High Court of Punjab and HaryanaCRA-S/2080/2007allowed

Gurbax Singh v. State Of Punjab

2023-04-18Mr. Justice N.S. Shekhawat18 pages

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As per the version of the prosecution, on 22.07.2003, a telephonic message was received from Guru Nanak Dev Hospital, Amritsar in Police Station, Chheharta to the effect that Amrik Singh was admitted in the hospital with injuries on his person. On this, FIR was registered on the basis of the statement Ex.PA of Amrik Singh, which was recorded by ASI Bhagwan Singh at 7.00 PM on 27.07.2003. As per the complainant, he was a resident of Bhalla Colony and was labourer. Gurmit Singh was his younger brother. At about 8:30 PM on 22.07.2003, the members of his family had taken the meals and were taking the rest. Gurmit Singh had pain in his stomach. While his brother was going in the street for taking medicine from the doctor, the complainant himself was standing at the door of his house.

In the meantime, Gurbax Singh, appellant/accused, who was their neighbour, came outside from his house and started beating his brother Gurmit Singh. The complainant asked Gurbax Singh, accused, as to why he was beating his brother and on this Gurbax Singh started abusing the complainant.

to reside in that street and was having a knife in his hand. The appellant gave a blow with knife, which hit Amrik Singh, complainant/injured, on the left side of his stomach. On getting the knife blow, the injured fell down on the ground and while falling, he also received injuries on his forehead and thumb of left foot. He raised the noise to save him and his father Tarsem Singh was also attracted to the spot. On this, the accused ran away from the spot along with the weapon. After arranging the conveyance, Tarsem Singh shifted the complainant/injured to Guru Nanak Dev Hospital, Amritsar. It was further stated that the respectables of the locality were trying to get the matter compromised between the parties and as such the matter was not reported to the Police. When the compromise talks failed, the complainant/injured made a statement Ex.PA before ASI Bhagwan Singh, who made his endorsement Ex.PG and on the basis of the same, a formal FIR Ex.PG/1 was recorded in the police station. 3.

Initially the medicolegal examination of Amrik Singh, complainant/injured was conducted by Dr. Vijay Arora at 9:50 PM on 22.07.2003. Later, the injuries were subjected to x-ray and surgeon's opinion and injury No.1 on the person of Amrik Singh was declared endangering life. ASI Bhagwan Singh conducted the initial investigation and arrested the accused on 30.07.2003, who was interrogated by him. The appellant/accused made a disclosure statement, which led to recovery of a knife from his possession and a memo was prepared in this regard. On the basis of the opinion of the doctor, on 09.08.2003, the offence under Section 307 IPC was added. After the investigation, the challan was presented against the accused-appellant under Section 307 IPC.

, 4.

After considering the contents of challan and the documents annexed therewith, the learned trial Court ordered framing of charge under Section 307 IPC against the appellant/accused, to which, he pleaded his innocence and claimed trial.

In order to bring home the guilt of the appellant/accused, the prosecution examined six witnesses. Amrik Singh, complainant/injured, was examined as PW-1, who stated that on 22.07.2003 at 8:30 PM, he was caused injury with a knife on his left plank by the present appellant. He supported the case of the prosecution, as explained in his initial statement Ex.PA. However, in his testimony, he did not offer any explanation for the delay of about 5 days in lodging the FIR. In his cross-examination, he admitted that they owed allegiance to Congress Party. However, he denied the suggestion that Sh. R.L. Bhatia had been helping them in this case. He denied the suggestion that the case was registered against the appellant with the help of Sh. RL Bhatia, Governor of Kerala, the then Member of Parliament from Amritsar.

