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HAZURA SINGH & ORS versus STATE OF PUNJAB.

High Court of Punjab and Haryana, Chandigarh

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HAZURA SINGH & Ors v. STATE OF PUNJAB. - CRA-D-392-1998 [2006] RD-P&H 86 (10 January 2006)

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Hazura Singh and others Vs. State of Punjab.

And

Criminal Appeal No.47-DB of 1999

Hazura Singh Vs. State of Punjab

Present: Mr.T.P.S.Mann, Advocate for the appellants Mr.S.S.Randhawa, Senior Deputy Advocate General,Punjab Amar Dutt, J.

Hazura Singh son of Jhanda Singh, Avtar Singh and Joginder Singh sons of Gurbachan Singh have filed criminal Appeal No.392-DB of 1998 to challenge conviction and sentence recorded against them by the Additional Sessions Judge, Gurdaspur on 19.8.1998. In 1999, another Memorandum of Appeal was received by this Court from the jail on behalf of Hazura Singh, which is registered as Criminal Appeal No.47-DB of 1999.

Through present judgment, we propose to dispose of both these appeals.

Briefly stated, the facts of the prosecution case as brought out in the testimony of its witnesses are that on 6.10.1992 at about 6.30 P.M., Gurnam Singh PW1 along with his nephew Harpal Singh was going towards village Pabbarali Kalan after attending a case, which was pending against his nephew in the Sessions Court at Gurdaspur. When they reached ****

near the school of village Pabbarali Kalan, Hazura Singh son of Jhanda Singh, Joginder Singh and Avtar Singh sons of Gurbachan Singh were seen standing in front of the house of Hazura Singh and on seeing the complainant and his nephew, Hazura Singh had raised a Lalkar``a calling upon his companions to catch hold of Harpal Singh @ Pala as he had abducted his daughter Jassi. After this, Hazura Singh, Joginder Singh and Avtar Singh forced Harpal Singh to get down from the scooter and pulled him down on the nearby vacant land belonging to Hari Singh. Hazura Singh had then removed the turban from his head and put it around the neck of Harpal Singh and started tightening the same. When Gurnam Singh tried to intervene Avtar Singh gave him a brick blow whereupon he stepped back. On hearing the Raula raised by Gurnam Singh, his mother Maya Kaur came to the spot and intervened to save him. At this juncture, Avtar Singh had given a brick blow on her leg also. The assailants then ran away from the spot leaving behind the turban.

Gurnam Singh and his mother had on checking up the condition of Harpal Singh found that he had already died due to strangulation. Gurnam Singh left his wife Simarjit Kaur near the dead body at night and searched for his sister and brother-in- law, whom he was not able to trace out. On the following day, after apprising them of the incident and leaving behind his brother Satnam Singh near the dead body, Gurnam Singh and his ****

brother-in-law proceeded towards the Police Station, Fatehgarh Churian for lodging the report. On the way, they met Inspector Pritpal Singh, along with other police officials in Government vehicle near Lale-Nangal school and apprised him of the incident and Inspector Pritpal Singh recorded the statement of Gurnam Singh and on its basis formal FIR Ex. PA/1 was recorded in the Police Station, Fatehgarh Churian at 1.35/2.05 P.M. The police officials thereafter proceeded to the spot, conducted the inquest proceedings and forwarded the dead body of Harpal Singh to the Civil Hospital, Gurdaspur for post-mortem examination. There, Dr.Harbhajan Singh gave his report Ex.PC. Maya Kaur, the mother of Gurnam Singh, was medico legally examined by Dr.Joginder Singh, PW4 and the report in respect thereof is Ex. PF. Inspector after going to the spot had prepared a rough site plan, arrested the accused and submitted a challan before the Illaqa Magistrate, who in turn committed the same to the Court of Sessions as the offence was exclusively triable by it.

On going through the papers sent up with the challan, the Additional Sessions Judge, Gurdaspur had framed charge against the appellants under Section 302 read with Section 34 IPC. When the appellants pleaded not guilty to the charge, the prosecution was called upon to lead its evidence.

To bring home the charge, the prosecution examined Gurnam Singh as PW1, Smt.Simarjit Kaur as PW2, Dr. Harbhajan Singh as PW3, ****

Dr.Joginder Singh as PW4, Constable Gurjinderpal Singh as PW5, H.C.

Harbans Singh as PW6, S.I. Avtar Singh as PW7, H.C.Balkar Singh as PW8, Satish Chander, Draftsman as PW9 and Pritpal Singh, DSP as PW10.

When incriminating circumstances appearing in the prosecution case against them during recording of statements of the accused under Section 313 Cr.P.C., were put to the appellants, they denied all of them and claimed that they were innocent.

In defence, appellants examined Inder Singh as DW1, S.K.Bhandari as DW2 and Charanjit Singh Bawa as DW3.

