Joginder Singh vs State of Haryana

I.S. Tiwana, J.

In this case of patricide the fate of the appellant stands completely sealed by the evidence of his brother Joga Singh (PW 4) whose statement has been found by the trial Court to be clear, consistent and convincing. What has been alleged against him in the FIR Exhibit PG, recorded on November 12, 1985 at 6.30 PM in the Police Station Assandh, District Karnal, and proved on record, is as follows :

Deceased Virsa Singh, aged about 60 years and the appellant lived in the adjoining rooms of their Dera (farmhouse) in the fields of village Bilona. About seven years back Virsa Singh had separated the appellant by providing him with five killas of land out of his total holding of twelve killas, two kanals and thirteen marlas. The appellant, however, did not feel satisfied with this sharing of the property and continuously insisted upon having two more killas as his due share.

On the Diwali day, i.e. November 12, 1985, the deceased in the company of his other son, i.e. Joga Singh, PW 4, went to Assandh on a bicycle in order to purchase certain articles to have festivities in the evening. They returned from Assandh at about 4/5 p.m. and since Joga Singh found it difficult to pedal the cycle on the kaccha path near the Dera, both of them alighted and started walking towards the Dera. Virsa Singh was ahead of Joga Singh by about 9 to 10 karams, i.e. 45 to 50 feet. When Virsa Singh reached near the fields of Angrez Singh. Joginder Singh appellant emerged from behind the heap of Parali and fired a shot from a country made pistol at Virsa Singh. The pellets hit the upper part of Virsa Singh''s right arm. He ran for his life towards the fields of Barkat Singh. Joga Singh also threw his cycle and ran towards his father. By the time Virsa Singh was near another heap of unthrashed paddy, the appellant, who was chasing him fired another shot hitting Virsa Singh over his right ear. As a result of that he fell down on the heap of paddy. The appellant fired two more shots hitting Virsa Singh on the left side of his head. Thereafter the appellant made himself scarce and ran towards the abadi of village Bilona. Joga Singh came to the place where his father was lying and found him dead. He went straight to his Dera and narrated the whole occurrence to his uncle Jaimal Singh and his son Sukha Singh. It may be mentioned here that this Jaimal Singh too had constructed his Dera in his fields close to that of Virsa Singh. The latter mentioned persons accompanied the PW to the place of occurrence. Then Joga Singh, after leaving them on the spot, went to the police station where he lodged the FIR, Exhibit PG, as indicated earlier. Thereafter ASI Ram Phal, PW 8, left for the spot along with the police force and on reaching there got the dead body photographed. He prepared the inquest report. Exhibit PB and asked Joga Singh to transport the dead body to Karnal for postmortem examination. As per the statement of Joga Singh, he could arrange for a truck only at about 6 a.m. on November 13, 1985 as during the night no conveyance was available, it being a Diwali night. After completing the other necessary formalities, such as, inspection of the spot, lifting of the bloodstained search from two places (i) where Virsa Singh was first hit in the arm and (ii) where he ultimately died; collecting the empty cartridges, Exhibit P. 10 and P. 11 vide memo Exhibits PN/1 and PN/3 respectively, a pair of Chappals Exhibit P. 12/12 from a little distance from the dead body and the cycle which was lying on the kaccha path to the Dera of the deceased vide memo Exhibit PN/5, he completed the investigation. He searched for the accused during the night but he was not available at his Dera. PW 9, S.I. Raj Gopal, S.H.O. had also reached the spot at about 1 p.m. on November 13, 1985 and verified the investigative steps taken by ASI Ram Phal. On return to the police station the case property including the cartridges recovered from the spot were duly deposited in the Malkhana. The appellant was ultimately arrested on November 29, 1985 from near a bridge of a nullah in the area of Khizrabad as a result of the secret information and at that time Raj Gopal, S.H.O., was accompanied by Rachpal Singh and Balwinder Singh who is the sister''s husband of the appellant. On interrogation he made the disclosure statement Exhibit PH and in pursuance thereof got recovered a country made pistol, Exhibit P.9. After preparing a sketch, Exhibit PH/1, the same was taken into possession vide recovery memo Exhibit PH/2. On return to the police station, this pistol too was deposited in Malkhana. This recovery led to the conviction of the appellant under Section 25 of the Arms Act read with section 6 of the Terrorist and Disruptive Activities (Prevention) Act, 1985 as a result of a separate trial. The sentences awarded as a result of the two trials have, however, been directed to run concurrently.

For convenience sake, these two criminal appeals Nos. 308DB/86 and 309DB/86 are being disposed of together.

