Surjit Singh vs State of Punjab

Sat Pal, J.

This appeal is directed against the judgment dated 1st October, 1994, passed by the learned Sessions Judge, Patiala. By this judgment, the learned Sessions Judge convicted the appellant for offences under Section 302 IPC and Section 25 of the Arms Act. The appellant was sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 200/ under Section 302, IPC and further to undergo rigorous imprisonment for one year in case of default of payment of fine. The appellant was further sentenced to undergo rigorous imprisonment for a period of one year under Section 25 of the Arms Act. The learned Sessions Judge also ordered that both the substantive sentences shall run concurrently.

A case vide FIR Exhibit P1/B, under Section 302, IPC and under Sections 25/27 Arms Act was registered at P.S. Civil Lines, Patiala, on 12.10.1992 against the appellant on the basis of the statement of PW 1 Sinder Devi w/o Om Nath (deceased). The statement of PW 1 Sinder Devi was made on 12.10.1992 at 9.40 a.m. before Inspector Rachhpal Singh (PW 6) at the level crossing No. 21, Patiala. Recording of the FIR Exhibit P1/B commenced at 10 a.m. on 12.10.1992 and was completed at 11.10 a.m. The special report reached the Ilaqa Magistrate, through Constable Gurmit Singh at 3.30 p.m. on 12.10.1992 itself. It may be stated here that the distance between the Police Station and the Civil Courts is 2 kms.

Sinder Devi (PW 1) in her statement Exhibit P.1, stated that her husband Om Nath was posted as a Peon in the Excise Department and they were living as tenant in the house of Surjit Singh (appellant herein) in Sewak Colony, Patiala at a monthly rent of Rs. 360/, and two, three more tenants were also living in the said house. She further stated that she had two daughters aged about four years and three years and the owner of the house, Surjit Singh was habitual of drinking, and sometimes used to see her with bad intentions and she had told her husband about this matter. She further stated that on 11.10.92 Surjit Singh came near their room and enquired about her husband and she told him that her husband had gone to attend the marriage of the daughter of his friend and would return soon, but even then he remained standing in their courtyard for 15/20 minutes and went away thereafter. Her husband returned home at 7 p.m. and she and her husband along with their children after taking their meals went to sleep and bolted the door of the room from inside.

At about 10/11 p.m. there was a knock at the door of their room from outside and her husband switched on the light of the courtyard from inside and then she and her husband opened the door and saw that Surjit Singh was standing in the courtyard armed with stengun in his hand. She further stated that her husband by taking ill of it, asked him about the knocking of the door at night but Surjit Singh replied that he was the owner of the house and he could knock the door at whatever time he wanted. Thereafter, an altercation took place between her husband and Surjit Singh and on hearing their raula, some of their neighbours and other tenants namely Prem Nath and Gunman Jasbir Singh reached the spot. Then her husband said in a loud voice that although they were poor but had respect and it was not good for Surjit Singh to knock at the doors of others at midnight. At this Surjit Singh got enraged and fired at her husband with his stengun holding in his hand, which usually was kept by his Gunman and which hit on his right flank. On hearing the sound of fireshot and raula, when many people gathered there, Surjit Singh started posing that gun had been fired accidentally and he alongwith other persons took her husband to Rajindra Hospital in an injured condition for treatment, where her husband died. She further stated and that their neighbor Prem Nath, Jasbir Singh gunman of Surjit Singh, had seen the entire occurrence and the cause of murder was that earlier also Surjit Singh used to look at her lustfully and thinking her alone at house Surjit Singh had come to outrage her modesty having a stengun in has hand but he suddenly saw her husband at house and to save his dignity committed the murder of her husband by giving him gunshot. She further stated that after leaving Narinder Singh who was co employee with her husband in the Excise Department, to guard the deadbody of her husband in Rajindra Hospital, she went to a close friend of her husband Harbans Singh Peon, in the Market Committee Patiala and narrated him the whole matter and she along with said Harbans Singh was coming to the Police Station when Rachhpal Singh Inspector met her.

