Resham Singh vs State of Punjab

Jai Singh Sekhon, J.

Resham Singh appellant was tried and convicted on a charge for offence punishable under section 307 of the Indian Penal Code (for short ''the Code'') while his coaccused Swaran Singh was acquitted of the charge under Section 307/34 of the Code by the learned Additional Sessions Judge, Amritsar. The appellant was awarded three years'' rigorous imprisonment and fine of Rs. 500/ or in default of payment thereof to further undergo two months'' rigorous imprisonment. Feeling aggrieved against his conviction and sentence he has come up in appeal (Criminal Appeal No. 543SB of 1986). Resham Singhappellant, in a separate trial, was also found guilty and convicted by the trial Court for an offence punishable under Section 25 of the Arms Act and awarded six months rigorous imprisonment and fine of Rs. 500/ or in default of payment thereof, to further undergo two months'' rigorous imprisonment. Feeling aggrieved against his conviction and sentence he has preferred Criminal Appeal No. 544SB of 1986. Both these appeals shall be disposed of by this order as these involve the appraisal of the evidence of same set of witnesses.

In brief, the facts of the prosecution case are that Gian Singh injured had not voted for Piara Singh in the Panchayat Elections despite the persuation of the accused. The accused took it ill and on March 16, 1934, at about 10 p.m. both the accused accosted Gian Singh injured near the house of Resham Singh accused while he was on his way to the Haveli from residential house for tethering cattle. Resham Singhappellant was then armed with a spear while his coaccused Swarn Singh was emptyhanded. On the exhortation of Swaran Singh that Gian Singh be taught a lesson for not voting for Piara Singh, Resham Singh thrust his spear in his right flank. Gian Singh injured raised alarm upon which Dharam Singh and Shabeg Singh were attached to the spot. On the approach of these witnesses, both the accused ran away. Dharam Singh removed Gian Singh injured to Civil Hospital of Village Sur Singh on a tractortrolley, but the doctor being not available there, the injured was taken to Primary Health Centre, Jhabal, where Dr. Swaran Singh (PW 2) examined him at 2.15 p.m. on March 17, 1984, and found an incised stab wound measuring 2.5 cms x 0.5 cm. on the left side of his chest. The condition of the injured was fair, pulse was 110 per minute and bloodpressure 120/70 m.m.h.g. The injury was kept under observation subject to Xray examination and operation. The doctor sent intimation (Exhibit P.C./2) to the Incharge of Police Station Bhikhi Wind regarding the arrival of the injured. The injured was referred for treatment to Sri Guru Teg Bahadur Hospital, Amritsar, where Dr. Charanjit Singh, Senior Lecturer (PW 11) operated upon the injured on March 17, 1984. The injured was again operated on March 19, 1984. The injured was subsequently subjected to Xray examination by Dr. Ashok Dhingra (PW 7). He found hydropheumo thorax in the left lung. On receipt of this X ray report, the injury was declared dangerous to life by Dr. Sarwan Singh (PW 2).

Assistant SubInspector Dara Singh (PW13) received the copy of medico legal report of Gian Singh injured through Shabeg Singh, Panch, on March 26, 1984. Thereafter, he went to Medical College Hospital, Amritsar, and recorded the statement (Exhibit P.A.) of Gian Singh injured after he was declared fit to make the statement. On the basis of this statement, a case under Section 324/34 of the Code was registered against the accused at Police Station Bhikhi Wind at 5 p.m. vide First Information Report (Exhibit PA/2). The investigator then arrived at the spot and prepared rough site plan (Exhibit P.H). He also recorded the statements of the witnesses.

The accused were arrested on April 18, 1984, by SubInspector Mangal Singh (PW 4), when they were produced before him at the Police Post Sur Singh by Gurcharan Singh. On April 24, 1984, Resham Singh accused was interrogated by Assistant SubInspector Bhagwan Dass (PW 6) in the presence of Head Constable Avtar Singh (P.W. 5) and Gian Singh injured. Resham Singh deposed having kept concealed a spear in the thatched roof of his hut vide his statement (Exhibit P.F). Thereafter, he led the police party to the said place and got recovered spear (Exhibit P1). It was taken into possession. A separate case under Section 25 of the Arms Act was registered against the accused Resham Singh.

After completion of investigation, both the accused were arraigned for trial on such like allegations by submitting the chargesheet the Committing Magistrate for offence under Section 307/34 of the Code. A separate case under Section 25 of the Arms Act was submitted against Resham Singhappellant before the Magistrate, who committed the same to the Court of Sessions as the spear was the weapon of offence in the main case.

Before the trial Court, in order to prove its abovereferred case under Section 307/34 of the Code, the prosecution examined thirteen witnesses besides tendering the formal evidence of Moharrir Constable Sudershan Singh and Constable Kashmir Singh on affidavits, Exhibits P.D. and P.E. respectively. Gian Singh injured (PW 1) and Shera Singh (PW 3) eyewitness supported the above referred version of the prosecution while Shabeg Singh, eyewitness was given up as having been won over by the accused.

In the Arms Act case, the prosecution examined Head Constable Avtar Singh (P.W. 1) and Assistant Sub Inspector Bhagwan Dass (PW 2). Resham Singh appellant set up the plea of denial simplicitor.

Swaran Singh, coaccused of the appellant, set up the plea of self defence before the trial Court as under :

I am innocent. In fact on the day of occurrence, I was going towards the house of Gurmej Singh when Shera Singh armed with ''Kulhari'', Gian Singh and Kashmir Singh armed with ''Kirpans'' came there and started causing me injuries. Gurmej Singh and his wife Surinder Kaur came to the spot. When Surinder Kaur tried to rescue, Sher Singh also gave ''kulhari'' blow from the blunt side to Surinder Kaur. On the next day we were taken to Sur Singh hospital where doctor was not available and then we were got medically examined at Bikhi Wind and I made my statement before the police regarding the occurrence. Surinder Kaur wielded a sickle in her defence and in my defence. The case against us is false."

