1988. Thereafter ASI Banwari Lal (PW8) recorded the statement of Jagga Singh Ex. P.M. He made his endorsement Ex. PM/1 and sent the same to the police station for registration of the case. He prepared inquest report and recorded the supplementary statement of Jagga Singh Ex. PU. Banwari Lal ASI (PW8) thereafter proceeded to the spot and reached there at about 7 a.m. next day. He inspected the spot as pointed out by Nachhattar Singh and Jagga Singh, prepared rough site plan Ex. PV and lifted the blood stained earth. Cot Ex. P11 and Chaddra Ex. P12 which were also stained with blood were produced by Nachhattar Singh. He made the blood stained earth into a sealed parcel. Cot and chaddra were also sealed in a parcel and taken into possession vide memo Ex. PN.

Dr. Kitab Singh (PW3) at General Hospital, Sirsa, conducted the postmortem examination upon the deadbody of Dunger on 31st of August, 1988 and found the following injuries on his person :

"1. There was a gaping wound which was about 4 cm x 1 cm placed antero posteriorly about 9 cm above the left pinna. The margins were contused and reddish color. Fibrous strands were visible across the base. Hair bulbs were crushed and margins were irregular.

There was a wound which was 6 cm x 3 cm (in the centre) spindal shaped. It was placed obliquely antero posteriorly about 4 cms from the left pinna and extended about 2 cm of wound No. 1. The skull was cut in the centre for about 3 cms. The supermedical edge of the wound was regular and the inferolateral was contused and was of reddish color. On dissection of the wound clotted blood was present beneath the skin and it was infiltration in the dipper tissues. The parietal bones of both sides were fractured. The fracture extended from about mid line transversely on both sides. It extended obliquely, posteroinferiorly to the temporal and occipital bones and again to the left parietal bone. The edges were irregular, except at the place already mentioned. Bleeding points were present.

There was an abraison over reddish coloured contusion over the right cheek. It was irregular in shape and was of 3 cm x 2 cm in size. On deeper dissection blood was found to be present in the subcontaneous tissues. Bone was intact.

A contusion with a laceration over right eye brow, which was of reddish colour, irregular in shape and about 2 cm x 1 cm. On deeper dissection blood was found in the sub contaneous tissues.

A diffused swelling with two abrasions irregular in shape about 3 cm x 3 cm over the right side of the chest, on the back, below the scapular margins. Crepitation was felt.

Contusion of reddish colour, irregular in shape with abrasion over it, over the right scapular spine. Size about 3 cm x 2 cm.

An infected wound with fines formation over right leg over anterior surface, near the middle."

According to the opinion of the doctor, death in this case was because of injuries No. 1, 2 and 5. Death occurred because of the shock, haemorrhagic and brain injuries. Except injury No. 7 which was about 3 days old all the injuries were inflicted within 24 hours. All the injuries were antermortem. He further opined that injuries on the person of Dunger, except injury No. 7 could be possible at 9 p.m. on 30th August, 1988.

Dr. Kitab Singh (PW3) handed over the clothes Ex. P5 to P9 of Dunger deceased in a sealed parvel and the same were sent to the Forensic Science Laboratory, Madhuban, who found human blood on these clothes vide report Ex. PK/1.

On 491988, all the four accused were produced by Ajaib Singh, Member Panchayat, before the Assistant Sub Inspector Ishwar Singh (PW 7) who were arrested. The accused were interrogated in the presence of Labh Singh and Joginder Singh PWs. Darshan son of Jagira disclosed that he had kept concealed his gandas and kurta which he was wearing at the time of occurrence buried underneath the earth near his kotha. His disclosure statement Ex. PQ was recorded. To the same effect are t the statements of Raja, Jaggi ?and Darshan Singh son of Bira accused. Their disclosure statements are Ex. PR, PS and PT respectively. Persuant to the disclosure statement made, each of the accused separately led the police party to the place where they had kept concealed the referred articles and thus, got recovered the same, Gandasa Ex P1 and shirt ex. P3 were got recovered by Darshan son of Jangira. Raja accused got recovered gandasa Ex. P3 and kurta Ex. P14. Jaggi accused got recovered gandasa Ex. P3 and Darshan Singh son of bira accused got recovered gandasa Ex. P4. The Sub Inspector recorded the statement of Labh Singh and Joginder Singh PWs. He deposited the case properties with seals intact in the Police Station.

