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STATE OF HARYANA versus BALKAR SINGH & ORS

High Court of Punjab and Haryana, Chandigarh

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State of Haryana v. Balkar Singh & Ors - CRA-D-507-DBA-1996 [2006] RD-P&H 11159 (23 November 2006)

Criminal Appeal No.507-DBA of 1996 1

IN THE HIGH COURT OF PUNJAB AND HARYANA, CHANDIGARH.

Criminal Appeal No.507-DBA of 1996

Date of Decision: 24.10.2006

State of Haryana ..Appellant

Versus

Balkar Singh and others ..Respondents

CORAM: Hon'ble Mr. Justice Viney Mittal
Hon'ble Mr. Justice H.S.Bhalla

Present: Mr. Ajay Gulati, Assistant Advocate General, Haryana for the appellant.

Mr. D.S.Bali, Senior Advocate

with Mr. D.V.Gupta, Advocate

for the respondents.

H.S.BHALLA, J.

By this common judgment, we shall be disposing of Criminal Appeal No.507-DBA of 1996 filed by the State of Haryana and Criminal Revision No.353 DB of 1996 filed by the complainant together as they are the outcome of the acquittal order dated 18.12.1995 passed by Additional Sessions Judge, Kurukshetra in a case F.I.R. No. 60 dated 10.11.1992 registered under Sections 302/364/148 read with Section 149 of the Indian Penal Code in Police Station Jhausa.

The prosecution story, in brief, is that Jagir Singh (since deceased) was admitted in the Primary Health Centre, Jhansa, in an injured condition on 10.11.1992 at 8.30 A.M. The doctor attending on the injured sent a ruqa Ex. PA/2 to the Police Station Jhansa at 9.50 A.M., the same day. Report, Ex. PE/2, was lodged by Jag Pal Singh (PW-6) at the Gate of LNJP Hospital, Kurukshetra at 12.45 P.M., the same day. In the application, Ex. PE/2, moved by Jag Pal Singh (PW-6), it has been alleged that on the date mentioned above, he and his father Jagir Singh had gone Criminal Appeal No.507-DBA of 1996 2

to their fields for cutting Barseem. The fields of accused Balkar Singh and Karnail Singh are adjoining to their fields. About four years ago, they had obtained a piece of land from Tarlok Singh and Baldev Singh sons of Inder Singh, resident of village Kalsani through a civil court decree. Balkar Singh accused had encroached upon an area measuring about one Karam through this parcel of land. Many a times, panchayats were being convened to get that piece of land vacated, but Balkar Singh accused did not pay any heed. About 20-25 days earlier, a quarrel took place over this piece of land. On 9.11.1992, Jagir Singh, the father of the complainant, obtained a copy of revenue record from the Patwari for getting the land demarcated. When the complainant and his father Jagir Singh were in the process of cutting Barseem, accused Balkar Singh, Karnail Singh and Gurdev Singh armed with Gandasis and the remaining three accused Jagir Singh son of Bishan Singh, Sat Pal Singh and Balwinder Singh armed with lathis came running from the side of their Dera raising lalkara that "they will give the land to us today". Balkar Singh accused opened an attack and inflicted a blow of gandasi on its reverse side on the head of Jagir Singh (deceased). Other accused also raised an alarm on account of which, father of the complainant fell down and while he was lying on the ground, accused Karnail Singh and Gurdev Singh inflicted Dang blows on the chest and legs of Jagir Singh and that he (complainant) went on raising alarm standing at a distance "Na Maro", at which, the accused ran towards him, but he retreated and on account of the alarm raised by him, Sardool Singh son of Lal Singh and Satish Kumar son of Kartar Chand, residents of village Jhansa, Ramesh son of Buta Singh, resident of village Mamoo Majra, were attracted to the spot. This witness Ramesh (PW-7) had installed a handloom at the house of Gurdev Singh Kohli. These three persons have witnessed the occurrence and thereafter, the accused carried his father to their dera and subsequently, he and his mother went to Criminal Appeal No.507-DBA of 1996 3

