Harbhej Singh vs State of Punjab

S.S. Dewan, J.

The four appellants Harbhej Singh, Amrik Singh, Gurmej Singh and Sohan Singh along with two others, namely Gurbhej Singh and Mohan Singh were brought to trial for the murder of Harbhajan Singh and Baldev Singh deceased before the Court of Sessions at Ferozepur. The learned Sessions Judge, Ferozepur by his judgment dated September 20, 1986, acquitted the foresaid two accused but held the appellants guilty under Sections 302/34, 324/34 and 449, Indian Penal Code and each of them was sentenced to life imprisonment and a fine of Rs. 1,000/ under the first count, one year rigorous imprisonment under the second count and five years'' rigorous imprisonment under the third count. Harbhej Singh appellant was also convicted under Section 27 of the Arms Act and was sentenced to one year''s rigorous imprisonment. All the substantive sentences so awarded to them were, however, ordered to run concurrently. They have challenged their convictions and sentences by filing Criminal Appeal No. 553DB of 1986. The State of Punjab has filed Criminal Appeal No. 198DBA of 1987 against the acquittal of Gurbhej Singh and Mohan Singh. This judgment will govern both the appeals.

Baldev Singh since deceased was the younger brother of Hardev Singh PW, Jaswant Singh PW is also his younger brother. Harbhej Singh, Gurbhej Singh, Amrik Singh and Gurmej Singh accused are real brothers and similarly Sohan Singh and Mohan Singh accused are real brothers whereas Sube Singh PW is the son of Harbhajan Singh deceased. The house of the accused adjoins the house of Hardev Singh PW from the back side. It is alleged that about 8 months prior to the present occurrence, Harbhajan Singh and Baldev Singh deceased had inflicted injuries to Harbhej Singh accused and in that regard a case was registered and it was pending trial in the Court.

The prosecution case is that two or three days prior to the present occurrence, construction was going on in the house of Hardev Singh PW and in that connection, Harbhajan Singh and his son Sube Singh came to the house of Hardev Singh to help him in the construction work. On 2.5.1985 at about 7.30 p.m., Hardev Singh, Jaswant Singh and their father Mohan Singh were present in their house. Harbhej Singh accused armed with a 12 double barrel gun and the other accused armed with gandhali, kirpan and gandasa came and trespassed into the house of Hardev Singh. A lalkara for teaching a lesson to Hardev Singh etc. for causing injuries to Harbhej Singh was also raided by the latter which was followed by a gandhali blow at the hands of Gurbhej Singh accused causing injury to Sube Singh on his chest from its sharp side. Harbhej Singh fired a shot from his gun which hit the right dorsal and gun arm pit of Harbhajan Singh as a result of which the latter fell down. Amrik Singh accused inflicted gandasa blow on the shoulder and right dorsal of Harbhajan Singh while he was lying on the ground. Gurmej Singh accused gave a gandasa blow from its sharp side on the right thigh of Harbhajan Singh followed by Mohan Singh accused who gave a gandasa blow on this right ankle. Harbhej Singh fired one more shot which, however, did not hit anybody. Thereafter, all the accused left the spot with their respective weapons and while running, the accused raised a lalkara to finish Baldev Singh deceased. Hardev Singh and Jaswant Singh PWs also hurriedly left their house to intimate Baldev Singh about the occurrence and also remain cautious. The prosecution story goes that when Baldev Singh deceased came back after taking fodder in the tractor trolley and reached in front of the house of the accused, he was surrounded by the latter in the lane. Baldev Singh halted his tractortrolley and tried to run away from the back side of the trolley but in the meanwhile, Sohan Singh accused gave a kirpan blow to Baldev Singh as a result of which his right arm was chopped off and he fell down on the berseem fodder lying in the trolley. Amrik Singh chopped off the leg of Baldev Singh with his gandasa and Gurmej Singh gave two or three gandasa blows on his left arm followed by Mohan Singh who gave a gandasa blow on his chest. Jaswant Singh and Hardev Singh PWs continued raising alarm while standing at some distance from the accused. Thereafter, all the accused left the spot with their respective weapons. Hardev Singh went to Rajinder Singh Sarpanch and apprised him of both the incidents. Harbhajan Singh, Baldev Singh and Sube Singh were removed to the hospital at Mamdot in the tractortrolley. On their way to the hospital, Harbhajan Singh and Baldev Singh succumbed to their injuries. The doctor medically examined Sube Singh and referred him to the hospital at Ferozepur. Hardev Singh PW went to Police Station, Mamdot and lodge the report Ex. PK, on the basis of which formal FIR Ex. PK/2 was recorded. SubInspector Puran Singh want to the hospital at Mamdot, held inquests and sent the dead bodies of Harbhajan Singh and Baldev Singh to the mortuary for autopsy. The accused were searched but they were not traceable. They were, however, subsequently arrested on 28.5.1985 and 31.5.1985. Gurmej Singh, Gurbhej Singh, Amrik Singh and Sohan Singh accused were interrogated by the Investigating Officer and they suffered disclosure statements leading to the recovery of a gandasa Ex. P8, gandhali Ex. P2, gandasa Ex. P9 and kirpan Ex. P10 respectively from the specified places of concealment. Harbhej Singh and Mohan Singh accused were also interrogated by SubInspector Puran Singh and they suffered disclosure statements leading to the recovery of gun Ex. P11 along with five cartridges Exs. P12 to P16 and the license Ex. PJJ and gandasa Ex. P17 from the specified places of concealment.

