Karam Singh vs State of Punjab

A.S. Nehra & S.C. Datta, JJ.

This appeal is directed against the judgment dated 24th of March, 1992 passed by the Additional Sessions Judge, Amritsar by which Karam Singh alias Radha Singh has been convicted under Section 302 I.P.C. and Vir Singh alias Bhappi has been convicted under Section 302 read with Section 34 I.P.C. Karam Singh and Vir Singh have been sentenced to undergo imprisonment for life each.

The prosecution story, in brief, is as follows :

On 26.1.1990 at about 4 or 4.30 p.m. the husband of the sister of the mother of Satnam Singh complainant came to their house when Harbhajan Singh had gone out as he used to ply a tonga from Sheikh Chak to village Kallah. Satnam Singh and his brother Amrik Singh left the house to bring their father Harbhajan Singh. At about 5 or 5.30 p.m. they reached near the Samadh of Baba Rori and found the Tonga of their father parked there on the Kucha path. They saw that Lakha Singh and Vir Singh accused were holding Harbhajan Singh from his legs and arms and they took him to the wheat field of Jetan Singh. Karam Singh accused was also present with them in the field of Jetan Singh. Accused Karam Singh picked up a brick and hit Harbhajan Singh on his head with that brick. Vir Singh accused alias Bhappi also gave 45 brick blows on the person of Harbhajan Singh. Satnam Singh and his brother raised alarm and the assailant fled away. When Satnam Singh & Amrik Singh reached near their father, they found him dead. Regarding the motive, it was alleged that 2 days prior to the occurrence both the accused alongwith Lakha Singh had travelled in the Tonga of Harbhajan Singh deceased from village Sheikh Chak to village Kallah and they did not pay the fare to Harbhajan Singh deceased, who demanded it. Out of fear, the complainant and his brother remained near the dead body for the night. On the next day Kuldip Singh and Avtar Singh Sarpanch reached there. Amrik Singh and Kuldip Singh were left near the dead body of Harbhajan Singh while Satnam Singh and Sarpanch Avtar Singh went to lodge the report. Police party headed by S.I. Joginder Singh met them on the way at village Sheikh Chak and the S.I. recorded the statement Ex.PH of Satnam Singh. Then the Police Party accompanied Satnam Singh and Avtar Singh to the place of occurrence where from S.I. Joginder Singh lifted the blood stained brick, which was made into a sealed parcel with the seal mark JS. It was taken in possession vide recovery memo Ex.PK attested by Jagtar Singh and Piara Singh. The S.I. also lifted the blood stained earth from near the dead body of Harbhajan Singh and made the same into sealed parcel with the seal marks JS and it was taken into possession vide recovery memo Ex.PL attested by Jagtar Singh and Piara Singh. On the basis of the statement Ex.PH, formal F.I.R. was recorded at Police Station Sadar Tarn Taran. Postmortam examination on the dead body of Harbhajan Singh was conducted by Dr. Ashwani Kumar Ahuja. Both the appellants were arrested while Lakha Singh was declared proclaimed offender.

The prosecution examined Shri Sukhbej Singh Ahalmad, P.W.1, Constable Harsha Singh, P.W.2, Dr. Ashwani Kumar Ahuja, P.W.3, Satnam Singh, complainant, P.W.4, Rishi Ram draftsman, P.W.5 Amrik Singh, P.W.6, constable Satpal Singh, P.W.7, A.S.I. Jagtar Singh, P.W.8, Constable Shingara Singh P.W.9 and A.S.I. Gurcharan Singh P.W.10. Kuldip Singh, H.C. Joginder Singh, Avtar Singh and Piara Singh were given up as unnecessary while Didar Singh had died. S.I. Joginder Singh and Inspector Jagdish Singh were not produced by the prosecution despite repeated opportunities. Copy of the F.I.R. Ex.PM, report of the Chemical Examiner Ex.PN and report of the serologist Ex.PO were tendered into evidence.

Satnam Singh, P.W.4 stated that his father used to ply tonga from village Sheikh Chak to village Kallah; that on 26.1.1990 his father went to ply his Tonga; that Mohan Singh husband of the sister of his mother came to them from U.P. at about 4.30 p.m.; that he accompanied by his brother Amrik Singh went to village Kallah via the kucha path to bring his father. He further stated that when they reached the Samadh of Baba Rori on the way of village Kallah they saw the Tonga of his father parked there on the kucha path; and that they found that Lakha Singh was holding his father Harbhajan Singh from his legs while Vir Singh accused was holding him from his arms; that they carried him to the wheat field of Jetan Singh where Karam Singh accused was also present with them; that in the wheat field Karam Singh accused picked up a brick and hit Harbhajan Singh on the left side of his head and Vir Singh accused gave 45 brick blows on the head of his father. He further stated that he and Amrik Singh raised alarm and the assailants fled away. He further stated that he and his brother Amrik Singh went near their father who was found dead. He further deposed that 23 days prior to the occurrence both the appellants alongwith Lakha Singh travelled in the tonga of Harbhajan Singh from village Sheikh Chak to village Kallah and his father demanded the fare from them but they refused to pay and he was told about it by his father. According to this witness, the occurrence took place at about 5.30 p.m. in the winter season and so they did not go to the police station during the night out of fear. He further stated that on the next day Kuldip Singh and Avtar Singh Sarpanch came there, so Kuldip Singh and Amrik Singh were left at the spot near the dead body of Harbhajan Singh, while the witness accompanied by Avtar Singh Sarpanch left for the police station to lodge the report and they met S.I. Joginder Singh on the way at village Sheikh Chak and he recorded his statement Ex.PH which was thumb marked by him in token of its correctness and then he accompanied the police to the spot. His statement finds corroboration in all material aspects from the statement of Amrik Singh P.W.6, who is also the son of the deceased.