the dera of the accused and made a request to Balkar Singh that such treatment is not expected of a relation and that Jagir Singh should be freed so that his life may be saved. Thereafter, Balkar Singh and his other co- accused threw his father outside the dera. The accused had taken away his father Jagir Singh to their dera after inflicting injuries to him on account of a dispute over a piece of land. Thereafter, he and his mother took the injured to the hospital, where he was medical-legally examined. On analysing the deplorable condition of his father, he was referred to Kurukshetra University Hospital. At the bottom of the report, an interpolation had been made to this effect "Balkar Singh etc. were saying that they will file a complaint against us." Upon the receipt of the report, endorsement, Ex. PE/3 was made by Karnail Chand, Assistant Sub Inspector at 12.30 P.M. and the same was sent to the Police Station Jhansa for registration of a case under sections 148, 342 and 323 read with Section 149 of the Indian Penal Code.

During the course of investigation, Karnail Chand, Assistant Sub Inspector went to PGI, Chandigarh on 11.11.1992 to know about the condition of the injured whether he was fit to make a statement and the doctor, vide his endorsement, Ex. PG/1, opined that the injured was not fit to make a statement. On 16.11.1992 Assistant Sub Inspector Karnail Chand again visited PGI, Chandigarh to record the statement of the injured, but the doctor opined that the injured is not fit to make statement. On 17.11.1992 Karnail Chand, Assistant Sub Inspector again visited PGI, Chandigarh, where Harnam Singh, father of Jagir Singh (deceased), told him that injured Jagir Singh has expired. At this, Karnail Chand, Assistant Sub Inspector went to Police Post, PGI, Chandigarh and collected death summary of Jagir Singh (deceased) from Kashmira Singh, Assistant Sub Inspector and section 302 of the Indian Penal Code was made out against the accused. On 18.11.1992 inquest proceedings were conducted and Criminal Appeal No.507-DBA of 1996 4

thereafter, post mortem examination on the dead body of the deceased was got conducted from General Hospital, Sector 16, Chandigarh. Karnail Chand, Assistant Sub Inspector, visited the place of occurrence and also the dera of accused Balkar Singh, prepared a rough site plan of the occurrence and recorded the statements of witnesses. The accused persons were produced by Sucha Singh and they surrendered before the police with weapons of offence on 12.11.1992 at Bus Stop Jhansa. On completion of necessary investigation, accused were challaned.

Accused Balkar Singh was charge-sheeted under section 302 of the Indian Penal Code, whereas the remaining accused were charge- sheeted under Sections 148, 302 and 364 read with Section 149 of the Indian Penal Code vide order dated 10.6.1993 to which they pleaded not guilty and claimed trial.

The prosecution, in order to prove its case, examined Dr.

Surinder Kumar (PW-1), Dr. T.P.Nagar (PW-2), Dr. Parminder Singh, Medical Officer, General Hospital, Sector 16, Chandigarh (PW-3) Ram Kumar Patwari (PW-4), Om Parkash, Sub Inspector (PW-5) Jag Pal Singh (PW-6) Ramesh Singh (PW-7), Karnail Chand, Sub Inspector (PW-8), and Gurmej Singh (PW-9).

In the statements recorded under Section 313 of the Code of Criminal Procedure, accused Balkar Singh and Karnail Singh have alleged that on the date of occurrence, i.e., on 10.11.1992 at about 9.00 A.M., Jagir Singh (deceased) came in front of their house under intoxicant state armed with a lathi and started hurling filthy language, to which Balkar Singh accused objected, whereupon Jagir Singh (deceased ) inflicted injuries on him with the lathi, which he was holding in his hand. On hearing a hue and cry, his brother Karnail Singh came at the spot for his rescue, but he was abused and assaulted by Jagir Singh (deceased) and in their defence, they (Karnail Singh and Balkar Singh) inflicted injuries to Jagir Singh and Criminal Appeal No.507-DBA of 1996 5

thereafter, they were medico legally examined at Primary Health Centre, Jhansa. They have further alleged that the complainant party in collusion with the police gave a twist to the entire occurrence and after making prolonged deliberations and confabulations, twisted the entire occurrence according to their choice and implicated them falsely. They have further alleged that the remaining four accused were not present at the time of alleged occurrence.

