State of Punjab vs Bakhtawar Singh

S.D. Bajaj, J.

Inside Civil Hospital, Gidderbaha, at 1.30 P.M. on October 6, 1987, victim Jagbir Singh reported to Head Constable. Thana Singh of Police Station, Kot Bhai of Faridkot District in Punjab State. "I do cultivation work with my parents in my village. I have no brother. My grandfather had expired. His (grandfather''s) land measuring 71/2 killas is under dispute between him and my Tayaji (father''s elder brother) Bakhtawar Singh. Proceedings under Section 145, 146 Cr.P.C. were carried out in respect of this land. The village Panchayat effected the compromise regarding this land by dividing the same into two equal shares. We, even ourselves had sown our shares, of land. Yesterday on 5.10.87 at 6.00 AM to 7.00 AM turn of water was be for both of our households and our burn was due from 6.30 A.M. Therefore, at about 6.15 AM I along with my maternal grandfather Bhag Singh went to our fields for irrigation. At 6.30 AM when we turned the flow of water then Bakhtawar Singh armed with Gandasa, his son Sohan Singh armed with Gandasa and his second son Mohan Singh armed with Dang came near us and asked as to why we ahd turned the flow of water. I told them that it was now our turn of water, Bakhtawar Singh gave a Lalkara saying that they would teach us a lesson for turning the flow of water. While saying so Bakhtawar Singh gave a Gandasa blow on my head which hit me on my left side from its sharp edged side. Sohan Singh hurled a Gandasa blow at me which hit me in the middle of my right leg. As a result of it, I fell on the ground. Then Bakhtawar Singh and his sons Sohan Singh and Mohan Singh gave blows of their weapons respectively which hit me on my left foot, back and arms etc. My Nana (maternal grandfather) Bhag Singh and I raised Raula of Bachao, Bachao (save, save). At this, the aforesaid three accused persons ran away with their respective weapons. At this time my mother Smt. Ranjit Kaur and Phuphar (father''s sister''s husband) Harbars Singh were coming while taking tea for us. They had witnessed the whole occurrence with their own eyes. I became unconscious at the spot after receiving many injuries. Today you have here come, I have got my statement recorded." Formal FIR No. 224 was recorded on its basis in Police Station, Kot Bhai at 3.30 p.m. on the same day viz. October 6, 1987.

On being charged with the commission of offences under Section 307 of the Indian Penal Code, Principal accused Bakhtawar Singh, under Section 307/34 of the Indian Penal Code, Coaccused Shoan Singh and Mohan Singh under Sections 324/34 and 323/34 of the Indian Penal Code, all the three accused, pleaded `not guilty'' thereto and claimed to be tried. Vide is impugned judgment dated January 25, 1989, the learned trial Court acquitted all the three accused by giving them the benefit of doubt. Feeling aggrieved therefrom, the State of Punjab has filed Criminal Appeal No. 409DBA of 1989 in this Court.

We have heard Sh. P.S. Thiara, AAG, Punjab for the State, Sh. G.S. Doad, Advocate for the respondents and have perused the entire material on record very carefully.

Foremost question is of inordinate and unexplained delay of 21 and half hours in losing the FIR. The occurrence is of 6.00 AM on October 5, 1987 and the FIR came to be lodged at 3.30 PM on October 6, 1987. It was held by their lordships of the Supreme Court in Thulia Kali v. State of Tamil Nadu, AIR 1973 SC 501, "Delay of 20 hours in recording the FIR when the place of occurrence is only two miles from the police station makes the FIR doubtful." In the present case the delay is more than the one in Supreme Court authority aforesaid and besides it there is the suppression by investigating agency of the earlier version of the occurrence allegedly narrated to them by Harbans Singh PW4 on the day of occurrence viz. October 5, 1987. Both these matters taken together make the FIR doubtful.

The element of doubt surmounts the alleged occurrence All through, Place of occurrence was on lease with Bikar Singh for Rs. 1700/ during the Rabi Season 1987 u/orders of the Executive Magistrate, Gidderbaha who had attached it in 145 Cr.P.C. proceedings between accused Bakhtawar Singh and Thana Singh grandfather of the injured victim. Compromise mark `A'' having not been legally proved, learned trial Court rightly held that question of presence of parties at the place of occurrence for cultivating the land of their respective shares and diversion of water course by Jagbir Singh towards his own land to take his turn of water did not arise. The occasion for the alleged fight was not the brought on record by the prosecution.

Learned trial Court thus rightly observed in para No. 12 of its impugned judgment that Jagbir Singh may have sustained injuries at the hands of his enemies named therein and falsely inculpated Bakhtawar Singh and his two sons arrayed as accused/respondents in this appeal for the land dispute with time or inadequate share of the disputed lands having been given by his grandfather to him to help Bakhtawar Singh at his cost.

Victim Jagbir Singh could recapitulate three injuries. Harbans Singh PW4 added another eight or nine, in all 12. PW1 Dr. Madan Mohan, S.M.O., Civil Hospital, Gidderbaha gives out the number of injuries found by him on the person of Jagbir Singh injured at 25. There is thus an irreconcilable discrepancy/inconsistency between the ocular account of the occurrence and the expert medical opinion. In Ram Narain v. State of Punjab, AIR 1975 SC 1727 their lordships of the Supreme Court held, "where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistic expert, this is a most fundamental defect in the prosecution case and unless reasonlessly explained it is sufficient to discredit the entire case, where the direct evidence is not supported by the expert evidence, then the evidence is wanting in the most material part of the prosecution case and it would be difficult to convict the accused on the basis of such evidence.

The High Court does not appear to have considered this important aspect, but readily accepted the prosecution case without noticing that the evidence of the eyewitness in the court was a belated attempt to improve their testimony and bring the same in line with the Doctor''s evidence with a view to support an incorrect case. The prosecution had not been able to prove its base against any of the accused beyond reasonable doubt and the appellants were, therefore, entitled to an acquittal.

In result the State appeal filed against the acquittal of three accused by the learned trial Court gets completely bereft of any merit therein and is consequently dismissed.