Joginder Singh and Others vs State of Punjab

V.K. Bali, J.—Appellants Joginder Singh, Jugrant Singh and Samarath Singh who were tried with Nirbhai Singh, since acquitted, under Sections 302, 304,323 read with Section 34 of the IPC vide judgment recorded by the Additional Sessions Judge, Barnala dated 2nd June, 1993, and were sentenced to imprisonment for life and to pay a fine of Rs. 5,000/- or in default of payment of fine to further undergo rigorous imprisonment for one year each, have challenged the said order through present appeal filed by them. Gurmail Singh complainant has also filed Criminal Revision No. 14 of 1994 for enhancement of sentence awarded to the appellants. This judgment shall dispose of both the appeal and revision.

The prosecution version was unfolded by Gurmail Singh son of Gurcharan Singh through FIR lodged by him on 6th September, 1988 at 8-30 p.m. at Civil Hospital, Barnala. It was stated by him that at about 4-00 p.m. his father Gurcharan Singh had gone to the flour mill of Amrik Singh to fetch flour. His uncle Mohinder Singh son of Jangir Singh along with him had just followed his father towards circular road to have a round of their fields. When his father Gurcharan Singh reached near the Patwarkhana, he as also his uncle saw Joginder Singh son of Amar Singh, Jugrant Singh armed with a sua (Ghop), Samarath Singh armed with a Sua (Ghop) and Nirbhai Singh armed with a gandasa.. They were coming towards his father from the side of circular road. Joginder Singh raised a lalkara addressing his father, "Be ready we will not allow you to go to-day and we will teach you a lesson for getting the land partitioned." At that stage, Jugrant Singh inflicted a Sua blow on the left flank of his father, a result of which his father fell down. When his father was lying down, Samarath Singh inflicted a sua blow on his left shoulder and Nirbhai Singh inflicted a gandasa blow from its reverse side on the left side ribs of his father. He and his uncle tried to rescue his father from them with the help of Ghop and dang which he and his uncle had with them. He and his uncle inflicted injuries to Jugrant Singh and Joginder Singh in order to save themselves and the father of the first informant. When he and also his uncle raised the alarm, all the accused fled away towards the circular road with their respective weapons. He left Mohinder Singh to safeguard his father and passed the information about the incident at home, arranged a matador belonging to one Gurmeeta Singh son of Inder Singh and took Joginder Singh son of Partap Singh along with him and put his father in the matador. His father was then taken to hospital, Barnala for treatment. However, before his injuries could be treated, he died. As a matter of fact, Gurcharan Singh had died on the way to hospital. He was still, however, taken to the hospital hoping against hopes that doctors might do something to save him. It appears that it is from the hospital only that the police was informed where Bughar Singh S.I./S.H.O. Police Station Mehal Kalan came and recorded the statement of Gurmail Singh. All the four accused, namely, Joginder Singh, Jugrant Singh, Samarath Singh and Nirbhai Singh were tried for the offences as mentioned in the earlier part of the judgment and after resultant trial Jugrant Singh was convicted u/s 302 of the IPC and Joginder Singh and Samarath Singh were convicted u/s 302 with the aid of Section 34 of the IPC. All of them were imprisoned to serve life sentence and to pay a fine as mentioned above. Nirbhai Singh was, however, acquitted.

