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CASE NO.: Appeal (crl.)  1474 of 2005

PETITIONER: Paramjit Singh @ Mithu Singh

RESPONDENT: State of Punjab Through Secretary (Home)

DATE OF JUDGMENT: 31/10/2007

BENCH: P.P. Naolekar & B. Sudershan Reddy

JUDGMENT: J U D G M E N T

B.Sudershan Reddy, J.

1.      The appellant has preferred this appeal under Section  379 of the Code of Criminal Procedure read with  provisions  of the Supreme Court (Enlargement of Criminal Appellate  Jurisdiction) Act, 1970 impugning the judgment and order of  the High Court  of Punjab and Haryana  in Criminal Appeal  No. 25-DBA of 1995 whereby the High Court reversed the  judgment of acquittal against the appellant, who was tried  along with three other co-accused, recorded by the  Additional Sessions Judge, Sangrur in Sessions Case No. 44  of 1989. The High Court accordingly convicted the appellant  for the offence punishable under Section 302 read with 34  of the Indian Penal Code (IPC) and sentenced to undergo  imprisonment for life and to pay a fine of Rs. 5,000/-, in  default of payment, to undergo rigorous imprisonment for  six months.    

2.      The prosecution case, in brief, is that the accused  Mukhtiar Singh (A-1) and Gurdial Singh (A-2) and deceased  Harnek Singh were real brothers. The family consists of  eight brothers altogether.  Deceased Harnek Singh along  with his wife Tej Kaur and son Gurmail Singh (PW-4) were  living jointly with one of his brother Amar Singh (PW-3).  Gurdev Singh and Dalbara Singh, two other brothers were  residing together whereas the others were residing  separately in their respective houses located in their  agricultural lands. Dalip Singh, father of Gurcharan Singh  (A-3) and Mithu Singh (A-4) were residing separately. Dalip  Singh is stated to have entered into an agreement to sell  his house to Babu Singh, Balak Singh and their sons but the  same could not be fructified into regular sale as Harnek  Singh had interfered in the deal. The accused accordingly  developed grudge as against Harnek Singh over his  unwarranted interference in the sale transaction.  

3.       On 6.5.1989 about 7.00 p.m. Amar Singh (PW-3) and  deceased Harnek Singh were going towards their houses in  the fields whereas Tej Kaur and Gurmail Singh (PW-4) were  already present in the house. The deceased Harnek Singh and  Amar Singh (PW-3) saw all the four accused standing outside  the house of Mukhtiar Singh(A-1). Mukhtiar Singh(A-1) was  armed with a Sumewali Dang, both Gurcharan Singh @ Charna  (A-3)and  the appellant were armed with a gandasa each.  

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Gurdial Singh (A-2) shouted a lalkara that Harnek Singh  should be taught a lesson for interfering in Dalip Singh\022s  property deal and he should be killed, on which the rest of  the three accused inflicted several injuries on Harnek  Singh.  Amar Singh (PW-3) raised an alarm, which attracted  Tej Kaur and Gurmail Singh to the spot and they too  witnessed the incident. The accused ran away from the scene  of occurrence. Harnek Singh was first removed to his farm  house and then to the Civil Hospital, Longowal by Amar  Singh (PW-3).  It was about 9.10 p.m. Dr. Rakesh Jain (PW- 6) having noticed the critical condition of Harnek Singh  immediately referred him to the Civil Hospital, Sangrur.   Dr. Rakesh Jain (PW-6) sent information to SHO, Police  Station, Longowal at about 9.25 p.m. Harnek Singh, however,  died soon after reaching the Civil Hospital, Sangrur.  Amar  Singh (PW-3) along with his  brother Gurdev Singh left the  hospital and reached the police station, Longowal at about  1.15 a.m. on 7.5.1989 and lodged First Information Report.  Gurmail Singh (PW-4) was at the hospital near the dead  body.  The special report sent to the Illaqa Magistrate,  Sangrur reached at 5.00 a.m. The police on the completion  of the investigation filed charge sheet against Gurcharan  Singh @ Charna (A-3) for the offence punishable under  Section 302 of the IPC whereas the other accused were  charged under Section 302/34 of the IPC. The accused  pleaded not guilty.  

