Gurdev Singh and anr. vs State of Punjab

S.D. Bajaj, J.

Baldev Singh, resident of village Dhaipai, made the following statement to ASI Jaswant Singh of Police Station, Lambi inside Civil Hospital, Gidderbaha around 3.15 p.m. on 17th June, 1988 : "I am a resident of village Dhaipai. My wife''s maternal parents reside at village Tharajwala. My wife''s maternal grandfather Sh. Lal Singh s/o Nihal Singh used to reside with us since long. Yesterday I along with Lal Singh had come to village Tharajwala in order to meet Sh. Jeet Singh. Today morning I along with, Lal Singh and Jeet Singh both the brothers had gone to their fakarsarwala field at village Tharajwala for creating `Vattan''. When we reached the field it might be about 900 am. Then from the nearby heap of sticks Gurdev Singh, Maghar Singh and, Chaggar Singh sons of Thaman Singh, Jats residents or village Tharajwala armed with gandasas came, towards us hurriedly. Gurdev Singh raised a Lalkara saying that Lal Singh should not be allowed to go alive and that he be taught a lesson for taking possession of the land. Simultaneously he gave a gandasa blow with its right side on the head of Lal Singh and the same directly hit him in his head. In the meantime Maghar Singh gave a blow with his gandasa on the head of Lal Singh near the ear and at the same time Chaggar Singh gave a blow with his gandasa on the frontal aspect of the head of Lal Singh from its right side. Aa sequel of it, Lal Singh fell down on the ground. Thereafter all the three assailants kept on causing injuries to Lal Singh with their respective gandasas. The reverse and right sides of the gandasas hit Lal Singh near the ankles of his both the legs on left wrist and face. Lal Singh raised an alarm `Maar Ditta'' Maar Ditta'' (killed, killed). Shri Jit Singh and I also raised an alarm `Na Maar, Na Maar'' (Don''t kill, Don''t kill). Meanwhile Harchand Singh who was working in the nearby field arrived there running. All the three of us came forward in order to rescue Lal Singh. Consequently Gurdev Singh, Chaggar Singh and Maghar Singh ran away towards the village together with their weapons. After that we having made an arrangement for the conveyance, and taken Puran Singh Sarpanch with us had come to Civil Hospital. Gidderbaha for treatment, After reaching the Hospital Lal Singh breathed his last. The cause of grudge was that the party of Gurdev Singh had occupied the land measuring about 2 killas of Lal Singh. The possession was got delivered to Lal Singh by the Court. On account of this reason, they have caused injuries." Formal FIR No 161 was recorded on its basis in Police Station, Lambi, at 4.00 p.m. on 17th June, 1988. Special report of the occurrence reached the learned Ilaqa Magistrate at 6. 30 pm on 17th June, 1988.

On being charged with the commission of offence under Section 302 read with Section 34 of the Indian Penal Code, all the three accused pleaded not guilty thereto and claimed to be tried. Vide its impugned judgment dated 3rd January, 1991, learned trial court acquitted accused Maghar Singh on the ground that he had malunited fracture of both the legs and was, therefore, unable to walk and had therefore, been unnecessarily added in the array of the accused out of eagerness on the part of the complainant party to array all the three brothers as accused. On the same evidence, however, the remaining two accused were convicted of the commission of the offence under Section 302 read with Section 34 of the Indian Penal Code and awarded imprisonment for life and fine of Rs. 3000/ each. In default of payment fine each one of the two convicted accused was ordered to undergo separately rigorous imprisonment for a further period of six months. Feeling aggrieved therefrom, both the convicted accused have jointly filed Criminal Appeal No. 70DB of 1991 in this Court.

We have heard Shri Jasbir Singh, Advocate with Shri S. K. Sharma, DAG Punjab assisted by Sh. H.S. Kamboj Advocate for the complainant party and have perused the relevant record very carefully.

Out of the alleged eye witnesses to the occurrence Baldev Singh PW 3 states, "Gurdev Singh accused had forcibly kept the land of Lal Singh measuring 2 killas, for which Lal Singh filed a civil suit and got the possession from Gurdev Singh about 15 days prior to the occurrence as ordered by the High Court. All the accused are real brothers.