Forensic Science Laboratory, Madhuban, vide its report Ex. PK1, found chadar and clothes of the deceased as alleged, blood stained; earth being stained with human blood.

After the completion of the investigation, all the four accused were challaned and sent up to the Court of Shri S.K. Gupta, Sub Divisional Judicial Magistrate who committed the case to the court of Sessions.

In support of its case, the prosecution examined Doctor O.P. Chinania (PW1), Inder Jit Singh Draftsman (PW2), Doctor Kitab Singh (PW3), Jagga Singh (PW4); Nachhattar Singh (PW5), Labh Singh (PW6) Assistant Sub Inspector Ishwar Singh (PW7) and ASI Banwari Lal (PW8). The prosecution gave up S.I. Krishan Sawrup as having died and PWs Gurdial Kaur, Joginder Singh and Jang Singh as unnecessary, and tendered into evidence affidavits Ex.PG of Constable Rajinder Singh and Ex. PH of H.C. Baldev Raj. It also tendered in evidence affidavit Ex. PJ of H.C. Bhim Singh, report Ex. PK of the Chemical Examiner and Ex. PK/1 of the Forensic Science Laboratory, Madhuban.

The accused when examined under section 313 of the Code of Criminal Procedure controverted all the allegations of the prosecution and pleaded innocence. The accused examined Dharam Pal (DW1) who brought the summoned record. This was to prove that Dunger Singh was challaned by Kalanwali Police Station in case FIR No. 20/1986 under the Arms Act, in FIR No. 190/85 and FIR No. 18/85 under the Arms Act. This witness, in cross examination, admitted that Dunger was acquitted in FIR No. 181/85 and the other FIR No. 190/85 was pending trial. DW2 Head Constable Om Parkash brought the summoned record and deposed that in FIR No. 98/4, 24 bags of chura post, in FIR No. 35/83 three bags of chura post and in FIR No. 173/1984, 10 bags of poppy husk were alleged to have been recovered from Dunger deceased. He also admitted that these challans were pending trial when Dunger died and as such, the challans were consigned to the record room. DW3 Amar Singh has been examined to prove that Darshan Singh son of Bira, Jagga Singh son of Tulsi cast their vote. However, this witness could not say whether actually the above mentioned persons exercised their right since he was not present at the time when the vote was case.

Finding the prosecution evidence worthy of credence, the Additional Sessions Judge convicted and sentenced the accused, detailed in the opening part of the judgment.

We have heard the learned counsel for the parties and perused the record.

The counsel for the appllants has urged that there is unexplained delay in lodging of the first information report. The occurrence took place at 9 p.m. on 30th of August, 1988 whereas the statement of PW4 Jagga Singh is alleged to have been recorded and completed at 1.30 p.m. and formal FIR registered at 2 a.m. on 31st August 1988, though the distance between the place of occurrence and the police station was merely 16 kilometers. Even the special report reached the Illaqa Magistrate at Dabwali around 5.30 a.m. in the morning of 31st August, 1988 a place 20 kilometers from the police station. He further highlighted that it has come in the statement of PW4 that while they were bringing the deadbody of Dunger to the hospital, they informed the police at Police Station Kalanwali. Since there is no information in the police record, it would be suggestive that the same has been withheld by the investigating agency. With a view to examine this contention, we have read the relevant evidence with the help of the counsel. We find no merit in the submission of the learned counsel in this regard.

The occurrence took place on the night prior to the elections scheduled to be held on 31st August, 1988. As per the deposition of Dr. O.P. Chinania (PW1), Jagga Singh (PW4) (injured) alongwith the deceased reached the Primary Health Centre, Odhan, at about 11.40 p.m. when the doctor sent ruqa Ex. PB to the police station. Dr. O.P. Chinania has further stated that the Doctor at Primary Health Centre, Kalanwali, was on leave and so he medico legally examined Jagga Singh on 30th of August, 1988, 11.45 p.m. On receipt of the ruqa, ASI Banwari Lal reached the Primary Health Centre, Odhan and rcorded the statement of Jagga Singh which was concluded at 1.30 p.m. and so the entry in the daily diary was made at 2 a.m. i.e. on 31st August, 1988. Keeping in view the narration given by PW4 Jagga Singh, statement of Doctor O.P. Chanania(PW1) and deposition of Banwari Lal who recorded the statement of Jagga Singh, we find that there has been no delay in lodging of the first information report. Similarly, the special report reached the Illaqa Magistrate at about 5.30 a.m. at Dabwali. This time gap also cannot be said to be a case of delay.

