Shankar Bharti vs State of Punjab

Gurdev Singh, J.—The Appellant/accused, Shankar Bharti, has preferred the present appeal against the judgment dated 24.1.2007 passed by the learned Sessions Judge, Kapurthala, vide which he was convicted for the offences punishable under Sections 302 and 201 IPC and was sentenced as under:

Section

Sentence

Fine

In default

302 IPC

Imprisonment for life

Rs. 5,000/-

RI for six months

201 IPC

RI for one year

Rs. 1,000/-

RI for one month

The facts constituting the prosecution case are that Gurpreet Singh,complainant (PW-9) had been running a Cardboard Factory in the area of Kala Sanghian, which was situated on the bank of canal in the limits of Sukhani.

Harbir Mahato deceased was employed by him as foreman and there were 8 workers, including the present Appellant/accused, Ram Brij @ Ramu, Jai Chand Manda, Mohammed Safrudin, Ram Parvej Pandi, Vishwanath Singh and Dinesh Mandal, who were named as accused in this case. On the night of 13.1.2006 at about 10.30 p.m., the complainant had asked about the progress of the work in the factory on the telephone bearing No. 98152-64591 from Shankar, Harbir Mahato and Safrudin. On the next day, in the morning, he came to know that dead body of the deceased was lying on the road leading from Kala Sanghian to Kapurthala at the place from where the kacha passage leading to his factory bifurcated. He came to that place and found the dead body of the deceased lying there with face downward having injuries of sharp edged weapon. Then he inquired about his workers and came to know that Ram Brij @ Ramu was missing since morning. He was proceeding to the police station to lodge a report when Balbir Singh SI/SHO (PW-15) met him near the Gurdwara Tahli Sahib, Kala Sanghian. At that place, he made his statement Ex. PJ before the SI, who after making his endorsement Ex. PJ/3 upon the same, sent that to the police station and on the basis thereof formal FIR Ex. PJ/1 was recorded under Sections 302 and 201 IPC. The SI, accompanied by the complainant, came to the place where the dead body of the deceased was lying. After inspecting that place, he prepared rough site plan Ex. PN with correct marginal notes. He prepared the inquest report Ex. PE in respect of the dead body and sent the same to Civil Hospital, Kapurthala, through Jarnail Singh, C. (PW-3) and Amrik Singh, HC (PW-4), for post-mortem examination. The head of the deceased was covered with a parna,Ex. P.3, which was stained with blood. The SI converted the same into a parcel and sealed with his seal ''BS''.

He collected the blood stained gravels from the spot, which were put in a small plastic box. That box was converted into a parcel and the same was also sealed with seal ''BS''. Those parcels were taken into possession, vide memo Ex. PN. The autopsy on the dead body was performed on 15.1.2006 by Dr. Sandeep Dhawan (PW-1), who found five ante-mortem injuries on the same and gave his opinion that the cause of death was due to those multiple injuries i.e. laceration over the head involving the brain and spleen rupture, leading to severe haemorrhage and shock, which were sufficient to cause death in the ordinary course of nature. The viscera of the dead body was sent to the Chemical Examiner and according to the doctor, the final opinion was to be given after receipt of the report of the Chemical Examiner. After post-mortem examination, wearing apparels of the deceased were handed over to Amrik Singh, HC, who further produced the same before the SI. Those were converted into a parcel, which was sealed by the SI with his seal ''BS''. That sealed parcel was taken into possession, vide memo Ex. PF. On coming back to the police station, the SI deposited the case property with MHC. On 17.1.2006, the SI recorded the statement of Jit Singh (PW-16) u/s 161 Code of Criminal Procedure and he came out with the version that he had seen all the accused removing the deceased on a bi-cycle. On that very day, the SI recorded the statement of Achhar Singh @ Achhru (PW-8) u/s 161 Code of Criminal Procedure who narrated before him that he had seen Ram Brij @ Ramu and the present Appellant/accused causing injuries to the deceased with the help of an iron strip and log of eucalyptus, on the night of 13.1.2006. The SI went to the factory of the complainant in search of the accused, but they were not found at that place. On that very day, all the accused approached Prabhjot Singh (PW-10), brother of the complainant, and made confessional statement that they committed murder of the deceased and threw his dead body on the road. Prabhjot Singh asked all the accused to go to the factory and from that place all the accused, except Ram Brij @ Ramu, were arrested. Memos regarding their arrest were prepared. On 19.1.2006, the SI interrogated the Appellant/accused in the presence of Balbir Singh, SI (PW-15) and Sarwan Singh Bhatti (PW-11), upon which he suffered disclosure statement Ex. PH, that he had kept concealed the log of eucalyptus (sota) under the cardboards near the hut of Uma Shankar, adjoining the factory, about which only he had the knowledge and could get the same recovered from that place. In pursuance of that disclosure, he got recovered that sotaEx. P.5, which was converted into a parcel and was sealed by the SI with his seal ''BS''. The sealed parcel was taken into possession, vide memo Ex. PJ. The SI prepared rough site plan Ex. PO of the place of recovery with correct marginal notes. On further interrogation, the Appellant/accused made a disclosure statement Ex. PK that he had kept concealed one bi-cycle on the roof of his residential quarter, about which only he had the knowledge and could get the same recovered. In pursuance of that disclosure statement, he got recovered the bi-cycle Ex. P4 and the same was taken into possession, vide memo Ex. PL. The SI prepared rough site plan of the place of recovery and on coming back to the police station deposited that case property with MHC. The viscera of the dead body of the deceased was sent to the Chemical Examiner, but no poison was detected and to that effect the Chemical Examiner gave his report Ex. PB. After the receipt of that report, it was opined by Dr. S.K. Dhawan, vide his report Ex. PC, that the cause of death of the deceased was due to haemorrhage and shock due to multiple injuries.

