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CHANAN SINGH & ORS versus STATE OF HARYANA

High Court of Punjab and Haryana, Chandigarh

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Chanan Singh & Ors v. State of Haryana - CRA-D-181-DB-1997 [2006] RD-P&H 12026 (5 December 2006)

IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH

1) Criminal Appeal No. 181-DB of 1997

Date of Decision :- November 27, 2006.

Chanan Singh and others ....

APPELLANTS

VERSUS

State of Haryana ....RESPONDENT

2) Criminal Appeal No. 687-SB of 1997

Kulbinder Singh ....APPELLANT

VERSUS

State of Haryana ....RESPONDENT

CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL
HON'BLE MR. JUSTICE BALDEV SINGH

Present:- Mr. R.S.Cheema, Senior Advocate with Ms Tanu Bedi and

Mr. Jasdev Singh Mehndiratta, Advocates

for the appellant.

Mr. Kulvir Narwal, Addl. Advocate General, Haryana.

------

Criminal Appeal No. 181-DB of 1997 &

Criminal Appeal No.687-SB of 1997

MEHTAB S.GILL, J.

We shall be deciding Criminal Appeal No. 181-DB of 1997 and Criminal Appeal No. 687-SB of 1997 by a common judgment, as they arise out of a common order passed by the Sessions Judge, Ambala dated 20.1.1997. The learned trial Court convicted Chanan Singh, Gurdev Singh, Hari Singh and Kulbinder Singh under Sections 302/323/34 IPC and sentenced them to undergo various terms.

The case of the prosecution is unfolded by the statement Ex.PA of Shamsher Singh given to ASI Dharambir Singh in Village Chhoti Ghel on 26.4.1990 at 12.05 p.m. Shamsher Singh stated that they were six brothers. He is an agriculturist. Natha Singh was the eldest and he was also an agriculturist. Jaswant Singh was working in Panipat Thermal Plant. Jarnail Singh was working in Civil Hospital, Ambala City.

Shamsher Singh himself is the fourth brother. Gurnam Singh was a truck driver and Gurmail Singh was employed in a factory. In December, 1989 Bhajan Singh, who is their neighbour, along with others had caused injuries to his brother Gurnam Singh and him. Bhajan Singh etc. were challaned and the case was pending in the Criminal Court. On 25.4.1990 at 9.30 p.m. Shamsher Singh's brothers Gurnam Singh and Natha Singh were coming on a truck to Ambala City and when it entered the lane of the house of Gurmail Singh, Gurmail Singh broke the electric wire by giving a lathi blow to the wire. Hari Singh took out an iron rod from the truck; Gurdev Singh was also armed with Kulhari. Hari Singh then gave three Criminal Appeal No. 181-DB of 1997 &

Criminal Appeal No.687-SB of 1997

blows on the person of his brother Gurnam Singh, which hit him on his head, forehead and left shoulder. Gurdev Singh gave a Gandasi blow on the head of his brother Natha Singh. In the meanwhile, Mohan Singh, Chanan Singh, Kulvinder Singh, Ajmer Singh and Harbinder Singh reached there. Chanan Singh was armed with a knife whereas others with lathis. On hearing the alarm, Shamsher Singh's brother Gurmail Singh also reached there. Within their sight, Chanan Singh gave a knife blow on the chest of Natha Singh and the remaining four started giving lathi blows to his brother Natha Singh. On receiving the blows, both the brothers of Shamsher Singh fell down on the ground. Complainant Shamsher Singh and others intervened and tried to save his brothers. Natha Singh and Gurnam Singh were brought to the Civil Hospital, Ambala City. On the basis of statement Ex.PA, FIR Ex.PA/2 was recorded on 26.4.1990 at 12.40 p.m. at Police Station Sadar Ambala and the special report reached the A.C.J.M., Ambala on 26.4.1990 at 8.30 p.m.

The prosecution to prove its case brought into the witness box Shamsher Singh as PW1, Dr. Rajinder Mann as PW2, Dr. Ashok Sarwal as PW3, Satish Kumar as PW4, Dr. G.P.Saluja as PW5, Udey Bhan as PW6, Jagat Singh as PW7, Gurnam Singh as PW8, Gurmel Singh as PW9, Raj Pal as PW10, Dr. L.N.Garg as PW11, Joginder Singh as PW12 and ASI Dharamvir Singh as PW13.

