Joginder Singh vs State of Punjab

V.K. Bali, J.

Appellant Joginder Singh, who was tried with his coaccused Samma Singh and Kala and has been convicted and sentenced under Section 302 of the Indian Penal Code to undergo imprisonment for life and to pay a fine of Rs. 2000/ and in default thereof to further undergo R.I. for six months, for having caused the murder of Kundan Singh, vide judgment recorded by Additional Sessions Judge, Amritsar, dated December 3, 1994, has filed the present appeal.

The facts, leading to the death of Kundan Singh were brought to the notice of Dalbir Singh, ASI Police Station Verowal when on 10th of November, 1988, Kundan Singh''s widow Charan Kaur lodged FIR against the appellant and his co accused mentioned above. She stated that she was resident of village Bhail Dhaiwala. About 3035 years ago, she was married with Kundan Singh but had no issue from this wedlock. She and her husband adopted one Lakha Singh, aged about 20 years son of her husband''s brother Dalip Singh, who was working as labourer at Sirsa during those days. He was married and lived with his wife at Sirsa. On the previous evening at about 6 PM she was present in the house. It was a day of Diwali and in the evening Dalip Singh and Banta Singh, both of whom are younger brothers of her husband were talking with her husband Kundan Singh. Joginder Singh son of Kishan Singh caste Majhbi, resident of the village gave a call to her husband by his name. Kundan Singh her husband stepped forward to open the door, Dalip Singh and Banta Singh younger brothers of her husband followed him. When her husband opened the door, then Samma and Kala sons of Chanchal Singh residents of the village raised a lalkara in one voice saying, "Uncle what are you seeing now, kill him," Joginder Singh then fired two shots from his double barrel gun hitting on the back of her husband Kundan Singh when he was returning. Her husband fell down on the ground and succumbed to his injuries there and then. Joginder Singh was armed with gun whereas Samma and Kala were armed with dangs and they ran away from the spot while raising lalkaras and hurling abuses. The cause of quarrel was that many excise cases were pending against Joginder Singh in the Court at Tarn Taran. Kundan Singh her husband stood surety for him. Joginder Singh was absconding from the Court in those cases. Her husband was served with a notice by the court. Her husband was pressing Joginder Singh to appear in the Court in those cases and due to this grudge Joginder Singh armed with a gun and Samma and Kala armed with dangs having connived with each other had murdered her husband Kundan Singh. She did not go to lodge a report during night due to disturbed conditions and out of fear. After leaving behind Joginder Singh and Bagga Singh to safeguard dead body, she alongwith Dalip Singh was going to the police station to lodge a report when ASI Dalbir Singh met him. On receipt of the aforesaid information, a case was registered against the appellant and his coaccused and it is mentioned in the proceedings recorded by the police in the F.I.R. itself that the F.I.R. was recorded in the area of village Fatehabad near the garden of one Brigadier at 7.00 a.m. as also that Special Report was sent to the higher officials and that the control room was also being informed through wireless message. However, from the records it is not known whether special report was sent to the Magistrate or not or if sent, at what time. It further appears from the records of the case that the police after investigation did not find the appellant and his coaccused guilty of the crime but rather found one Sahib Singh to be guilty of having killed Kundan Singh against whom the police put up the challan. Since he was absconding, he could not be tried. Meanwhile, Charan Kaur widow of Kundan Singh tried to impress upon the investigating agency that the appellant and his coaccused were responsible for the murder of her husband and they alone should be challaned. When her entreaties did not bring any tangible results, she lodged a complaint in the Court on 12th of June, 1989. The Magistrate concerned recorded the preliminary evidence led by Charan Kaur and found sufficient grounds to proceed against all the three accused under Section 302 read with Section 34 of the Indian Penal Code for the murder of Kundan Singh and accordingly they were summoned vide order dated 6th of November, 1989. They were thereafter committed to the Court of Sessions to stand their trial. The State was arrayed as party through Charan Kaur complainant. As mentioned above, after the resultant trial whereas the coaccused of the appellant were acquitted by having them the benefit of doubt, the appellant alone was convicted under Section 302 of the Indian Penal Code and was sentenced to undergo life imprisonment and to pay a fine as mentioned above.

With a view to bring home the offence against the appellant and his coaccused, the prosecution examined Dr. Karanjit Singh, Senior Medical Officer, Civil Hospital, Tarn Taran as PW7. He stated that on 10th November, 1988 at 1.45 p.m. he had conducted the postmortem on the dead body of Kundan Singh. He had found following injuries on the dead body of Kundan Singh :

9 lacerated inverted and black margined wounds about 0.25 cm in diameter each were present on the thaocodraco abdominal portion of the back over in area of 20 cm x 16 cm. The minimum and maximum distance between the two wounds was 2 cm x 5 cm respectively.