Lal Singh deceased was the maternal grandfather of my wife. Six months prior to this occurrence, Lal Singh started living with me. One day prior to the occurrence, I along with Lal Singh came to the house of Jit Singh PW in village Tharaj Wala to meet him. Jit Singh is real brother of Lal Singh. About one year and 8 months age i. e. on the next day of our coming to village Tharajwala, I, Lal Singh and Jit Singh, were going to the fields at 9 a. m. for creating the `Vattan'' in the field. When reached near our field, at that time all the accused namely Gurdev Singh, Maghar Singh and Chaggar Singh (present in the Court) emerged from behind the cotton stacks, armed with a Gandasa each, Gurdev Singh raised the Lalkara that Lal Singh should not be left alive that day and he be shown the taste of taking the possession of land. Gurdev Singh gave the Gandasa blow from the sharp side which landed at the head of Lal Singh. Maghar Singh then gave the Gandasa blow on the right ear of Lal Singh. Chaggar Singh also give a Gandasa blow on the head of Lal Singh. On receipt of the injuries, Lal Singh fell down. All the accused thereafter gave 4/5 blows each, from the right and reverse side of the Gandasas on the legs, knees, wrists of Lal Singh. We raised alarm. Harchand Singh alies Mithu Singh also came there and he saw the occurrence. He was working in his field nearby.

After causing the injuries all the accused ran away towards the village along with their respective weapons. I then came to the village. From there I took with me Hamir Singh and went to the house of Sarpanch Puran Singh and we took the tractor trolley of Sarpanch Puran Singh who accompanied us to the place of occurrence and in that tractortrolley Lal Singh was removed to Civil Hospital, Gidderbaha. We reached the hospital at about 10 or 10. 30 a. m. Lal Singh died in the hospital.

The police came in the hospital at 2.15 p.m. when my statement Ex. PF was recorded, which was read over to me and I signed the same in token of its correctness.

There is no other person in village Dhaipal of my name with same parentage. There is a Cooperative Society in our village and during the days of occurrence I was the Salesman of that Society, and not the Secretary. I am not a paid servant of the Government. Nirvair Singh son of Lachhman Singh was the President of that Society. It is correct that under the rules, if I am to go out, I am to get leave from the Society. Generally, we don''t get leave, (later portion volunteered). The entries are also to be made in the register if one employee is to go out of station, I did not get any leave for 16th or l7th June, 1988 nor I made any entry in the register. It is wrong to suggest that Lal Singh was not residing with me or I had not accompanied him to village Tharajwala or I was summoned from my village on 17.6.1988 and was a made up witness.

It is correct that Lal Singh and Jit Singh PWs had sold their house in the village and they were living with Hamir Singh PW outside in the Dhanni. That house is about 100/150 yards from the village.

The accused emerged from a distance of about 10/15 karms where Lal Singh was standing. Lal Singh did not try to run when Gurdev Singh raised the Lalkara. I do not know to which side the head and legs of Lal Singh were when he fell down, not do I know whether he fell with his face downwards or upwards. I do not know on which side of Lal Singh, all the accused were standing. I do not know on what part of the body the accused gave the injuries when Lal Singh was lying down. I had not stated in my police statement that each accused gave 4/5 injuries each, on the person of Lal Singh in lying down position. The accused gave injuries for 1 or 2 minutes.

It is wrong to suggest that Maghar Singh accused had met with accident some time before the occurrence, in which his both legs were broken and he could walk hardly one or two paces with the help of a stick.

It is wrong to suggest that Lal Singh went alone in the fields at 6 a. m. where he was given injuries by some unknown person or I, Jit Singh or Harchand Singh were not present at the time of occurrence. It is also wrong to suggest that when Puran Singh came to know about the injuries of Lal Singh, he took him to the hospital. I did not attest the inquest report." Similary Harchand Singh PW4 giving himself out as an eyewitness to the occurrence states, "About one year and eight months ago, at 8 or 9 a.m.

I was present in my field. The field of Lal Singh is at a distance of one killa from my field. At that time all the three accused Gurdev Singh, Maghar Singh and Chaggar Singh armed with Gandasas were present when Gurdev Singh raised the Lalkara that Lal Singh be given the taste of taking possession of the land. All the three accused caused injuries with Gandasas on Lal Singh, on receipt of which he fell down and thereafter all the accused gave 4/5 injuries each, with their respective weapons on different parts of the body of Lal Singh. At that time, Baldev Singh and Jit Singh were also present there. All the accused, after causing the injuries, left the place of occurrence, with their respective weapons. Baldev Singh then went to the village and after about 45 minutes he came with the tractor trolley. Lal Singh was taken to the hospital and I also accompanied him.