4.      The prosecution in order to establish its case relied  on the evidence of Dr. K.S. Raikhy (PW-1), who performed  the post-mortem examination on the dead body and found six  injuries thereon, three incised and three lacerated; Amar  Singh (PW-3) and Gurmail Singh (PW-4), the two eye  witnesses; ASI, Malikat Singh (PW-5), the Investigating  Officer and Dr. Rakesh Jain (PW-6) who first received the  injured at Civil Hospital, Longowal.  

5.      The trial court upon appreciation of evidence  available on record acquitted all the accused of the  charges. The trial court recorded finding that the presence  of the eye-witnesses Amar Singh (PW-3) and Gurmail Singh  (PW-4) was unlikely as they were not stamped witnesses and  had not intervened at the time  when Harnek Singh was being  belaboured.  The court also found that Gurmail Singh (PW-4)  had apparently not been present at the spot as his ocular  version did not correspond with the medical evidence with  regard to the number and situs of the injuries on the dead  body.  The trial court also referred to the contents in the  DDR (Exh. DX/1) in which it is stated that the accused were  armed with Sotis and there was no reference to any of the  accused armed with gandasa and accordingly held this  important circumstance itself nullify the prosecution  story. The trial court also held that there was delay in  lodging the First Information Report.  The trial court  accordingly acquitted  all the accused giving them the  benefit of doubt.  

6.      The High Court upon re-appreciation of evidence found  that there was no delay in lodging the First Information  Report.  The High Court also reversed the finding recorded  by the trial court as regards the presence of the eye- witnesses as it came to the conclusion that there is no  reason to doubt the presence of Amar Singh (PW-3) and  Gurmail Singh (PW-4) at the scene of occurrence.  The High  Court took the view that the presence of eye-witnesses was  absolutely natural and they had good reason for being

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present at the scene of offence.  The High Court relied  upon the First Information Report in which it has been  mentioned that the accused were armed with gandasas and  dangs. The High Court found the DDR (Exh. DX/1) is the  photocopy of the original which was not produced in the  court. Be it noted that the prosecution had closed its  evidence on 22.9.1993 and the statements of all the accused  under Section 313 Cr.P.C. had thereafter been recorded and  it is only thereafter the accused moved an application to  recall Amar Singh (PW-3) and Iqbal Rai (PW-7) who had  recorded the DDR (Exh. DX/1) which was allowed by the trial  court.  The application was ordered about 4 years after the  closure of evidence.  The High Court upon appreciation of  the evidence, however, found that the so-called entry made  in the DDR (Exh. DX/1) by itself may not make any  difference to the prosecution case inasmuch as the evidence  of Iqbal Rai (PW-7) clearly reveals that the First  Information Report had been recorded first and entries in  the DDR  were made thereafter. The High Court also found  that the injuries found on the body of the deceased were  inflicted by sharp cutting weapons which finds support from  the medical evidence.  The High Court in conclusion held:

\023As per the ocular version, injuries 1,3  and 4 are incised wounds, which had  allegedly been caused by Gurcharan Singh  and Mithu accused and injury No. 2 by  Gurcharan Singh whereas injury No. 5 had  been attributed to Mukhtiar Singh accused.  There is no clear cut evidence as to who  had caused injury No. 6, which had been  detected by Dr. K.S. Raikhy (PW-1) at the  time of post-mortem examination. We also  observe that the Gandasa is a cutting  weapon with a Lathi attached to it.  It is,  therefore, possible that a Gandasa could  have been used Lathiwise as well while  causing the lacerated injuries. Mukhtiar  Singh, who was armed with a Dang, has been  attributed one simple lacerated wound 3 cm  x 3 cm in dimension.  He is, therefore,  entitled to claim some benefit in an appeal  against acquittal for an incident, which  happened in the year 1989. Gurdial Singh  was unarmed and only a Lalkara has been  attributed to him. To be on the safe side,  he too must be dealt with in the same  manner as Mukhtiar Singh.          We accordingly dismiss the appeal qua  Mukhtiar Singh and Gurdial Singh. We,  however, find that case against Gurcharan  Singh and Mithu stands proved beyond doubt.  The appeal qua them is allowed.  Gurcharan  Singh is held guilty for an offence  punishable under Section 302 of the Indian  Penal Code whereas Mithu Singh is held  guilty for the offence punishable under  Section 302/34 thereof.  They are sentenced  to undergo imprisonment for life  and to  pay a fine of Rs. 5,000/- each and in  default of payment of fine, to undergo  rigorous imprisonment  for six months each.  The fine, if paid, shall be paid to Tej  Kaur, the widow of the deceased.\024

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7.      This appeal has been preferred by Mithu Singh (A-4)  alone.  