We have heard the learned counsel appearing for the appellant and the learned counsel appearing for the accused-respondents and with their assistance have also gone through the record of the case.

Learned counsel appearing for the appellant-State has assailed the judgment of acquittal dated 18.12.1995 passed by Additional Sessions Judge, Kurukshetra, on three counts. Firstly, the prosecution case is fully supported by the testimony of Jag Pal Singh (PW-6) and Ramesh Singh (PW-7), the two eye witnesses, who were present at the scene of the occurrence when Jagir Singh (deceased) was being belaboured by the accused persons, but the learned Additional Sessions Judge, Kurukshetra, did not believe their depositions by observing that they were found discrepant on material particulars with each other.

Secondly, the injuries inflicted by the accused on the body of the deceased are fully corroborated by medical evidence, but strangely enough, they were not taken into consideration by the learned trial Judge. Thirdly, there was promptness in lodging the First Information Report by the complainant, but this aspect of the matter was also not taken into consideration by the learned trial Judge by observing that delay of four hours has not been explained by the prosecution in lodging the First Information Report and fourthly, the learned trial Judge committed a grave error in observing this fact that the prosecution has suppressed the real genesis and origin of the occurrence and has not presented the real picture.

Criminal Appeal No.507-DBA of 1996 6

On the other hand, the learned defence counsel argued that the learned trial Court has rightly evaluated the ocular evidence of the eye witnesses, namely, Jag Pal Singh (PW-6) and Romesh Singh (PW-7) by observing that their statements do not tally with the medical evidence, as there were material contradictions in the ocular as well as medical evidence, which go to the root of the case causing a serious dent on the prosecution version, therefore, no interference is called for in the impugned judgment passed by the learned trial Judge. Secondly, the place of occurrence, where the alleged fight took place between the accused and the deceased is highly doubtful, as the prosecution has suppressed the real genesis of the occurrence and has not presented the true version, which facts have been established on the record beyond reasonable doubt that the place where the occurrence, as projected by the complainant and the accused persons in their defence version, took place at a different place. According to the prosecution, it took place in the field of Jagir Singh (deceased), whereas as per the version of the accused, it took place in front of their house and in such like circumstances, the learned trial Judge, after dealing with all these points in detail on the basis of analysing the evidence, has rightly acquitted the accused respondents of the charges framed against them as the prosecution has failed to connect the accused with the commission of offence and therefore, the finding of the learned trial Judge does not call for any interference.

At the very outset, we would like to observe that it is well settled law that order of acquittal can be interfered with only if there is an absolute assurance of the guilt of the accused upon the evidence on record and the High Court would not be justified in interfering with the order of acquittal unless the same is found to be perverse and the order of acquittal can be set aside if the view taken by the trial Court is perverse. We would also like to observe that if an over-all appreciation of evidence available on Criminal Appeal No.507-DBA of 1996 7

record, two views are possible and when on appreciation of evidence, a particular view has been preferred by the learned Additional Sessions Judge and when the findings cannot be said to be perverse merely because another view is possible, the High Court would not be justified in interfering with the acquittal order recorded by the learned trial Judge. The entire case of the prosecution is to be scrutinised in the light of evidence available on record and keeping in view the observations made above.