The sealed parcels containing parna,gravels and wearing apparels of the deceased were sent to FSL and after examination, it was reported by the Assistant Director of that laboratory, vide report Ex. PP, that the parnaand gravels were stained with human blood. The map on scale Ex. PG of the place of occurrence was got prepared from Pawan Kumar, Patwari (PW-5). Ram Brij @ Ramu could not be arrested despite issuance of the warrants of arrest and proclamation was published against him u/s 82 of Code of Criminal Procedure He did not appear in the Court inspite of publication of that proclamation and was declared as proclaimed offender. After completion of the investigation, the challan was put in against other accused before the ACJM, who committed the same to the Court of Session, vide order dated 24.4.2006.

On appearance of the accused in the Court, copies of all the documents sent alongwith the police report and relied upon by the prosecution were supplied to them, as per mandatory provisions of Section 207 of Code of Criminal Procedure From the perusal of those documents and after hearing learned PP for the State and learned Counsel for the accused, the learned Sessions Judge found sufficient grounds for presuming that they committed offences punishable under Sections 302 and 201 IPC. They were charged accordingly, to which they pleaded not guilty and claimed trial.

To bring home the guilt of the accused, the prosecution examined Dr. Sandeep Dhawan (PW-1), Gurjit Singh, C. (PW-2), Jarnail Singh, C. (PW-3), Amrik Singh, HC (PW-4), Pawan Kumar, Patwari (PW-5), Balbir Singh, C. ASI (PW-6) Joginder Pal (PW-7), Achhar Singh @ Achhru (PW-8), Gurpreet Singh, complainant (PW-9), Prabhjot Singh (PW-10), Sarwan Singh Bhatti (PW-11), Lakhbir Singh (PW-12), Gurdial Singh 6 (PW-13), Bimal Kant (PW-14), Balbir Singh, SI (PW-15) and Jit Singh (PW16).

After the close of the prosecution evidence, the accused were examined by the learned trial court and their statements were recorded u/s 313 of Code of Criminal Procedure .. All the incriminating circumstances appearing against them in the prosecution evidence were put to them in order to enable them to explain the same. They denied all those circumstances and pleaded their false implication. They were called upon to enter on their defence but they did not produce any evidence in their defence.

After going through the evidence, so produced and hearing Public Prosecutor for the State and learned defence counsel for the accused, the learned Sessions Judge, convicted and sentenced the Appellant/accused, as aforesaid. The other accused were acquitted of the offence u/s 302 IPC and convicted for the offence u/s 201 IPC and sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs. 1,000/- each and in default thereof, to further undergo rigorous imprisonment for a period of one month.

We have heard learned Counsel for both the sides.

While assailing the conviction and sentence of the Appellant/accused, so recorded by the trial court, it has been submitted by the learned defence counsel that an illegality was committed by the trial court, while placing reliance on the statements of Achhar Singh (PW-8) and Jit Singh (PW-16). The former witness came out with the version that he himself had seen the accused causing injuries to the deceased and the latter witness had deposed that he had seen all the accused taking the deceased on the carrier of the bi-cycle. They never approached the police immediately nor they disclosed those facts to any one till 17.1.2006, when their statements were recorded u/s 161 of Code of Criminal Procedure That itself is a ground for disbelieving them and discarding their statements. He further submitted that the prosecution has also relied upon the extra-judicial confession made by the accused before Prabhjot Singh (PW-10). That evidence is also not admissible and rather the same creates a doubt as to whether fatal injury can be attributed to the Appellant/accused. The injury found on the head of the deceased, which the doctor declared as fatal, was a lacerated wound and could not have been caused with the help of sota, which is a blunt weapon. Therefore, it cannot be said that offence u/s 302 IPC is proved against the accused. He also tried to contend that the evidence produced by the prosecution regarding the recovery of the sotain pursuance of the disclosure statement of the Appellant/accused, cannot be relied upon as it consists of the statement of Sarwan Singh Bhatti (PW-11), who is a stock witness of the police, as he admitted during his cross-examination that he had been going to the police station off and on. Moreover, no blood stains were found on the sota,which make the prosecution case doubtful. He prayed for the acquittal of the Appellant/accused.