After making the enrosement, Exhibit P1/A on the statement of Sinder Devi, Rachhpal Singh I.O. (PW 6) along with the complainant came to the Rajindra Hospital, Patiala and prepared the inquest report, Exhibit P4 and handed over the dead body to H.C. Madan Gopal for post mortem examination. Then he came to the place of occurrence at about 12.30/1 p.m. and prepared the rough site plan, Exhibit PF with marginal notes. During the inspection of the spot, he found one empty shell of 9 m.m. which was lying in front of the room of the house of the deceased on the ground floor. He took the same into possession vide recovery memo Exhibit PE. He also lifted the bloodstained earth vide recovery memo Exhibit PH. SPO Amrik Singh produced before Rachhpal Singh Inspector (PW 6) his stengun along with two magazines and 49 rounds which were issued to him and the number of .9 mm stengun was B97761. The stengun, Exhibit P6, magazines Exhibits P7 and P8, rounds Exhibits P9/149 were taken into possession by PW 6 vide recovery memo Exhibit PJ.

PW 2 Dr. S.S. Oberoi conducted the post mortem examination on the dead body of deceased Om Nath and he found the following injuries :

"1. A wound of entrance caused by firearm 0.5 x 0.5 cm in size with abraded margin was present on the right hypochondriacal region. The margins were inverted with presence of blackening and tattooing. The fibres of banyan were going into the wound. The wound was situated vertically downwards 13 cm. from the right nipple.

A wound of exit 1.5 x 1.5 cm. on the right side of back of chest 8 cm. below the angle of right scapula. The margins of the wound were everted and fibres of banyan were going away from the wound. Cuts corresponding to wound of entry and exit were present in the banyan."

In the opinion of the doctor, the cause of death was haemorrhage and shock as a result of injuries mentioned above which were antemortem and were sufficient to cause death in the ordinary course of nature. Time between the injuries and the death was few minutes and between death and postmortem was about 12 hours.

On 13.10.1992, appellant Surjit Singh was arrested and after completion of the investigation the appellant was challaned.

In support of its case, the prosecution examined 7 witnesses. PW 1 Sinder Devi is the wife of the deceased Om Nath and she is the eye witness as well as the complainant. PW 2 Dr. S.S. Oberoi conducted the postmortem examination on the dead body of the deceased. PW 3 Jasbir Singh SPO was attached as gunman with the appellant and he is also the eyewitness and he has also proved that the stengun belonging to the other gunman Amrik Singh was taken by the appellant from Amrik Singh on the day of occurrence. PW 4 HC Surjit Singh proved the issue of stengun No. B97761 to SPO Amrik Sigh. PW 5 ASI Pakar Ram partly investigated the case. PW 6 Inspector Rachhpal Singh is the main Investigating Officer. PW 7 Constable Gurmit Singh through his affidavit Exhibit PK has proved delivery of the special report at the place of the Ilaqa Magistrate. The prosecution gave up PW Prem Nath as having been won over by the accused. PWs. Harbans Singh, Tej Pal Sigh, Narinder Singh, SPO Amrik Singh, Rajinder Singh, SI Satnam Singh and Constable Shingara Singh were also given up as unnecessary.

The appellant, in his statement recorded under Section 313, Cr.P.C. pleaded innocence. His reply to question No. 40 is as follows :

"I am innocent. Amrik Singh and Jasbir Singh SPOs had evil eye on Smt. Sinder Devi and she was also in league with them, to which I always objected. On the night of 11.10.92 I returned to Patiala from Nabha after spending three days there and I went to sleep after taking my meals when Om Nath deceased made a shriek and door of my room was knocked. I came out. Om Nath deceased was found standing in front of the gate and he had kept his hands on his flank. He requested me to take him to the Hospital. At that time, his wife and the gunmen were not present in the house. I took Om Nath injured to Rajindra Hospital, Patiala in my own car. At that time, the other tenants were present in the house. I got Om Nath admitted in the hospital and arranged medicines for him. I also offered my blood in order to save the life of Om Nath, but in the meanwhile he expired. On the night of 11.10.92, I went to Police Station Civil Lines, Patiala in order to lodge the report and I narrated the true facts to ASI Pakhar Ram, but he was inimical to me as he took Rs. 2,000/ from my opponent group for destroying the posters and in order to screen the offender. I earlier made a complaint against ASI Pakhar Ram. Thereafter, I returned to the house. On the early morning of 13.10.92, I again went to the Police Station where I was detained. Sinder Devi has been introduced as a false witness in order to give protection to Amrik Singh and Jasbir Singh S.P.Os. (Gunmen). A false motive has been created as a double edged weapon."

