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PETITIONER: DALIP SINGH

       Vs.

RESPONDENT: THE STATE OF PUNJAB

DATE OF JUDGMENT:       08/07/1997

BENCH: M. K. MUKHERJEE, K. VENKATASWAMI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T MUKHERJEE, J. 1.   Dalip Singh  the appellant  before us  and five others, namely Arjan  Singh Shabeg Singh Manjit Singh Rachhpal Singh and Gurdev  Singh were tried by the Special Court, Ferozepur for rioting,  murder and  other related  offences. The trial ended in  conviction of the appellant under Sections 148 and 302 IPC  and of  the others  under Sections 148, 323 and 324 IPC. Aggrieved  thereby, only  the appellant  has moved this Court by filing this statutory appeal. 2.   (a) The  case of the prosecution is that in the morning of February  13,1984 Shabeg  Singh  (P.W.6),  Bagicha  Singh (P.W.7) and  Mohinder Singh  (the deceased)  went  to  their field to  see the  water outlet when the six accused arrived there armed  with various weapons. Dalip Singh gave out that they would  not permit  the flow  of water  from the outlet. When Mohinder Singh retorted to his such threat, dalip singh gave two  blows on the head of Mohinder Singh with a gandasa as a  result of  which he  fell  down.  When  Bagicha  singh (P.W.7) tried  to intervene,  Shabeg Singh gave a takwa blow on his  head. Rachhpal  Singh then  gave a takwa blow on his back and  Manjit Singh  a dang  blow on  his right arm. When Shabeg Singh  (P.W.6) raised  an alarm,  Baldev Singh gave a kassia blow  on his  head and  Arjan singh two dang blows on his left  arm. To  defend themselves  when  the  complainant party assaulted Rachhpal Singh, the accused persons left the place. (b)  The three  injured were then taken to the local primary Health centre where Dr. Pratap Singh ( P.W 1) examined them. On the  person of  Mohinder Singh  he found incised wound 7- 1/2" x  1/6" x  bone deep  with profuse bleeding on the left side of  his forehead  with brain  matter coming  out of the wound in  its middle  3-1/2" where  the bone was cut through and through.  He next  examined Bagicha  Singh and found the following injuries:      1.   A bleeding  incised wound 2" x      1/6" x  bone deep on the right side      of the head.      2.   Incised  wound  1"  x  1/4"  x      muscle deep  on  the  back  of  the

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    upper part  of the  right chest  2"      from shoulder joint.      3.   Reddish     contusion     with      swelling 3" x 2" on the back of the      right wrist joint. P.W.1  also  examined  Shabeg  Singh  (P.W.6)  who  had  the following injuries on his person:      1. A  bleeding incised wound 1-1/4"      x 1/6" x bone deep on the left side      of   the    head,    bleeding    on      examination,      2. Reddish  contusion with swelling      2" x 1" on the back and upper third      of the left forearm.      3. Reddish contusion 1" x 1" on the      back and  lower part  of  the  left      forearm.      Later, in  the night, P.W.1 examined Rachhpal Singh and found the following injuries on his person:      1. A  bleeding incised  wound 1"  x      1/16" x bone deep on the midline of      the head.      2. Reddish contusion 3" x 1" on the      left lateral surface of the chest.      3. Abraded contusion 3" x 1-1/2" on      the posterior  lateral  surface  of      middle of right thigh.      4. Abraded  contusion 3"  x 1-1/2 "      over posterior surface on middle of      the left thigh.      5. Abrasion  1/2"  x  1/6"  on  the      dorsam of the left hand.      Earlier Mohinder  Singh was referred to and admitted in Frances Newton  Hospital, Ferozepur,  where he  succumbed to his injuries an February 17, 1984. (c)  On  getting   information  from   the  Hospital   about admission of  Mohinder Singh, A.S.I. Iqbal Singh (P.W.8), of Ghal Khurd  Police Station went there and enquired about the fitness of Mohinder Singh to make a statement. As the doctor opined that  Mohinder Singh  was unfit to make any statement he (P.W.8)  recorded the  statement of Shabeg Singh (Ex.P12) at  2.30  P.M.  and  sent  it  to  the  police  station  for registration of  a case. On its basis formal F.I.R Ex.P 12/B was drawn  up and  a case  registered. S.I.  Harbhajan Singh (P.W.9) took  up investigation  and went  to  the  spot.  He prepared a  rough site plan and collected some blood stained earth and  wheat plants  from the  spot. He  prepared sealed parcels in  respect of  those  articles  and  sent  them  to Forensic Science Laboratory {F.S.L.) for examination. (d)  Consequent upon death of Mohinder Singh on February 17, 1984, ASI  Iqbal Singh,  (P.W.8) prepared inquest report and sent the  dead body  for post-mortem  examination which  was held by  Dr. Ajaib  Singh Mann  (P.W.4),  Emergency  Medical Officers Civil Hospitals Ferozepur, on February 18, 1984. On receipt of the report of the Serologist (Ext.P. 18) that the earth and the wheat plants were stained with human blood and after completion  of investigation  Police submitted  charge sheet against the six accused. 3.   The accused  pleaded not guilty to the charges levelled against them  and their  version of the incident was that in the morning  of the  fateful day  when  Kala  Singh  (D.W.3) Jusbir Singh  and Balkar  Singh were  Constructing  a  water channel beyond  the field  of Mohinder  Singh and  others in terms of  an agreement  with Tubewell  Corporations Mohinder Singh, Shabeg  Singh (P.W.6)  and Bagicha Singh (P.W.7) came