On the other hand, it has been submitted by the learned State counsel that there is nothing on the record to disbelieve the testimonies of Achhar Singh (PW-8) and Jit Singh (PW-16). Both of them are natural witnesses and their statements cannot be discarded, merely on the ground that those were recorded after three days of the occurrence. The non-approaching to the police immediately by these witnesses, cannot be a ground for disbelieving them. He further submitted that the statements of both these witnesses find corroboration from the extra-judicial confession made by the accused and proved in the Court by Prabhjot Singh (PW-10), further corroborating evidence produced in the form of recovery of the weapon of crime and incriminating bi-cycle from the possession of the Appellant/accused in pursuance of his disclosure statement. Sarwan Singh Bhatti (PW-11) cannot be labelled as a stock witness, merely on the ground that he had been going to the Police Station. There is no evidence on record, on the basis of which it may be said that he had been appearing as a witness of the police in criminal cases. The recovery of sotaand incriminating bi-cycle stands proved from the statement of that witness, who has fully corroborated the testimony of Balbir Singh, SI (PW15), who investigated the present case. There is no ground for upsetting the well reasoned finding of conviction and sentence recorded by the trial court.

The prosecution for proving the guilt of the Appellant/accused, produced direct evidence in the form of statements of Achhar Singh (PW-8) and Jit Singh (PW-16). The former witness has come out with eye witness account. He stated that on 13.1.2006, it was lohri occasion and at about 10/11 p.m., he was going from Kohala to his village Sandhu Chatha. When he reached near the cardboard factory, the light thereof was on. He saw Ramu and Shankar accused beating Harbir Mahato and others accused were standing at that place. Ramu was armed with an iron strip and Shankar was having a dandain his hand and they were beating Harbir Mahato with the help thereof. When he intervened he was told by the accused that Harbir Mahato had asked them to forcibly work in the factory at night and asked him to go away, having no business with their affairs. Thereafter, he went to his house. As per the deposition of Jit Singh (PW-16), on 13.1.2006, at about mid night, he was going to his village situated in Kala Sanghian and when he was at some distance from the road, he found the accused carrying Harbir foreman of the Cardboard factory and on inquiry it was told by the accused that they were taking him to the hospital. At that time, the blood stained headgear was wrapped on the head of Harbir. He was being carried on a bi-cycle, the handle of which was held by Shankar and Safrudin and other accused were holding of the deceased. Thereafter, he went to his house.

Admittedly, the statements of both these witnesses u/s 161 of Code of Criminal Procedure were recorded on 17.1.2006. It was for the first time that they disclosed these facts before the Investigating Officer. On the ground of this delay alone, it cannot be held that their statements made in the Court are not acceptable or liable to be discarded. It was held by the Hon''ble Supreme Court in Babu Ram and Ors. v. State of Madhya Pradesh 2003 ACJ 35 that merely because the statement of a witness u/s 161 of Code of Criminal Procedure is recorded after two days of the incident does not detract from the credibility of the witness. It was again held by the Hon''ble Apex Court in Kanti Lal @ Gordhan Dass Soni v. State of Gujarat 2003 (1) RCR (Cri.) 162, that merely because the evidence of the witness is recorded by the police u/s 161 of Code of Criminal Procedure belatedly, by itself does not make the evidence unacceptable, provided there is some logical or acceptable explanation for the same.

In view of the said delay, we have scrutinized the statements of both these witnesses with much care and caution. After thorough judicial scrutiny, we have come to the conclusion that they are natural and truthful witnesses and have made trustworthy statements in the Court. It has been stated by both of them that the workers working in the factory of the complainant were already known to them and there was a reason for the same. Achhar Singh (PW-8), as is clear from his statement, had his way to his village by the side of this factory and Jit Singh (PW-16) had been employed as a servant by Col. Harjinder Singh, who was owner of the building of the factory and had been passing along that factory quite often. Inspite of lengthy and intensive cross-examination, the accused were not able to extract any such fact or circumstance from these witnesses, on the basis of which it may be said that they have some animus to depose against the accused or in favour of the complainant party. Even the complainant party cannot be said to be interested in getting the accused convicted as nothing could be elicited during the cross-examination of Gurpreet Singh (PW-9) or his brother Prabhjot Singh ((PW-10), on the basis of which it may be said that they were in any way interested in falsely implicating the accused. For them the accused and the deceased were just workers in their factory. There was no enmity between them and the accused and similarly, there was no enmity between the accused and Achhar Singh (PW-8) and Jit Singh (PW-16). No illegality was committed by the learned trial court, while placing reliance on the statements of those witnesses.