Learned counsel for the appellant has argued that there is an unexplained delay in lodging of the FIR. Occurrence had taken place on 25.4.1990 at 9.30 p.m. Ruqa Ex.PD was sent on 26.4.1990 at 12.40 a.m.

Statement Ex.PA of Shamsher Singh was recorded on 26.4.1990 at 12.05 Criminal Appeal No. 181-DB of 1997 &

Criminal Appeal No.687-SB of 1997

p.m. and FIR Ex.PA/2 came into existence on 26.4.1990 at 12.40 p.m. at Police Station Sadar Ambala. The special report reached A.C.J.M., Ambala on the same day at 8.30 p.m. The explanation given by the Investigating Officer was that he was searching for the complainant party.

Gurnam Singh has stated in his testimony before the Court, that he was conscious in the hospital. The police went to the hospital, but did not record the statement of Gurnam Singh PW8. Shamsher Singh PW1 made statement Ex.PA on 26.4.1990 at 12.05 p.m. in Village Chhoti Gel after Natha Singh had died on 26.4.1990 at 11.45 a.m. The complainant party on seeing that Natha Singh had died, came forward to record the F.I.R. so that the present appellants be shown to be aggressors. Injuries on the person of Ram Kaur, Ajmer Singh and Harbinder Singh of the accused party are incised wounds on the head and legs. A case under Sections 326/324/34 IPC was registered against the complainant party much before the present FIR Ex.PA/2 came into existence. The prosecution witnesses are suppressing the genesis of the occurrence. The defence version is more probable and truthful. The prosecution witnesses have given the statements after consultations and confabulations and they were not ready to come forward to give their version to the police before the death of Natha Singh.

Occurrence as per the prosecution had taken place when Gurmel Singh broke the electric wire in front of the truck in which Gurnam Singh and Natha Singh were travelling. Gurmel Singh has been acquitted by the learned trial Court. The story of breaking of the electric wire was introduced at a later stage. The only independent witness Surjan singh, who has been cited by the prosecution, was not ready to support the case of Criminal Appeal No. 181-DB of 1997 &

Criminal Appeal No.687-SB of 1997

the prosecution and he came into the witness box as DW1. Other witnesses Shamsher Singh PW1, Gurnam Singh PW8 and Gurmel Singh PW9 are real brothers. Shamsher Singh PW1, the propounder of the FIR, has himself stated, that he was near the well when the occurrence had taken place. It is clear from the statement of Shamsher Singh PW1 that he did not witness the occurrence. The FIR has been lodged on the basis of hearsay. The FIR lodged by Ram Kaur from the appellants' side does not have the name of Shamsher Singh and Gurmel Singh as accused showing that Ram Kaur in fact gave the truthful version. This corroborates the version of the defence that Shamsher Singh was not present. It is the case of a sudden fight and at the most, an offence under Section 304 Part II IPC is made out. Occurrence had taken place in front of the house of Gurmel Singh. The police during this investigation found Hari Singh, Mohan Singh and Gurdev Singh innocent and placed them in column No.2 while presenting the challan.

Learned counsel for the State has argued, that the testimony of Shamsher Singh PW1, Gurnam Singh PW8 and Gurmel Singh PW9 is corroborated by the medical evidence. Gurnam Singh PW8 is an injured eye witness. He was coming along with deceased Natha Singh when the truck in which they were travelling, was stopped in the street when Gurmel Singh broke the electric wire. Thereafter appellants opened the attack and injured Natha Singh and Gurnam Singh PW8. Both Shamsher Singh and Gurmel Singh witnessed the occurrence. There is no delay in the lodging of the FIR. Statement of Shamsher Singh could not be recorded, as he could not be contacted and Gurnam Singh was not conscious.

Criminal Appeal No. 181-DB of 1997 &

Criminal Appeal No.687-SB of 1997

We have heard the learned counsel for the parties and perused the record with their assistance.