Six lacerated everted margins wounds about 0.25 cm x 0.5 cm were present on the front of the chest and upper part of the abdomen over an area of 24 cm x 26 cm. On dissection of the body, three metallic pieces found impacted under the subcutaneous issue of the chest and abdomen. Right lung and left lung were lacerated. Pleural cavities were full of blood. Intestine and liver ruptured at many places. The peritonial cavity was also full of blood.

In the opinion of the doctor death was due to shock and haemorrhage as a result of injuries No. 1 and 2 which were sufficient to cause death in the ordinary course of nature. All injuries were opined to have been caused by fire arm. The probable time that elapsed between injury and death was within a few minutes and between death and postmortem within 24 hours. The doctor further stated that injury No. 1 was entry wound, whereas injury No. 2 was an exit wound and therefore, these injuries could be the result of one fire shot. Charan Kaur, Dalip Singh and Banta Singh were exa.m.ined as PW1, PW4 and PW5. They have fully supported the prosecution version. Joginder Singh was exa.m.ined as PW6. He only stated that in his presence police had visited his village and had lifted some bloodstained earth from the spot which was sealed into a parcel and taken into possession vide seizure memo Ed. PD, which was attested by him. The inquest report Ex. PC on the dead body of Kundan Singh was prepared by the police and at that time he had identified the dead body. S.I. Dalbir Singh was examined as PW3. He stated that on 10th of November, 1988 whwn he was incharge of Police Post Fatehabad, he had recorded the statement of Charan Kaur and he had sent the same to Police Station Verowal for registration of the case, on the basis of which formal F.I.R. was recorded by S.I. Joginder Singh. He had also recorded the statements of PWs and lifted bloodstained earth from the spot which was sealed into a parcel. The blood stained clothes of the deceased were produced by constable Surinder Singh which were taken into possession vide recovery memo Ex. PE. He had also prepared the inquest report on the dead body of Kundan Singh. He had sent the dead body for postmortem examination vide Ex. PH and had made further investigation in the case and recorded the statements of PWs. After completion of due formalities, the challan was prepared by S.I. Anokh Singh. In cross examination this witness stated that as per the challan report, Sahib Singh was found to be guilty and therefore, no challan was put up against the appellant and his coaccused. In fact, the case against the appellant and his coaccused was found to be false. Sahib Singh was, however, not arrested as he had absconded. In so far as his own investigations are concerned, he stated that he did not remember if after investigation by him, the case against the appellant and his coaccused was found to be false.

When examined under Section 313 of the Code of Criminal Procedure, appellant Joginder Singh only stated that he has been falsely involved in this case and the witnesses were deposing falsely against him. The appellant in defence exa.m.ined Moha.m.mad Mustafa, S.S.P., Gurdaspur as DW1. He stated that on 10th of November, 1988 he was posted as ASP, Police Distt. Tarn Taran. He had seen the police file of this case and had supervised the investigation. During the investigation or supervision he had also visited village Bhail Dhaiwala and made enquiries from the villagers about the case. Many people from the village including members of the panchayat appeared before him during the investigation supervised by him. During the course of investigation of the case and on the basis of the enquiries made from the persons who had collected in the village at the time of his visit he ca.m.e to know that the persons na.m.ed in the F.I.R. were not the real culprits. Such enquiries revealed that the persons named in the F.I.R. had enmity with the complainant party and they were implicated in the case on that ground. During the course of investigation, Charan Kaur complainant, Banta Singh and Dalip Singh eye witnesses were also examined by him and he found that none of them was witness of the alleged occurrence and they were false witnesses. His spot inspection also revealed that some Nihang of that village was involved in the murder of Kundan Singh. However, he did not remember the name of that Nihang. After consulting the police file the witness stated that Sahib Singh alias Sahiba was involved in the murder of Kundan Singh and he has directed the S.H.O. to arrest Sahib Singh. He had satisfied himself about the involvement of Sahib Singh in the crime. In crossexa.m.ination this witness stated that there was one zimini in the police file dated 22nd of January, 1989 in which he found that Sahib Singh was involved in the murder and the alleged culprits in the F.I.R. were found to be innocent. There was no other zimini in the police file. He had visited in connection with the investigation of this case only once i.e. on 22nd of January, 1989 and neither before that nor after that. He had recorded the statements of Charan Kaur complaint and other witnesses. The witness further stated that the names of the members panchayat, sarpanch or other respectables who had collected at the spot at the time of his visit are not mentioned in the police zimini recorded by the police. He did not remember if the statements of Charan Kaur and other eyewitnesses were recorded by the investigator at the time of visit. Similarly he also did not remember whether he had recorded the na.m.es of the persons who had collected at the spot at the time of his visit nor did he remember whether he had recorded the statements of those witnesses or not. After checking the police file the witness further stated that there was no police zimini dated 22nd of January, 1989 made by the investigator regarding the examination of the persons who had collected at the spot at the time of his visit nor are the names of those persons mentioned by the Investigating Officer in any police zimini. He also stated that it was no where specifically mentioned in the police zimini dated 22nd of January, 1989 that Charan Kaur and other eyewitnesses had appeared before him in connection with the investigation of the case and were exa.m.ined. He also admitted that there was no specific mention in the police zimini that during his investigation the statements of Charan Kaur and other eyewitnesses were found to be false. He also stated that it was no where mentioned in the zimini that the appellant and his coaccused had any enmity with the complainant party. He also did not remember the na.m.es of the persons who had told him about the enmity between the complainant and the accused party. He also stated that on his visit when he had made the enquiries, he was satisfied about the innocence of the accused mentioned in the F.I.R. and there was, therefore, no necessity to show them innocent and that he was satisfied with the oral examination of the persons who had collected at the spot at the time of his visit. He admitted that before so opining that the accused named in the FIR were innocent, no further evidence regarding enmity between the parties was collected by the investigating officer or even afterwards.

