Sewa Singh vs State of Punjab

S.S. Sodhi, J.

The challenge in appeal here is to the conviction of the appellant Sewa Singh for the murder of his brother Behal Singh.

The incident occurred at about 9.30 P.M. on the night of April 6, 1994 in village Pandori Sidhwan in front of the house of Dalip Singh, another brother of the appellant Sewa Singh, and Behal Singh deceased.

According to the prosecution, Sewa Singh sent his daughter Dalbinder Kaur to call Bahal Singh deceased from his house by telling him that he was wanted by her father Behal Singh thereupon complained her to her house. A few minutes later, however was seen coming running towards his house shouting bachao bachao, while being chased by Sewa Singh, who was armed with a khunda. One Harbans Singh is also said to have been with Sewa Singh and this Harbans Singh had with Aim a Kirpan. When Behal Singh reached near to the door of the house of his brother Dalip Singh, Sewa Singh gave him a blow on his head with his khunda as a result of which he fell down. Sewa Singh followed this up by, giving him another 3 or 4 blows with his Khunda as a result at which Behal Singh died at the spot. Sewa Singh thereafter went away. This incident it is said, was seen by the two sons of Behal Singh, namely Jarnail Singh and Balwinder Singh as also his brother Dalip Singh who had come out of his house on hearing the noise outside. Jarnail Singh then left to report this matter to the police. He met a police party at the bus stand Jhabal, where he made his statement exhibit PE to Assistant SubInspector Dharamjit Singh on the basis of which the present case came to.

The medical evidence consists of the testimony of P.W. 1 Jatinder Iqbal Saggu who deposed to the postmortem examination conducted by him on the dead body of Bahal Singh deceased at 11 A.M. on April 7, 1984. The doctor found five injuries on the person of the deceased. These being

Irregular lacerated wound with irregular margins 3 cm X 2 cm surrounded by an abrasion cum contusion 5.5. cm X 4.5 cm on left cheek, 2 cms. below the lateral angel of the left eye. The wound was bond deep.

Irregular lacerated wound with irregular margins 3 cm X 2 cm. on the back of the head just behind the left ear lobe middle portion. The wound was scalp deep, underlying scalp contained clotted blood.

Irregular lacerated wound, with irregular margins (B) shaped 3 cm x 2.5. coms on the left side of the head 3. 5 cms behind the upper end of the left car. Dissection of injury No. 3.

There was clotted blood in the underlying scalp and the skull was fractured adjacent to the wound. The underlying left cerebral hemisphere was lacerated and congested and contained hemisphere was also congested.

Contusion 2 cm x 1 cm. on the left side of forehand just above the left eyebrow. He underlying scalp was congested and cerebral cortex was also congested.

Lacerated wound irregular margins 2 cm x 1 cm on top of the head to the left of mind line 12 cm, above the left car and 6 cms. behind the anterior hair line.

According to Dr. Saggu, all these injuries were antemortem and had been caused by a blunt weapon and were, sufficient in the ordinary course of nature to cause death. The death in this case was instantaneous while the time that clapsed between death and postmortem was within 16 hours.

As regards the main incident itself, the case of the prosecution rests upon the testimony of. P.W. 2 Jarnail Singh and P.W. 4 Balwinder Singh the sons of Bahal Singh deceased and the brother of the deceased P.W. 3 Dalip Singh. All these witnesses deposed, as per the prosecution version narrated earlier, namely; that the daughter of Sewa Singh deceased came to the house of Behal Singh and took him away saying that he had been called by her father Sewa Singh and a little while later Bahal Singh came from that side running and shouting `bachaobachao being followed by Sawa Singh who was armed with a Khund day and that when he reached near the house of Dalip Singh, Sewa Singh, gave a Khunda blow on his head as a result of which he fell down and then further injuries were caused to him by Sews, Singh with this Khunda as result of which he died at the spot.

The motive for the incident was deposed to by P.W. 6 Banta Singh who stated that about a month prior to the incident, there had been a dispute between Bahal Singh deceased and the Wife of the appellant Sewa Singh which had arisen over their children. He intervened and got the matter settled. This quarrel and its subsequent compromise was also deposed to by P.W. 2 Jarnail Singh, P.W. 3 Dalip Singh and P.W. 4 Balwinder Singh.

