Gurbhej Singh vs State of Punjab

A.P. Chowdhri, J.—Gulzar Singh, 45, his two sons Gurbhej Singh, 18, and Gurdev Singh, 23, and his mother Amrik Singh, 28, and one Jagir Singh were tried under sections 302, 325, 324, 148 and 149 of the Indian Penal Code by the Additional Sessions Judge, Patiala. By judgmenet and order dated August 20, 1988 the learned Sessions Judge, acquitted. Gulzar Singh but convicted the remaining accused named above. Gurdev Singh was substantively convicted under section and 324, Indian Penal Code, and Amrik Singh was substantively convicted under secttion 325 Indian Penal Code. The remaining accused were convicted under the said offences with the aid of section 34, Indian Penal Code. Gurdev Singh was awarded life imprisonment and a fine of Rs. 2000/ and in default two years rigorous imprisonment under the principle offence. He was further sentenced to one year''s rigorous imprisonment and a fine of Rs. 250/ and in default three months rigorous imprisonment under section 324, Indian Penal Code. Amrik Singh was awarded two years rigorous imprisonment and a fine of Rs. 500/; in default six months rigorous imprisonment under section 325, Indian Penal Code. The remaining accused who were convicted with the aid of sec.34, Indian Penal Code, were sentenced as follows :

Under section 302/34 IPC : Life imprisonment and a fine of Rs. 1000/ and in default one year''s rigorous imprisonment.

Under section 325/34 IPC : One year rigorous imprisonment and a fine of Rs. 250/; in default three months rigorous imprisonment.

Under section 324/34 IPC : Six months R.I. and a fine of Rs. 100/; in default 1 month rigorous imprisonment.

The prosecution version, according to Dharam Singh (PW 3).is that on 2.7.1987 at about 8.30 p.m. Mukhtiar Singh alias Kala was returning from the fields of Karnail Singh after doing manual work. When he reached in the open plot of Karnail Singh Kamboj at a distance of 1314 Karams from his house, the people present in the house heard a raula that Mukhtiar Singh be caught hold of and be not allowed to go away. On hearing the above shouts, Dharam Singh (PW 3), his brother Karam Singh (PW9), their mother Pritam Kaur rushed to the spot. They found that the accused had surrounded Mukhtiar Singh. About the same time, Dharam Singh''s uncle Phuman Singh also rushed to the spot. Gurbhej Singh dealt 4 Kirpan blows one after the other on the face of Mukhtiar Singh inflicting injuries on the chin twice and on both the cheeks of Mukhtiar Singh. Gurdev Singh alias Deba gave a gandasa blow on the head of Mukhtiar Singh as a result of which he fell down. Jagir Singh accused gave a gandasa blow on the head of Mukhtiar Singh when he was lying on the ground. Dharam Singh came forward to rescue his brother when Amrik Singh gave dang blows on his (Dharam Singh) left arm and left knee. Karam Singh intervened when Amrik Singh gave dang blows on both on his legs. Karam Singh raised his arms to same himself and the dang blows given by Amrik Singh fell on his arms. Their mother flung herself on Mukhtiar Singh to save him. Amrik Singh and Gulzar Singh pulled her away and Gurdev Singh gave a gandasa blow on her right ear. Gulzar Singh remained standing with his single barrel gun exhorting the coaccused not to spare the other party. Thereafter, the accused ran away with their respective weapons. Mukhtiar Singh died on the spot. Chowkidar Bhupa and Harbans Singh came to th spot after arranging for a trolly which was driven by Karnail Singh and leaving Bhupa and Harbans Singh at the spot to guard the dead body injured Karam Singh and Pritam Kaur were removed to P.P. Shatrana 7 Kms. aways, Head Constable Parmal Singh (PW 10) recorded the statement of Dharam Singh (PW 3) concluding the same at 10.30 p.m. He then forwarded a copy of the statement to Police Station Pratan another 10 Kms away for registration of the first information report. Sub Inspector Lal Singh entered the FIR at 12.15 a.m. copy of the Special Report was received by the Judicial Magistrate, Patiala, at 11.05 a.m. Accused Gulzar Singh is husband of the father''s sister of deceased. Amrik Singh is brother of Gulzar Singh. Gurbhej Singh and Gurdev Singh are his sons and Jagir Singh belongs to their party. The cause for the occurrence is that earlier the complainant party was residing at village Nurpur. About 67 months before the occurrence, they purchased a small plot of land for their residence and moved to Gulher and this was not to the liking of the accused persons. This had provoked some unpleasant altercation one or twice in the past but the same had been settled through Phuman Singh uncle of the deceased.

