Resham Singh vs State of Punjab

P.K. Jain, J.

This appeal is directed against the judgement/order dated 20.4.1995 passed by the Additional Sessions Judge, Amritsar whereby the appellant has been convicted under section 304 IPC and sentenced to undergo rigorous imprisonment for 7 years and to pay a fine of Rs. 500/ and in default of payment of fine to undergo further rigorous imprisonment for one month.

The prosecution case, as unfolded by Bachittar Singh (PW1) in his statement (Ex. PA) recorded by the police on 3.8.1990 at about 12.30 P.M. in Guru Nanak Dev Hospital, Amritsar, is that the agricultural lands of Bachittar Singh (PW 1) Joginder Singh (PW2) Jagir Singh (now deceased), Resham Singh (appellant herein) and others are situated adjacent and nearby to each other. These lands are being irrigated by tubewells installed by the proprietors thereof and being run by electricity supplied from common transformer. The appellant used to help one Gurbax Singh in running his tubewell by providing electricity in an illegal manner by feeding the same from his cables, as a result of which the functioning of the tubewells of Bachittar Singh and others was adversely affected due to extra load being put on the common transformer.

On 30.7.1990, at about 5 P.M., the electric supply to the tubewell of Bachittar Singh and others was again disrupted on account of the said illegal act on the part of the appellant. Bachittar Singh, Joginder Singh and Jagir Singh were going to request the appellant not to supply electricity in an illegal manner to the tubewell of Gurbax Singh. When they reached near the field of Lakha Singh, the appellant came there armed with an iron pipe of a hand pump, and by observing that he would teach them a lesson forbidding him daily from connecting the electric wire, gave an iron pipe blow hitting Jagir Singh on his head. On receipt of the said blow, Jagir Singh fell down on the ground, and the appellant ran away along ith iron pipe. Jagir Singh was removed to the hospital at Amritsar and was examined by Doctor Sukhwinder Singh (PW.10) at 9.30 P.M. who prepared the Medico legal Report Ex. P.W. 10/A and sent the information to the police. Head Constable Sakattar Singh of Police Station Jhabal reached the hospital on 2.8.1990, but the injured Jagir Singh was declared unconscious. Similarly on 3.8.1990, Jagir Singh was found to be unconscious. On that day, Headconstable Sakattar Singh recorded the statement Ex. PA made by Bachittar Singh, on the basis of which the present case was registered at 1.30 P.M. vide F.I.R. Ex. PA/1 copy of which was received by the Judicial Magistrate, Tarn Taran on 4.8.1990 at 11 A.M. Jagir Singh expired in the hospital on 14.8.1990 at about 12.45 A.M., intimation of which was sent to the Police Station.

On 15.8.1990 at 11 A.M. Doctor Vasdev Sharma (PW.5) performed autopsy on the dead body of Jagir Singh and found the following injuries on the dead body:

Astiched wound 3 cm in length with three stitches present on the top of head 10 cm vertically above the bridge of nose. Vault of the skull was depressed.

A purple coloured contusion 17 cm x 6cm present on the anterior medial side of left forearm in its lower two/third.

On dissection of head. 8cm x 8cm depressed fracture of the left temporal bone and right temporal bone was present and that of the left frontal bone also, underneath injury No. 1. On further dissection brain membrane and brain matter was lacerated and the surface of the brain was covered with a big haematoma. Muscles of the scalp were also lacerated and haematoma was formed under injury No. 1."

Injuries were found antemortem and caused by blunt weapon. According to the said Doctor, the death was due to shock haemorrhage as a result of injury to brain accompanied with fracture of the skull which was sufficient to cause death in the ordinary course of nature.

Head constable Sakattar Singh inspected the spot of the occurrence and prepared rough site plan Ex. PF with correct marginal notes. On 27.8.1990. Inspector Gurdev Singh (PW.7) arrested the appellant. On interrogation the appellant made a disclosure statement (Ex.PC) in pursuance of which he led the Police Party to his room containing wheat husk and got recovered one iron pipe (Ex. P.1) therefrom which was taken into possession vide seizure memo Ex. P.D. Rough site plan Ex. PE of the place of the recovery was prepared. After completing the investigation, a chargesheet was submitted to the court.

