Pawan Kumar and Another vs State of Punjab

Pritam Pal, J.—Pawan Kumar alias Pammi son of Yog Raj and his elder brother Subhash Chander, both appellants have brought this appeal against the judgment of conviction and order of sentence dated January 10, 1997, passed by the learned Addl.Sessions Judge, Ludhiana, whereby they were held guilty for commission of offence punishable u/s 302 read with Section 34 of the Indian Penal Code and then sentenced to undergo R.I. for life and to pay a fine of Rs. 1000/- each. Further, in default of payment of fine, they were ordered to undergo further R.I. for three months each.

In nutshell, the facts culminating to the commencement of this appeal may be recapitulated thus:-

On March 31, 1994, at about 8.00 P.M., Gian Singh, since deceased (48 years) and Kashmir Singh PW-2 a complainant in this case after distributing invitation cards of the marriage of the daughter of said Gian Singh were returning back on their scooters. Gian Singh was going ahead whereas Kashmir Singh following him. When they reached near Gulati Market, in the area of Ludhiana Town, there three persons appeared on the road from the right side. One of them was Pawan Kumar alias Pammi (hereinafter referred to as the appellant No. 1) and the other two were Sikh Youth aged about 25-30 years. They were wearing black PATKAS on their heads. The said two Sikh Youth had thrown a cycle in front of the scooter of Gian Singh, as a result of which he (Gian Singh) stopped his scooter. In the meantime, all the three assailants picked up earth (soil powder) in their hands and threw the same on the face of said Gian Singh. Thereafter, the complainant also stopped his scooter. In the meantime, Pawan Kumar alias Pammi, who was already known to the complainant gave 4/5 DATTAR blows on the head and fore head of Gian Singh, as a result of which, he (Gian Singh) fell down on the ground. Thereafter, both the Sikh Youth who were armed with DAH and long DAGGER also caused blows with their respective weapons on the person of Gian Singh. Then complainant Kashmir Singh raised an alarm "bachao bachao". Thereupon Shadi Lal son of Gurdial Chand also reached at the spot. After that Pawan Kumar alias Pammi and his other two accomplices also ran away from the spot along with their respective weapons. Complainant Kashmir Singh then stopped a rickshaw and sent the injured to C.M.C. Hospital, Ludhiana alongwith Shadi Lai. Then he (Kashmir Singh) chased the assailants but they all managed to escape. Thereafter, the complainant rushed to C.M.C.Hospital Ludhiana, where Gian Singh had already been declared dead.

Motive behind the occurrence as stated by the complainant was that about 10 years ago, Gian Singh was involved in a murder case of Bant, brother of the appellants. However, after trial, he was acquitted but the appellants were nourishing grudge and as such, by committing the murder of Gian Singh, they had taken the revenge of their brother.

Reverting back to the prosecution story, after coming to know about the death of Gian Singh in the C.M.C.Hospital, Ludhiana, Kashmir Singh left for the police station to lodge the report. He then made his statement Ex.PC before Inspector Harish Sharma, who is the Investigating Officer of this case. Harish Sharma then made his endorsement Ex., PC/1 and sent the same to the police station Division No.3, Ludhiana, where formal F.I.R.Ex.PC/2 was recorded by Additional MHC Joginder Singh in the above narration of facts. Inspector Harish Sharma then took the investigation of this case in his hand. He called the photographer at the scene of the crime. He also seized the scooter, cycle and a turban from the place of occurrence vide recovery memo. He also collected blood stained earth from the place of occurrence and made the same into parcel and then took the same into possession vide recovery memo Ex.PD. After that, he prepared the inquest report Ex.PF. Post mortem on the dead body of the deceased was also conducted on April 01, 1994 by Dr.G.S.Randhawa, who found the following 29 injuries on his person:

Incised wound 3" x 1/3" obliquely placed on left side of forehead, Bone deep underneath bone found cut.

Incised wound 3" x 1/3" transverse on left parietal region, bone deep underneath bone was found cut.

Incised wound 4" x 3/4", transverse, 2" posterial to injury No.2 underneath bone cut.

Incised wound 3" x 1/3" "IT shaped on left parietal region, underneath bone cut.

Four incised wound each measuring 4" x 1/3" transverse and parallel to each other on left upper neck behind the left ear.

Incised wound 3" x 1/3" on middle occipital region transverse bone deep, underneath bone cut.

Incised wound 3" x 1/3" transverse 3" below injury No.6, underneath bone cut.

Incised wound 4" x 3/4" oblique on right anterior fronto-temporal region, underneath bone cut.

Three incised wound each measuring 3" x 1/3" parallel to each other on right occipital region in an area of 3" x 1-1/2", underneath bone cut.

Five incised wounds each measuring 1-1/4" x 1/3" in an area of 3" x 4" parallel to each other muscle deep and below the injury No.9.

Incised wound 2-1/2" x 1" gapping on back and middle of neck at its base, bone deep and bone cut.

Incised wound 3" x 1" on right side of neck at its back transverse and anterior to injury No. 11 underneath neck vessels found cut.

Incised wound 1" X 1/3" into bone deep between both scapula.