Dr. A.S. Mann PW 1 conducted autopsy on the dead body of Harbhajan Singh on 24.5.1985 at 12.15 p.m. and found 8 injuries as detailed in the postmortem report Ex. PA. Death was opined to be due to shock and haemorrhage as a result of multiple injuries which were antemortem and sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injures and death was stated to be 1 to 2 hours and between death and postmortem within 12 to 24 hours. On the same day the doctor conducted autopsy on the dead body of Baldev Singh at 2.00 p.m. and found 9 wounds as detailed in the postmortem report Ex. PD. Death was opined to be due to shock and haemorrhage as a result of multiple injuries which were sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was stated to be 1 to 2 hours and between death and postmortem within 12 to 24 hours.

Dr. Partap Singh medicolegally examined Sube Singh PW on 24.5.1985 at about 1.30 a.m. and found the following two injuries on his person :

(i) Punctured wound 1.5 cm x 0.5 cm going deep on the right side of chest 2 cm from the midline and 9.5 cm from the nipple at 2 O''clock position from it. The margins of the wound are clean cut and it bleeds on examination. The wound is obliquely transverse. Advised Xray. Clotted blood present.

(ii) Abrasion 2.5 cm x 0.5 cm on the front and middle of right leg."

After necessary investigation, the accused were challaned and committed.

Hardev Singh PW and Sube Singh PW3 furnished the ocular account of the event. SubInspector Puran Singh PW12 was the Investigating Officer in the case. The remaining evidence was of formal nature. When examined under Section 313, Cr.P.C., the accused denied the prosecution allegations and pleaded false implication in the case. Dr. H.L. Bahmi, Consulting Forensic Scientist was examined by the accused in defence.

On behalf of the appellants, it is vehemently argued that the presence of the alleged two eyewitnesses at the spot was doubtful; that the First Information Report in the case was lodged after considerable delay and that both the eye witnesses bore hostility towards the appellants and are closely related to the deceased and the injured witness and that the medical evidence was in direct conflict with the ocular evidence. It was even suggested that the incident had taken place when nobody was around and the appellants had been implicated on suspicion.

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 be allowed.

Sube Singh PW3 and Hardev Singh PW2 have no doubt narrated a story which has been summarised above but they are interested witnesses being the son and brother of Harbhajan Singh and Baldev Singh deceased respectively. Though there can be no presumption against their veracity because of their being relations of the deceased yet having regard to the human nature as it is, they are undoubtedly interested in supporting the prosecution version. As such, their statements have to be scrutinised strictly before the same can be acted upon. The deposition of these witnesses who are closely related to the deceased may be accepted as dependable evidence, if their presence at the time and scene of occurrence is unquestionable. It is stated that immediately after the occurrence, Hardev Singh PW informed Rajinder Singh Sarpanch about this incident and this occurrence was also witnessed by Jaswant Singh, Chanan singh, Gurdit and Mohinder Singh but these witnesses were not examined by the prosecution for the reasons best known to it. It emerges from the evidence on record that Sube Singh PW witnessed the first incident whereas Hardev Singh PW had witnessed both the incidents. Both the witnesses have consistently stated that they kept their lips sealed till the time their statements were recorded by the police. How strange it is that when the deceased were attacked neither Hardev Singh nor Sube Singh raised alarm nor they talked about the incident to anyone in the neighbourhood. Strangely enough, Hardev Singh and his brother Jaswant Singh were present at a distance of about 17 or 18 kadams from the place where Baldev Singh deceased was attacked by the appellants. It seems unacceptable if they were present, they would not have attempted to intervene and protect the victim from being butchered before their eyes in the manner alleged. It looks rather strange and queer that these witnesses were apprehending that Baldev Singh deceased might be attacked by the appellants but in spite of that they did not take along any weapon to defend their deceased brother. To our mind, a story of this kind might pass muster in fiction but it is not so easily acceptable in real life. On behalf of the appellants, it has been rightly and forcefully argued that in a blind murder on a dark night where the assailants had remained unidentified, the close relations of the deceased obviously have been patently persuaded to comeforward as eyewitnesses. The difficulty in the identification of the assailants in view of the time, place and manner of the occurrence is indeed patent on the present record. The defence was, therefore, on strong ground in urging that the deceased were men of disparate character and had many enemies and the appellants were named as the culprits primarily on suspicion. For these reasons, we are firmly of the opinion that little trust can be placed intrinsically on the evidence of Hardev Singh and Sube Singh, the two eyewitnesses whose presence at the spot seems to be very doubtful.