The investigation in this case was conducted by P.W. 7 Assistant SubInspector Dharamjit Singh and P.W. 8 SubInspector Darshanjit Singh. It was the testimony of Assistant SubInspector Dharamjit Singh that on April 7. 1984, he along with a police party were present at the busstand Jhabal when P.W. 2 Jarnail Singh came there and made his statement exhibit PE on the basis of which the present case came to be registered. He went on to depose that he thereafter went to the place of occurrence where he found the dead body of Bahal Singh lying near the phirni in front of the house of Dalip Singh. He then prepared the inquest report and entrusted it to Head Constable Parshotam Singh for postmortem examination. He also took into bloodstained earth from the spot. Besides, this he also recorded the statement of the witnesses. It was during the investigation by him that SubInspector Darshanjit Singh arrived there at about 7 A.M. on April 17, 1984 and the further investigation in this case was then taken over by him.

SubInspector Darshanjit Singh stated that when he reached near the place of occurrence, he found many persons collected there. He made enquiries from them and verified the investigation done by Assistant Sub Inspector Dharamjit Singh. He further deposed to the recording of the supplementary statement of Jarnail Singh as he did not agree with the investigation done by Assistant SubInspector Dharamjit Singh. Later he stated that he had recorded this statement as Jarnail Singh was in a nervous condition when his earlier, statement, namely exhibit PE. was made particularly with regard to the weapon of offence and he consequiatly got the position cleared by this supplementary statement.

SubInspector Darshan Singh then went on to depose to the arrest of the appelantSewa Singh on April 11, 1984 and further that on April 15, 1984, during interrogation he made a disclosure statement as a consequence of which he got recovered a khunda concealed under neath a heap of parali in the court yard of his house.

When examined under Section 313 of the Code of Criminal Procedure, 1973, Sewa Singh denied the prosecution case and pleaded innocent. According to him, this was a blind murder and he had been falsely implicated merely on suspicion. No evidence was, however, led in defence.

The crucial point for determination here is with regard to the veracity of the testimony of P.W. 2 Jarnail Singh, P.W. 3 Dalip Singh and P.W. 4 Balwinder Singh who have appeared as eye witnesses of the occurrence. It will be seen that all three of them were close relations of Behal Singh deceased Jarnail Singh and Balwinder Singh being his sons while Dalip Singh was his brother. The appellant Sewa Singh too is an equally close relation of theirs being the brother of Behal Singh deceased and also P.W. 3 Dalip Singh. As is well known, close relations, particularly in the rural areas of Punjab, do not come forth to falsely depose, against their own relations to wrongfully implicate them in the commission of an offence unless there is a strong motivating force which impels there to do so. Such motive on the part of any of these witnesses towards the appellant Sewa Singh is conspicuous by its absence Indeed, Mr. J.S. Dhillon, counsel for the appellant was constrained to concede that the evidence on record did not establish any motive on the part of any of these witnesses to falsely depose against the appellant Sewa Singh. This circumstance cannot but weigh very heavily in favour of the credibility of these witnesses.

Further, it will be seen that all these three witnesses, namely Jarnail Singh, Balwinder Singh and Dalip Singh have come forth with a consistent account of the occurrence with no contradictions or discrepancies create any doubt therein. Further, considering the time and place of a occurrence they all, cannot but answer to the description of being the most natural and probable witnesses. The time of the occurrence being just about dinner time, in the normal routine of things, it is to be expected that they would be at or around their house at that time Dalip Singh''s presence is also rendered highly probable by the fact that the incident had occurred out side his house and he thus reached there on hearing the raula.