Head Constable Parmal Singh (PW 10) after sending statement for registration of the case prepared injuries statements of Dharam Singh, Karnail Singh and Pritam Kaur and sent them to Primary Health Centre, Shatrana for medical examination along with Constable Devinder Singh. He proceeded on the spot and found dead body of Mukhtiar Singh lying with multiple injuries. Sub Inspector Lal Singh (PW 12) on receipt of the copy of the D.D. entry of Police Post Shatrana entered formal FIR and reached the spot. He carried out the inspection and prepared inquest report and sent the dead body for postmortem examination. He prepared rough visual plan and recovered blood stained earth and bloodstained grass from the place of occurrence.

On 10.7.1987 Jagir Singh, Gulzar Singh and Gurbhej Singh were produced before Sub Inspector Lal Singh. Gurbhej Singh produced his licensed gun along with two live cartridge. After investigation the police filed a challan against the four appellants and Gulzar Singh.

At the trial, the prosecution examined Dr. Satish Arora (PW 4). He conducted postmortem on the dead body of Mukhtiar Singh at 2.30 p.m. on 3.7.1987 and noted the following injuries on the dead body :

"1. Inside wound 4 cms x 1.5 cm x bone deep on the frontal region of the scalp. underlying bone was cut.

Inside wound 6.5 cms x 3.5 cms x 6 cms on the left side of nose extending to (sic).

Inside wound 2 cms x 1.7 cms x bone deep on the right zygomatic region, underlying bone was cut.

Inside wound .7 cm x .5 cm x bone deep on the bridge of nose, underlying bone was cut.

Inside wound 5.5 cm x 1 cms x .8 cm below the lower lip.

Inside wound 6 cms x 1.5 cms x 2 m. 1 cm below injury No. 5.

Inside wound 7 cms x 2 cms x bone deep on the left side of lower jaw. Underlying mandibular bone was cut."

In his opinion, death in this case was due to injury No. 1 resulting in subdural haemorrhage which was sufficient to cause death in the ordinary course of nature. The injuries were antemortem in nature.

He also examined the three PWs the same day. On the person of Karam Singh (PW 9) he found the following injuries :

"1. Lacerated wound 2cms x .7 cm x bone deep on the left side of scalp in the parietal region. Clotted blood was present over the wound.

Lacerated wound 1.8 cm x 0.5 cm x 0.6 cms on the left side of scalp in the posterior parietal region, 0.5 cm from the midline. Clotted blood was present over the wound.

Diffuse tender swelling 9 cms x 8 cms on the dorsum of right hand.

Diffuse tender swelling 6 cms x 5 on the dorsum of left hand on its lateral half.

Reddish contusion 14 cms x 10 cms on left calf region. There was tender swelling around the contusion.

The patient complained of severe pain in the nape of neck.

Probable duration of the injuries was 8 to 24 hours. All the injuries were caused by blunt weapon. After xray, injuries No.3 and 5 were declared grievous and the remaining injuries simple.

On the person of Dharam Singh (PW 3) he found the following injuries :

"1. Tender swelling 6 cms x 6 cms on the medial side and dorsal aspect of left forearm 9 cms from the wrist.

Tender swelling 5 cms x 3 cms on the left thigh in its low 1/3rd.

These injuries according to the doctor, were caused by a blunt weapon. After Xray, injury No. 1 was declared grievous.

On the person of Pritam Kaur he found the following injuries :

"1. She complained of abdominal pain more in the epigestrium. She was having vomittings since yesterday night after the incident. She was tender in the epigastrium. The injury was kept under observation.

Incised wound 5 cms x 0.7 cm x on the back of right pinna.

Tender swelling 10 cms x 10 cms on the right cheek extending to (sic) middle of her head. The injury was kept under observation."

Injury No.2 was caused by a sharpedged weapon while remaining injuries were the result of blunt weapon. The above injured were examined at Civil Hospital, Samana, where they had been brought by Constable Devinder Singh P.P. Shatrana. What happened was that Constable Devinder Singh took the injured to Primary Health Centre, Shatrana, where the doctor was not available. Mr. K.K. singla, Pharmacist, made forwarding endorsements Exhibit PF/1, Exhibit PG/1 and Exhibit PN/1 and referred the injured to Civil Hospital Samana. Dr. Arora (PW4) identified the signatures of the Pharmacist on the above, noted endorsements. The prosecution examined Dharam Singh (PW3) and Karam Singh (PW9) both the injured as eyewitnesses of the occurrence. Head Constable Parmal Singh (PW 10) and Sub Inspector Lal Singh (PW 12) were also examined. The eyewitnesses fully supported the prosecution version set out above.

The plea of the accused is one of denial and false implication. Head Constable Darshan Singh (DW 2) produced record to show that Mohinder Singh and Phuman Singh had been involved in several cases. Mostly these cases were registered against Balkar Singh and Tarlok Singh sons of Chet Singh.