The prosecution with a view to bring home the guilt against the appellants examined number of witnesses but concededly the fate of the case depends upon the statements of the two eye-witnesses, namely, Gurmail Singh and Mohinder Singh. Gurmail Singh appeared as PW-4 whereas Mohinder Singh as PW-5 and both of them supported the prosecution version. The appellants herein, however, came up with a counter version. It was stated by Joinder Singh appellant in his statement recorded u/s 313 of the Code of Criminal Procedure that he along with his son Jugrant Singh was returning from their fields at about 4-00 p.m. on 6th September, 1988 whereas he was armed with a gandasa, Jugrant Singh was carrying a Ghop. When they reached near Patwarkhana of the village, Jagtar Singh armed with a lathi and Gurcharan Singh armed with a Ghop shouted a Lalkara challenging them that they will be given a taste for having usurped the land measuring 1 Maria and thereafter opened the attack on them with their respective weapons. They caused injuries to Gurcharan Singh and Jagtar Singh in the right of their self-defence. In the meantime, Gurmail Singh and Mukhtiar Singh were attracted to the scene of occurrence who exhorted them not to quarrel and thereafter Jagtar Singh took to his heels and he himself and Jugrant Singh went to their houses and informed Joginder Singh Parich about the occurrence and then they rushed to police station Mehal Kalan where they reported the occurrence to S.I. Buggar Singh. In the meantime, Gurmail Singh and his other relatives reached the police station and they prevailed upon S.I. Buggar Singh to toe their line and to register a case against them for the murder of Gurcharan Singh. They were not medically examined and then they requested Malkiat Singh to file a complaint regarding their injuries which he did. The statement of Jugrant Singh recorded u/s 313 of the Code of Criminal Procedure is also similar. Samarath Singh and Nirbhai Singh totally denied their participation in the occurrence and pleaded that they were not present at the time when the injuries were alleged to have been inflicted to Gurcharan Singh deceased.

Post-mortem on the dead body of Gurcharan Singh was performed by Dr. Narotam Singh, Medical Officer, Civil Hospital, Barnala PW-1 on 7th September, 1988 at 8-15 a.m. The doctor found the following injuries on dead body of Gurcharan Singh :-

A lacerated wound 1.5 cm x 1 cm x muscle deep was present over the outer aspect of left shoulder 4 cm from the tip of achromion process.

2. 5 cm x 2 cm x muscle deep wound with incised margins over the anterior aspect of left upper arm 6 cm below the axillary fold and 13 cm below injury No.

An incised wound l.5 cm x 1 cm muscle deep cruciate in shape present over the medial aspect of left upper arm at the level of injury Nos. 2 and 3 cms medial to injury No. 2. Some subcutaneous fat had come'' out of the wound. Injuries Nos. 2 and 3 communicate.

An incised wound 1.5 cm x 1.5 cm with incised wound and cruciate in shape was present over left lateral side of chest in the anterior axillary line 5 cm above and lateral to the left nipple and 6 cm below the axillary fold. On probing the wound communicated with the left side of thoracic cavity.

A superficial abrasion 5 cm x 2 cm was placed obliquely across the anterior aspect of lower most part of left side of chest.

From the statements of Dr. Dharam Pal Singh DW-1 and P.D. Sharma DW-2 it is made out that on 6th September, 1988 i.e. the date of occurrence at 5 30 p.m. Jugrant Singh appellant was also medically examined by Dr. P.D. Sharma, Senior Medical Officer, Civil Hospital, Bassi Pathana who found the following injury on his person :-

Punctured penetrating wound 1 cm in diameter with clear cut margins on the left supra clavicular region just above and medial to acromic clavicular joint. Depth not probed. Fresh bleeding was present and x-ray was advised for this injury.

On the same day at 5-45 p.m. Joginder Singh was medically examined and following six injuries were found on his person :-

Incised wound 21/2 x 1/2 x 1 cm on the posterior aspect of left upper arm 6 cm above the elbow joint. Fresh bleeding was present and x-ray was advised for the injury.

Lacerated wound 1 1/2 cm x 1/2 cm x 1/2 on the left side of the scalp 6 cm above the occipital and 2 cm from the mid line. Fresh bleeding was present.

Lacerated wound 2 cm x 1/2 cm on the left side of the scalp 2 cm from mid line and 12 cm behind the hair line. Fresh bleeding was present.

Bruise 6 cm x reddish in colour on the left scapular region.

Bruise 7 cm x 3 cm reddish in colour on the left side of the back overlying the lumber region.

Bruise 6 cm x reddish in colour on the right side of the back at the level of 12T bertebra.

Some of the injuries of the appellants were referred for x ray examination but after the receipt of the report of the injuries on the person of the appellant, these were found to be simple. It is, however, significant to mention that Joginder Singh has two injuries in the scalp which are injuries Nos. 2 and 3 reproduced above.

