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CASE NO.: Appeal (crl.)  330 of 2000

PETITIONER: State of Punjab

RESPONDENT: Mohinder Singh & Ors

DATE OF JUDGMENT: 28/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 330 OF 2000 With CRIMINAL APPEAL NO. 331 OF 2000

Dr. AR1J1T PASAYAT, J.

1.      These two appeals are directed against a common  judgment  of the Punjab & Haryana High Court dated 30th  August, 1995 in Criminal Appeal No. 208-DB of 1994.  In the  said appeal, the present respondents questioned correctness  of the order of conviction passed by the learned Sessions  Judge, Amritsar.  Accused-respondent Major Singh was found  guilty of offence punishable under Section 302 of the Indian  Penal Code, 1860 (in short the ’IPC’). The co accused Jeet  Singh alias Ajit Singh, Mohinder Singh and Kulwant Singh  were found guilty of offence punishable under Section 302  read with Section 34 IPC. Each of the accused was sentenced  to imprisonment for life and to pay a fine of Rs.2,000/- with  default stipulation. For the offence relatable to Section 460  IPC, each of the accused was sentenced to rigorous  imprisonment for five years and to pay a fine of Rs.500/- with  default stipulation.

2. Background facts as projected by the prosecution during  the trial are as follows: On 17.5.1991 at 8 p.m. Surjit Kaur (PW-4) and her  husband Dalip Singh (hereinafter referred to as ’deceased’)  were present in their house in village Leharka. At that time,  accused Mohinder Singh and Kulwant armed with dang, Jeet  Singh armed with a barchhi and Major Singh armed with a  kirpan came there and told her husband that he had been  abusing them in connection with the land dispute which  existed between them, so he would be taught a lesson. Saying  this, Mohinder Singh raised a lalkara to the effect that Dalip  Singh should be taught a lesson for asking his share of the  agricultural land, whereupon Kulwant Singh caught hold of  Dalip Singh and threw him on the ground. Jeet Singh then  gave a blow with barchhi, which hit Dalip Singh on the right  side of the chest while Major Singh gave a blow with kirpan,  which hit Dalip Singh on his left ear. Major Singh again gave a  blow with the kirpan, which hit Dalip Singh on his neck. In  the meantime, Surjit Kaur cried for help which attracted  Karnail Singh son of Shangara Singh and Ajit Singh son of  Chanan Singh. They all tried to intervene to save Dalip Singh.  Major Singh told them to stand aside lest they shall be  assaulted. Hearing this, Surjit Kaur, Karnail Singh and Ajit

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Singh stood aside and Jeet Singh and his co-accused took the  body of Dalip Singh to the house of Ajit Singh. An electric bulb  was on in the courtyard of the house and Surjit Kaur (PW-4)  was thus, able to identify the accused. She thereafter, left for  the police Station Kathu Nangal and on the way near Talwandi  Phuman met ASI Rajinder Singh, (PW-9) and made statement  regarding the circumstances in which her husband had been  attacked by the accused and removed from his house. PW9  recorded the statement (Ex.PF) into writing and read over the  same to the witness whereafter she signed the same in token  of its correctness. He then, made endorsement Ex. PF/2 and  sent the same to the Police Station for recording of formal FIR  (Ex.PF/1). The Investigating Officer, thereafter, went to the  spot and in the house of Ajit Singh, found the dead body of  Dalip Singh. He prepared inquest report Ex.PB and after  drawing up request for post-mortem Ex-PD sent the dead body  to the mortuary through Head Constable Charan Singh and  Constable Sat Pal Singh. He also prepared injury statement  Ex.PC and lifted blood stained earth and took the same into  possession through recovery memo (Ex.PO)  which was  attested by SI Kishan Singh and ASI Surinder Kumar. They  went to the house of Dalip Singh and lifted blood stained earth  from the courtyard of the house and that was also taken into  possession through recovery memo Ex.PQ. This recovery  memo was also got attested from the aforesaid witnesses. He  prepared rough site plan Ex. PR and Ex.PG showing the  houses of Ajit Singh and Dalip Singh. The marginal notes  thereof are correct according to the spot. On return to the  police station, he deposited the case property with Moharir HC  with seals intact. Thereafter, he searched for the accused and  on 1.6.1991 when he was present at Bus adda, Talwandi  Phuman, he joined Darshan Singh, PW-5 and left towards  village leharka in search of the accused. When he reached  near the canal minor Darshan Singh pointed out the four  accused and they were apprehended and detained in the case.  In the presence of Darshan Singh and other police officials,  ASI Rajinder Singh interrogated Major Singh who made  disclosure statements (Ex.PL) to the effect that he had kept  concealed a kirpan in the heap of wheat straw which was lying  in his cattle shed and he had the exclusive knowledge about  the same. His statement was reduced into writing and was got  thumb marked by the accused and was got attested from  Darshan Singh and Amrik Singh, PWs. Thereafter, ASI  Rajinder Singh interrogated Jeet Singh who had made  disclosure statement to the effect that he had kept concealed  barchhi in the heap of toori lying in the toori wala kotha and  he had the exclusive knowledge of the same and could get the  same recovered. This statement Ex.PJ was also reduced into  writing and got attested from the aforesaid witnesses.  Thereafter, the accused had led the police party to the place of  concealment already disclosed by them and got discovered  kirpan (Ex.P2) and barchhi (Ex.P1) which were taken into  possession through recovery memo Ex.PM and Ex.PK after  making rough sketches thereof, which are Ex.PN and Ex.PK/1  respectively. The memos, were attested by Darshan Singh and  Amrik Singh, PWs. On return to the police station, the  Investigating Officer deposited the case property in the  malakhana with seals intact. Rough sketches of the places of  discoveries Ex.PT and PU were also prepared during the  investigation and on completion of the same, the challan was  put in the court of Ilaqa Magistrate, against the accused.  Charge sheet was filed after completion of investigation.  Accused persons pleaded innocence.  

