Shankar Dass vs State of Punjab

N.K. Kapoor, J.

Appellants Shankar Dass and Dharam Vir have filed Criminal Appeal No. 421DB of 1989 against the judgment dated 20th September, 1989, passed by the Additional Sessions Judge, Kapurthala, whereby both of them were convicted under section 302 read with Section 34 of the Indian Penal Code and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1000/ each, in default thereof to undergo further rigorous imprisonment for three months. Criminal Revision No. 118 of 1990 has been filed by Shrimati Bishan Kaur widow of Charan Singh (deceased) for enhancement of fine and disbursement of the fine amount as compensation to her. Criminal Appeal No. 421 DB/1989 and Criminal Revision No. 118/1990 are being disposed of by this judgment.

Facts of the prosecution case, in brief, are that on 24th April, 1988, at about 7 a.m. Charan Singh (deceased) and his brother Joginder Singh were present in the Haveli. They went towards their vacant plot and found that Dharam Vir accused was throwing bricks from his plot into the plot of Charan Singh. At that time Shankar Dass accused was armed with a Sota. Charan Singh (deceased) asked Dharam Vir not to throw bricks in their plot upon which Dharam Vir raised lalkara asking his father Shankar Dass accused that Charan Singh be taught a lesson for stopping them from throwing the bricks. Shankar Dass gave a Sota blow on the head of Charan as a result of which he fell down. Then Dharam Vir threw a brick at Charan Singh which hit on his head. After causing the in juries the accused ran away from the spot. Charan Singh was taken to Primary Health Centre, Panchhata, from where he was referred to Civil Hospital, Phagwara. Thereafter on the advice of the doctor of the Phagwara hospital, Charan Singh was removed to CMC Ludhiana. Charan Singh died on the same day at 8.45 p.m.

Assistant Sub Inspector Bahadur Singh recorded the statement of Joginder Singh complainant (Exhibit P.1) and on its basis formal First Information Report (Exhibit PB) was recorded by Surinderpal Singh, Inspector, at the Police Station Sadar Phagwara. Assistant SubInspector Bahadur Singh prepared inquest report (Exhibit P 17). He went to the spot and prepared site plan (Exhibit P 11) with correct marginal notes. He picked up bloodstained earth and a brickbats from the spot. Bloodstsained earth was put into parcel and taken into possession vide memo Ext. P. 14. The brickbat (Exhibit P. 12) was also taken into possession vide memo Exhibit P.3.

The accused were rested on 30th April, 1988. Upon interrogation accused Shankar Dass made the disclosure statement (Exhibit P.13) and pursuant thereto got record danda (Exhibit P. 15).

(Dr. Gagandip (P.W. 8) had conducted postmortem examination on the dead body of Charan Singh on 25th April, 1988, at 5 p.m. and found as under :

"1. Stitched wound about 3 inch present on posterior and superior aspect of skull, slightly on lift side of the mid line.

Stitched wound 3 inch long on superior and posterior aspect of skull slightly on right aside of mid line.

Swelling over occipital region on right side of the head. On exploration of skull there was haematoma formation under scalp at injuries Nos. 1, 2 and 3".

In the opinion of Dr. Gagandip (PW8) the cause of death of Charan Singh was the head injury due to compression of brain which was sufficient to cause death in ordinary course of nature. All the injuries were antemortem in nature. Probable time that elapsed between injuries and death was about 14 hours and between death and postmortem about 20 hours.

After completion of investigation, challan against the accused was put in Court.

In support of its case, the prosecution examined Dr. Anoop Chand (PW 1), Joginder Singh (PW 2), Mehnha Singh (PW 3), Dr. Thomas Koshy (PW 4), Chand (PW 5), Dr. A.S. Charian (PW 6), Overseer (PW 7), Dr. Gagandip (PW 8) and Assistant Sub inspector Bahadur Singh, Investigating Officer (PW 9).

When examined under section 313 of the Code of Criminal Procedure the accused denied all the allegations levelled against them and claimed themselves to be innocent. It was alleged by Shankar Dass that a false case was made out against them. Actually he and his son Dharam Vir were present in their plot. Charan Singh and Paramjit Singh came to their plot with sotas and started causing injuries to them. He claimed that they caused injuries to Charan Singh and Paramjit Singh in selfdefence of the person and property. Charan Singh and his son were aggrieved because they were not allowing Charan Singh etc. to have a passage through the plot. They also examined Satpal Patwari (DW 1), Sohan Singh (DW 2), and Dr. K.S. Purewal (DW 3).

We have heard Mr. Dara Singh, Senior Advocate, the learned counsel for the Appellants and Mr. S.K. Sharma, the learned Deputy Advocate General, Punjab, and have carefully perused the entire evidence led in the case.