Mr. R. S. Chcema, learned senior counsel appearing for the appellants contends that from the facts and circumstances appearing on the record of the case it is the version of the appellants which is more probable as also that the presence of Gurmail Singh P.W. 4 and Mohinder Singh PW. 5 who happened to be close relations of the deceased (PW-4 and PW 5 are the son and brother of the deceased respectively) is not only doubtful but it is actually proved on the record that they were not present on the spot. He also contends that immediate motive of partition proceedings pending at the behest of the deceased was only a made up affair with a view to prop up the prosecution version as also that even though it might seemingly appear that the FIR in the case was promptly lodged and so was the special report sent to the concerned Magistrate but in the facts and circumstances of the case the delay is fatal, thus, detracting from the prosecution version. Mr. Mehtab Singh, learned Deputy Advocate General appearing on behalf of the State of Punjab joined issues on all fronts with the learned counsel for the defence and supported the judgment of the learned Additional Sessions Judge in recording finding of guilt against the appellants.

We have heard the learned counsel appearing for the parties and with their help have gone through the records. On the facts and circumstances that have been brought on the record of the case, we are* however, inclined to accept the contentions raised by the learned counsel for the appellants. As per the prosecution version the occurrence took place at 4.00 p.m. on 6th of September, 1988 in village Kutba from where police station Mehal Kalan is 7 .k.m. away. Gurmail Singh P.W. 4 is stated to have made a statement before S.I./S.H.O. Buggar Singh PW-10 at 8-30 p.m. at Civil Hospital, Barnala. Ex. PG/2 is the formal FIR which was recorded at 10 p.m. u/s 302 read with Section 34, IPC whereas the special report reached the Magistrate at Barnala on 7th September, 1988 at 2-30 a.m. Ex. DC is the Daily Diary Report No. 30 that came to be recorded on 6th of September, 1988. In the column, "Brief facts of the report" all that is mentioned is that, "It is noted at 10 p.m. that at this time a written statement of Gurmail Singh son of Gurcharan Singh Jat of Kutba recorded by S.I. Buggar Singh SHO has been received through Constable Ajaib Singh on its case FIR No. 54 dated 6-9-88 u/s 302/34, IPC began to register against Joginder Singh s/o Amar Singh, Jugrant Singh Samrath Singh and Nirbhai Singh sons Jatt r/o Kutba P.S. Mehal Kalan MHC/1524". Ex. DD is another daily report of the even date where under the heading "Brief facts of the report" all that is mentioned is that, "It is noted at 11 p.m. that the case FIR No. 54 dated 6-9-88 u/s 302/34, IPC against Joginder Singh s/o Amar Singh, Jugrant Singh, Samrath Singh and Nirbhai Singh sons of Joginder Singh residents of Kutba which began to scribe through DDR No. 30 has been registered against the accused. Copy of the FIR along with original statement is being sent to SHO through incoming constable. Special reports are being sent through HC Bahadur Singh No. 13 and Constable Magha Singh No. 1081 on Govt. Matador No. PAS 2632 to the officers. Control room has been informed through wireless message." It is significant to mention here that the names of witnesses and gist of the manner in which the occurrence took place has not been mentioned at all. It is from the reading of these two daily diary reports that the defence counsel has built an argument that no FIR has been recorded by 8-30 p.m. on 6th of September, 1988 as is the prosecution version and, in fact and in reality wrong time has been mentioned in the FIR and as a matter of fact all these things were done at 10.00 p.m. or thereafter as it was by this time that on due deliberations and consultations the prosecution version inclusive of the names of the persons who were to be put up as the eye-witnesses was thought over. In this strain, further contention of the learned counsel is that the recording of the names of the eyewitnesses at least in the two daily diary reports mention whereof has been made above was essential and and non-mention thereof consequently would clearly tend to show that the prosecution has introduced Gurmail Singh P.W. 4 and Mohinder Singh PW_5 who were actually not present at the spot. For his aforesaid contention, the learned counsel relies upon the Division Bench judgment of this Court in Bagh Singh v. State of Punjab 1992 1 RCR 145, wherein after noticing the provisions of Section 154 of the Code of Cr. P.C. as also Rule 24.1 of the Punjab Police Rules, it was held, "It shall, thus, be made out from the mandatory provisions of