The appellant also examined DW 1 Dr. Rajinder Pal Gupta, Medical Officer, Civil Surgeon Office, Patiala. This witness proved that Om Nath deceased was brought in Rajindra Hospital Patiala in the emergency ward on 11.10.1992 at about 11 p.m. by Surjit Singh Mehal resident of B71, Sewak Colony, Patiala.

Relying on the prosecution evidence, the learned Sessions Judge convicted and sentenced the appellant as stated earlier.

Mr. Mann, learned Senior counsel appearing on behalf of the appellant submitted that there was an unexplained delay in lodging the FIR and again there was delay in delivering the special report at the place of the Ilaqa Magistrate. He submitted that the occurrence happened at 10/11 p.m. on 11.10.1992 and deceased Om Nath expired at 12.30 a.m. on 12.10.1992. He submitted that PW 1 Sinder Devi, wife of the deceased in her statement had stated that the dead body was consigned to the mortuary soon after the death of Om Nath. Thereafter, she could have lodged the FIR within a reasonable period of an hour or so but her statement was recorded in the morning at 9.45 a.m. by the Police. He submitted that PW 1 herself has stated that after leaving Narinder Singh who was the coemployee of her husband with the dead body, she came to the house of Harbans Singh, who was a friend of her husband and then she and Harbans Singh had gone to the Police to lodge the FIR. He, therefore, contended that the complainant got sufficient time to deliberate with both Narinder Singh and Harbans Singh and as such the delay in lodging the FIR was fatal to the prosecution case. He further submitted that the special report reached the Ilaqa Magistrate at 3.30 p.m. and there is no explanation as to why the special report could not be sent to the Ilaqa Magistrate between 11 a.m. to 3.30 p.m. He, therefore, contended that the FIR was bereft of spontaneous and truthful version. The learned counsel further submitted that even as per the case of the prosecution, there were other two eyewitnesses, namely, Prem Nath in the same building and Amrik Singh, whose stengun had been used for committing the murder of Om Nath but both these witnesses were dropped by the prosecution and the nonexamination of these witnesses had adversely affected the case of the appellant.

The learned counsel further submitted that the presence of PW 3 Jasbir Singh, SPO at the place of occurrence becomes highly doubtful as PW 1 Sinder Devi, in her crossexamination, had stated that at the time of actual firing of the shots, she, her husband and Surjit Singh (appellant) were the only three persons who were present at the site of the occurrence.

The learned counsel further submitted that even the statement of PW 1 Sinder Devi could not be relied for the conviction of the appellant. He submitted that in her statement, recorded before the Police, she had stated that appellant Surjit Singh had taken her husband to the hospital but in her statement recorded before the trial Court she had stated that she had taken her injured husband to the Rajindra Hospital, Patiala. He further submitted that DW 1 Dr. Rajinder Pal Gupta who was on duty in Rajindra Hospital, Patiala, on the date of occurrence has also stated in his evidence that on 11.10.1992 at about 11.p.m. Om Nath was brought in the Rajindra Hospital by Surjit Singh Mehal s/o. Gajan Singh of Sewak Colony, Patiala.

The learned counsel further submitted that even the weapon (stengun) used for committing the murder belonged to S.P.O. Amrik Singh, and as such it was he who could have committed the murder of Om Nath. He submitted that PW 13 Jasbir Singh, SPO, in his statement, stated that because Surjit Singh wanted the weapon on earlier occasion but he and Amrik Singh had not handed over the weapon to Surjit Singh. He, therefore, contended that when the said two gunmen had refused to give stengun to Surjit Singh on earlier occasion, there is no explanation as to what prompted them to part with this weapon to Surjit Singh on the day of occurrence.