After hearing the arguments, the trial court convicted appellant Hazura Singh under Section 302 IPC and appellants Joginder Singh and Avtar Singh under Section 302 read with Section 34 IPC and sentenced Hazura singh to undergo imprisonment for life and to pay a fine of Rs.1,000/-. In default thereof, he was ordered to undergo further R.I. for six months whereas Joginder Singh and Avtar Singh were sentenced to undergo imprisonment for life and to pay a fine of Rs.1000/- each. In default thereof, they were ordered to undergo further R.I. for six months each. Hence, the present appeals.

We have heard Mr.T.P.S. Mann, learned counsel appearing on behalf of the appellants and Mr.S.S.Randhawa, learned Senior Deputy Advocate General, Punjab appearing on behalf of the State.

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On behalf of the appellants, it was submitted that the occurrence in the present case was stated to have taken place at 6.30 P.M. on 6.10.1992 in the area of village Pabbarali Kalan whereas FIR in this case was not registered till 1.35/2.05 P.M. in the Police Station, Fatehgarh Churian on 7.10.1992. Even if, one were to accept the version that the statement of Gurnam Singh was first recorded by Inspector Pritpal Singh near the school of village Lale Nangal then too the time at which the statement had been completed was 1.35 P.M. on 7.l0.1992. Thus, prosecution version had been crystalised only after about 18 hours from the alleged time at which it took place and since the special report had not reached the Magistrate at Batala until 3.30 P.M. all checks that are available for ensuring the recording of a true version have been thrown out to the winds. The delay in lodging of the FIR is not adequately explained and would be fatal to the prosecution case. It is also submitted that from the post-mortem report, which was conducted on 7.10.1992 at 4.00 P.M., it is clear that the Doctor had found two injuries which do not corroborate the version available in the FIR and therefore, render the same suspect. The injuries found on the person of Maya Kaur are located at different places than what had been described in the FIR. Therefore, in her case too eye witness account is belied by the medical evidence. It was further submitted that in the present case the defence has come up with an alternative version to prove which, it ****

had examined three witnesses. Taking into consideration the fact that the reputation enjoyed by deceased Harpal Singh, the defence version appears to be more probable and there is no reason why the same should not have been accepted and the benefit of doubt extended to the appellants.

We have carefully considered the arguments and with the help of the learned counsel for the parties perused the record.

In the present case, investigation into the death of Harpal Singh was started on the statement made by his maternal Uncle Gurnam Singh on 7.10.1992 at 1.35 P.M. before Inspector Pritpal Singh. According to the witness, he and his nephew were returning from Gurdaspur after attending the proceedings in a case against Harpal Singh deceased. The defence had confronted Gurnam Singh with the correctness of this version by putting it to him that as 6.10.1992 was a holiday, the story put forth by him was improbable. Admittedly, this case related to an offence under Terrorist and Disruptive Activities (Prevention) Act,1987 which according to Gurnam Singh had been planted against his nephew for allegedly harbouring terrorists. The defence had contested the stand by examining Mr.S.K.Bhandari DW2 to prove that 6.10.1992 was not a holiday and thereby tried to prove that the witness was lying only to prove that they were returning together on a scooter to village Pabbarali Kalan. Gurnam Singh had also stated that in order to stop the scooter the appellants had ****

thrown Panjali (Yoke), which was being carried by them, in front of the scooter. In the entire evidence, no explanation is forthcoming as to what had happened to the Panjali(Yoke) as none of the witness had said that the accused had taken the same away after the incident was over. The Investigation Officer had not stated that on reaching the spot he had found either the Panjali(Yoke) or the scooter on the spot.

In relation to the incident, Gurnam Singh had stated that all the three accused had forcibly dragged him and the deceased Harpal Singh from the scooter. He had further stated that accused had carried Harpal Singh into the plot of Hari Singh and Hazura Singh had put a Parna around his neck while Joginder Singh and Avtar Singh had caught hold of the legs of Harpal Singh. At one point, he had stated that Avtar Singh had caught hold of him from the legs while Joginder Singh had caught hold of him from the arms.

It is at this point, Maya Kaur, mother of Gurnam Singh, had reached the scene and Avtar Singh had hurled a brick bat on her left leg. Although, there is no averment that parna had been used to strangulate the deceased yet the witness had stated that Harpal Singh had died because of strangulation with the Parna. It is in the light of this submission that this Court will have to assess the medico legal evidence available in the statements of Dr. Harbhajan Singh PW3 and Dr.Joginder Singh PW4.

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While Dr.Harbhajan Singh found the following injuries on the body of Harpal Singh:-

"1. Reddish bluish contusion 4x3 cm on the lateral aspect of upper part of left upper arm. On dissection, clotted blood was present. On the subcutaneous tissue region. Underlying bone was not fractured.

Tongue was swollen and out. Eyes were swollen and congested.