A charge under section 302 I.P.C. was framed against the appellant to which he pleaded not guilty and claimed a trial. In support of its case, the prosecution examined twelve witnesses. Bachittar Singh (PW.1) and Joginder Singh (PW.2) are the eye witnesses of the occurrence. Baldev Singh (PW.3) had identified the dead body of his father Jagir Singh during post mortem. Doctor Sukhwinder Singh (PW.10) had examined the deceased Jagir Singh on 30.7.1990, at 9.30 P.M. and had prepared his report Ex. PW. 10/A, and later on after the receipt of Xray report Ex. PW.4/A, he had recorded his opinion Ex.PW.10/B. Doctor Subhash Chander (PW.9) had declared Jagir Singh to be unconscious on 2.8.1990 and 3.8.1990 vide his endorsement Ex. PW.9/B and Ex. PW. 9/D on the applications Ex.PW.9/A and Ex.PW.9/C moved by the police, Doctor Inderbir Singh Gill (PW.4) had examined the Xrays of Jagir Singh and had prepared the report Ex. PW4/A. Doctor Vasdev Sharma (PW.5) had conducted post mortem on the dead body of Jagir Singh and had prepared his report Ex. PW.5/A. Assistant Sub Inspector Sakattar Singh (PW. 12) and Inspector Gurdev Singh (PW.7) are the Investigating Officers.

In his examination under section 313 Cr.P.C. the appellant denied the allegations of the prosecution and pleaded false implication due to party faction and enmity. In his defence, he examined Naresh Kumar (DW.1) an official of Punjab State Electricity Board, Jabhal Sub Division.

On an appraisal of the evidence produced on the record, the Additional Sessions Judge, while placing implicit reliance upon the statements of Bachittar Singh (PW.1) and Joginder Singh (PW.2), convicted and sentenced the appellant as stated above. Feeling aggrieved, the convict has filed this appeal.

Shri A.S. Sandhu, Advocate, the learned counsel for the appellant has challenged the order of conviction on two grounds; namely, that there is a delay of about five days in lodging the First Information Report which is fatal to the prosecution case, and secondly, there are material discrepancies in the statements of two eye witnesses Bachittar Singh (PW.1) and Joginer Singh (PW.2) due to which no reliance can be placed upon their testimony. The learned counsel has argued that according to the prosecutin itself, the occurrence took place on 30.7.1990 at 5.30 P.M. and the injured was got admitted in the hospital on the same day at 9.30 P.M. It has been further pointed out by the learned counsel that although according to the Doctor, the injured remained unconscious upto 3.8.1990, but Bachittar Singh (PW1) and Joginder Singh (PW.2) were available to the police for the registration of a case. While making a reference to the testimony of these two witnesses, learned counsel has argued that although the police contacted both these witnesses on the next date of the occurrence in the hospital, yet the statement of Bachittar Singh was recorded on 3.8.1990 at about 12.30 P.M. which is the basis of the First Information Report. It has been, thus, pointed out by the learned counsel that this delay of four/five days in recording First Information Report has not been explained by the prosecution on any ground and such inordinate delay is always fatal to the prosecution case.

On the other hand Shri Ramanjit Singh, learned Assistant Advocate General Punjab has argued that according to the evidence produced by the prosecution information regarding admission of Jagir Singh in an injured

condition in the hospital was given to the police by the Doctor attending the said injured and that if the police did not record the statement of any of the eye witnesses for some days, it would not affect the prosecution case. It has been pointed out by the learned Assistant Advocate General that no colourful version or exaggerated account has been introduced in the First Information Report.

The factual position as pointed out by the learned counsel for the appellant has not been disputed at the Bar. The delay in lodging First Information Report may sometimes result in embellishment which is creature of afterthought. There may be a danger of colourful version or concocted story being introduced as a result of deliberation. However, delay is not always fatal to the prosecution case. It puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version.

A close scrunity of the Medicolegal Report Ex. PW. 10/A goes to show that the injured Jagir Singh was admitted to the hospital at 30.7.1990 at 9.15 P.M. and the information was sent to the police immediately by the Doctor attending the said injured. Doctor Sukhwinder Singh (PW.10) who had prepared the Medicolegal Report Ex. PW.10/A was not examined or crossexamined on this aspect of the case by either of the parties. Similarly A.S.I Sakattar Singh (PW.12) who had reached the hospital and had ultimately recorded the statement of Bachittar Singh on 3.8.1990, was also not examined or crossexamined as to when and how information was received at Police Station Jabhal regarding the admission of the injured in the said hospital. Further, the version given in the First Information Report cannot be said to be the result of any deliberation or consultation. If any false version was to be introduced, Baldev Singh (PW.3) could have been easily cited as an eye witness to the occurrence but no such false version was incorporated in the First Information Report lodged on the statement of Bachittar Singh. Still further, the version given by Bachittar Singh (PW.1) and Joginder Singh (PW.2) is quite natural inasmuch as they alongwith Jagir Singh were going to lodge a protest with the appellant against illegal supply of electricity for running the tubewell of Gurbax Singh which had adversely affected the irrigation facility of their fields. No motive for false implication on the part of these witnesses has been brought out in their crossexamination. If, even after receiving intimation from the hospital, the police does not come into action or delays the registration of the case for one reason or the other, no fault can be found with the complainant or the aggrieved party or the version of the prosecution case.