Dr. Ashwani Kumar Ahuja P.W.3 deposed that he conducted the post mortem examination on the dead body of Harbhajan Singh on 27.1.1990 at 4.30 p.m. and found the following injuries on his person :

"1. A lacerated wound 10 x 8 cm over left temporal pareital area of scalp, 2 cm above left ear. Underlying skull bone was broken into pieces. Brain matter and meninges were badly lacerated and hanging out of the wound. Cranial cavity was full of blood.

Lacerated wound 3 cm x 2 cm into muscle deep. 4 cm in front of the left ear on left cheek.

A lacerated wound 3 cm x 2 cm into bone deep below left eye.

Lacerated wound 4 cm x 2 cm on right cheek, 4 cm in front of right ear.

Contusion 3 cm x 1 cm on left lateral border of lower chest."

In the opinion of the doctor the death was due to shock and haemorrhage caused as a result of injury No. 1, which was ante mortem and sufficient to cause death in the ordinary course of nature. The doctor also deposed that Harbhajan Singh could have immediately died after sustaining the injuries and that the postmortem examination was conducted within 24 hours from his death. Ex.PE is the correct carbon copy of the P.M.R. while Ex.PE/1 and Ex.PE/2 are the pictorial diagrams showing the seats of the injuries. The doctors described that all the injuries on the person of Harbhajan Singh were caused with blunt weapon and the possibility of the same being caused by a brick could not be ruled out. He even deposed that the possibility of multiple strokes of brick or bricks could not be ruled out on the site of injury No. 1. In crossexamination he stated that the possibility of injury No. 1 having been caused by a single stroke of one brick bat cannot be ruled out. Thus, the medical evidence corroborates the ocular version of the eye witnesses. Sukhbaj Singh Ahalmad P.W.1 and constable Harsha Singh P.W.2 were examined to prove the proclamation of accused Lakha Singh. Rishi Ram, draftsman P.W.5 stated that he prepared scaled site plan Ex.PJ after visiting the spot on 10.3.1990 at the instance of the police and on the pointing out of Satnam Singh and Amrik Singh P.Ws. Constable Satpal Singh P.W.7 deposed that on 17.4.1990 MHC Didar Singh entrusted to him two sealed parcels sealed with the seal mark JS containing brick in one parcel and blood stained earth in the other parcel and he delivered the same in the office of the Chemical Examiner on 22.4.1990. He also stated that so long as the parcels remained in his custody, the same were not tampered with. Jagtar Singh A.S.I., P.W.8 stated that on 27.1.1990 he accompanied the police party headed by S.I. Joginder Singh to the place of occurrence; that S.I. Joginder Singh lifted the blood stained brick from the spot which was made into a sealed parcel sealed with the seal mark JS and was taken into possession vide recovery memo Ex.PK. He further stated that S.I. Joginder Singh also lifted blood stained earth from the spot from near the dead body of Harbhajan Singh, which was made into a sealed parcel sealed with the seal mark JS and the parcel was taken into possession vide recovery memo Ex.PL. He further stated that S.I. Joginder Singh recorded the statements of Piara Singh and one or two other persons, who identified the dead body of Harbhajan Singh. Shingara Singh constable P.W.9 stated that he got the dead body of Harbhajan Singh subjected to postmortem examination and that the doctor handed over to him the clothes of the deceased which were produced before S.I. Joginder Singh, who took the same into possession after making them into sealed parcel. A.S.I. Gurcharan Singh P.W.10 stated that on 25.2.1990 he held Naka at Adda Sheikh Chak; that Avtar Singh Sarpanch produced Karam Singh accused there and he arrested him in this case. Report of the Chemical Examiner Ex.PN reveals that blood was found on the contents of both the parcels. The Serologist vide his report Ex.PO found that the brick was stained with human blood while the blood stains in the blood stained earth were disintegrated and their original could not be determined. This report of the Chemical Examiner and that of the Serologist corroborate the version of the eye witnesses that Harbhajan Singh was hit by Karam Singh and Vir Singh accused with brick bats.

In their statements u/s 313 Cr.P.C. the accused denied the allegations of the prosecution and the incriminating circumstances brought on record against them. They claimed to be innocent and to have been falsely implicated. They chose to produce no defence evidence.