8.      The learned counsel appearing for the appellant  submitted that the entries made in the DDR  in which it has  been mentioned that the accused were armed with Sotis  completely falsify the prosecution story.  The learned  counsel made an attempt to contend that the entries were  first made in the DDR  based on the First Information  Report made by Amar Singh (PW-3) and only thereafter the  First Information Report has been recorded making  improvements to implicate the accused in the case.  The  learned counsel also contended that the presence of Amar  Singh (PW-3) and Gurmail Singh (PW-4)  at the scene of  occurrence is highly doubtful for they did not intervene  when the deceased was being attacked. It was also contended  that two injuries were simple in nature out of which one is  alleged to have been caused by the appellant herein and,  therefore, there is no evidence of any common intention to  kill the deceased.  

9.      The learned counsel for the State of Punjab submitted  that the common intention is evident from the fact that the  appellant was armed with deadly weapon and it is immaterial  as to the nature of the injuries inflicted by the appellant  on the body of the deceased. The learned counsel supported  the findings of the High Court.  

10.     We have considered the submissions made during the  course of hearing of the appeal and perused the evidence  available on record.  

11.     We shall first deal with the contention with regard to  delay in lodging the First Information Report.  The  evidence available on record reveals that the incident took  place on 6.5.1989 at 7.00 p.m in village Longowal.  The  distance between village and police station is about 3 kms.   It is in the evidence of Amar Singh (PW-3) and Gurcharan  Singh (PW-4) that they had immediately removed critically  injured Harnek Singh to their farm house and thereafter to  the Primary Health Center, Longowal in a bullock cart and  reached there at 9.10 p.m.  Dr. Rakesh Jain (PW-6) who  attended  the injured sent the ruqa (Exh. PN) to the police  station, Longowal at 9.25 p.m..  Having regard to the  grievous nature of injuries and condition of the victim Dr.  Rakesh Jain (PW-6)  referred the injured to the Civil  Hospital, Sangrur. The evidence of Dr. Rakesh Jain (PW-6)  in this regard remains unimpeached and there is absolutely  no reason to disbelieve any portion of his evidence. It is  Amar Singh (PW-3) who took the injured to the Civil  Hospital at Longowal and thereafter to the Hospital at  Sangrur where the injured succumbed to injuries. It is only  thereafter Amar Singh (PW-3) went to police station which  is at a distance of about 9-10 kms. from the hospital and  lodged First Information Report. Amar Singh (PW-3) was  present not only at the scene of offence but accompanied  the injured to Civil Hospital, Longowal and thereafter to  the  Hospital at  Sangrur.  It is only after Harnek Singh  died in the hospital Amar Singh (PW-3) left to police  station to lodge First Information Report at 1.15 a.m on  7.5.1989. The special report sent by the police reached the  Illaqa Magistrate at 5.00 a.m.  In order to determine  whether the FIR was lodged at the time it is alleged to   have been recorded, the courts normally look for certain  external checks. One of the checks is the receipt of the

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copy of the FIR, called a special report, by the Illaqa  Magistrate.  In this case, the report has been received by  the Illaqa Magistrate in time.  The second external check  equally important is the sending of the copy of the FIR  along with the dead body and its reference in the inquest  report. This requirement is also complied with in the  present case. The inquest report clearly refers to the  lodging of the First Information Report by Amar Singh (PW- 3) at 1.15 a.m. on 7.5.1989 in Police Station, Longowal and  it also refers to the registration of the First Information  Report and dispatch of special report for their delivery to  the concerned authorities.  Thereafter, Malkiat Singh, ASI  (PW-5) along with some constables and Amar Singh (PW-3)  rushed to the Civil Hospital, Sangrur where the inquest  report has been prepared. The sequence of events clearly  reveals that there was any unexplained and unreasonable  delay in lodging the FIR. In the circumstances, it cannot  be said that the FIR was ante-timed and brought into  existence after some deliberations.  