3.      Placing reliance on the evidence of PW4, informant, the

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trial Court found the accused persons guilty and convicted  and sentenced, as aforesaid. The main stand of the accused  persons before the trial Court were (a) there was a delay in  lodging the FIR (b) the injuries on the accused were not  explained and (c) evidence of the complainant PW4, eye  witness, was at variance with medical evidence and (d) there  was no trail of blood seen by the Investigating Officer, though  the complainant stated about the presence of a trail of blood  when the accused persons dragged the deceased to the house  of Ajit Singh alias Jeet Singh. The trial court negatived each of  the contentions holding as follows:

(a) there was no delay in lodging the FIR as no  person came to rescue the deceased and, therefore,  the helpless lady, PW4 could not have come to the  police station in the night. (b) injuries on the accused were not grievous in  nature and could be self inflicted. (c) statement of eye witness/complainant, PW4  corroborates the medical evidence.  (d) Lack of trail of blood has been explained.  4.      In spite of lengthy cross-examination it remained  unshattered. The complainant had nothing to gain by  implicating the accused. Recovery of weapons at the instance  of the accused has been established. If any of the accused was  injured by unidentified assailants as claimed, there was no  reason for them not to report the matter to the Police and kept  mum.

5. Being aggrieved, accused persons filed appeal before the  High Court. The stands before the trial Court were reiterated  before the High Court. By the impugned judgment, the High  Court found that the trial court’s judgment was unsustainable  and accordingly set aside the conviction and sentence imposed  by the trial Court and directed acquittal. Hence, State has filed  the present appeals by special leave.

6. In support of appeals, learned counsel for the appellant  submitted that the High Court has erroneously come to hold  that there was delay in lodging the FIR. The High Court  wrongly concluded that in the FIR or in the statement in court  the delay was not explained. This is clearly contrary to the  factual position. In fact, there was no requirement for  explaining the delay in lodging the FIR by giving details. In any  event, that criticism is not factually correct. So far as non- explanation of injuries on the accused persons is concerned,  the accused persons never claimed that they suffered injuries  at the hands of the deceased. Therefore, the question of  explaining the injuries did not arise. Finally, the trial court, by  an elaborate analysis, indicated as to why there could not be  trail of blood, as stated by PW4.

7.      In response, learned counsel for the respondents  submitted that PW4’s presence on the spot was doubtful. The  High Court has rightly referred to the background of the  deceased and the motivation for false implication of the  respondents. It is submitted that the High Court’s judgment  being one of the acquittal, there is no scope for interference in  these appeals.

8.      As submitted    by learned counsel      for     the appellant,  three factors weighed with the High Court for acquitting the  respondents. Firstly, the alleged non- explanation of delay in  presentation of the FIR. The High Court has wrongly recorded  that there was no explanation for the delay in lodging the FIR.

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There was no requirement for offering any such explanation.  Even otherwise, in the FIR it has been categorically stated that  nobody came forward to accompany the complainant to the  police station in the dark night. Therefore, she had to wait till  the morning to come to the police station. In the cross- examination to this witness, no question regarding the reason  for the alleged delay in lodging the FIR was asked, though, the  witness was cross-examined at length. There was not even a  suggestion that she had wrongly stated about the reason as to  why she was lodging the FIR on the next morning. The  conclusion of the High Court is, therefore, clearly  unsustainable.

9.      Next comes the conclusion of the High Court relating to  the alleged non-explanation of the injuries on the accused. It  was not the case of the accused, nor even in their cross- examination under Section 313 of the Code of Criminal  Procedure, 1973 (for short ’the Code’), that they were  assaulted by the deceased. It was not the defence version that  the accused persons had suffered injuries at the hands of the  deceased. Their clear case was that they have been falsely  implicated and the killing was done by unidentified assailants  because of the bad reputation of the deceased. They claimed to  have sustained injuries at the hands of the unidentified  assailants when they tried to intervene. As rightly observed by the trial Court, if they had really sustained injuries in that  manner,  the least that could have done was to report the  matter to the police. Admittedly, that was not done. Since the  accused did not claim to have suffered injuries at the hands of  the deceased, the question of explaining the injuries on the  accused in that sense did not arise. Here again the conclusion  of the High Court is clearly unsustainable.

10. The last question relates to the Investigating Officer’s  evidence that he did not find trail of blood. The trial court on  analysing the evidence noticed that since the accused persons  were dragging the dead body of the deceased to the house of  the accused Ajit Singh alias Jeet Singh, there was possibility  of their clothes being strained with blood rather than leaving  trail of blood. The Investigating Officer has categorically stated  that he had collected blood stained earth from several places.  Therefore, it is not a case where there is absence of blood at  the spot of occurrence or nearby. This aspect has been  completely lost sight by the High Court. It is not even  discussed as to why it did not concur with the view of the trial  court in this regard.

11. Looking from any angle the impugned judgment of the  High Court directing acquittal of the respondents is clearly  unsustainable. The same is set aside. The order of the trial  court is restored. Respondents who are on bail shall be taken  into custody forthwith to serve out the remaining sentence.

12.     The appeals are allowed accordingly.