Learned counsel for the appellants have contended that the eye witnesses are sons of the deceased and as such they being interested witnesses, no reliance should be placed on their testimony for want of independent corroboration because admittedly there were other Behaks near the Behak of Jetan Singh, but none from those Behaks have been examined. Undoubtedly, Satnam Singh and Amrik Singh PWs are sons of the deceased, but they have given satisfactory explanation for their presence at the spot. They being the sons of the deceased must have been anxious to bring to book the real culprits and not to exculpate them. No motive is proved on the record for falsely implicating the accused by Satnam Singh and Amrik Singh PWs. On the other hand, it is proved from the statements of PWs that 23 days prior to the occurrence, Harbhajan Singh had a dispute with the accused who refused to pay him the tonga fare.

Learned counsel for the appellant has further contended that there is a delay in recording the F.I.R. as the alleged occurrence took place at 5 to 5.30 p.m. on 26.1.1990 while the F.I.R. was recorded at 11.05 a.m. on the next day. It is in the statement of Satnam Singh that out of fear they did not go to the Police Station to report the matter during the night and on the next morning he accompanied by Avtar Singh was going to the Police Station to lodge the report that they met S.I. Joginder Singh on the way and he recorded his statement, Ex.PH. Ex.PH was concluded at 10.30 a.m. on 27.1.1990 and F.I.R. was started at 11 a.m. and was concluded at 11.35 a.m. on 27.1.1990. So it being winter season after 5/5.50 p.m. it must have grown dark and the sons of the deceased might not have the courage to go to the Police Station to lodge the report or even to go to the village to inform the police party, keeping in view the prevailing law and order situation in the State of Punjab. So the delay, if any, stands explained and is not fatal and more so when no motive is alleged or proved for the false implication of the appellants. It was further contended by the learned counsel for the appellants that there are discrepancies in the statements of PW4 and PW6. He contended that Satnam Singh PW4 deposed that they had reached the Samadh of Baba Rori when they saw the occurrence, but Amrik Singh, PW6 deposed that they were still at a distance of 2 Killas from the said Samadh, when they saw the occurrence. He further contended that Satnam Singh P.W.4 deposed that Lakha Singh was holding his father from his legs while Vir Singh was holding him from his arms and Amrik Singh, PW6 deposed that Vir Singh was holding Harbhajan Singh from his legs, but Lakha Singh was holding him from his arms. No doubt, the said discrepancies are there, but such like discrepancies are bound to occur in case of truthful and untutored witnesses by lapse of time. Parrot like story of the occurrence cannot be expected from truthful witnesses. Said discrepancies are hardly material to discard the statement of Satnam Singh and Amrik Singh PWs. The testimony of the eye witnesses of the occurrence is fully corroborated. It was further contended by the learned counsel for the appellants that the Investigating Officer S.I. Joginder Singh has not been examined, therefore, the prosecution story cannot be relied upon. We find no force in this contention and the same is devoid of force because the prosecution story is supported by the eye witnesses whose testimony is worthy of reliance and is corroborated from the medical evidence. Even part of the investigation carried at the spot by S.I. Joginder Singh has been supported by Jagtar Singh, A.S.I. who was subjected to crossexamination. In the cross examination the credibility of the testimony of the said witness could not be shaken. So the nonproduction of S.I. Joginder Singh is not fatal of the prosecution case more so when the evidence of the prosecution was closed by the order of the Court.

It was further contended by the learned counsel for the appellants that from the facts of the case no offence under Section 302 read with Section 34 I.P.C. is made out against the appellants and that at the most either offence under Section 304 read with Section 34 I.P.C. or under Section 325 read with Section 34 I.P.C. is made out. Learned counsel for the appellants in support of his argument has relied upon Balwinder Singh v. State of Punjab, 1989(1) Recent Criminal Reports 193 . In the present case Harbhajan Singh who was plying a tonga was picked up from his tonga. Lakha Singh (since P.O.) caught hold Harbhajan Singh from his arms whereas Vir Singh lifted Harbhajan Singh from his legs. Karam Singh was also present there. They carried Harbhajan Singh to wheat fields of Jetan Singh. Then Karam Singh gave a brick blow on the left side of the head of the deceased and thereafter Vir Singh gave 23 blows on the head of the deceased. Karam Singh and Vir Singh gave bricks blows on the vital part of Harbhajan Singh, deceased and so much so that injury No. 1 on the left side of his head was lacerated wound 10 cm x 8 cm over the left temporalparietal area of scalp and the underlying skull bone was broken into pieces and further the brain matter and the meninges were badly lacerated and hanging out of the wound. So, the appellants had caused injuries on the vital parts including the head of the deceased and as such they had the intention to cause the death of Harbhajan Singh, as such Balwinder Singh v. State of Haryana (supra) which has been relied upon by the counsel for the appellants is not applicable to the facts of the case and the same is distinguishable.

In view of the above discussion, we find no merit in the appeal and the same is dismissed.