Similarly we find no merit in the stray utterance of the witness when he stated during cross examination that on the way to the Primary Health Centre he informed the police specially when the details of the information were not elicited while cross examining this witness and, thus, it cannot be said to be a case of withholding first version from the Court. It is noteworthy that the Investigating Officer was not questioned in this regard. On the other hand, it appears that this witness had played up in his imagination in giving reply obviously due to excessive zeal to explain the delay in lodging the first information report.

The counsel next contended that there has been remarkable improvement in the statement of Jagga Singh when he appeared as witness visavis his statement before the police, on the basis of which formal FIR was recorded. Elaborating the ounsel drew our attention to the statement of Jagga Singh which formed basis of the FIR and urged that while giving the details of the injuries inflicted by each one of the accused on the person of the deceased, percentage of Darshan Singh (since two accused bear the same name) was not spelt out and in the absence of the same, it is difficult to pinpoint as to who out of these two inflicted a particular injury.

Jagga Singh (PW4) when appeared as a witness has given account of the various injuries inflicted by each one of these accused persons upon the person of the deceased a well as injuries suffered by himself. Besides, we have the supplementary statement Ex. PU of the complainant recorded on the same day. Vide this document Ex PU, Jagga Singh gave the father''s name of both the accused, namely, Darshan Singh, and explained as to what part each one of these two accused persons played in causing injuries to the deceased. Document Ex. PU is of clarificatory nature and cannot be ignored. In somewhat similar circumstances, the Hon''ble Supreme Court has examined the matter in Sone Lal and ors. v. The State of Uttar Pradesh, AIR 1978 Supreme Court 1142 and observed as under :

"Lastly, it was suggested by the Sessions Judge that although the parentage of the accused Dularey was not mentioned in the FIR yet it was mentioned in the general diary which shows that the FIR was prepared subsequently. The High Court has clearly pointed out that it was fully explained that due to in advertence the parentage of Dularey was not mentioned in the FIR but after being ascertained from the informant it was mentioned in the general diary. In these circumstances therefore, the omission, if and does not appear to be of any significance. These were the main reasons given by the Sessions Judge for disbelieving the FIR and, in our opinion, the High Court was right in pointing out that the reasons given by the Sessions Judge were both unsound and untenable."

We find deposition of Jagga Singh and Nachhattar Singh worthy of credence. Jagga Singh in fact has suffered injuries on his person and thus is a stamped witness. Since the accused and the complainant belong to the same village, his deposition with regard to the injuries inflicted by each one of them on the person of the deceased and the injuries suffered by him, have been fully explained by the witness. Jagga Singh found each one of these accused armed with gandasa, who, on seeing Dunger Singh and himself remarked that they may be taught a lesson or giving secret information to the police and getting effected recovery of poppy husk. Thus the presence of each one of the accused armed with gandasa is proved. The deposition of eye witness account finds corroboration from the testimony of the doctor who conducted the post mortem examination and found six injuries on the person of the deceased. We accordingly find no merit in the submission of the learned counsel in this regard as well.

The next submission of the learned counsel is that motive as alleged is totally false. No case was pending against Jaggi and Darshan Singh son of Bira accused and thus, these two accused persons have no reason to raise lalkara or inflict injuries upon Jagga Singh and Dunger deceased. Besides, both two accusedperson have no connection with the other two accused. This objection too has got no merit. It has come in the evidence that Jaggi accused hit upon Dunger deceased. Minor discrepancies in the deposition of eye witness account visavis the injuries on the person of the deceased are so trivial and inconsequential that the same cannot be considered sufficient to discard the testimony of the eye witnesses. It is indeed difficult for a person to retain graphically the various injuries inflicted by four accused at a given time. In any case, it is unnecessary to go into the question as to which of the accused inflicted which particular injury. All the four accused had assembled at a place fully armed and appeared to be waiting to way lay Dunger Singh deceased and thus their common intention to kill him is writ large. As has been observed, the direct evidence of common intention is usually not possible and is to be inferred from the conduct of the accused and other circumstances. Keeping this in mind, evidence in the present case when examined leaves no manner of doubt that all the accused intended to finish Dunger Singh and indeed succeeded in doing also.

Accordingly, we find no merit in both the appeals and dismiss the same.