12.     We do not find any merit in the contention that the  entries made in the DDR (Exh. DX/1) in which it has been  mentioned that the accused were armed with Sotis falsify  the First Information Report lodged by Amar Singh (PW-3).   We have already noted that the original of the DDR  has not  been filed into the court and what has been filed was only  a photocopy and that too at the instance of the accused  after four years of the closure of evidence.  It is clearly  evident from the statement of Iqbal Rai (PW-7) that the  First Information Report was recorded first and the DDR    thereafter.  He further stated that the DDR had been  recorded on the basis of the facts recorded in the First  Information Report.  We find it difficult to comprehend as  to how totally a different version is found in DDR  which  is said to be a photocopy of DDR.  There is obviously  something more than meets the eye. The contention that  under the Punjab Police Rules information must be reduced  to writing and be entered in the police station daily diary  and only thereafter the First Information Report is to be  issued is absolutely untenable. The relevant rule says:

\023Every information covered by Section 154  Criminal Procedure Code must be reduced to  writing as provided in that Section and the  substance thereof must be entered in the  police station daily diary which is the book  provided for the purpose.\024

A bare reading of the rule makes it clear that every  information relating to the commission of a cognizable  offence, if given orally to an officer-in-charge of a  police station shall be reduced to writing and the  substance thereof shall be entered in a book to be kept in  such form as may be prescribed and only thereafter in the  Police Station diary. 13.       Chapter XII of the Code of Criminal Procedure, 1973  deals with information to the police and their powers to  investigate.  Investigation into allegations relating to  commission of a cognizable offence starts on information  given to an Officer-in-charge of a Police Station and  recorded under Section 154 of the Code. If from information  so received or otherwise, the Officer-in-charge of the  Police Station, if satisfied that such information  discloses the commission of a cognizable offence, shall  either investigate the case himself or direct the

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investigation  to any police officer  subordinate to him,  in the manner provided by the Code. The procedure as  regards the registration of information relating to the  commission of a cognizable offence and the procedure for  investigation is structured and regulated by Chapter XII of  the Code.  The procedure prescribed is required to be  followed scrupulously by the Officer-in-charge of the  Police Station.  The Punjab Police Rules do not in any  manner override the provisions of the Code of Criminal  Procedure. The said rules are meant for the guidance of the  Police Officers in the State and supplement the provisions  of the Code of Criminal Procedure but not supplant them. In  our considered opinion the truth and veracity of contents  of the FIR cannot in all cases be tested with a reference  to the entries made in the police station daily diary which  is maintained  under the Punjab Police Rules.  This  avoidable controversy need not detain us any further since  it is well settled that even a defect, if any, found in  investigation, however, serious  has no direct  bearing on  the competence  or the procedure relating to the cognizance  or the trial.  A defect or procedural irregularity, if any,  in investigation itself cannot  vitiate and nullify the  trial based on such erroneous  investigation.  

14.     Amar Singh (PW-3) clearly and categorically stated  that the entries in the DDR had been recorded on the basis  of the facts given in the First Information Report.  It is  difficult to place any reliance upon the photocopy of the  DDR  that was produced before the court after four years of  the closure of evidence. There is no explanation as to the  fate of original DDR.  It is not possible to doubt the  timing and contents of FIR based on the entries made in  DDR. We have serious doubts about the genuineness of the  very document DDR. We wish to say no more on this aspect of  the matter.  

15.    In our considered opinion there is no basis to contend  that Amar Singh (PW-3) and Gurmail Singh (PW-4) were not  present at the scene of offence and did not witness the  incident.  The contention was that Amar Singh (PW-3) and  Gurmail Singh (PW-4) had not intervened to save Harnek  Singh when he was being attacked by the accused.  The  evidence available on record reveals that Amar Singh (PW-3)  and deceased Harnek Singh had almost reached their house  when they had been way laid by the accused.  The appellant  and Gurcharan Singh (A-3) were armed with gandasas and  Mukhtiar Singh (A-1) with a dang. As has been rightly  observed by the High Court that it would be well nigh  impossible to apply a universal yard stick as  to how a  person would react to a given situation.   The presence of  Amar Singh (PW-3)  and Gurmail Singh (PW-4) cannot be  doubted on the ground that they have not made any attempt  to rescue the deceased.  We cannot ignore the fact that the  accused were armed with deadly weapons and the same may  have deterred PW-3 and PW-4 in making any attempt to rescue  the victim when he was under attack.  