Resham Singhappellant, however, denied his presence or participation at the time of occurrence.

When called upon to enter on their defence in the main case, the accused examined Smt. Surinder Kaur (DW 1) in support of the abovereferred plea of self defence. Dr. Narinder Singh (DW 2) deposed that on March 17, 1984, at 2.30 p.m. he medically examined Smt. Surinder Kaur and found two injuries on her person, one of which was located on front of her left leg while the other on the dorsum of the left foot. This doctor also deposed about the medical examination of Swaran Singhaccused. He found three injuries on his person.

The trial Court, however, believing the ocular evidence of the witnesses coupled with the medical evidence, convicted and sentenced the appellant as referred above while his coaccused Swaran Singh was acquitted by holding that the provisions of Section 34 of the Code were not attracted in his case as it was a case of free fight.

I have heard the learned counsel for the parties besides perusing the record.

Admittedly, there is inordinate delay of ten days in lodging the First Information Report as the occurrence took place on March 16, 1984, at 10 p.m. while the case was registered on March 26, 1984 at 5 p.m. The trial Court has not attached much importance to this delay in lodging the First Information Report on the ground of Swaran Singh accused (since acquitted) having set up the plea of self defence. The trial Court has altogether ignored to take into consideration that such a long delay would certainly result in giving twist to the real facts as well as magnifying the fault of the opposite party while suppressing the adult of the complainant. The trial Court had believed that Swaran Singh and Smt. Surinder Kaur had suffered injuries in this occurrence while holding in para 14 of the judgment as under:

"In such like cases what is to be seen is as to whether any of the parties was an aggressor. In this case the learned counsel for the accused has argued that the injury was inflicted in selfdefence. In this connection, he has drawn my attention to the statement of Dr. Narinder Singh (DW 2), according to which Surinder Kaur wife of Gurmej Singh and Swaran Singh accused also received injuries. I find that in this case both the parties were armed and seem to be prepared for fight. There was also notice for the same. The injury inflicted on the person of Gian Singh has been declared as dangerous to life. Therefore, it can hardly be said that the injury in such circumstances was inflicted in selfdefence."

The evidence of Dr. Narinder Singh (DW 2) reveals that he had medically examined Smt. Surinder Kaur on March 17, 1984, at 2.30 p.m. and found the following two injuries on her person :

A lacerated wound on front of the left leg units lower arm 1.2 cms. x 6 cm. Blood clots in and around the wound were present.

Swelling of the left foot at the root of the fingers."

This doctor also examined Swaran Singh accused at 3 p.m. on that day and found the following three injuries on his person :

"1. An incised wound with clean cut margins and averted margins on the right hand on medial side 2.5 cm x .5 cm. x .5 cm., 3.5 cms. from the wrist joint. Blood clots in and around the wound were present. Serum was oozing from the wound. Direction was across the length of the hand.

An incised wound on the left forearm with clean cut and averted margins on the back side, 8 cms. from elbow joint. Wound was 4.8. cms. x 1.2 cms. Underlying bone was cut. Cut in the wound was .5 cm. deep. Blood clots in and around the wound were present. Serum was oozing from the wound. Direction was across the length of the forearm.

A lacerated wound on head on its back side, 8.5. cms. from the pinnar of right ear, wound was 1.2 cms. x 1 cm. Margins to the wound were irregular. Blood clots in and around the wound were present. Serum was oozing from the wound."

Injury No. 2 on the person of Swaran Singh was declared grievous while the rest of the injuries were simple in nature.

It is not believable that Swaran Singh would selfsuffer grievous injury on his left forearm. Thus, there is no escape but to hold that accused Swaran Singh and Smt. Surinder Kaur (DW 1) had suffered the injuries in this occurrence. Strangely enough, the eyewitnesses had not given any explanation for the injuries on the persons of Swaran Singh accused and Smt. Surinder Kaur even during their testimony at the trialwhat to say of doing so at the investigation stage. Consequently, there is no escape but to hold that the witnesses had suppressed the true genesis of the occurrence. If that is so, then the reasonable possibility cannot be ruled out that only Swaran Singh accused (since acquitted) and Smt. Surinder Kaur had participated in this occurrence while Resham Singhappellant was implicated falsely. This conclusion is further fortified from the usual psychology of the injured person to rope in an uninjured relation of the accused party. Resham Singh appellant is the son of Smt. Surinder Kaur injured. Thus, there is a great possibility of Resham Singh appellant having been falsely implicated in this occurrence.

The evidence of Head Constable Avtar Singh (PW 5) and Assistant Sub Inspector. Bhagwan Dass (PW 6) regarding the appellant Resham Singh having made disclosure statement and got recovered the spear (Exhibit P1) in pursuance thereof on April 24, 1984 i.e., about more than one month of this occurrence, is not acceptable as the accused would not keep concealed a spear in the roof of his hut at the risk of creating evidence in a case for an attempt to murder. Moreover, the prosecution had not led any evidence to prove that the appellant was the sole occupant of that hut. Thus, reasonable possibility of other members of his family having kept the spear there to the knowledge of Resham Singh appellant cannot be ruled out.

For the foregoing reasons there is no option but to accept both the appeals and acquit Resham Singhappellant of the charge under Section 307 of the Code and Section 25 of the Arms Act by setting aside the orders of convictions and sentences. It is ordered accordingly. The appellant is on bail. The bail bonds are ordered to be discharged.