On an evaluation of the evidence, learned Additional Sessions Judge acquitted Gulzar Singh and convicted the appellants and sentenced them as already stated. Hence, this appeal.

The learned counsel for the appellants advanced two contentions. His first contention is that the first information report was not recorded at the time stated therein. It was some time in morning at about 7.00 or 8.00 a.m. that the FIR appears to have been recorded and the prosecution marked time in order to give a final shape to the prosecution version and fabricate the evidence to support that version. His second contention is that admittedly the statements of the witnesses were recorded after seven days on July 9, 1987. There was no acceptable explanation for the delay in recording those statements and this was sufficient to render the statements open to doubt.

The learned counsel appearing for the State, on the other hand, submitted that the FIR was not antetimed and the prosecution case was supported by two eyewitnesses who were stamped witnesses and there was no reason why their testimony should not be accepted. He also submitted that admittedly the parties were closely related to each other and there was no reason for the complainant side to have involved the accused falsely.

We have given our anxious consideration to the respective submissions of the learned counsel.

In support of his first contention, the learned counsel has relied on two circumstances. Firstly, it is pointed out that even though the FIR purports to have been recorded at 12 :15 a.m. on the night between 2nd and 3rd July, 1987, at Patran, special report was received by the Judicial Magistrate, Patiala, at 11.05 a.m. on 3.7.1987. It was also pointed out that the prosecution had failed to offer any explanation for the aforesaid delay, the affidavit of Sukhvinder Singh Constable. Exhibit PQ, being altogether silent regarding the cause of delay. The learned counsel emphsised that once the Court comes to the conclusion that the FIR was not entered at the time stated therein, there was every possibility of a concocted version being introduced. The second circumstance relied on by the learned counsel is that Karam Singh, Dharam Singh and Pritam Kaur were examined in Civil Hospital, Samana, only in the late afternoon of 3.7.1987. This would not have been so had the first information report been recorded at the time mentioned by the prosecution.

In the facts of the present case, injured persons reached Police Post Shatrana where Dharam Singh (PW3) lodged the report at the Police Post. The fact is proved by Dharam Singh (PW3) as also Head Constable Parmal Singh (PW10). Copy of the D.D. report was sent to the police station for the registration of a case and the FIR was registered there at 12.15 a.m. Sub Inspector Lal Singh (PW12) reached the place of occurrence and started investigation of the case. The fact that injured reached Police Post Shatrana and must have lodged the D.D. report is further confirmed by the injury statements prepared by Head Constable Parmal Singh regarding the three injured, namely, Dharam Singh, Karam Singh and Pritam Kaur. The injured were taken by the police to Primary Health Centre,Shatrana, where doctor was not available and necessary endorsement was made by the Pharmacist referring the injured to Civil Hospital, Samana. The injured reached Civil Hospital, Samana, at 11.00 a.m. as noted in the medicolegal reports produced in this case. It appears that the doctor remained busy specially in connection with the postmortem examination on the dead body of Mukhtiar Singh and it was only thereafter that he examined the PWs. In the facts of the present case, therefore, we find that investigation had, in fact, started which is an assurance of the fact that the report must have been lodged at the time stated in the record. The delay in receipt of the special report is thus not material. In Sarwan Singh and others v. State of Punjab, AIR 1976 S.CC. 2304, it was laid down as under :

"Apart from this, it is settled that mere delay in despatch of the FIR is not a circumstance which can throw out the prosecution case in its entirely. The matter was considered by this Court in Pala Singh v. State of Punjab, AIR 1972 SC 2679 where this court observed as follows :

"But when we find in this case that the FIR was actually recorded without delay and the investigation started on the basis of that FIR and there is no other infirmity brought to out notice, then, however improper or objectionable the delayed receipt of the report by the Magistrate concerned, it cannot by itself justify the conclusion that the investigation was tainted and the prosecution insupportable.(vide para 9 at page 2309)."

These observations fully apply to the fact of the present case.

With regard to the second contention, it was admitted by Sub Inspector Lal Singh, Investigating Officer, himself that the statements of witnesses other than Dharam Singh, first informant, were recorded under section 161 of the Code of Criminal Procedure only on July 9,1987. No explanation worth the name has been offered by the prosecution for the above delay. Ordinarily recording of statements of material witnesses after undue delay and without acceptable explanation would tend to render their testimony open to doubt. In the facts of the present case, however, the main prosecution story with necessary details had been unfolded by Dharma Singh in the form of FIR without and delay. Statements of the remaining witnesses have not tried to rope in any other person. In substance, they only corroborate the version given by Dharam Singh (PW3). In the peculiar facts of the case, therefore, it is of no consequence that there was delay of about one week in recording their statements.

After careful consideration and for the foregoing reasons, we find no merit in the appeal which is accordingly dismissed.