Gurmit Singh, brother of the complainant/injured, was examined as PW-2. He also deposed on similar lines and supported the case of the prosecution. The prosecution further examined SI Amrik Singh as PW-3, who had arrested the appellant/accused on 01.10.2003, after adding the offence under Section 307 IPC. The prosecution further examined PW-4 Dr. Vishal Mahajan, who declared Amrik Singh, injured, to be fit for statement on 27.07.2003 vide his opinion Ex.PC. He also proved the notes on the bed head ticket. In his cross-examination, he stated that no opinion regarding the fitness of the injured was obtained from the hospital before 27.07.2003. The patient was stable on 24.07.

make statement. The patient was not operated in his presence. In the bed head ticket, only history and progress notes were written by him. The history was given by the patient. The prosecution further examined PW-5 Dr. Vijay Arora, who had conducted the medicolegal Examination of Amrik Singh, injured, and found the following injuries:- 1) An incised stab wound with clean cut margins elliptical in shape and freshly bleeding measuring 2.4x1 cm was present on left lateral part of trunk, 14 cms above and lateral to umbilicus at 1 1⁄2 o clock position. Area around the wound was tender and some underlying structure was protuding out of the wound.

2) 1x0.2 cm reddish abrasion was present on left part of forehead, 3.5 cms above the middle of left eye present around the abrasion. Tenderness was present; 3) A superficial incised wound measuring 2x0.2 cm was present on the tip and palmer aspect of left great toe. Fresh bleeding was present. There was no visible swelling, deformity. No tenderness and no crepitus. Patient could move the great toe normally.

Injuries No.1 and 2 were subjected to x-ray and surgeon's progress report/operation notes. Injury No.3 was simple in nature. He proved the MLR Ex.PE on record. After going through the MLR, x-ray report and surgeon's progress/operation notes, on 02.08.2003 he gave an opinion that injury No.1 was grievous in nature, as it was endangering life of the patient and injury No.2 was simple in nature. His opinion regarding the nature of injuries was EX.PF, which was bearing his signatures. In his cross-examination, he stated that he had not treated the patient. He had not examined the patient second time after conducting medicolegal

examination. The prosecution further examined PW-6 ASI Bhagwan Singh, who had conducted the investigation in the present case. He had also interrogated the appellant, who disclosed that he had kept concealed one knife and produced the same before the police. After completion of the investigation, the accused was challaned by Jagatpreet Singh, SHO. In his cross-examination, he stated that no one came to him before 27.07.2003 regarding the occurrence. He further admitted that on 22.07.2003, he issued a docket regarding the medico legal examination of accused Gurax Singh. He further admitted that he sent PHG Santokh Singh No.9319 along with Gurbax Singh for medicolegal examination of Gurbax Singh. Ex.DA bore his signatures and was in his hand. He further admitted that PHG Santokh Singh gave medicolegal report of Gurbax Singh on 22.07.

2003 to him. He further admitted that he had recorded the statement of Gurbax Singh. However, he denied the suggestion that he had deliberately not registered the case against the complainant party under the influence of Mr. R.L. Bhatia, MP and had concealed the statement and MLR of the accused Gurbax Singh. He further admitted that the place of occurrence was in front of open place towards Sher Shah Suri Road, ahead of house of accused. The main abadi of Bhalla Colony was towards the side of the house of Amrik Singh, where Dr. Surinder was practicing. He had not lifted blood stained earth from the place of occurrence. No blood stained clothes were ever produced by the injured or the complainant to him. During the course of investigation, he had recorded the statement of Tarsem Singh, father of the injured/complainant.

He further admitted that there was house of Jagdish Sharma in between the house of the complainant and the appellant.

admitted that during the investigation of this case, he was suspended on corruption charges.

After the closure of the prosecution evidence, the appellant/accused was examined under Section 313 Cr.P.C. and he pleaded his false implication. He stated that he was innocent and the allegations were incorrect. In his defence, the appellant/accused examined Dr. Sudesh Kumar as DW-1, who examined the appellant/accused in Civil Hospital, Amritsar on 22.07.2003 and found the following injuries 1) 3x0.3 cm incised would was present on the lateral side of left hand, 6 cm below the left wrist joint; 2) 5x2 cm diffuse swelling was present on the left side of fact, 1.5 cm below and lateral to the pateral end of left eye;

3) Reddish contusion measuring 3x2 cm was present on upper part of left shoulder joint.

