Shibu Alias Bogha vs The State of Punjab

Gopal Singh, J.—This is an appeal by Shibu. It is directed against the judgment of Shri Kartar Singh,Sessions Judge, Kapurthala, dated April 3, 1963. By that judgment, the Appellant has been convicted u/s 304 (II), Indian Penal Code and sentenced to rigorous imprisonment for seven years. He was tried along with Jit Pakhar and Dharma. Dharma was acquitted. Jit and Pakhar were convicted u/s 323 read with Section 34, Indian Penal Code and sentenced to imprisonment till the rising of Court and to pay fine of Rs. 100 or in default of payment of fine to further suffer rigorous imprisonment for two months

The facts of the prosecution case are as under: - Griboo is the deceased. He is father of Gurnam and brother of Mangtu. On the day of Diwali, which fell on November 1, 1967, Batna Gurnam, Mangtu, the Appellant and Jit and Pakhar accused were present in the room of the Gurdwara called the Gurdwara of Addharmis in village Rampur Sunra. They were gambling with kaudis. While gambling, Gurnam and the Appellant picked up controversy and an altercation. All those present in that room came out wrangling into the courtyard of the Gurdwara. It was 10 p. m. Jit and Pakhar carried sotas in their hands while the Appellant had a khundi with him. The house of the deceased is at a distance of 14/15 karams from the Gurdwara. The deceased reached there and separated Gurnam and the Appellant, who were seen by him quarrelling with each other. This enraged the Appellant and Jit and Pakhar accused. They assaulted the deceased. The Appellant gave a sota blow on the top of his head The deceased fell down. On hearing noise, Dharma accused, whose house is close to the Gurdwara, was also attracted and joined the party of the accused Although he was empty-handed, he gave out a lalkara exhorting the other accused not to spare their victim. Jit and Pakhar accused are also said to have caused injuries to the deceased while he was lying. Mangtu tried to intervene to rescue the deceased from the clutches of his assailants, but Jit and Pakhar accused dealt one blow each to him with their sotas. Mangtu had a kirpan with him. To avert an attack on the part of Mangtu against the party of the accused, Jit and Pakhar accused grappled with Mangtu and tried to snatch the kirpan. While gripping the kirpan to avoid its being snatched by the accused Mangtu received injury on his right ring finger. On alarm raised by Batna, Gurnam, Mangtu, the Appellant and his companions led away carrying their weapons with them. The deceased was removed to his house. He remained unconscious after the receipt of injuries and expired at 4 a.m. on November 2, 1967. Apprehending further trouble at the hands of the Appellant and his companions, none of the party of the complainant stirred out of the house to lodge report with the police.

At about day break on November 2, 1967, Batna, after haviag failed to contact Joginder Singh Sarpanch and having contacted Rakha Singh Panch, narrated the occurrence to him and proceeded to Police Station, Phagwara. He lodged first information report, Exhibit P. E. at 10-15 a. m. on November 2, 1967.

After recording the first information report, Raja Singh Sub-Inspector reached the place of occurrence at 11 a. m. He drew up inquest report, Exhibit P. L and sent the dead body for post mortem examination, He recorded the statements of Mangtu, Gurnam, Rakha Singh, Shankar Singh and Mela Ram, who were present in the house of the deceased. He visited the precincts of the Gurdwara, where the occurrence had taken place. He found the remnants of the wax-candles lying on the parapets of the roof of the Gurdwara. The accused were not available in the village on November 2, 1967. Dharma and Pakhar accused were taken in custody. At that time, Pakhar accused carried sota. Exhibit P. 3. It was taken in possession. Memo pertaining to its recovery is Exhibit P. J, The Appellant and Jit accused were produced by their relations before Kosh Raj, Inspector, on November 3, 1967. On interrogation, Jit disclosed that he had kept concealed a sota in the fodder of cherry and that he could get the same recovered. Disclosure statement made by him is Exhibit P. G. It is thumb marked by him. It led to the recovery of sota Exhibit P. 2. Memo relating to its recovery is Exhibit P. G./l. Similarly, on interrogation, the Appellant made disclosure statement saying that he had kept concealed a sota in the heap of tandas in the courtyard of his house and that he could get recovered the same, Disclosure statement made by him is Exhibit P. H. It is thumb-marked by him. It led to the recovery of sota, Exhibit P. J. Memo pertaining to its recovery is Exhibit P. H./l