In Ram Murti v. State of Haryana, AIR 1976 SC 2455, their Lordships of the Supreme Court observed: "It is, no doubt, true that there was some delay in the filing of the First Information Report by Surja and the explanation given for the delay does not appear to be very satisfactory but that cannot by itself be a ground for disbelieving the prosecution evidence and particularly when it has been accepted both by the learned Additional Sessions Judge and the High Court."

There is no indication anywhere in the evidence produced by the prosecution that the name of the appellant or those of the eyewitnesses were incorporated in the first information report as as result of any deliberation or consultation. Both the eyewitnesses remained present in the hospital even on the next day of the occurrence when the police had visited the hospital but had not cared to record the statement of any one of them. Therfore, the trial Court was fully justified in concluding that the delay of four days in lodging the First Information Report was not deliberate and did not affect the prosecution case in any manner.

Then the learned counsel for the appellant has pointed out that according to the statement Ex. PA made by Bachittar Singh which is foundation of the prosecution case, the occurrence took place on 29.7.1990 whereas the occurrence is alleged to have taken place on 30.7.1990. It has been further pointed out by the learned counsel that according to the testimony of Joginder Singh (PW.2) his statement and the statement of Bachittar Singh were recorded by the police at the Police Station and he was made to sign his statement whereas according to the prosecution their statements were recorded in the hospital on 3.8.1990. The learned counsel has also pointed out certain omissions and improvements made by these two eye witnesses in their testimony which allegadly affects their credibility.

On the other hand, the learned Assistant Advocate General Punjab has argued that these witnesses were examined in the court after about three years of the occurrence and such type of minor contradictions or discrepancies are bound to happen due to lapse of time. It has been further argued by the learned Assistant Advocate General that the presence of such minor insignificant discrepancies or omissions or improvements in the testimony of these eye witnesses in itself is a guarantee that they were not tutored, and the version given by them is natural and spontaneous.

I have carefully scrutinised the testimony of Bachittar Singh (PW.1) and Joginder Singh (PW.2) visavis the First Information Report Ex. PA/1, It is correct that in his statement Ex. PA. Bachittar Singh has given the date of occurrence as 29.7.1990 whereas the occurrence actually took place on 30.7.1990. This variation appears to have been crept in on account of the rural background and illiteracy of the witnesses. The main thing to be seen is that according to the testimony of these witnesses the injured was got admitted in the hospital on the same day i.e. on the day of the occurrence. According to the hospital record, Jagir Singh was got admitted in the hospital on 30.7.1990 at 9.15 P.M. The presence of minor and insignificant discrepancies in certain details regarding the time and place relating to the statements recorded by the police or the inspection of the spot by the police would not affect the root of the presecution case. The court is not to attach undue importance to minor discrepancies i.e. the shortcoming from which no criminal case is free. The testimony of both these witnesses is consistent as regards the substratum of the prosecution case. On material aspects, both these witnesses have supported the prosecution case, and their testimony could not be shaken in any manner in their crossexamination. Therefore, the trial Court was fully justified in holding both these witnesses to be trustworthy, and acting upon their testimony.

Lastly, the learned counsel for the appellant has argued that assuming the prosecution case in all respect, to be true, an offence under section 304 Part II I.P.C. is made out against the appellant and sentence of 7 years is extremely harsh and disproportionate to the offence. It has been pointed out by the learned counsel that according to the findings of the trial Court, the appellant had not intention to cause the death of Jagir Singh and he had given only one iron pipe blow hitting Jagir Singh on his head which did not result in his death instantaneously, but he died after about 14/15 days in the hospital. Thus, it has been contended that the sentence imposed upon the appellant may be reduced to the period already undergone. On the other hand, the learned Assistant Advocate General has supported the sentence imposed upon the appellant.

It is not disputed that the deceased along with Bachittar Singh and Joginder Singh was going to lodge protest against misuse of electricity by the appellant. It is also not disputed that all of a sudden, the appellant dealt one blow with an iron pipe on the head of Jagir Singh which ultimately proved fatal after about 14/15 days. It has been found as a fact by the trial Court that the appellant had no intention to cause the death of Jagir Singh, that there was sudden quarrel between the parties and that due to some provocation the appellant dealt one blow with iron pipe on the head of the deceased which proved fatal, after about 14/15 days. Therefore, according to the conclusion of the trial Court itself, the case against the appellant falls within the ambit of Section 304 Part II of the Penal Code Accordingly the sentence imposed upon the appellant is harsh and disproportionate to the offence committed by him.

As a result of the above discussion, the conviction of the appellant for an offence under section 304 Part II, IPC is hereby confirmed. Sentence of imprisonment imposed upon the appellant is reduced to Rigorous Imprisonment for three years. However, sentence of fine with its default clause shall stand. With this modification, the appeal stands disposed of.