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there armed  with deadly weapons. While Mohinder Singh had a gandasa with  him, the  other two  had a takwa and a kasouli respectively. Reaching  there they  gave out  that an outlet should be kept for their field before any other construction was made  to which  Kala Singh  replied that  he  could  nut oblige them  unless directed  by their  overseer. Then  they started demolishing  the water  channel and, when Kala Singh and his  men objected, Mohinder Singh gave a gandasa blow to Rachhpal Singh. To defend himself Rachhpal Singh then gave a kasouli blow  to Mohinder  Singh. According  to the  defence accused Dalip  Singh (appellant),  Arjan  Singh  and  Shabeg Singh were not even present there. 4.   ln support  of their  respective cases  the prosecution examined nine  witnesses and  the defense  seven.  After  an elaborate discussion  of  the  evidence  the  Special  Court accepted the  case of  the prosecution in preference to that of the defence, and, passed the impugned order of conviction and sentence. 5.   That Mohinder  Singh  died  as  a  result  of  injuries sustained by  him, as  testified by Dr. Pratap Singh (P.W.1) and Dr.  Ajaib Singh  (P.W.4), admits  of no  doubt. Indeed, homicidal death of Mohinder Singh and sustaining of injuries by Shabeg  Singh (P.W.6)  Bagicha Singh  (P.W.6) and accused Rachhpal Singh in course of the incident were not challenged by the  defence. We  further find  that  the  claim  of  the prosecution that  the earth and plants seized from the place af occurrence  were found to be stained, with human blood by the F.S.L.  was also not contradicted. In the context of the above undisputed  facts we  are left  with only the question whether the incident took place in the manner alleged by the prosecution or the defence. 6.   To prove  its version  of the  incident the prosecution relied upon  the testimonies  af Shabeg  Singh  (P.W.6)  and Bagicha Singh  (P.W 7).  Shabeg Singh stated that on the day of the incident he, accompanied by Bagicha Singh (P.W 7) and Mohinder singh  (deceased), had gone to the field to see the outlet, when  Dalip Singh  armed with  gandasa, shabeg singh with takwa,  Gurdev   Singh Baldev  Singh with  Kassia Arjan Singh and  Manjit Singh  with dags  and Rachhpal  Singh with takwa came  there from the side of their fields. Dalip Singh raised lalkara  that they  would not  permit the flow of the water from  the outlet.  When Mohinder  Singh retorted Dalip Singh gave  two gandasa  blows to  mohinder Singh  who  fell down. Bagicha Singh (P.W.7) then tried to intervene and both Shabeg Singh   and  Rachhpal Singh  gave takwa  blows on him with their  takwas. Manjit Singh the gave a dang blow on him and when  Shabeg Singh  (P.W 6)  tried to  intervene  Baldev Singh @  Gurdev Sing  gave a  Kassia blow on his head. Arjan Singh then  gave two  dang blows  on his  left arm.  At that stage, they  (P.Ws.6 and  7) assaulted  the accused  to save themselves. They  were then taken to the hospital at Fazilka where they were medically examined and there police recorded his statement  (Ext. p.  12). When cross examined he (P.W 6) stated that  they had  purchased the land from Karnail Singh which had  an outlet  in it  and that  the same was near the place where  Mohinder singh Was injured. A suggestion by the defence that  there was  no outlet  and that  they wanted to have an  outlet forcibly  was denied  by him. He also denied that masons  were working there. A suggestion by the defence that Balkar  Singh, Kala Singh (D.W.3) and Jasbir Singh were constructing a channel on that day was refuted. In answer to another question  he stated  that Mohinder  Singh was  empty handed. 7.   The testimony  of Bagicha  Singh (P.W.7)  is on similar lines. In  cross examination  he stated  that three  sons of