16.  It is true that Gurmail Singh (PW-4) had  not been  able to spell out accurately the situs of the injuries on  the dead body but the same would not make his presence  doubtful. The victim was under attack from a group of  persons armed with deadly weapons.  He must have made  attempts to save himself from the attack and in the process  may have not remained static without moving one way or the  other.  One cannot expect that in such a situation the

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witness would graphically describe the nature of injuries  and spell out accurately the situs of the injuries on the  body of the victim.  Their presence at the scene of offence  is evident from the First Information Report itself which  was lodged by Amar Singh (PW-3) himself. The fact remains  Harnek Singh had been way laid by the four accused and  thereafter inflicted several blows with the gandasas and  dang.  

17.     It is required to notice that Dr. K.S. Raikhy (PW-1)  had found six injuries on the dead body at the time of  post-mortem examination.  The injuries found on the body  were:    1.      Incised wound 12 cms x 5 cms x  bone deep on the right parieto- temporal region, wound placed  obliquely bone cut and brain  matter and mengis protruding  through the wound; dark clotted  blood was present on the wound. On  dissection underlying bone was  cut, mengis cut. The brain matter  protruding through the wound  haematoma was present.  

2.      Lacerated wound 3 cms x 2 cms on  the left clevicular region. The  wound was skin deep. On dissection  underlying bone was intact.  Haematoma was present.  

3.      Incised wound 3 cms x 2 cms x 1 cm  on the posterior lateral aspect of  left forearm 2 cms above the wrist  joint. Dark blood clot was  present. On dissection the  underlying bone was intact  haematoma was present.  

4.      Incised wound 10 cms x 3 cms x  bone deep on the antero lateral  aspect of left leg, wound placed  obliquely 3 cms below the knee  joint. Dark blood clot was present  in the wound. On dissection the  underlying tibia bone was cut.  Haematoma was present.  

5.      Lacerated wound 3 cms x 3 cms x  skin deep on the anterior aspect  of left leg 10 cms below the  tibial tuberosity. Dark blood clot  was present. On dissection the  underlying bone was intact.  

6.      Lacerated wound 4 cms x 2 cms x  bone deep on the antero lateral  aspect of right leg 3 cms below  the tibial tuberosity. Dark blood  clot was present. On dissection  the underlying bone was intact.  

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       It is in the evidence of PW-3 that Gurcharan Singh  inflicted injury No. 1  by giving a gandasa blow on the  head of the victim and whereas the appellant herein  inflicted injury Nos. 3   and 4 gandasa blows on his right  leg below the knee and another blow on the left side of the  chest using the reverse side of the gandasa. The appellant  was armed with deadly weapon namely gandasa.    Dr. K.S.  Raikhy (PW-1) stated in his evidence that the cause of  death was shock and haemorrhage  and all the injuries were  ate-mortem in nature. It is further stated by him that  injury No. 1 itself was sufficient to cause death in the  ordinary course of nature.  

18.     The learned counsel for the appellants further  submitted that the injuries inflicted by the appellant were  not sufficient to cause the death of the victim and,  therefore, the common intention to kill is not evident and  therefore, he cannot be convicted for the offence  punishable under Section 302 read with Section 34 of the  IPC.  We are unable to agree.  The evidence of PW-3 and 4  the direct witnesses is consistent and they had deposed  that the appellant inflicted injuries with gandasa to kill  the deceased.  The fact that the appellant inflicted  injuries with the deadly weapon itself shows that he had  also shared the common intention.  In order to convict the  person vicariously under Section 34, it is not necessary to  prove that each and every one of them had indulged in such  overt act inflicting deadly injuries.  It is enough if the  material available on record discloses that the overt act  of one or more of the accused was or were done in  furtherance of  common intention.  The common intention   shared by the appellant is evident from the fact that he  was armed with deadly weapon and inflicted two injuries on  the victim.  All the accused attacked the deceased and  caused injuries in furtherance of the common intention to  murder the deceased. In such a situation the nature of  injuries inflicted by the appellant on the victim and  whether those injuries were sufficient in the ordinary  course to cause death pales into insignificance. The  appellant was not a curious onlooker and had not  accompanied the assailant who gave a deadly blow out of any  ideal curiosity. Each one of them is liable for that act of  murder as if the act of murder was done by each one of  them. It is true that if the High Court had adopted this  reasoning even Mukhtiar Singh (A-1) and Gurdial Singh (A-2)  could not have escaped from conviction.  However, we do not  propose to express any firm opinion on that aspect of the  matter since there is no appeal by the State against their  acquittal.  

19.      For the aforesaid reasons  we find no merit in this  appeal.  The appeal shall accordingly stand dismissed.