The prosecution also relied upon the extra judicial confession made by the accused before Prabhjot Singh (PW-10). He stated that on 17.1.2006, he was present in his house at Jalandhar when all the accused came to him and told that the murder of Harbir Mahato had been committed by Ram Brij @ Ramu and Shankar, as he had asked them to do work in the factory on the eve of lohri festival also to which they were not agreeing.

According to this witness, it was joint extra-judicial confession, made by all the accused. Such joint extra-judicial confession is not admissible in the evidence as was held by the Division Bench of this Court in Hari Kant v. State of Haryana 1999 (2) RCR (Cri.) 92. Therefore, the prosecution cannot make any use of the said extra-judicial confession.

The ocular evidence produced by the prosecution stands corroborated by the medical evidence furnished by Dr. Sandeep Dhawan (PW-1), who conducted autopsy on the dead body of the deceased. According to him, he had found the following injuries on the dead body:

Lacerated wound/injury over and extending from the right ear lobe measuring 8 cm extending towards the occipital bone. Bone deepened extending into the cranial cavity. There was fracture of right temporal bone. Right ear lobe was cut also measuring 3 cm, skin, scalp muscles, overlying the injury were cut.

Lacerated wound measuring 10 cm in length, extending 10 cm from the right ear lobe to the right occipital bone deep, overlying skin, subcutaneous tissue, muscles cut, vessels congested and cut.

Abrasion over the left anterior part of leg measuring 6 cm in length. It is 3 cm below the left knee joint. It involves skin and subcutaneous tissue only.

Linear contusion injury over the left 10th & 11th intercostals space measuring 5 cm x 1 cm underlying skin, subcutaneous tissue and muscles congested.

Contusion injury measuring 6 cm x 5 cm over the right shoulder. Skin, subcutaneous tissue and muscles congested.

He stated that there was rupture of spleen and laceration, measuring 5 to 7 cm through upper 1/3 of the spleen tissue. Margin 8 of laceration was congested. There was fracture of right temporal bone. In his opinion, the death was due to multiple injuries i.e. laceration over the head involving the brain and spleen rupture, leading to severe haemorrhage and shock. The injuries of such nature are sufficient to cause death in the ordinary course of nature. At the same time, he also stated that final opinion would be given by him after receiving the report of the Chemical Examiner to whom the viscera of the dead body was sent. After the report of the Chemical Examiner, Ex. PC, about non detection of any poison, was received, he gave his opinion that the cause of death was due to haemorrhage and shock as a result of multiple injuries. The opinion so given by him was not challenged during his cross-examination.

We do not find any merit in the argument of the learned defence counsel that fatal injury has not been attributed to the Appellant/accused. It is very much clear from the above said medical evidence that all the injuries collectively contributed towards the death of the deceased and no particular injury can be said to be fatal.

Further corroborative evidence has been produced by prosecution in the form of recovery of sota,and bi-cycle from the possession of the Appellant/accused, in pursuance of his disclosure statement. Balbir Singh, SI (PW-15) made a detailed and categorical statement about the recovery of those articles, in pursuance of the disclosure statement of the Appellant/accused. His statement has been fully corroborated by Bimal Kant, ASI (PW-14) and Sarwan Singh Bhatti (PW-11) in whose presence, the Appellant/accused made disclosure statement and got recovered the incriminating articles. The statement of Sarwan Singh Bhati (PW-11) cannot be ignored merely on the ground that he stated during his cross-examination that he generally visits the police station. He cannot be termed as a stock witness of the police. According to him, he had been going to the police station for his own work. Nothing was brought on record by the accused nor any such fact was elicited during his cross-examination, on the basis of which, it may be said that he appeared as a witness of the police in any criminal case. He cannot be termed as a stock witness. All these witnesses of the recovery have made cogent and convincing statements inter-se and there is nothing in their statements to disbelieve the recovery of those articles. The recovery of sot cannot be disbelieved merely on the ground that no blood stain was found thereon.

From the above discussion, we conclude that there is no merit in this appeal and the same is hereby dismissed. The conviction and sentence of the accused is upheld.

This order be certified to the trial court for taking appropriate action.