Injury No.1 was caused by a sharp weapon, whereas injuries No.2 and 3 were caused by blunt weapons. All the injuries were simple and probable duration was within 6 hours. In his cross-examination, he stated that the injuries on the person of Gurbax Singh could not be caused by friendly hands. The injured was not admitted in the hospital and was sent with the constable after conducting the MLR. The appellant examined Gurminder Singh as DW-2. As per him, on 22.07.2003, he had gone to see his uncle Gurbax Singh (appellant) in his house at Bhalla Colony, Chheherata. After finishing work, he and his uncle Gurbax Singh, appellant/accused, were taking meals and he and his aunt Sarabjit Kaur wife of Gurbax Singh were sitting with him. At about 8:30 PM on that day, Gurmit Singh and his brother Amrik Singh and their father Tarsem Singh

forcibly entered in the house of his uncle Gurbax Singh and came in the room, where they all were sitting. Gurmit Singh was armed with a kirpan and Armik Singh was armed with a hockey. Tarsem Singh raised a Lalkara to catch hold of Gurbax Singh and he should be taught a lesson for complaining against them. Gurmit Singh gave a kirpan blow to Gurbax Singh and he raised his left arm and kirpan hit him on his left hand. Amrik Singh gave two hockey blows to Gurbax Singh, which hit on his mouth and the left shoulder. He and his aunt Sarabjit Kaur had raised the noise to save him. Gurmit Singh gave a kirpan blow to Gurbax Singh and the tip of kirpan landed on his brother Amrik Singh. When they raised the noise, all the accused fled from spot and they had threatened the complainant side. 9.

I have heard learned counsel for the parties and with their assistance, I have gone through the trial Court record. 10.

After hearing the rival submissions made by learned counsel for both the parties, the following issues emerged for consideration by this Court.

(i) Delay in registration of FIR;

(ii) Motive;

(iii) No independent witness; and (iv) Defence evidence and non-explanation of injuries caused to the accused.

Delay in registration of FIR 11.

Learned counsel for the appellant vehemently argued that in the instant case, the alleged occurrence had taken place at about 8:30 PM on 22.07.2003 in the area of Bhalla Colony, Chheherta, Amritsar. The occurrence was allegedly witnessed by PW-2 Gurmit Singh, real brother of

the injured, and the complainant/injured was shifted to the hospital by his father Tarsem Singh. Consequently, PW-2 Gurmit Singh and Tarsem Singh could have lodged FIR with regard to the occurrence on 22.07.2003 itself. However, the matter was reported to the police at about 7.00 PM on 27.07.2003 and thus, there was a delay of five days in lodging of the FIR, which could not be explained by any of the prosecution witnesses. Hence, the appellant is liable to be acquitted only on this score alone. On the other hand, the learned State counsel assisted by learned counsel for the complainant vehemently argued that the talks regarding compromise were going on between the parties and both the parties belonged to the same place and talks regarding compromise were going on between the parties. Consequently, the matter was delayed for 5 days and when the talks failed, the matter was immediately reported to the police. Learned State Counsel prayed for upholding the findings recorded by the learned trial Court in this regard.

12.

I have considered the rival submissions made by the learned counsel for the parties. Admittedly, the occurrence had taken place at about 8:30 PM on 22.07.2003 near the place of residence of complainant/injured and the occurrence was allegedly witnessed by PW-2 Gurmit Singh. Even on hearing the noise, their father Tarsem Singh reached at the spot and after arranging the conveyance, the injured was immediately shifted to the hospital. In the instant case, PW-5 Dr. Vijay Arora had exhibited the MLR of Amrik Singh, injured as Ex.PE. As per the MLR Ex.PE, in the column of "date and hour of report sent to police", it has been mentioned "immediately along with x-ray forms". Even the patient was admitted in