After having gone through the record, it is crystal clear that there is an unexplained delay in lodging the First Information Report. As per the prosecution case, occurrence took place on 10.11.1992 at 8.30 A.M. in the field of Jagir Singh (deceased) at village Jhansa, which is 6 Kms. away from the Police Station of village Jhansa. The injured was got admitted to Primary Health Center, Jhansa at 9.50 A.M. The application in writing was moved by Jag Pal Singh (PW-6) to Karnail Singh, Assistant Sub Inspector on 10.11.1992 at 12.45 P.M., who met him at the gate of LNJP Hospital, Kurukshetra, on the basis of which, formal FIR, Ex. PE, was recorded at 2.00 P.M., the same day. Jagir Singh died in PGI, Chandigarh on 17.11.1992. Thus, there is a delay of 4 hours in lodging the First Information Report with the police. No explanation has come forward as to why delay of four hours in lodging the First Information Report occurred, particularly when Police Station of village Jhansa was not far away from the place of occurrence.

One of the essential requisites to ensure a fair trial is that the First Information Report in respect of a cognizable offence should be lodged as soon as possible and then sent to the Ilaqa Magistrate without any delay. Where the registering of the First Information Report is delayed, it not only gets bereft of its spontaneity, danger also creeps in of the introduction of the coloured version, thought out stories and twists to actual facts. The interested parties then can be sounded and some of them Criminal Appeal No.507-DBA of 1996 8

shown as false witnesses. Likewise, some innocent persons can be roped in and named culprits as a result of much thought, consultation and discussion. To avoid these dangers, the Courts have always insisted upon the prompt lodging of the report to the police. In murder cases because of the enormity of the stakes involved, certain additional safeguards are provided to ensure that the version of the occurrence is disclosed as soon as possible thereafter and then a safeguard have again been provided under the law so that the investigating agency may not change the scene of occurrence and other facts. From the record, it spells out that there is an unexplained delay of four hours in registering the First Information Report and the prosecution has miserably failed to explain this delay.

In view of the circumstances narrated above and the well settled law, we are of the opinion that if there is a delay in registering the First Information Report or in sending the First Information Report forthwith to the Ilaqa Magistrate or not sent at all, then it leads to a suspicion that the First Information Report was prepared subsequently to fit in with the case which the prosecution wants to make out. The First Information Report serves only the purpose of the contracting or supporting its author or to show his conduct. That object will be defeated if it is embellished and prepared subsequently. Its prompt despatch to the Magistrate ensures that it cannot be manipulated after it has landed in the hands of Magistrate. Delay in lodging the First Information Report or in sending to the Magistrate may cast a doubt on its pristine purity or that it is a false document. If it is a fabricated, then the defence is deprived of a valuable and genuine document to the testimony of its author. It may further show that the investigation has not been fair and was not carried out in accordance with the provisions of the law. Now reverting back to the facts of the case in hand, no explanation has been put forward as to why there was a delay in lodging the first Information Report, which resulted in Criminal Appeal No.507-DBA of 1996 9

causing a delay of four hours putting a question mark on the credentiality of the prosecution version.

Now we would like to examine this case from another angle.

As per the prosecution case, Jagpal Singh (PW-6), the son of the deceased Jagir Singh and Romesh Singh (PW-7), an independent witness, were present at the time when the father of Jag Pal Singh (PW-6) was being belaboured by the accused respondents in their field of Barseem. As per the site plan, Ex. PF, prepared by the prosecution, Jag Pal Singh (PW- 6) was on the northern side at a distance of 20 paces, Sardool Singh was also on the same side at a distance of 50 paces and Romesh Singh (PW- 7) was also shown to be positioned towards the East at a distance of 60 paces and Satish Kumar was shown to be positioned on the West (distance is not depicted). It is very strange to note that none of the aforementioned persons tried to intervene the matter and rescue the father of complainant Jag Pal Singh. Even Jag Pal Singh (PW-6), the son of the deceased Jagir Singh did not even move forward to the rescue of his father when he was being beaten mercilessly at the hands of the accused respondents. Instead, he chose to go to the dera of the accused along with his mother Smt. Devinder Kaur to release his father from the clutches of the accused respondents, who, as per the prosecution version, had taken the injured to their dera by lifting him bodily. It is highly improbable that the accused respondents will carry the injured with them with the intention to eliminate him. If it was the intention on the part of the accused-respondents to eliminate Jagir Singh injured, then they could do so at the spot itself.