Dr. M. L. Malhotra performed the post-mortem examination of the deceased on November 3, 1967. He found the following three injuries on his person: -

Contused wound 2(1/2)" X 1/4" scalp deep in the middle of scalp.

Contusion 2"x 3" on the right temple.

Contusion 2"x 3" on the left temple.

The doctor noticed the presence of blood clots on the cerebral hae-mispheres in the inferior and posterior of fossae. He also saw the base of the scalp fractured. He gave the opinion that the death of the deceased was due to injuries on the scalp resulting in subar-ohnoid haemorrhage Injuries Nos. 2 and 3 were found to be simple. He further opmed that injury No. 1 was sufficient in the ordinary course of nature to cause death.

The Appellant and his companions were charged for offences under Sections 302 read with Section 34 and 323 read with Section 34, Indian Penal Code. The case of the prosecution was supported by the testimony of Batna P W. 1, and Mangtu P. W. 3 as eye witnesses. Gurnam P. W. 4 tendered for cross-examination, recoveries and the medical evidence.

In his statement u/s 342, Criminal Procedure Code, the Appellant denied that he had any quarrel with Gurnam or that any occurrence took place in the Gurdwara.

Shri B. D. Mehra appearing on behalf of the Appellant has contended that it is a case without the existence of any motive on the part of the Appellant to commit the crime, that the eye-witnesses are nearly related to the deceased and highly interested in him, that the statements of Batna and Mangtu P. Ws. are replete with discrepancies rendering them unreliable and their evidence unacceptable and that the evidence is not clear as to whether the fatal injury on the head of the deceased was caused by the Appellant and not by the other accused.

It has been clearly stated by Batna and Mangtu P. Ws. that there ensued altercation between Gurnam and the Appellant while they were gambling with kaudis inside the room of the Gurdwara. altercation did not subside. The party of the complainant and that of the accused left the room and came out in the courtyard of the Gurdwara. Gurnam P. W. and the Appellant continued Quarrelling with each other. The noise of their quarrel brought the deceased to the precincts of the Gurdwara from his house, which is situate at a distance of 14/15 karams. Seeing that the Appellant was quarrelling with his son Gurnam P. W., he intervened and separated the two. Intervention by the deceased was resented by the Appellant. It is the resentment of intervention on the part of the deceased followed by the rescuing of Gurnam P. W. from the clutches of the Appellant, which actuated the Appellant to deal the fatal blow on the head of the deceased.

Batna P. W. is the cousin of the deceased while Mangtu P. W. is the brother of the deceased. They are undoubtedly nearly related to the deceased and interested in him. Both these prosecution witnesses are, however, natural witnesses. Their evidence does not cast any doubt about their presence at the time the occurrence took place. The day on which the occurrence took place, is the day of Diwali festival. There is nothing unlikely in Batna and Mangtu P. Ws. being present in the Gurdwara along with the party of the accused including the Appellant at the time the occurrence took place They are said to have been gambling with kaudis. The presence of Mangtu P. W. is further ensured by the existence of four injuries on his person. He was examined by Dr. Malhotra on November 2, 1967 at 5 pm. He found an incised wound on his right ring finger and three contusions, one on the right side of the face, the other in the middle of the thigh and the third on the left buttack. All the injuries were found to be simple. The doctor gave the opinion that the incised wound had been caused with a sharp-edged weapon while the contusions were the result of use of blunt weapon. He gave the duration of these injuries between 12 and 18 hours. It is stated both by Batna and Mangtu P: Ws. that the latter received the contused wounds as a result of Sota blows delivered by Jit and Pakhar accused. It was also explained by Mangtu as well as by Batna P Ws that jit and Pakhar accused wanted to relieve Mangtu P.W. of his Kirpan, which he carried with him. In his resistence by gripping the karpan in his right hand, there was caused an incised wound on his right ring finger. The nature of these injuries goes a long way to corroborate the evidence of Mangtu P. W. so also of Batna P.W. as to how these injuries were caused to Mangtu P. W.