I had not stated in my police statement that I left my field hearing the Raula of Lal Singh "Maar Ditta, Maar Ditta". (Attention of the witness is drawn to his statement Ex. D. A. portion mark A to A where it is so stated). I had not stated in my police statement that all the accused gave 4/5 blows, each to Lal Singh in his lying condition specifically. I had not stated in my police statement that I had accompanied Lal Singh to the hospital. None from us had gone to the Police Station after the death of Lal Singh. The police came some time after midday. My statement was recorded by the police at P. S. Lambi on the next day of the occurrence at about 4/5 p. m."

Unexplained inordinate delay of 7 hours in lodging the FIR from 9.00 a. m. (time of occurrence) to 4.00 p. m. on 17th June, 1988 and further delay of 2 hours and 30 minutes in carrying the special report to the learned Ilaqa Magistrate clearly suggests that the entire time was taken by the prosecution in concocting the prosecution version now set up against the accused and bringing Baldev Singh PW3 from his native village Dhaipai to village Tharajwala the place of occurrence. In Ishwar Singh v. State of Uttar Pradesh, AIR 1976 SC 2423 their lordships of the Supreme Court observed, Delay in dispatching the FIR to the magistrate is a circumstance which provides a legitimate basis for suspecting that the first information report was recorded much later than the stated date and hour affording sufficient time to the prosecution to introduce improvement and embellishments and set up a distorted version of the occurrence. In this case the suspicion hardens into a definite possibility when one finds that the case made in court differs at least in two very important particulars from that narrated in the FIR." Admission made by the witness in crossexamination regarding living of Lal Singh with Hamir Singh in his Dhanni outside the village and inability of the witness to give the seats of injuries sustained by Lal Singh at the hands of the assailants; the positions from which the assailants inflicted these injuries upon him; the number of injuries inflicted by them and the period of time for which these were continued to be inflicted also support the conclusion aforesaid and clearly suggest that Baldev Singh PW3 did not see the occurrence at all and was introduced as an eyewitness of the occurrence after being called from his native village.

Then again in respect of Harchand Singh PW4, it was stated in the FIR that on sustaining injuries at the hands of the assailants in lying down position after falling on the ground from the reverse side of the gandasis carried by them, Lal Singh raised an alarm Maar Ditta, Maar Ditta and the two eyewitnesses Baldev Singh PW3 and Jit Singh brother of the deceased raised an alarm `Na Maro'' when Harchand Singh PW4, who was working in nearby field arrived there running. In his crossexamination Harchand Singh PW4 also admits to have stated so to the police in the course of his statement made to them under Section 161 of the Code of Criminal Procedure. Factual position aforesaid explodes the myth of the allegation of Harchand Singh being an eye witness to the occurrence.

Dr. M. M. Singla PW1 also states that the dead body of Lal Singh brought by the police for post mortem examination was identified to be of Lal Singh by Puran Singh and Hamir Singh and not by either of the two alleged eyewitnesses in Baldev Singh PW3 and Harchand Singh PW4 who claim to have gone with it to the hospital. Assertion made by the doctor also negatives the assertion made by these witnesses of their having gone to the hospital with the dead body. Baldev Singh met the police inside Civil Hospital, Gidderbaha at, 2.15 p.m., five hours after the occurrence; during which he could conveniently come thereto from his native village of Dhaipai which is only 25 kilometers away therefrom.

In Bhagwati v. State of U. P., AIR 1976 SC 1449 their lordships of the Supreme Court held that every witness mentioned in FIR must be examined by the prosecution in all circumstances and that the failure to do so would lead to the rejection of the evidence of all others. In the present case Jit Singh real brother of Lal Singh deceased who was admittedly living with the deceased in the Dhanni of Hamir Singh and whose presence at the place of occurrence could be regarded as natural is named as an eyewitness of the occurrence from beginning to end in the first information report. Nonproduction of this witness by the prosecution in court in terms of Supreme Court observationsaforesaid again persuades us to reject the depositions of Baldev Singh PW3 and Harchand Singh PW as got up witnesses.

In result Criminal Appeal No. 70DB of 1991 succeeds and is allowed. Both the accusedappellants shall be set at liberty forthwith, if not required in any other case.