The learned counsel for the Appellants argued that there is inordinate delay in lodging of the First Information Report and the timegap appears to have been utilised in giving totally distorted versions of the whole occurrence. Elaborating this, the learned counsel urged that the occurrence is alleged to have taken place at 7 a.m. on 24th April, 1988, and despite the police post being at a distance of about 150 yards away only, no attempt was made by the complainant party to report the matter to the police. This way, the report so lodged cannot be said to be a spontaneous document and the possibility of the same being a tainted one, is considerably more.

There is no denying the fact that First Information Report was lodged at 5.30 p.m. on 24th April, 1988. Mere fact that there had been delay in lodging of the First Information Report is itself no ground to disbelieve the prosecution version, but all the same it does create suspicion and thus puts the Court on its guard to look for the possible motive (for delay in lodging of the First Information Report) and trustworthiness of the prosecution version. The explanation for delay in lodging on the First Information Report, if believable, the delay so caused loses its significance. In the instant case no plausible explanation has been given by the complainant for the inordinate delay. The explanation given by Joginder Singh complainant (PW 2) that they were more concerned in saving the life of Charan Dass than in approaching the police, cannot be believed for the reason that besides Joginder Singh complainant (PW 2), Mehanga Singh (PW 3), Paramjit Singh, Charanjit Singh and one Sohan Lal son of Diwan were also present at the time of occurrence, as admitted by Joginder Singh complainant (PW 2). In this view of the mater, any one of the above could go to the police post which was at short distance i.e. about 150 yards from the place of occurrence, for giving the necessary information.

The learned counsel for the appellants also contended that the two eyewitnesses namely Joginder Singh (PW 2) and Mehanga Singh (PW 3) had either not seen the occurrence or they had purposely suppressed the true version form the view of the Court. Joginder Singh (PW 2) has admitted that Paramjit Singh son of Charan Singh (deceased) also received injury in the head and was given treatment in Primary Health Centre, Panchhata. This witness has further admitted that Paramjit Singh and Charanjit singh were referred to Phagwara Hospital simultaneously. He further stated that Paramjit Singh''s statement was as recorded by the police during the investigation of the case. Mehanga Singh (PW 3) has come up with the version that womenfolk of Charan Singh''s family threw brickbats at the accused and caused injuries to them.

On the basis of the depositions of these two witnesses, the learned counsel contended that the genesis of the occurrence has purposely been suppressed by the complainant. The First Information Report does not make mention of the fact that Paramjit Singh son of Charan Singh (deceased) was also present at the place of occurrence and he too received injuries in the fight . Similarly, the First Information Report does not make mention as to how the accusedparty suffered injuries. Further elaborating his argument, the learned counsel referred to the statement of Dr. K.S. Purewal Senior Medical Officer, Civil Hospital, Phagwara (D.W. 3) who proved medicolegal reports Exhibits DA and DB in respect of Shankar Dass and Dharmvir, appellants, respectively. He further stated that Dr. Piplani examined Shankar Dass and Dhram Vir, who since then had been transferred. The witness recognised the signatures and handwriting of Dr. Piplani on medicolegal reports Exhibit DA and DB. As per report (Exhibit DA) Shankar Dass suffered four simple injuries whereas as per report (Exhibit DB) Dharmvir suffered five injuries one of which was on his head. The counsel further referred to the statement of Sohan Lal, Pharmacist (DW 2), who on the basis of entry in the register maintained in Primary Health Centre, Panchhata, deposed that Paramjit Singh was examined on 24th April, 1988 at 7.20 p.m. in the dispensary. He was having injuries on his arm. He was given first aid and referred to Civil Hospital, Phagwara. Entry to this effect was made in the register at serial No. 3910 dated 24th April, 1988.

We have carefully examined the submissions made by the learned counsel and find merit in the same. The complainant party, indeed, has tried to suppress the true version leading to this unfortunate episode. The tendency on the part of the complainantparty had been to project the appellants as assailants. On close examination of the statements of the two alleged eyewitnesses namely Joginder Singh (PW 2) and Mehanga Singh (PW 3), we are of the view that the matter appears to have flared upon account of the boundary dispute between the parties and in view of the fact that both the parties suffered injuries on their persons and that the accused indended to raise a wall thus preventing the complainant party from using the land under their plot as a passage, probability of the complainantparty being the aggressor cannot be ruled out. On this premises, the act of the accused party would be quite justifiable having acted in exercise of their right of private defence.

Thus, we are of the view that the prosecution has come up with a tainted version which is unworthiness credit. Accordingly we accept this appeal, set aside the conviction and sentence of the appellants and acquit them of the charge levelled after giving them the benefit of doubt.

JUDGMENT accordingly