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Dalip Singh  stood arrayed  as accused;  that accused  Arjan Singh was  brother of  Dalip Singh;  that  they  wanted  the outlet from  the place of occurrence; and that Karnail Singh used to  take the  turn of water from that very outlet which stood fixed  under,  the  orders  of  the  Divisional  Canal Officer. The suggestion that the outlet of Karnail Singh was a a distance of 300 yards was denied by him. 8.   Coming now  to the  defence  witnesses,  we  find  that Swaran  Singh   (D.W.1)  and  K.S.  Kailey  (D.W.5),  Deputy Superintendent   of    Police    and    Additional    Deputy Superintendent of  Police  respectively  of  Ferozepur  were examined to  testify that  they had  perused the  case diary prepared by  the Investigating officer and interrogated some of the  accused and  other persons.  On their  such exercise they found  that three  of the  accused, namely  Dalip Singh (appellant), Shabeg  Singh and Arjan Singh were innocent. In our considered  view, the Designated Court ought not to have permitted the  defence to adduce the above evidence as it is not legally  admissible. In  Vijender etc.  vs. The State of Delhi [1997  (3) J.T.E  131] a Bench of this Court, of which one of  us was  a member  (M.K. Mukherjee, J.) while dealing with a similar question observed as under:      "The result  of investigation under      Chapter   XII   of   the   Criminal      Procedure Code is a conclusion that      an Investigating  Officer draws  on      the basis  of  materials  collected      during   investigation   and   such      conclusion can  only form the basis      of  a   competent  Court   to  take      cognizance thereupon  under Section      190 (1)(b)  Cr.P.C. and  to proceed      with the  case for trial, where the      materials     collected      during      investigation are  to be translated      into  legal   evidence.  The  trial      Court is  then required to base its      conclusion solely  on the  evidence      adduced during  the trial;  and  it      cannot rely on the investigation of      the result thereof."      We may  further add that if the result of investigation was to  be made  the basis  of a  Court’s verdict  regarding guilt or  innocence of an accused, there would be no need of a trial  in  a  police  case  for,  relying  on  the  report submitted under  Section 173  (2) Cr.P.C.  a Court  would be entitled to  decide the  fate of  the person  arraigned. The evidence of D.Ws.1 and 5 must, therefore, be left out of our consideration. Incidentally,  we may mention that inspite of the opinion  expressed by  the above  two superior  officers charge-sheet was  submitted  by  the  Investigating  Officer against the above-mentioned three accused. 9.   Kirpal  Singh,  a  Patwari  af  Canal  Department,  was examined as  D.W.2 to  prove that  a water channel was under construction across  the site  of the incident on the day in question. Besides,  he testified  that there  was earlier an outlet at  a distance  of  one  killa  from.  the  field  of Mohinder Singh but there was no outlet in that field. 10.  The next  witness was  Kala Singh  (D.W.3) who gave the defence version  of the  incident as  detailed  earlier.  In cross examination  he admitted  that he  did  not  make  any complaint about  the demolition  of the  channel by Mohinder Singh, Shabeg  Singh and  Bagicha Singh;  that there  was no document to  show that  they had  obtained the contract; and that  he  did  not  lodge  any  complaint  with  the  police