Two incised wounds each measuring 1" x 1/3" x bone deep at the middle of right scapula, underneath bone cut.

Incised wound 1-1/2" x 1/3" on top of right shoulder, underneath bone cut.

Incised wound 1" x 1/3" on back and upper part of right chest muscle deep.

Incised wound 1" x 1/3" on back and lower part of right chest bone deep, bone cut.

Multiple slash wounds. Skin deep in between the injury No.12 and 15.

Incised wound 1" x 1/3" x bone deep on back of left scapula, underneath bone cut.

Incised wound gapping 2" x 3/4" on top of left shoulder underneath bone cut.

Incised wound 2" x 1/3" x bone deep and behind injury No.20.

Incised wound 3" x 1/2" oblique on right cheek extending middle of cheek upto the middle of upper lip, underneath bone was found cut.

Incised wound 3" x 3/4" on left side of face extending from middle of upper lip to middle of left cheek cut the underneath bone and teeth and angle of mouth.

Multiple slash wounds zig-zag in direction over the whole of left hand underneath muscles tendens and vessels found cut and all the finger of the hand were cut.

Incised wound 3" x 1" oblique on back and upper part of right fore-arm.

Multiple incised wounds on back of right hand and finger, all fingers except thumb found cut.

Incised wound 1-1/2" x 1/2" muscle deep at lateral and upper part of left thing.

Two incised wounds, verticle and parallel to each other, each measuring 1" x 1/3" on upper part of right knee.

Multiple incised wounds skin deep on left side of abdomen.

All the above injuries are stated to have been caused by three assailants i.e. Appellant Pawan Kumar and two others Sikh Youth as mentioned in the First Information Report which was promptly lodged by Kashmir Singh complainant (PW2).

Both the appellants were arrested in this case on April 04, 1994. On the same day, appellant Subhash Chander elder brother of Pawan Kumar appellant was interrogated. There upon, he made a disclosure statement Ex.PU in pursuance of which he is said to have got recovered DAGGER Ex.P8. He was also produced before the lllaqa Judicial Magistrate on April 05, 1994 for taking his consent to join the identification parade but Subhash Chander appellant declined to do so.

After completion of the formal investigation, both the appellants were challaned for commission of offence punishable u/s 302 read with Section 34 of the Indian Penal Code, whereas the third assailant could not be identified and arrested in this case.

Ultimately, both the appellants were charge-sheeted for commission of offence punishable u/s 302 of the Indian Penal Code by the learned trial Court on August 03, 1994.

The prosecution, in order to prove its case, examined as many as 11 witnesses: PW1 is Dr.D.S.Kochhar, Medical, Officer, Civil Hospital, Ludhiana, who on April 05, 1994 had medico legally examined Pawan Kumar appellant: PW2 Kashmir Singh who is the complainant in this case and is the close friend of the deceased Gian Singh. PW-3 is Gurnam Singh. He had seen both the appellants talking to each others immediately after the occurrence regarding murder of Gian Singh; PW-4 is Dr.G.S.Randhawa Medical Officer, Civil Hospital, Ludhiana. On 1.4.1994, he conducted the autopsy on the dead body of Gian Singh deceased vide post mortem report Ex.PH; PW-5 is Dr.Santosh Daniel, Registrary Department of Medicines, CMC, Ludhiana. He deposed with regard to the bringing of the injured in the hospital at 8.25 P.M. on March 31, 1994 by Shadi Lal. He also proved injury report Ex.P1; PW-6 is Head Constable Joginder Singh. He has placed on record his affidavit Ex.PN; PW-7 is Constable Gian Singh. He has placed on record his affidavit Ex.PO to prove the link evidence; PW-8 is Sh.Sunil Arora, Judicial Magistrate 1st Class, Zira. He proved the application Ex.PW-8/A moved by the police and the statement of appellant Subhash Chander Ex.PW-8/2; PW-9 is Constable Surinderjit Singh. He has placed on record his affidavit Ex.PW-9/A; PW-10 is farminder Singh. He has proved the site plan Ex.PQ prepared according to the scale 1 "=20 feets of the place of occurrence and PW-11 is Inspector Harish Sharma, who is the Investigating Officer in this case.

The learned trial Court after completion of the trial, convicted and sentenced both the appellants as indicated in the opening part of the judgment. This is how feeling aggrieved against the said judgment, the appellants have come up in this appeal.

We have heard the learned counsel for the parties and with their assistance have gone through the record carefully.

At the first instance, learned counsel for the appellants has raised a plea that here in the instant case, admittedly, Gian Singh deceased was tried for committing the murder of Bant brother of the appellants, though, he was later on acquitted before the occurrence of this case. Learned counsel then submitted that Gian Singh was also facing so many criminal cases of gambling etc. when the occurrence of this case had taken place. According to the learned counsel, they (appellants) have, in fact, been involved in this case on the basis of suspicion. In support of his this contention, he also made reference to the statement of the complainant Kashmir Singh, whose presence has also been doubted at the place of occurrence. Learned counsel then pointed out the material confrontations/contradictions and improvements occurred in the cross examination of PW-2 Kashmir Singh.