Deceased Natha Singh received injuries at 9.30 p.m. on 25.4.1990. He was examined by Dr. Rajinder Mann PW2 on the same day at 10.15 p.m. and died on 26.4.1990 at 11.45 a.m. It is after his death that Shamsher Singh PW1 recorded his statement Ex.PA, on the basis of which FIR Ex.PA/2 came into existence. The statement Ex.PA was recorded on 26.4.1990 at 12.05 p.m. The complainant party on seeing that Natha Singh died, it is thereafter they contacted the police and gave their version. By that time 15 hours had elapsed. Gurnam Singh PW8, in his testimony before the Court has stated, that he was conscious in the hospital and the police had met him. It is strange that his statement was not recorded by the Investigating Officer though the Investigating Officer has stated, that he was looking around for the complainant party. Immediately after the occurrence, Ram Kaur who was also injured in the occurrence while saving Ajmer Singh and Harbinder Singh, had recorded her statement and a case under Sections 326/324/34 IPC was registered against Gurnam Singh and Gurmel Singh etc. The injuries on the person of the appellants were serious injuries; some of them being wounds on the head. The prosecution witnesses have denied giving any injury to Ram Kaur, Ajmer Singh and Harbinder Singh. As per the prosecution, Gurmel Singh was the one who broke the electric wire to stop the truck and it is thereafter that the appellants attacked Natha Singh and Gurnam Singh. Gurmel Singh has been acquitted by the learned trial Court. It seems that the prosecution witnesses have suppressed the genesis of the occurrence. In fact the Criminal Appeal No. 181-DB of 1997 &

Criminal Appeal No.687-SB of 1997

occurrence had taken place in front of the house of Gurmel Singh after a sudden quarrel erupted between both the parties. Surjan Singh DW1 was cited as a prosecution witness and he is the only independent eye witness.

He has stated, that on 25.4.1990 at 9.30 p.m. he was returning from his field and when he reached near the house of Ajmer Singh, Harbinder Singh and Ram Kaur, he noticed that Hakam Singh, Gurnam Singh and deceased Natha Singh armed with gandasis and Jagdish and Gurnam Singh armed with lathis, were causing injuries to Ajmer Singh, Ram Kaur mother of Ajmer Singh and Harbinder Singh. He was a member Panchayat. This witness inspires confidence.

The prosecution witnesses Shamsher Singh PW1, Gurnam Singh PW8 and Gurmel Singh PW9 are real brothers. FIR Ex.PA/2, which was recorded on the statement of Shamsher Singh PW1, has not been recorded by an eye witness. Shamsher Singh PW1 in his testimony before the Court has stated, that he was near the well when he heard the commotion and noise. He came to the street and saw the appellants inflicting injuries on the complainant party. The Investigating Officer ASI Dharambir PW13 in his testimony, has stated that the well is not in the street, but at a distance though not very far away from the street. When the fight started, it must have taken some time for Shamsher Singh PW1 to come to the place of occurrence. It seems that he is not an eye witness to the earlier part of the occurrence.

Learned counsel for the appellants has rightly argued that Shamsher Singh PW1 had not seen the earlier part of the occurrence though he is the one who has got recorded FIR Ex.PA/2. It is the case of Criminal Appeal No. 181-DB of 1997 &

Criminal Appeal No.687-SB of 1997

the prosecution that Chanan Singh came with a knife and thereafter he inflicted knife blow injuries on Natha Singh. Gurdev Singh, Hari Singh and Kulbinder Singh did not apprehend or have the common intention nor did they know whether Chanan Singh was carrying a knife and he was going to inflict the fatal blow injuries to Natha Singh. Gurdev Singh, Hari Singh and Kulbinder Singh did not have the common intention with Chanan Singh to inflict the knife blows.

We are of the considered opinion that the genesis of the occurrence has been suppressed by the prosecution. It seems to be a case of sudden fight, which comes within the parameters of Section 300 Exception 4 of the IPC. Appellants Chanan Singh and Gurdev Singh are convicted under Section 304 Part-II IPC and sentenced to undergo rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- each. In default to further undergo rigorous imprisonment for three months.

Appellant Hari Singh is convicted under Section 323 IPC. As the case is of the year 1990, he is directed to furnish bail bonds of Rs.10,000/- with one surety under Section 4 of the Probation of Offenders Act, 1958 for good behaviour without surveillance. His probation period shall last for one year from today.

With the above observations and directions, Criminal Appeal No. 181-DB of 1997 is dismissed.

Criminal Appeal No. 687-SB of 1997 filed by appellant Kulbinder Singh is dismissed. No sentence is needed to be passed against him, as he had been set free by the learned trial Court on probation.

Criminal Appeal No. 181-DB of 1997 &

Criminal Appeal No.687-SB of 1997

(MEHTAB S.GILL)

JUDGE

(BALDEV SINGH)

November 27, 2006 JUDGE

SKA


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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