We have heard Mr. Navkiran Singh, learned counsel representing the appellant and Mr. Mehtab Singh, learned Deputy Advocate General, Punjab, and with their assistance have gone through the records of the case. The first contention of the learned counsel for the appellant is that the medical evidence is in sharp contrast with the occular evidence coming from the statements of Charan Kaur, PW1, Dalip Singh, PW4 and Banta Singh, PW5 and that in itself is sufficient to reject the prosecution case. With a view to support the contention aforesaid, it is being argued that there was, in fact, only one injury as is clearly made out from the statement of Dr. Karanjit Singh, PW7. Whereas, injury No. 1 was an entry wound, injury No. 2 was an exit wound. The first injury which is stated to be an entry wound shows that there were nine lacerated inverted and black margined wounds, about 0.25 cm in dia.m.eter each present on the thaocodraco abdominal portion of the back over an area of 20 cm x 16 cm and injury No. 2 is described as six lacerated everted margined wounds about 0.25 cm x 0.5 cm on the front of the chest and upper part of the abdomen over an area of 24 cm x 26 cm. It is on the basis of these two injuries that it is being argued that the shot had gone from lower to upper portion and such an injury could not be caused if the assailant and deceased were standing parallel to each other, as is the prosecution case. We find absolutely no substance in the contention, noted above. PW7, no doubt, in his examinationinchief stated that injury No. 1 was an entry wound whereas injury No. 2 was an exit wound, even though the injuries were described by him as injuries 1 and 2. Assuming, therefore, that the learned counsel, on the basis of statement of Dr. Karanjit Singh, PW7, is right in contending that injury No. 1 was an entry wound whereas injury No. 2 was an exit wound, yet unless it is proved that the assailant and the deceased were standing on the same level, this contention would have no force at all. The prosecution case is that when Kundan Singh was threatened to be killed, he turned back towards his house and it was when he was in the house that he was fired at. The appellant at that time, as per the prosecution version, was outside the house. We have seen the site plan and from there too it is clear that Kundan Singh was fired at when he was inside the house and the appellant was outside the house, although very near to the gate of the house. The level of the house from inside is certainly more than the same from outside and, therefore, the injury could have travelled from below to upwards.

The next contention of the learned counsel is that there are contradictions in the FIR lodged by Charan Kaur, PW1 and in the statement when she appeared before the Court. The attention of the Court has been drawn only to the portion of the FIR where Charan Kaur stated that Joginder Singh had fired two shots hitting on the back of Kundan Singh when he was returning back. In the statement before the Court as PW1 she has stated that Joginder Singh fired shot hitting on the back of Kundan Singh. She further stated that Joginder Singh had fired another shot but she did not know whether it hit Kundan Singh or not. There is a little variation in the statement that she made, on the basis of which FIR was registered and the one made in the Court but if her presence is otherwise established, the variation in the two statements made by her, as mentioned above, in our view, is not enough to reject the entire prosecution version.