The time and manner of the recording of the First Information Report in the present case are again matters which are not above suspicion. Hardev Singh PW has stated that the occurrence took place at about 7.30 p.m. and immediately thereafter the deceased and the injured witness were removed to the hospital at Mamdot and on their way both the deceased succumbed to their injuries. He claimed to have lodged the FIR at Police Station, Mamdot at 10.50 p.m. on 23.5.1985, the police station being at a distance of about 6 miles from the place of occurrence. The Special Report was delivered to the Ilaqua Magistrate at 1.30 a.m. on 24.5.1985. The case of the appellants was that the present case was framed in the village after enquiries by the police. 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. This circumstance also casts doubt on the truth of the story given in the First Information Report and it cannot be held that it was not the result of concoction and deliberation.

There is another fact which stands out prominently as a circumstance which may be said to till the scale in favour of the appellants. SubInspector Puran Singh was questioned about the Daily Diary Entry No. 34 dated 23.5.1985 and he has admitted the fact that neither the names of the eyewitnesses and the place of occurrence nor the weapons of offence are mentioned therein. We thus find that all the safeguards which may go to show that facts about the occurrence were disclosed at the earliest time at which it purports to have been done, are lacking in this case and this cannot be mere coincidence. There is, in the circumstances, considerable force in the argument of the learned defence counsel that the First Information Report was prepared after great delay and the facts of the occurrence were not disclosed promptly.

The medical evidence does not appear to us to support the ocular account. In this connection, the first thing to be pointed out is that the presence of injury No. 6 on the dead of body Harbhajan Singh remains wholly unexplained. According to Hardev Singh PW, Harbhej Singh appellant had fired a shot from his gun which hit on the right side of the dorsal and the arm pit of Harbhajan singh, as a result of which the latter fell down and then the said accused fired another shot which, however, did not hit anybody. Hardev Singh has stated so in the FIR as well in the trial Court. So far as the firearm injuries are concerned, we find that injuries 4 and 6 are entry wounds and as such the possibility of these injures being caused by two independent shots cannot be ruled out. Moreover, these are punctured wounds and the victim must have been fired at from a close range and not from a distance or 25 feet as shown in the site plans Ex. PR and PS prepared by the draftsman. There appears to be thus a vital circumstantial factor belying the ocular account.

The above discussion would show that the First Information Report was antetimed and false witnesses to the occurrence had been introduced to the case and there was an attempt to implicate innocent persons in the case. Once the investigation is found to be tainted the whole of the prosecution case becomes open to serious doubts and challenges. All that can be said for the prosecution is that it may be that the appellants had committed the crime but as observed by Gajendragadhar J. as he then was, in Sarwan Singh, Rattan Singh v. State of Punjab, AIR 1957 SC 637, there is a long way to travel between `may be true'' and `must be true'' and this whole distance has to be travelled by the prosecution. In the view we have take upon the evidence, we are of the opinion that the only safeguard for the Court would be to reject the prosecution case as not proved. Giving the appellants the benefit of doubt we allow this appeal, set aside their convictions and sentences and acquit them. The result is unfortunate but it cannot be helped. It is a pity that brutal murders are going unpunished.

The State has moved Criminal Appeal No. 198DBA of 1987 against the acquittal of Gurbhej Singh and Mohan Singh accusedrespondents. In view of the acquittal of the appellants in Criminal Appeal No. 553DB of 1986, the State appeal fails and is dismissed.