The learned counsel further stated that the appellant was of 51 years of age and was having grown up children and he could not possibly have an evil eye on PW 1, Sinder Devi. He submitted that even for motive only PW 1 herself was the witness and there was no corroboration by any other witness. He submitted that since PW 1 had not spoken the truth as to who took her injured husband to the Hospital, she should not be believed even for the purpose of motive. He, therefore, contended that the appellant has been implicated falsely for the reasons which have been concocted.

Mr. P.S. Sullar, learned Assistant Advocate General, Punjab, submitted that the statements of two eyewitnesses PW 1 Sinder Devi and PW 2 Jasbir Singh, SPO were consistent on all material points. He further submitted that the ocular version as given by these two eye witnesses tallied with the medical evidence. He also submitted that there was no reason for PW 1 Sinder Devi whose husband had been shot dead to implicate a wrong person. He also submitted that there was no delay in lodging the FIR nor there was any substantial delay in delivering the special report to the Ilaqa Magistrate. He, therefore, contended that the judgment of the learned trial Court be upheld.

We have given our thoughtful consideration to the submissions made by the learned counsel for the parties and have perused the record. It is an admitted fact that deceased Om Nath received bullet injuries on 11.10.1992 at 10/11 p.m. and thereafter he was taken to Rajindra Hospital where he expired at 12.30 a.m. on 12.10.1992. The statement of PW 1 Smt. Sinder Devi who is the wife of Om Nath was recorded by Inspector Rachhpal Singh, SHO (PW 6) at the level crossing No. 21, Patiala at 9.45 a.m. The ruqa was sent to Police Station Civil Lines, Patiala and on the basis of the aforesaid statement of PW 1, the recording of formal FIR Exhibit P1/B commenced at 10 a.m. on 12.10.1992 and was completed at 11.10 a.m. The special report reached the Ilaqa Magistrate at 3.30 p.m. and the distance between the Police Station and the Civil Courts is 2 kms. As stated hereinabove, the deceased expired at 12.30 a.m. on 12.10.1992 and the statement of PW.1 was recorded at 9.45 a.m. i.e. after about 9 hours and thus there is delay in recording the FIR. But from the evidence on record, we find that this delay has been satisfactorily explained by PW 1 Sinder Devi. It has come on record that the deceased belongs to village Charoli Khurd, P.S. Shahbad Markanda and was living as a tenant in the house of appellant Surjit Singh in Sewak Colony Patiala. After the death of the deceased, his widow PW 1 Sinder Devi was left with her two minor daughters aged about 6 years and 3 years. No male member of the deceased''s family was available at midnight when deceased Om Nath expired in the Hospital. The agony of the wife and her two daughters in the absence of any male member can be well appreciated. PW 1, in her statement had stated that after the death of her husband, at about 5 a.m., she went to the house of her husband''s friend namely, Harbans Singh and since her heart was sinking, she remained present there upto 9 a.m. and then she and Harbans Singh proceeded to the Police Station to lodge the FIR and at Railway crossing, Inspector Rachhpal Singh met her and he recorded her statement. Thus we find that the prosecution has explained the delay and we are of the view that taking all the facts and circumstances into consideration, the prosecution case cannot be rejected on the ground that the first information report was not lodged during the night. It may be relevant to point out here that as per the inquest report Exhibit PH, Harbans Singh was one of the two persons who had identified the dead body of the deceased. Here reference may be made to a judgment of the Supreme Court in State of Haryana v. Manoj Kumar, AIR 1994 SC 147.

As stated earlier, the recording of the FIR was completed at 11.10 a.m. but the special report reached the Ilaqa Magistrate at 3.30 p.m. though the distance between the Police Station and the Civil Courts is only 2 kms. Thus there is some delay in receiving the special report by the Ilaqa Magistrate but from the evidence of PW 2 Dr. S.S. Oberoi, we find that he conducted the postmortem examination at 1 p.m. and before conducting the postmortem examination, he had received all the relevant papers including the inquest report which contained the statement of PW 1 Sinder Devi recorded by PW 6 Inspector Rachhpal Singh. We are, therefore, of the opinion that delay, if any, in delivering the special report to the Ilaqa Magistrate is of no consequence in the present case.