Again it is difficult to believe that accused Balkar Singh and his associates will choose to throw away Jagir Singh injured from their dera simply on the entreaties of Jagpal Singh (PW-6) and Smt. Devender Kaur, wife of the deceased. It appears that the dera of the accused has been brought into the picture just to give a twist to the prosecution story and the same Criminal Appeal No.507-DBA of 1996 10

probablises the defence plea that the occurrence took place in front of the house of the accused where Jagir Singh had gone in an inebriated state, hurled filthy abuses at Balkar Singh accused and when Balkar Singh accused made a protest, then the deceased opened an attack with his lathi and on raising a hue and cry, Karnail Singh, brother of Balkar Singh was attracted to the spot, who also meted out the same treatment by the deceased whereupon Balkar Singh and Karnail Singh in their defence, caused injuries to Jagir Singh (deceased). Record further spells out that accused Balkar Singh and Karnail Singh also suffered injuries at the hands of the deceased. They were also medico - legally examined by Dr. Surinder Kumar (PW-1). The doctor has also opined that injuries on the persons of Balkar Singh and Karnail Singh could be suffered from friendly hands.

As per the Medico-legal Report, Jagir Singh (deceased) is alleged to have received eight injuries out of which, injuries No. 2,3 and 5 were bone deep. Injuries No. 6 and 7 were having fresh blood oozing out of the same. If fresh blood from these injuries could be detected by the doctor at the time when the injured was medico-legally examined, then the possibility of having stained the earth or the clothes of Jag Pal Singh (PW- 6), who is alleged to have carried his injured father from the dera of the accused to the place of original occurrence, cannot be ruled out. But strangely enough, no evidence has been put forward nor this fact has been stated by Jag Pal Singh (PW-6) that blood from the injuries of his father has stained his clothes, which also casts a serious doubt on the prosecution version about the occurrence having taken place in the Barseem field of Jagir Singh (deceased) from where blood stained earth was not lifted or found during the course of investigation. The learned trial Judge has also taken note of the fact that Jag Pal Singh, who appeared in the witness box as PW-6 was not having a heavy physique, whereas the physical dimension of the deceased, as per the post mortem report, was Criminal Appeal No.507-DBA of 1996 11

well nourished person having height of 5'-11". In such like circumstances, it can be inferred easily that the witness, who was not having a strong stature, would not be in a position to carry the injured from the dera of the accused to his field where the occurrence is alleged to have taken place, which fact also support the defence plea that the occurrence actually took place in front of the dera of the accused and not in the Barseem fields of Jagir Singh (deceased). All this shows that the presence of the witnesses aforementioned, at the spot is highly doubtful creating a suspicious in the mind of the court in believing the prosecution version as projected by them.

The prosecution version further falsifies from this aspect of the matter that the injured was carried from the dera of the accused to the field of the deceased, where the occurrence took place, but no trail of blood was detected on the route, which prima facie goes to show that the occurrence did not take place in the Barseem field of Jagir Singh, but in front of the dera of the accused, which renders the prosecution story highly incredible.

Thus, seen on the strength of the medical evidence and the ocular version, the case of the prosecution appears to be doubtful.

The above discussion would show that the false witnesses to the occurrence had been introduced to the case and there was an attempt to implicate innocent persons in the case. When the investigation is found to be tainted, the whole of the prosecution case becomes open to serious doubt and challenges. The learned Additional Sessions Judge has rightly appreciated the evidence available on the record and acquitted all the accused of the charges framed against them giving them the benefit of doubt and as such, we find no ground to interfere with the same in any manner. In the final analysis, we find no merit in the instant appeal bearing No. 507-DBA of 1996 and that of Criminal Revision No. 353 DB of 1996 filed by the complainant and consequently, both, being devoid of any Criminal Appeal No.507-DBA of 1996 12

merit, are hereby dismissed.

( H.S.BHALLA )

JUDGE

( VINEY MITTAL )

24.10.2006 JUDGE

VK


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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