It is then urged by the learned counsel for the appellant that the prosecution has not brought any evidence on the record to show that there was motive for the appellant to cause harm or death of Kundan Singh. The alleged motive that the appellant was not appearing in the excise cases and Kundan Singh was pressing upon him to appear in the Court has not been proved by documentary evidence and as the sa.m.e could be proved by documentary evidence, reliance should not be placed upon the oral testimony of PWs to hold that Kundan Singh was actually pressing upon Joginder Singh to appear in the excise case. We find absolutely no substance in this contention of the learned counsel. All the eyewitnesses in unison had deposed against the appellant and supported the version to the effect aforesaid. The deposition of the witnesses have practically gone unchallenged. That apart, once the court comes to a conclusion that Charan Kaur who was a natural witness being wife of Kundan Singh and most likely to be present in the house at the time of occurrence, motive even if not proved cannot come to the rescue of the appellant. The last contention of the learned counsel is that there has been considerable delay in filing the complaint. It may be recalled that the complaint was filed on 12th June, 1989 whereas the occurrence had taken place on 9th of November, 1988, a period of about seven months had thus elapsed. In the facts and circumstances of this case, the prosecution case cannot be thrown out on account of delay in lodging the complaint. Charan Kaur had reported the matter to the police at 7.00 or 7.30 a.m. on 10th of November, 1988. Kundan Singh it may be recalled as per the prosecution version was a victim of murderous attack on 9th of November, 1988 at 6.00 p.m. Shortly thereafter the sun must have set. Charanjit Kaur had stated in the F.I.R. that she could not go to lodge the F.I.R. as she and her companions were fearing that the accused might cause them more harm if they were to report the matter to the police. She also stated that over all atmosphere in the State was far from peaceful. There is, thus, a plausible explanation coming forth for lodging the F.I.R. on the next date of occurrence. However, so far as delay in filing the complaint is concerned, it is proved on the records of the case that even though as many as three eyewitnesses have na.m.ed the appellant and his coaccused to have caused death of Kundan Singh but for wholly unexplained reasons the police found them innocent and rather chose to challan one Sahib Singh who was never arrested. Charan Kaur, in our view, was justifiably waiting for the police to book the culprits and it could not be in her wildest dreams that even though there are three eyewitnesses of the occurrence and had no motive to falsely implicate the accused, the police would yet do nothing in the matter. It appears that it is only when she was totally convinced that the police is out to shield the real culprits that she filed her complaint before the concerned court. In the facts and circumstances of this case, thus even though the complaint came to be lodged on 12th June, 1989, the delay has been adequately explained. This argument of the learned counsel is, thus, rejected.

The statements of PWs Charan Kaur, Dalip Singh and Banta Singh even though closely related to the deceased deserve to be accepted. We have scrutinised the statements of these witnesses with care and caution as is required while appreciating the evidence of closely related witnesses but we find that they have stood the test. Their statements are consistent and inspire confidence. Nothing at all could be brought out by the defence from the crossexamination of these witnesses.

There is no force in this appeal which deserves to be dismissed.

Before, however, we part with the judgment this court would like to comment upon the working of the police. It appears to us that even though the F.I.R. was lodged by none other than the wife of Kundan Singh who was natural witness and her statement was supported by two more eyewitnesses, the police still found the accused na.m.ed in the F.I.R. to be innocent. We have discussed the statement of DW1 Sh. Mohammad Mustafa, SSP, Gurdaspur. The reasons given by him for coming to the conclusion that the accused na.m.ed in the F.I.R. were innocent really baffles us. The way and manner in which he or other investigating officers came to the conclusion that the appellant and his coaccused were innocent baffles us far more. All that is stated is that the police had made enquiries from the village Sarpanch, Panches and others, who told the police that the appellant and his coaccused were na.m.ed because of enmity. The persons, who were contacted by the police and who had not supported the theory of murder propounded by Charan Kaur are not known. In no zimini their names came to be recorded. What enmity Kundan Singh had with the appellant and his coaccused was also not disclosed. There is also no zimini which might show that a particular person had told the police that the parties were inimically disposed for specific reasons. It may be mentioned at this stage that even the accused, in his statement under Section 313 of the Code of Criminal Procedure, has not stated that Kundan Singh or his wife or any of his relations were inimically disposed towards him. Nothing has been suggested to the witnesses also in the crossexamination that might reveal any kind of enmity between the parties inter se. Assuming that there was some kind of illwill between the parties, even though there is no evidence for that, the police officer conducting the investigation still ought to have thought as to why Charan Kaur would involve the appellant and his coaccused if they were not the real culprits and omit the name of those who had actually killed her husband. In our view, there could not be any reason for Charan Kaur to have involved the appellant and his coaccused on account of some ill will between her or her husband and the appellant and his coaccused and not to name the real assailant against whom she was supposed to be far more annoyed for killing her husband. These considerations were natural and ought to have been noticed even by the officer who had ordinary prudence and competence. However for wholly unexplained reasons, the police chose to na.m.e one Sahib Singh as real culprit without even disclosing as to what evidence had been collected against him. Sahib Singh was absconding and therefore, he could never be tried and in this manner the police perhaps got a convenient excuse to exculpate the appellant and his coaccused, thus, thwarting justice at its very inception. A copy of this judgment be sent to the Secretary, Department of Home, Government of Punjab, who would look into the matter and after calling upon the explanation of the investigating officer or officers concerned, would proceed to take departmental action against them if their replies are not found to be satisfactory.

With these observations, the appeal is dismissed.