It is not disputed that deceased Om Nath was a tenant in the house of the appellant and was living with his wife and two daughters in that house. From the report of the Forensic Science Laboratory, Punjab, Exhibit PN, it has also been proved that the deceased was shot by .9 mm stengun No. B97761 and it has also been proved on record that this stengun belonged to one of the two gunmen who were attached with the appellant and were also provided accommodation by the appellant in his house. PW 1, in her statement, has stated that on the day of occurrence i.e. 11th October, 1992, her husband Om Nath had gone to attend the marriage of the daughter of one of his friends and in his absence, the appellant came to the portion of the house occupied by the family of the deceased Om Nath and remained there for about 15/20 minutes, though he was told by PW 1 that her husband had gone out. She further stated that her husband returned at about 7 p.m. and after taking their meals they had gone to sleep. Thereafter at about 10/11 p.m. There was a knock at their door and her husband switched on the courtyard light and she and her husband opened the door and they saw that appellant Surjit Singh was standing in the courtyard with the stengun in his hand. At this, her husband told Surjit Singh that it was not proper for the appellant to knock at the door of their room at night and Surjit Singh told her husband that he was the owner of the house and he could knock the door at any time. On this her husband and appellant Surjit Singh exchanged hot words and on hearing the noise another tenant Prem Nath and gunman Jasbir Singh came to the spot. Then her husband told Surjit Singh in a loud voice that he was a poor man but everyone had his own respect. At this Surjit Singh fired at her husband hitting him in the right flank. On hearing the gunshot, many people collected and Surjit Singh started posing that the gun had been fired accidentally and she took her husband to Rajindra Hospital where he died. Thereafter in the morning at 5 a.m. she went to the house of Harbans Singh who was a friend of her husband, and along with Harbans Singh, she proceeded to the Police Station to record the FIR. This witness has thus clearly deposed that her husband Om Nath was shot by the appellant with the stengun which belonged to one of his gunmen. The presence of this witness at place of the occurrence cannot be doubted as admittedly her husband Om Nath received firearm injuries just outside their room. We are, therefore, unable to accept the contention of the learned counsel for the appellant that the appellant has been implicated falsely for the concocted reasons. It is not possible to believe that PW 1, who is the widow of deceased Om Nath would allow the real culprit to escape and would falsely involve innocent person in the commission of the crime.

It is true that in the statement of PW 1 recorded by the Police, it was mentioned that the appellant had taken Om Nath after he got bullet injuries to the hospital whereas in her statement before the learned trial Court, she stated that she had taken her husband to Rajindra Hospital but it will be relevant to note that in her statement before the Police as well as the statement recorded by the learned trial Court, she had stated that appellant Surjit Singh fired at her husband hitting him on the right flank and then Surjit Singh started posing that the gun had been fired accidentally. Since the appellant had started posing that the gun had been fired accidentally, it is possible that he might have accompanied the injured to the hospital but this fact will not have any bearing on the case of the prosecution.

Another discrepancy pointed out by the learned counsel for the appellant is that the presence of PW 3 Jasbir Singh SPO at the place of occurrence becomes suspicious as PW 1, in her crossexamination, had stated that at the time of actual firing, she, her husband and Surjit Singh (appellant) were the only three persons at the site of the occurrence. We, however, find that this discrepancy also is not of much significance. PW 1, in her statement recorded by the Police, had clearly stated that before firing the gunshot, there was an altercation between her husband and the appellant Surjit Singh and on hearing their raula, some of their neighbours and other tenants namely Prem Nath and gunman Jasbir Singh had reached at the spot and it was thereafter that Surjit Singh fired at her husband with the stengun, he was holding which was usually kept by his gunman. In her examinationinchief, she reiterated these facts and had clearly stated that her husband and Surjit Singh had exchanged hot words and on hearing of the same, Pram Nath and gunman Jasbir Singh came at the spot and then her husband told Surjit Singh that he was a poor man but all had respect and then Surjit Singh fired at her husband. It is only in crossexamination, in reply to suggestion she stated that "It is correct that at the time of actual firing of the shots, myself, my husband and Surjit Singh were the only persons who were present at the site of occurrence." Keeping in view the statement of PW 1 as a whole we find that as per the statement of PW 1, Jasbir Singh SPO reached the spot after hearing raula and thereafter appellant Surjit Singh fired the shot. In this connection, reference may be made to a judgment of the Supreme Court in Bhimrao Annaingawale v. State of Maharashtra, 1980 SCC (Crl.) 888, wherein it was held that the principle of falsus in uno falsus in omnibus has no application in criminal trial in India and the Court has to endeavour to separate the grain from the chaff and accept that part of the evidence which is found to be truthful and consistent. Relying on this principle, we are of the view that the presence of Jasbir Singh at the place of occurrence is proved by the evidence of PW 1. Thus we have come to the conclusion that appellant Surjit Singh fired at deceased Om Nath with the stengun which resulted in his death.