Emergency Ward of Guru Nanak Dev Hospital, Amritsar and was considered as a police case by the doctor. Thus, it is apparent that the doctor had informed the police at 9:45 PM on 22.07.2003 itself, whereas the FIR was registered in the instant case at 7.00 PM on 27.07.2003, i.e., after a delay of about five days. Not only that, another blow was given to the case of the prosecution by PW-6 ASI Bhagwan Singh, Investigating Officer, who stated that he received the information regarding the occurrence for the first time on 27.07.2003 and on receipt of the telephonic message from Guru Nanak Dev Hospital, Amritsar, that Amrik Singh was admitted in the hospital with injuries on his person, he along with other police officials reached the hospital and recorded the statement of the injured. In his crossexamination, he stated that no one had come to him before 27.07.2003 regarding the occurrence. Apparently not only PW-1 Amrik Singh injured/complainant, but even PW-6 ASI Bhagwan Singh also tried to conceal the facts, while appearing as prosecution witnesses. 13.

Apart from that, in the instant case, PW-2 Gurmit Singh claimed that he had witnessed the occurrence, which had taken place in front of their house. Even he claimed that his father Tarsem Singh had reached the place of occurrence and after arranging the conveyance, he had shifted the injured to Guru Nanak Dev Hospital. Surprisingly, neither PW-2 Gurmit Singh nor his father Tarsem Singh ever tried to inform the police about the occurrence. This fact alone makes the prosecution case doubtful. The family members of the injured/complainant could have reported the matter immediately to the police. Apart from that, as per MLR Ex.PE, even PW-1 Amrik Singh, injured/complainant himself was conscious, cooperative

and well oriented to time place and person at the time of his medical examination, i.e. at about 9:45 PM on 22.07.2003 itself. Thus, even the injured/complainant was completely fit to make his statement to the police. Apart from that, even during the period of his treatment, the patient was fit to make his statement. Even as per PW-4 Dr. Vishal Mahajan, the patient was stable on 24.07.2003 also and was fit to make his statement. However, as per his record, no opinion regarding fitness of the injured was obtained from the hospital before 27.07.2003. Whereas, as per MLR Ex.PE, the information was sent to the police immediately at 9:45 PM on 22.07.2003. Thus, it is apparent that for the reasons best known to the police, the case was not registered by the police for five days, even though the police was well aware of the occurrence in the present case. 14.

Not only that, even PW-6 ASI Bhagwan Singh, who is the Investigating Office of the case, admitted that on 22.07.2003, he had issued a docket regarding the medicolegal examination of the appellant/accused namely Gurbax Singh. He also sent PHG Santokh Singh No.9319, along with Gurbax Singh for medicolegal examination of appellant/accused. He also admitted that PHG Santokh Singh gave medicolegal report of Gurbax Singh to him on 22.07.2003 and he had recorded the statement of Gurbax Singh on 22.07.2003 itself. Thus, it is apparent that PW-6 ASI Bhagwan Singh was well aware of the facts of the present case on 22.07.2003 itself and he falsely claimed that he was not informed about the occurrence before 27.07.2003 by anyone. Thus, it stands established that the police was acting under some hidden pressure, even though PW-6 ASI Bhagwan Singh denied that he did not register the case against the complainant party under the

influence of Sh. R.L. Bhatia, the then local MP. 15.

Even though, it has been mentioned by the complainant in the FIR that the talks regarding compromise were going on between the parties and when such talks failed, the complainant got the case registered against the appellant/accused. However, prosecution had not led any evidence to show that the parties ever negotiated nor any witness had been examined to substantiate the plea that the parties were agreeable to any compromise or the talks regarding compromise were held between the parties. Even PW-1 Amrik Singh, injured/complainant did not say a word about the delay in registration of FIR. Still further even his brother Gurmit Singh, eye witness, also did not state a word about the reason for delay in lodging the present FIR. Thus, it can be safely held that the prosecution could not explain the inordinate delay in lodging of the FIR, which corrodes the credibility of the entire prosecution story and hence the finding recorded by the learned trial Court that delay in lodging the FIR in the present case is immaterial, deserve to be set aside.