As is well indicated by the above narration of facts, these two convictions of the appellant, one under Section 302, Indian Penal Code and the other under Section 25 of the Arms Act read with section 6 of the Terrorist and Disruptive Activities (Prevention) Act, are primarily founded on the evidence of Joga Singh, PW 4, in the first appeal and Balwinder Singh, PW 1, in the second. Both these witnesses are closely related to the appellant the first being the brother and the second being the brotherinlaw. There is not even a whisper much less any evidence on the records of these cases to indicate that these PWs had any animosity or illwill to rope in or accuse the appellant of these crimes. Their statements which support the prosecution version to the hilt are forthright and convincing.

The plea of the appellant during the trial under Section 313, Cr.P.C., was as follows :

"My father Virsa Singh had left his dera all by himself in the early hours of the morning of 12.11.1985 on foot to Assandh. Joga Singh never accompanied him. He did not purchase anything from Assandh that day. Dead body of my father was found lying by Barkat Singh and his workers in his fields. This news was relayed to our dera. The members of my family and that of the family of my uncle went to the spot, made inquiries but no clue of the assailant was found. No report was recorded in the Police Station. However, the police arrived at 5.00 p.m. on 12.11.1985 and continued making inquiries to find out clues and work out the case. No story could be envolved throughout the night and the present FIR came into existence in the morning of 13.11.1985 after the SHO was summoned and taken into confidence and Joga Singh was introduced as a false witness. There was no unpleasantness between me and my father Virsa Singh."

He examined DW 1 Jaimal Singh, his uncle and DW 2 Gurmukh Singh in support of his plea. Their evidence has, however, been discarded by the trial Court.

Mr. Cheema, learned counsel for the appellant finding it impossible to dislodge the evidence of Joga Singh on the basis of certain conjectural pleas, such as, there was no necessity for the two of them (the father and the son) going together to Assandh to make purchases for certain festivities in the evening and the nonrecovery of the purchased articles by the police from the spot, raised a forthright argument that the evidence of this witness is inconsistent with that of the medical evidence and, therefore, the same should not be relied upon to sustain the conviction. The contention of the learned counsel is that in the light of the evidence of Dr. S.C. Singhal, PW 1, the maximum that can be held is that the injuries received by the deceased were the result of three shots and not four, as maintained by Joga Singh PW. He even chose to contend that as a matter of fact injuries Nos. 1 and 2 on eigher side of the heads of the deceased were the result of one shot and this completely belies the stand of PW 1. He also maintained that recovery of only five pellets and a wad from the turban and the dead body of the deceased also lent support to his stand. In other words, his plea is that had the deceased suffered four shots, the number of pellets available from the dead body would have been much more.

Having given our thoughtful consideration to these submissions of the learned counsel, we find that these deserve no credence. Firstly, on basis whatsoever has been laid down by the defence for these pleas in the evidence or crossexamination of Dr. Singhal, PW 1. It has nowhere been suggested to him that the injuries were the result of three or two shots and not four shots, as the stand of the prosecution is. It has been firmly ruled by their Lordships of the Supreme Court in Ghasita alias Ghasi Ram v. State of U.P., AIR 1973 SC 211, that "if the testimony of the eyewitness was sought to be discredited on the basis of medical evidence it was for the appellant to have this aspect specifically clarified from the evidence of the doctor". Similarly about a decade latter, in Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, their Lordships of the Supreme Court emphasised that :

"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eye witness, the testimony of the eye witnesses cannot be thrown out on the ground of alleged inconsistency between it and medical evidence."

We also find it impossible to accept the argument of the learned counsel that injuries Nos. 1 and 2 were the result of one shot as in case of both the injuries the margins of the wounds were found to be `inverted'', meaning thereby that both were the entry wounds. It is not even suggested to Joga Singh, PW 4, that the deceased had suffered less than four shots. Therefore, we repel this stand of the learned counsel. Further, we find no credence in the defence plea for the short reason that it is wholly unbelievable that the dead body of the deceased, who according to the appellant had probably met his end at about 5 a.m. on November 12, 1985, was not seen by anybody for about twelve hours, i.e. till 5 p.m. This is more so when it is remembered that the very Dera of the deceased where a number of his family members resided and that of his brother Jaimal Singh, besides those of the other farmers, were nearabout. Rather the admission of the fact that the police had arrived at the spot at about 4/5 p.m., in the statement of the appellant as well as that of DW 1 lends some support to the prosecution version.

As observed earlier, we also find no ground to discard the evidence of Balwinder Singh, PW 1, in the connected appeal (Crl. A. 309/DB/86) about the disclosure statement made by the appellant and the recovery of the pistol, Exhibit P. 9 in pursuance thereof. This witness is very closely related to the appellant and there is no reason for him to falsely accuse the appellant of the crime.

For the reasons recorded above, both these appeals fail and are dismiss in toto.