Saliva tinged with blood was coming out of the mouth, Frothy blood was coming out of both the nostrils. Neck vains were full and there was suffusion of the face. Semen was not out. Stool was out.

(2) There was brownish black colour ligature mark of 46 cm X cm size encircling the neck. The marks started from front and middle of the neck and after encircling it ended on the front of the neck. On dissection of the neck, the neck showed the patechial haemorrhages on the underlying fascia and in between the muscle sheeth. Hoyid cartilages were fractured. Trachea and esophajus above and below the ligature mark were congested. There was froothy blood present in the trachea. Both lungs were congested. Heart was congested and healthy. Rest of the body viscera were healthy and congested.

Stomach contained about 200 cc of semi digested food. Stomach was congested and healthy."

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PW4 Dr.Joginder Singh at the time of conducting medico legal examination of Maya Kaur found the following injuries:- (1) 6 cm X 2.5 cm bone deep incised wound on the shin of right leg. Underlying bone completely cut. Margins of the wound were granulated.

(2) 3 X 2.5 cm X 2.5 cm blackish contusion on the extension of the left fore-arm. Swelling of surrounding area present.

Kept for x-ray investigation for fracture of underlying bone." There is no clear cut evidence, which explains the causing of injury no.1 on the body of Harpal Singh nor is there any explicit averment to the effect that the Parna, which was wrapped around the neck was used for strangulating or dragging the deceased which might have explained the breaking of the Hyoid Cartilages. Since Harpal Singh was removed forcibly from the road to the fields of Hari Singh, unless he was being dragged from the feet the contusion on the lateral aspect of the left upper arm remains unexplained.

Although the ligature mark around the neck may be attributable to the Parna which had been put around the neck and thereafter tightened, the major discrepancy in the eye witness account appears in relation to the injuries found on the person of Maya Kaur inasmuch as she is stated to have been hit by a brick bat on her leg, whether right or left and the specific location of the seat of the injury is not forthcoming. It is in the light of this ****

that the resultant injury has to be examined. Though the right leg undoubtedly has an injury which shows that the underlying bone is completely cut and after opining that injury no.1 was grievous in nature and caused by sharp edged weapon, the Doctor tries to explain in the cross- examination that the incised injury was the result of a brick bat. While there is no doubt that a brick bat landing on a hard surface shin may give an impression of an incised wound if the injury is confined to the shin but there is no way in which the same would cut the underlying bone, which the Doctor had himself indicated was the result of a sharp edged weapon.

Injury on the left fore-arm is not at all explained.

In this view of the matter, even if one were to ignore the fact that during the enquiry, which was being conducted by Deputy Superintendent of Police, Gurnam Singh had given a different version, the statement made by him on 6.10.1992 has serious flaws inasmuch as eye witness account is not corroborated by the medical evidence.

Another aspect, which cannot be lost sight in the present case is that prosecution version has been crytalised after an inordinate delay. The incident in which Harpal Singh lost his life is alleged to have taken place at 6.30 P.M. on 6.10.1992. The statement of Gurnam Singh, one of the two eye witnesses of the occurrence, was not recorded until 1.35 P.M. on 7.10.1992 i.e. after a lapse of about 18 hours. The fact that the special ****

report does not reach the Judicial Magistrate at Batala until 3.30 P.M.

makes matter worse. No plausible explanation for the delay is forthcoming and the story that the maternal uncle was trying to get in touch with his sister and brother in law in Pabbarali Kalan before leaving for the Police Station does not in any way improve matters. All circumstances point in one direction i.e. the same is the result of consultation and confabulation amongst the members of the family, which renders the version doubtful.

The time, which elapsed between the occurrence and the finalisation of the prosecution version has, in our opinion, been used by the complainant party only to coin a story which helps it to get even with the Hazura Singh, whose family was responsible for protesting against the misconduct of the deceased when he had kidnapped his daughter. Naming of Hazura Singh as assailant is, in our view,a morbid attempt on the part of the complainant to get even with him for having exposed publically the devious ways of Harpal Singh.

It is in the light of these probabilities that we have to see the defence evidence which had been produced. DW1 had given a different version before the Deputy Superintendent of Police enquiring into the incident.

Gurnam Singh too had given a version in which he asserted that the accused had not participated in any incident in which fatal injuries were caused to Harpal Singh. Despite the fact that prosecution got an opportunity to cross- ****

examine the witnesses regarding the statements made by DWs, no effective cross examination had been made. Although it may not be appropriate for us to rely alone on this lapse for rejecting the prosecution version but in view of the conclusion arrived at by us here-in-before regarding the short- comings in the prosecution case, we find it difficult to accept the prosecution story and make it the basis for upholding the conviction against the appellants.

For the reasons recorded above, we accept these appeals and set aside the conviction and sentence recorded against the appellants and acquit them of the charge framed against them.

(Amar Dutt)

Judge

September 15,2005 (Kiran Anand Lall)

Pa Judge

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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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