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CASE NO.: Appeal (crl.)  116 of 2006

PETITIONER: Kulwinder Singh

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 06/08/2007

BENCH: S. B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

[with Criminal Appeal No. 113/2006]

MARKANDEY KATJU, J.

Criminal Appeal No. 116/2006          

1.      This appeal is directed against the impugned judgment and order  dated 20.9.2004 of the Punjab & Haryana High Court in Criminal Appeal  No. 891-DB of 2003.

2.      Heard learned counsel for the parties and perused the record.

3.      The prosecution case is that at about 2.30 P.M. on 4.8.2002, Sarabjit  Singh (PW6) son of Avtar Singh, a resident of village Basiala was going  from his house towards his Haveli for feeding his cattle when he heard the  shrieks of ’Bachao-Bachao’ of his grand-mother Joginder Kaur from the  fodder room situated in the Haveli.  He rushed to that side and saw  Kulwinder Singh accused, resident of village Sujjon, whose maternal parents  resided in village Basiala inflicting gandasi blows on the neck of Joginder  Kaur.  On seeing him, Kulwinder Singh ran away from the spot carrying the  gandasi with him.  On going closer, Sarabjit Singh found that his sister  Hardip Kaur was also lying injured in the room writhing in pain. On enquiry,  both Hardip Kaur and Joginder Kaur allegedly told Sarabjit Singh that  Kulwinder Singh had entered the room for committing rape upon Hardip  Kaur and on her resistance, he had put her chuni around her neck and  strangulated her.  Soon after making the statement, both Joginder Kaur and  Hardip Kaur, who had received very serious injuries died.  After leaving his  father Avtar Singh at the spot to guard the dead bodies, Sarabjit Singh left  for the police station, but came across a police party headed by Inspector  Maninder Bedi and made a statement to him at about 5.30 P.M. leading to  the lodging of the First Information Report at 6.40 P.M.  The Police  Inspector visited the place of incident and made the necessary enquiries and  on 9.8.2002 arrested the accused, and sent him for medical examination.  On  completion of the investigation, the accused was charged on two counts  under Section 302 of the Indian Penal Code and as he pleaded not guilty,  was brought to trial.  

4.      The trial court in its judgment held that the presence of Sarabjit Singh  (PW6) was established beyond doubt and the mere fact that he had not  attested some of the documents prepared at the spot, was of no consequence.   The trial court also observed that though in the FIR Sarabjit Singh had said  that both the deceased had made dying declarations to him, but in the course

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of evidence had qualified his statement by stating that only Hardip Kaur had  done so. This was a discrepancy which could be ignored being  inconsequential.  Likewise it was observed that merely because Sarabjit  Singh was not clear as to the exact number of blows that he had witnessed  when he had entered the kotha, this was to be expected under the  circumstances, considering the awful scene that he had come upon.  The  court also observed that as both the deceased had perhaps been immobilized  by the very severe attack made on them, it would perhaps have not been  possible for them to put up any resistance, more so as both the deceased  were women, one a young girl and the other an old woman and the accused  was a young man of 26 years of age.  The court also held that the recovery  of the danda, Exh. P1 and the gandasi, Exh.P2, the alleged murder weapons  at the instance of the accused stood proved, and the two sets of injuries that  had been found on him when he had been subjected to a medical  examination on 10.8.2002 was again a corroborative circumstance.  The  Court found further corroboration from the fact that the finger prints lifted  from the mirror lying in the room where the murders had been committed,  had been found to be those of the accused.  The defence version given by the  accused was rejected by observing that no attempt had been made by Surjit  Singh (DW2), the real brother of the accused to approach the higher  authorities to complain that his brother had been involved in a false case or  the plea of alibi.  The court accordingly held the case against the accused as  proved beyond doubt vide its judgment dated 21.10.2003.  The court then  took up the matter for consideration on the quantum of sentence and  observed that the conduct of the accused depicted him as a person who  constituted a threat to ordered society and that he had forfeited his right to  life by his barbarity and accordingly sentenced him to death.  The Sessions  Judge forwarded the reference to the High Court under Section 366 of the  Code of Criminal Procedure for confirmation of the death sentence.

5.      The High Court maintained the conviction of the appellant under  Section 302 IPC, but set aside the death sentence and remitted the matter to  the Sessions Judge to reconsider the matter of quantum of sentence.  Against  the said judgment the appellant has come up to this Court by way of special  leave.          6.      We have gone through the FIR, the oral evidence as well as the post  mortem report and other materials on record.

7.      Learned counsel for the appellant submitted that Sarabjit Singh is the  sole witness and he cannot be regarded as a truthful witness.  He submitted  that in the FIR Sarabjit Singh stated that both the deceased i.e. Joginder Kaur  and Hardip Kaur had made dying declarations to him, but in the evidence he  stated that only Hardip Kaur had done so.  He further submitted that Hardip  Kaur was not in a position to speak on account of the extensive injuries on  her body.

8.      We are of the opinion that even if the dying declarations are  disbelieved, yet the oral evidence of Sarabjit Singh to the extent that he saw  the appellant inflicting gandasi blows on the neck of Joginder Kaur, and that  he saw Hardeep Kaur lying with injuries on the floor of the room are  credible. 9.      It may be stated that the maxim falsus in uno falsus in omnibus (false  in one false in all) does not apply in criminal cases in India.  A witness can  be partly truthful and partly false.  Hence even if we disbelieve that part of  the evidence of Sarabjit Singh where he stated that Joginder Kaur and  Hardip Kaur made dying declarations to him implicating the accused we are  inclined to accept his deposition where he stated that he saw the appellant  Kulwinder Singh inside the cattle shed attacking Joginder Kaur with a  gandasi and he further saw the body of Hardip Kaur lying in the room.

10.     Learned counsel for the appellant submitted that there were 14 injuries  on the body of Hardip Kaur and 16 injuries on the body of Joginder Kaur  and hence that could not possibly be made by one person.  Hence he alleged  that there were more than one person who attacked Joginder Kaur and

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Hardip Kaur.

11.     Even assuming that there were more than one person who attacked the  deceased, we are of the opinion that the appellant was certainly one of them.   Hence this theory does not help the appellant.  Moreover, there is nothing in  the evidence of any witness and any material on record to show that there  were more than one person who attacked the deceased in the cattle shed.  

12.     It seems to us that the appellant first wanted to rape or molest Hardip  Kaur, and when she resisted he killed her.   Thereafter when Joginder Kaur  came to the cattle shed, the appellant also killed her so as to leave no  witnesses.   

13.     We repeatedly asked the learned counsel for the appellant whether  there was any good reason for Sarabjit Singh to falsely implicate the  appellant, but he could not point out any such good reason.  Hence we see no  reason to disbelieve the evidence of Sarabjit Singh where he stated that he  saw the appellant attacking Joginder Kaur inside the cattle shed and Hardip  Kaur lying there with injuries.  The fingerprints, the locket, the weapon and  clothes recovered at the instance of the appellant also point to his guilt.

14.     However, while upholding the conviction of the appellant under  Section 302 IPC, we reduce the sentence to life imprisonment since it  appears to us that the crime was committed in a fit of passion and does not  come within the category of ’rarest of rare’ cases.  The appeal stands  disposed of accordingly with the observations made above.  

Criminal Appeal No. 113/2006

15.     Criminal Appeal No. 113/2006 stands disposed of in terms of the  decision made above in Criminal Appeal No. 116/2006.