The evidence of the two eye-witnesses was assailed by stressing upon certain discrepancies made out in course of their cross-examination. At the trial, Batna P. W. stated that the party gambling inside the room of the Gurdwara got out of the room and came to the courtyard of the Gurdwara. He did not state to that effect in the first information report, Exhibit P. E. This portion of his statement made at the trial is omission from that recorded in the first information report. At the trial, he stated that the night of occurrence being Diwali night, earthen lamps and wax candles were burning on the parapets of the roof of the Gurdwara. He did not so state in the first information report. He was confronted with that omission. As the above two discrepancies pointed out by the counsel for the Appellant show, the witness did not state any facts contradictory to those stated by him at the trial but omitted to state those facts in the first information report, which he made. The facts omitted from the first information report do not pertain to any material particulars of the occurrence but are merely incidental in character. No adverse inference about the credibility of the witness could be drawn from such omissions existing in the first information report made by him.

It was pointed out that at the trial, Mangtu P. W. said that the Appellant abused the deceased whereas in his statement before the police recorded u/s 161, Criminal Procedure Code, he did not make mention of that fact. At the trial, this witness stated that he recieved injuries with the sota of Pakhar on his right cheek. That fact is not specifically mentioned in his statement u/s 161, Crimi-nal Procedure Code. In his statement at the trial, the witness said that earthen lamps and candles were lit on the parapets of the roof of the Gurdwara but he did not make mention of that fact in bis statement recorded u/s l0l, Criminal Procedure Code. As the above three discrepancies sought to be made out in course of cross-examination of this witness show, the discrepancies have been brought out to show that those very facts were omitted to be stated in his earlier statement made before the police Those omissions do not pertain to the material facts of the occurrence and are not glaring in nature. A prosecution witness making statement at the trial has to give a detailed and thorough account of occurrence, particularly because of the cross-examination which the defence direct against that witness, Simply because some more facts, casual and incidental in character to challenge the presence or veracity of his statement are sought to be made out, does not imply that the scope and content of the statement made by that witness before the police u/s 161, Criminal Procedure Code, should precisely correspond with that made at the trial. No importance can be attached to ommissions from the statement of a prosecution witness, if those omissions do not pertain to the material particulars of the occurrence and are not glaring in character. Inspite of lengthy cross-examination directed against these two witnesses, there is nothing to show that the witnesses could not have been present at the time of occurrence and could not have seen it with their own eyes nor there is any inherent infirmity in their testimony to cast doubt upon their veracity.

Lastly, it was urged that from the evidence of the eye witnesses, it was not clear as to whether injury No. 1 had been caused by the Appellant and not by the other accused. In his testimony, Batna P. W. has clearly stated that the Appellant gave sota blow on the middle of the head of the deceased. Similarly, it has been distinctly stated by Mangtu P. W. that it was the Appellant, who gave a blow on the scalp in its middle. Thus, both the eye-witnesses have clearly ascribed to the Appellant the fatal injury, numbered as injury No. 1 by Dr. Malhotra P. W. and the situs of which is on the top of the head and which fractur-ed the base of his skull and cost him his life. These witnesses have left no doubt that it is the Appellant, who is responsible for having caused that injury to the deceased.

For the foregoing reasons, the appeal is disallowed and the conviction and sentence of the Appellant are maintained.