The main stress of the counsel for the appellant with regard to the testimony of the three eyewitnesses, particularly P.W. 2 Jarnail Singh was upon the conflict between their testimony in the court and the contents of the statement exhibit PE made by Jarnail Singh to Assistant SubInspector Dharamjit Singh, which constituted the first information report of this incident. Contradictions between this statement if any made by Jarnail Singh, in Court are clearly writ large. The most glaring amongst them being that whereas in the first information report, the weapon of offence was said to be a kirpan Jarnail Singh deposed to it being a Khunda when he came into the witness box. There is then the matter of the role played by Harbans Singh in this incident. According to the first information report of he too had caused some injuries to Bahal Singh deceased with his kirpal but according to the prosecution version now all the injuries to the deceased were caused by the appellant Sewa Singh and that too only with his khunda. Next to note is the circumstances that there is no mentioned in the first information report of the daughter of the mention appellant having come to Bahal Singh to call him from his house. In other words, a quite different version of the incident was put forth by Jarnail Singh to the police from what he deposed to in court. When confronted with these contradictions the explanation of Jarnail Singh was that he. made the first information report state of nervousness and therefore, these errors crept in. This obviously cannot be taken to be an altogether convincing explanation.

The point that thus arises for consideration is whether the prosecution case can stand in the face, of, the contradictory version as they emerged from the contents of the first information report and the testimony of the three eyewitnesses. To dealing with this matter, it must be borne in mind, that the first information, report is not by itself a substantive piece of evidence. It is no doubt a valuable document, in that, it contains the earliest account of the incident. If the contents thereof are in consonance with the deposition in court, of the person on whose statement it was recorded, it would lend further assurance to his testimony. He can, of course, also be availed of to throw doubt upon the testimony, of such witness by confronting him with contradictions that may emerge from his testimony with what is stated in the first information report. It is however, wellsettled that contradictions between the first information report and the evidence, in Court, cannot ipsofacto be treated as fatal to the prosecution case. Each case has to be seen and weighed in its own set of circumstances, in the contexts of the evidence on record. In the situation in the present case, if the only witness to the occurrence was P.W. 2 Jarnail Singh, the contradictions pointed out would undoubtedly have created a serious dent in the prosecution case. Here, however there are two other eyewitnesses too, namely. P.W. 3 Dalip Singh and P.W. 4 Balwinder Singh who have come forth to give a consistent and similar account of the occurrence as was deposed to by Jarnail Singh in the witness box. The testimony of these two witnesses, namely; Dalip Singh and Balwinder Singh cannot be taken to stand demolished merely by the first information report.

Faced, with this situation, it was sought to be suggested by the counsel for the appellant, as per the plea of Sewa Singh, in his statement under Section 313 of the Code of Criminal Procedure, 1973 that Bahal Singh was killed by some unknown persons and Sewa Singh had been falsely implicated merely on suspicion. In other words, Jarnail Singh, Dalip Singh and Balwinder Singh had not seen the occurrence and it was for this reason that Jarnail Singh had mentioned a wrong weapon of offence in his statement exhibit PE. The argument being that when it was discovered after the postmortem examination that all the injuries on the deceased were blunt weapon injuries, the investigating agency. changed the prosecution version accordingly and a khunda was introduced in place of the kirpan as the weapon of the offence. This, though apparently a plausible contention, cannot stand scrutiny as a reference to the inquest report would show that as per the statements of Balwinder Singh and Dalip Singh recorded therein, injuries had been caused to Bahal Singh deceased, by a khunda. This inquest report was prepared before the postmortem examination as would be apparent from it reading of the testimony of P.W. 1 Dr. Jatinder Iqbal Saggu, who deposed that amongst the police papers received by him before the postmortem, was the inquest report. It is pertinent to note that this inquest report was prepared by Assistant SubInspector Dharamjit Singh, the person who had earlier recorded the first information report on the statement of Jarnail Singh.

Taking the circumstances of the case in their totality, in the context of the evidence on record, the contradictions between the first information report and the eyewitness account of the occurrence, as given by Jarnail Singh, Dalip Singh and Balwinder Singh cannot be taken to demolish or to create any such doubt in the prosecution case as would render the conviction of Sewa Singh based on such evidence to be in any manner doubtful or unsafe to be sustained. The conviction of Sewa Singh is accordingly hereby up held and Affirmed and this, appeal is thus dismissed.