On the other hand, Mr.A.S.Virk, learned Additional A.G.Punjab has supported the prosecution case and submitted that in fact it were the appellants and none-else who had committed the murder of Gian Singh as they were nourishing grudge against him for committing the murder of their brother Bant about ten years prior to the present occurrence of this case.

We have given our thoughtful consideration to the aforesaid points of arguments raised on behalf of the learned counsel for the parties. Before we proceed further, it is necessary to remember that the Judges do not preside over a criminal Court merely to see that no innocent man is punished. But at the same time, they also preside over to see that guilty man does not escape. One is as important as the other. Both are public duties which the Judges have to perform. Sometime in a mixed situation, Courts are to make efforts to disengage the truth from falsehood and to sift the grain from chaff. When we go by the aforesaid cardinal principle of law and the given facts of this case, it is established on the file that while lodging an FIR in this case, PW2 Kashmir Singh who is a close friend of the deceased had given the complete identification and residential address of appellant Pawan Kumar alias Pammi but he could not give any description regarding the identification of the appellant Subhash Chander who is also elder brother of Pawan Kumar appellant. What he says is that two other Sikh Youth were also the assailants at the time of the occurrence of this case. Admittedly, third assailant could not be identified. As stated above, it is also an admitted fact and well proved on the file that Gian Singh deceased had faced the trial for committing the. murder of Bant brother of the appellants. Further, it has also come in the evidence thaP in another case of Gian Singh deceased against Kirpal Singh etc., PW2 Kashmir Singh was also a witness. Thus, keeping in view all the facts, if we meticulously examine the evidence of this PW, then it appears that involvement of Subhash Chander appellant was made in this case after due deliberations. It is not understandable why Subhash Chander appellant who is elder brother of Pawan Kumar appellant could not be identified by him (Kashmir Singh-complainant) at the time of occurrence. In this regard what he says is that besides Pawan Kumar appellant, two other Sikh Youth were also there and had caused injuries with their respective weapons on the person of Gian Singh deceased. Besides that PW-3-Gurnam Singh who had also reached at the spot at about 8.30 P.M. on the date of occurrence stated that he had seen the blood on the DATTAR carried by a Hindu Young man, according to PW2 Kashmir Singh, he is Pawan Kumar. PW3-Gurnam Singh further does not say regarding staining of blood on the dagger carried by a Sikh Youth. However, it is stated by PW3 that he had also heard them talking on that date they had taken avenge of their brother Bant which had come to their satisfaction.

No doubt, the number of injuries on the person of the deceased Gian Singh indicate that there might be three assailants as deposed by PW-2 Kashmir Singh complainant. As already stated above, third assailant in this case could not be arrested due to his non identification. Whereas, identification of the second one, namely Subhash Chander appellant is also not proved beyond reasonable doubt so as to connect him with the commission of crime. As discussed in the earlier part of the judgment, the name of the second appellant Subhash Chander does not figure in the FIR. Further, PW3 Gumam Singh who had also reached at the spot immediately after the occurrence a did not say anything regarding the staining of any blood on the DAGGER allegedly carried by said second appellant Subhash Chander. However, he categorically stated that he had seen blood on the blade of DAH/DAGGER carried by Pawan Kumar appellant. PW2 Kashmir Singh only for the first time had given the name of second appellant Subhash Chander while appearing as PW2 by making an improvement/embellishment which does not inspire confidence regarding his involvement in the commission of crime of this case. In this view of our foregoing discussion, the participation of appellant Subhash Chander in the commission of crime of this case appears to be doubtful.

Now adverting to the case of appellant Pawan Kumar. His name, identification, and even complete address of his residence is there in the FIR which was lodged promptly i.e. within less then two hours of the occurrence. In the given facts and circumstances of this case, there was no scope of any deliberations for involving this appellant falsely in this case inasmuch as PW2 Kashmir Singh has categorically stated that appellant Pawan Kumar alias Pammi was already known to him. He further stated that it was appellant Kumar alias Pammi was already known to him. He further stated that it was appellant Pawan Kumar who had assaulted upon Gian Singh with his weapon known as DATTAR., According to him, Pawan Kumar had given five six DAH blows to Gian Singh on his head and forehead., as a result of which he had fallen down and thereafter, other two assailants had also caused many injuries. This aforesaid ocular account given by this witness also finds corroboration from the statement of PW3 Gumam Singh who had also reached the spot immediately after the occurrence. Inspite of lengthy cross examination conducted by the learned defence counsel before the trial Court, testimonies of these PWs could not be shaken qua appellant Pawan Kumar alias Pammi and they had connected Pawan Kumar alias Pammi with the commission of crime in this case.

Further, keeping in view the motive and medical evidence brought on the file, we do not find any scope to interfere in the order of conviction and sentence passed by the learned trial Court against Pawan Kumar alias Pammi appellant.

In the result, the judgment of conviction and order of sentence passed against appellant Pawan Kumar alias Pammi is upheld and accordingly appeal filed on his behalf is dismissed, whereas the appeal qua Subhash Chander appellant is accepted and consequently, by giving benefit of doubt, he is acquitted of the charge framed against him.