Motive 16.

Learned counsel for the appellant vehemently argued that in the instant case, it was alleged by the complainant that while Gurmit Singh was going to doctor to take medicine, the injured/complainant was standing at the door of his house. In the meantime, the appellant/accused came from his house and started beating both the brothers. He had raised a lalkara that he would not permit both of them to reside in that street. However, the complainant/injured did not attribute any motive to the present appellant for causing injuries to him. Even, during the course of trial, the complainant

party did not mention any reason, as to why the appellant/accused caused injuries to him. On the other hand, learned counsel for the State of Punjab assisted by learned counsel for the complainant vehemently argued that in the instant case, direct evidence regarding the involvement of the appellant/accused was there and in such circumstances, motive pales into insignificance.

17.

I have considered the rival submissions made by the learned counsel for both the parties and also examined the trial Court record carefully in this regard. The criminal machinery was set into motion by PW-1 Amrik Singh and his testimony was supported by PW-2 Gurmit Singh, his brother/eye-witness. In their examination-in-chief, both the witnesses are silent with regard to the causing injuries to Amrik Singh. Even PW-1 Amrik Singh denied the suggestion that PW-2 Gurmit Singh had teased the daughter of appellant/accused two days prior to the occurrence. He further denied that mother of the accused and Subha Singh had come to their house to lodge a protest regarding teasing of daughter of appellant/accused by PW-2 Gurmit Singh two days prior to the occurrence and they were threatened by the accused.

PW-2 Gurmit Singh had also deposed on similar lines. Thus, it is apparent that the prosecution had clearly failed to prove the motive on the part of the present appellant to cause injuries to PW-1 Amrik Singh. No doubt, in the cases of direct evidence, the prosecution is not obliged to prove the motive on the part of the assailants to cause injuries to the injured.

, motive also assumes great significance.

No independent witness.

18.

Learned counsel for the appellant vehemently argued that in the instant case, the alleged occurrence had taken place in front of house of PW-1 Amrik Singh, in a street. Even PW-6 ASI Bhagwan Singh had admitted that there was a house of Jagdish Sharma in between the houses of the complainant and the accused. As per the site plan, the place of occurrence was in front of a vacant plot towards Sher Shah Suri Road. Even the main abadi of Bhalla Colony was towards the house of Amrik Singh, where Dr. Surinder was also practicing. Thus, it is apparent that the place of occurrence is situated in a locality and was surrounded by the houses of different persons. The said submission has been opposed by learned counsel by the State assisted by the learned counsel for the complainant by contending that in the instant case, the injured, i.

e PW-1 Amrik Singh and the eye witness, i..e PW- 2 Gurmit Singh had supported the case of the prosecution and their injuries stood proved by way of ample medical evidence. Thus, non-examination of independent witnesses would have no bearing on the facts of the instant case.

19.

I have considered the rival submissions made by learned counsel for the parties, in the light of evidence led by the prosecution as well as the defence. Admittedly, the occurrence had taken place in front of house of Amrik Singh, which is situated in an abadi area. Even PW-6 admitted that there was a house of Jagdish Sharma in between the house of the complainant and the accused-appellant. Still further, the occurrence was witnessed by other villagers also, but no one was joined by the police during

the course of investigation nor any one was examined during the course of trial. No doubt, in a locality, independent witnesses would be reluctant to join as witnesses as both the parties belong to the same locality, but the police should have associated some respectable, Panch, Lambardar or any other person as a witness to lend credibility to the case of the prosecution. However, the police did not join any independent witness during the entire process of investigation and the case is based on the testimony of PW-2 Gurmit Singh, who was an interested witness, being real brother of the injured. Consequently, the appellant is entitled to benefit of doubt in absence of independent corroboration of the prosecution case. Defence evidence and non-explanation of injuries caused to the accusedappellant 20.