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regarding the incident. 11.  Avtar Singh  (D.W.4), a Junior Engineer of the Tubewell Corporation claimed  that the  was in-charge  of  outlet  RB 25000 R of Golewal in the district of Faridkot. According to him location of an outlet is decided by the Canal Department and turn of its water is fixed under Section 68 of the Canal Drainage act.  He averred  that the Canal Department had not given any location for outlet in killa numbers 2/2, 3, 4 and 5/1 out  of Rectangle No. 83 which was purchased by Mohinder Singh. 12.  Jagdish Raj (D.W.6) was examined to say that a contract for construction  of an outlet near the plot in question was sanctioned in  favour of  Yash  Pal  (D.W.7)  but  in  cross examination he  admitted that  he had no document in support of his statement. 13.  The last  witness examined  by the defence was Yash Pal (D.W.7). His  testimony is  that big tender for construction of pucca  khal (channel) in village Kailas was sanctioned in his name  and he  had deputed  Kala Singh  Balkar Singh  and Jagbir Singh to complete the same. He further testified that on the  Sankranti days  Kala Singh,  Jasbir Singh and Balkar Singh contacted his and told that there had been quarrel and the channel  demolished. In cross examination he stated that there were  measurement books  to show  that Kala  Singh and others worked as masons and the volume of work they did on a particular day. He, however, admitted that he could not give the date when they started the work. 14.  Having given  our anxious consideration to the evidence adduced by  the parties  we do  not see any reason to differ from the  views expressed by the Special Court. the presence of the  two eye  witnesses (P.Ws.6 and 7) at the spot at the material time  cannot be  abutted in  view of  the  injuries found on  their persons.  Besides the  defence also admitted their presence  there. From  their  evidence  we  find  that inspite of  a searching  cross examination the defence could not elicit  any answer  to discredit  or contradict them. On the contrary,  their testimonies  as to  the manner in which the assault  took place  stands corroborated  by the medical evidence. The  defence version of the incident regarding the actual assaults  as given  out by Kala Singh (D.W.3), cannot be accepted  because he did not testify as to how P.Ws 6 and 7 sustained  the  injuries  nor  does  his  version  of  the incident fits in even with the nature and number of injuries sustained by  accused Rachhpal Singh. The other reason which inhibits us  from  accepting  the  defence  version  of  the assault is  that it  is a  belated ones  in that neither any suggestion was  put to  P.W.6 and 7 in cross examination nor did early  of the  accused including the appellants make any statement relating  thereto when  examined under Section 313 Cr.P.C. As  regards the  origin of the trouble, we also feel inclined to  reject the  defence version. If construction of the channel  by Kala  Singh and  his two  companions was the cause of  the incident,  it was  expected, in the fitness of things, that  the complainant party could attack him (D.W.3) and the  other two  masons, for  it is  they who  refused to accept their  demand to  keep an  outlet for their field. To put it  differently, in  the context of the dispute that led to the assault as testified by D.W.3 - the complainant party would have  no axe  to grind against accused Rachhpal Singh, who was  in no  way concerned  or connected with the alleged construction work.  Since no  credence can  be given  to the testimony of  D.W.3 the  related evidence of the other three witnesses, namely D.Ws.4, 6 and 7 does not further the cause of the defence nor weaken the prosecution. 15.  For the  foregoing discussion, we do not find any merit

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in  this   appeal  and  it  is  accordingly  dismissed.  The appellant, who  is on  bail, will  now surrender to his bail bonds to serve out the sentence.