From the evidence on record we find that the statement of PW 3 Jasbir Singh is consistent on all material points with the statement of PW 1 Sinder Devi. Besides, the statements of these two eye witnesses PW 1 Sinder Devi and PW 3 Jasbir Singh find full corroboration from the statement of PW 2 Dr. S.S. Oberoi with regard to the injuries received by deceased Om Nath. From the report of Ballistic Expert Exhibit PN, it has been proved that firearm injuries were caused by the stengun No. B197761 which belonged to one of the gunmen of the appellant and which was used by the appellant in the commission of the crime. As stated earlier, there is no delay in lodging the FIR in this case. In view of these facts, we do not find any infirmity or illegality in the judgment passed by the learned Sessions Judge.

As regards the motive, PW 1 has deposed that appellant Surjit Singh was having an evil eye on her and had even visited her room on the day of occurrence in the absence of her husband. On the other hand, the learned counsel for the appellant has contended that the appellant was of 51 years of age and was having grown up children and as such possibly, he could not have an evil eye on PW 1 Sinder Devi but since on the basis of the evidence on record we have come to the conclusion that the appellant had caused firearm injuries to deceased Om Nath which resulted in his death, we are of the opinion that motive has lost its significance in the present case.

We do not find any merit in the contention of the learned counsel for the appellant that the appellant has been implicated falsely as ASI Pakhar Ram (PW 5) was inimical towards the appellant and this fact has been stated by the appellant in his statement recorded under Section 313, Cr.P.C. From the evidence on record we find that the statement of PW 1 Sinder Devi was recorded by Inspector Rachhpal Singh SHO on 12.10.1992 at 9.45 a.m. at Level Crossing No. 21, Patiala and this statement became the basis of the FIR registered in the present case. No enmity with Inspector Rachhpal Singh has even been alleged on behalf of the appellant. In view of this, we reject this contention of the learned counsel for the appellant.

We do not find any merit in the contention of the learned counsel of the appellant that nonexamination of the eyewitness Prem Nath and of Amrik Singh, S.P.O. has adversely affected the case of the appellant. The Public Prosecutor has given a statement that Prem Nath had been won over by the accused. Amrik Singh is not the eyewitness. In view of these facts, it cannot be said that these witnesses were deliberately withheld. Here reference may be made to a judgment of the Supreme Court in the case, Mrs. Dalbir Kaur and others v. State of Punjab, 1976 SCC (Cri.) 527.

Before parting with this judgment, we are constrained to note that the appellant had been provided two gunmen by the State for his personal security and he committed the crime by using the stengun which has been issued to one of his gunmen by the Police Department. PW 3 Jasbir Singh gunman, in his statement, has stated that on the day of occurrence accused Surjit Singh demanded weapon from them and they parted with the weapon under the threat of the appellant as the accused used to tell them that he was an influential person. It is equally disturbing to note that the gunmen succumbed to the threat of the appellant and parted with the weapon issued to one of the gunmen, thus violating the rules of discipline and this led to the murder of an innocent poor Class IV employee, who was even a handicapped person. We, therefore, direct that stern disciplinary action be taken against the delinquent SPO/SPOs concerned. We further direct that a copy of this judgment be sent to the Director General of Police (Punjab) Chandigarh, for necessary action.

For the reasons recorded hereinabove, we find no reason to interfere with conviction and sentence passed against the appellant and the appeal is accordingly dismissed.