Learned counsel for the appellant vehemently argued that in the instant case, the version of the defence was more probable, which was duly corroborated by the evidence. Apart from that, neither the complainant, i.e. PW-1 Amrik Singh nor eye witness, i.e. PW-2 Gurmit Singh stated a word about the injuries suffered by appellant-Gurbax Singh and the complainant side had concealed the genesis of the occurrence and the true picture from the court. Still further, learned counsel submitted that the defence had examined DW-1 Dr. Sudesh Kumar, who found injures on the person of appellant on 22.07.202003 as pointed out in the foregoing paragraphs. Moreover, the defence had examined DW-2 Gurminder Singh, who clearly stated that PW-2 Gurmit Singh had given a kirpan blow to the accusedappellant and when he raised his left arm, kirpan hit on his left hand. Further, PW-1 Amrik Singh, injured, gave two hockey blows to appellant,

9 which hit him on his mouth and left shoulder. Thus, he prayed for acquittal of the accused. On the other hand, learned State counsel assisted by learned counsel for the complainant opposed the said submissions by contending that the appellant/accused had suffered minor and superficial injuries and in a scuffle, such injuries are generally suffered by accused also. 21.

Having considered the submissions on both the sides, I am of the considered view that the testimonies of defence witnesses could not be rejected solely on the ground that they had been examined by the accused. The witnesses produced by the defence have to be treated at par with the prosecution evidence, provided the defence witnesses also withstand the test of cross-examination. In the instant case, the defence had been successful in causing a dent in the case of the prosecution. As per DW-2 Gurminder Singh, at about 08.30 PM on 22.07.2003, he and his uncle, i.e. Gurbax Singh,appellant/accused were sitting in a room. At that time, Gurmit singh, PW-2, Amrit Singh, PW-1/injured and their father Tarsem Singh forcibly entered in their house.

Gurmit Singh gave a kirpan blow to Gurbax Singh, appellant/accused and when he raised his left arm the same landed on his left hand. Similarly, Amrik Singh gave two hockey blows to Gurbax Singh, appellant, which hit him on his mouth and the left shoulder. DW-2 Gurminder Singh also stated that Gurmit Singh had misbehaved with daughter of his uncle, i.e. Gurbax Singh, appellant, and they had made a complaint in this regard to the family of the complainant. Thus, it is apparent that the complainant side had concealed the material facts and had not approached the court with the clean hands. Apart from that, even the case was reported by appellant/accused to the police on 22.07.2003 itself.

Even PW-6 ASI Bhagwan Singh admitted that he had issued a docket regarding medicolegal examination of Gurbax Singh, appellant on 22.07.2003 itself. Even he had sent PHG Santokh Singh along with the appellant for his medical legal examination. He had received the medicolegal report of the appellant on 22.07.2033 itself and recorded the statement of accused-appellant. But for the reasons best known to him, he did not lodge the FIR and thus, it is evident that defence had reported the matter to the police prior in time and the story of the accused also seems to be more probable.

22.

In view of the above discussion and having given my thoughtful consideration to the submissions made by the learned counsel for the parties, I am of the considered opinion that the impugned judgment of conviction and order of sentence passed by the learned trial Court are based on misappreciation of evidence and unsustainable in the eyes of law. Hence, CRA-S-2080-SB-2004 succeeds and consequently, the impugned judgment of conviction and order of sentence dated 18.09.2007 are set aside and the appellant is ordered to be acquitted. , + + -

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23.

In view of the above order passed in the Criminal Appeal, CRR-2316-2007 filed by the petitioner-complainant, seeking conviction of the respondent-accused under Section 307 IPC, is hereby dismissed. 24.

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+ (N.S. SHEKHAWAT) 18.04.2023 JUDGE mks Whether Speaking/Reasoned: YES / NO Whether Reportable:

YES / NO