law quoted above that the substance of First Information Report requires to be entered in the Daily Diary Register which obviously has to contain the name of the accused, if known and the witnesses who have seen the occurrence." The contention of the learned counsel has considerable substance. We may, however, add here that non-recording of the names of the prosecution witnesses or the material witnesses may not itself be fatal to the prosecution case in every case but where the eye-witnesses are close relations whose evidence as per settled law has to be scrutinised with great care and caution, such an infirmity of not following the provisions of law does detract from the truthfulness of the prosecution version. Considered in this background, while appraising the occular version of Gurmail Singh PW-4 and Mohinder Singh PW-5, it shall straightway appear that they were not present at the time of occurrence. Two of the accused, namely, Jugrant Singh and Joginder Singh have admitted their presence at the time of occurrence and concededly they were injured in the same occurrence, inasmuch as it is the prosecution version itself that they were inflicted injuries in self-defence of the deceased and the eye-witnesses. Significantly, even though there are six injuries on the person of Joginder Singh appellant and one injury on the person of Jugrant Singh, appellant, none of the eyewitnesses has even a scratch on his person. The normal human conduct guides us to think that in such a situation the appellants who were themselves receiving injuries at the hands of the eye-witnesses would have given some injuries to them as well. That apart, they appear to us if at all to be chance witnesses as they had no occasion to be around the flour mill and the only purpose suggested by them is that they wanted to have a round of the fields. It has come in the evidence that at and near the place of occurrence there are quite a few houses but as per the prosecution version, none was attracted to the scene in which the appellants had caused 5 injuries on the person of the deceased and in turn eye-witnesses had caused 7 injuries on the persons of the appellants. The occurrence started with a lalkara. All this, in our view, would have taken at least 4/5 minutes in which it is quite likely that some one from neighbourhood might have been attracted. Our view that Gurmail Singh P.W. 4 and Mohinder Singh PW-5 were not present at the time of occurrence and that the defence version appears to be more probable is also strengthened from the fact that there was no motive on the part of the appellants to cause the death of Gurcharan Singh. All that has been suggested by the prosecution is that the appellants were infuriated on account of the partition proceedings launched by Gurcharan Singh against them. However, no evidence at all has been brought on the record to show that the appellants being co-sharers of Gurcharan Singh or his sons were in possession of more land than that was their share. All that has been produced on the record is an order dated 5th September, 1988 passed in partition proceedings which only records that the matter was put up and a plan was produced by the one party and the case was adjourned. In the ocular evidence, of course, one of the witnesses has stated that the appellants wanted to keep in their possession one Maria of land but, as mentioned above, there is no documentary evidence brought on the record to show that the appellants were in possession of excess land than that of their share in the holding. From the ocular evidence it has also come to light that both parties were cultivating the land in their possession. On the contrary, we find from the records of the case that Gurmail Singh complainant had earlier filed a complaint against all the four appellants which resulted in acquittal on 12th of November, 1985. If that be so, Gurmail Singh might have some score to settle with the appellant who, as mentioned above, were acquitted in a case lodged against them under Sections 323/324 of the IPC. From the totality of the facts and circumstances of the case as are available on record of the case, we find that there are major infirmities in the prosecution version and it cannot be said that the prosecution has led such evidence which may prove guilt of the appellants beyond shadow of reasonable doubt. Giving, thus, the benefit of doubt to the appellants, we acquit them of the charge framed against them. Consequently, the judgment/order of the Additional Sessions Judge convicting the appellants in the manner indicated above is set aside and the present appeal is accepted.

Criminal Revision No. 14 of 1994 which is for enhancement of sentence to the appellants is dismissed.