Partly allowed

Sham Lal and Anr. v. State of Punjab

Punjab & Haryana HC17 Jan 2012CRA-D/43/2006

Case brief

AI extract

What is this about?

The High Court acquitted appellants Sham Lal and Baljit Kumar due to contradictory eye-witness evidence on their specific roles. It also acquitted Raghbir Chand of Section 149 charges but upheld his conviction under Section 302 IPC simplicitor.

What did the court decide?

Sham Lal and Baljit Kumar acquitted of Section 148, 302 read with 149 IPC. Raghbir Chand acquitted of Sec 148 IPC but convicted of 302 IPC simplicitor. Sentence maintained.

Sham Lal and Anr. Vs State of Punjab — Murder and Culpable Homicide | Punjab & Haryana HC (2012)

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Crl.A. No.43-DB of 2006

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IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

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1. Crl.A. No.43-DB of 2006

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DATE OF DECISION: January 17, 2012

SHAM LAL AND ANOTHER

...APPELLANTS

VERSUS

STATE OF PUNJAB

...RESPONDENT

Crl.A. No.563-DB of 2007

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RAGHBIR CHAND ...APPELLANT

VERSUS

STATE OF PUNJAB

...RESPONDENT

CORAM: HON'BLE MR.JUSTICE S.S.SARON. HON'BLE MR.JUSTICE M.JEYAPAUL.

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Whether the judgement should be reported in the digest? Yes

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PRESENT: MR. L.S. GORAYA, ADVOCATE FOR THE APPELLANTS IN CRL.A. NO.43-DB OF 2006.

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MS.G.K.MANN, ADVOCATE FOR THE APPELLANT IN CRL.A. NO.563-DB OF 2007

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MR.S.S. GILL, ADDL.A.G., PUNJAB.

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M. JEYAPAUL, J.

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This judgement will dispose of both the appeal, i.e. Crl.A. No.43-DB of 2006 filed by appellants Sham Lal and Baljit Kumar Crl.A. No.563-DB of 2007 filed by appellant Raghbir Singh.

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Accused Parkash Chand, Ravi Kumar @ Babu, Baljit Singh @ Deepu, Raghbir Chand, Sham Lal, Baljit Kumar and Puran Singh S/o Saudagar Singh were sent up before the learned Sessions Judge, Gurdaspur

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to face trial for the offences under Section 148, 149 and 302 read with Section 149 IPC. Out of the aforesaid 7 accused, only accused Raghbir Chand, Sham Lal and Baljit Kumar son of Pyara Lal were convicted for the offence under Section 148 and 302 read with Section 149 IPC. It is a matter of record that accused Ajit Ram was declared Proclaimed Offender. Another accused Swaran Lal was sent up for trial before the Juvenile Justice Board as he was found to be a juvenile.

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The brief case of the prosecution is as follows:a) PW2 Santosh was the wife and PW3 Rajpal was the son of Shinder Pal (deceased). Shinder Pal was to give evidence in a criminal case as against accused Puran Singh, Sarpanch of the village. Therefore, Puran Singh had harboured motive as against Shinder Pal.

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b) On 31.5.2001, at about 6.00 a.m. Shinder Pal proceeded from his house at Chinna Retwala to the Minor Canal for the purpose of answering nature's call. In a few minutes PW2 also followed him. PW2 found accused Puran Singh empty handed. Accused Raghbir Chand was armed with kulhari. Accused Ghola Ram (Parkash Chand), accused Babu (Ravi Kumar), accused Baljit Kumar and accused Sham Lal were armed with dang. Accused Jeet (Ajit Ram) was armed with gandasi. Accused Puran Singh raised lalkara that Shinder Pal should not be spared as he was to depose as against him in a criminal case. Shinder Pal started running panicked by lalkara raised by accused Puran Singh. All the accused chased him. She raised hue and cry. His son PW3 Rajpal emerged from his house. Her husband's elder brother's son Subhash Chander also reached there.

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c) All the accused surrounded Shinder Pal near the minor canal.

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Accused Raghbir Chand inflicted a kulhari blow on the left side of the head of Shinder Pal. He fell down on the ground. Accused Jeeta gave gandasi blow on his left leg. Accused Raghbir Chand gave another kulhari blow to Shinder Pal from the reverse side on his right leg. Accused Ghola, Babu, Munish and Sham Lal gave dang blows on various parts of the body of Shinder Pal. Raghbir Chand again gave two kulhari blows from the sharp side on the back of Shinder Pal. All the assailants thereafter fled away from the spot. PW2 arranged a vehicle from nearby Gurudwara and took her husband to the hospital. But the Doctor declared him dead.

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d) Based on the statement given by PW2, a formal FIR was registered.

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f) PW4 Dr.Harbhajan Singh, Medical Officer attached to the Civil Hospital, Batala was one of the Board of Doctors constituted to perform autopsy on the dead body of Shinder Pal. On 1.6.2001, at about 10.20 a.m. he alongwith other Doctors, namely, Dr.Sukhdip Singh and Dr.Jagdev Singh conducted post mortem examination on the dead body of Shinder Pal. They found the following injuries on the dead body of Shinder Pal.

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“ 1. Lacerated wound which was 'Y' shape with 4½x1½x3 cms size on left parietal region, 9 cms away from right ear pinna. 6½ cms away from anterior hair line. Wound was bone deep. Underlying bone on dissection were broken into pieces. There was collection of blood in the left cerebrum in an area measuring 4x5cms corresponding to external injury. There was also laceration of brain matter Anterior cranial fossa of left

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Crl.A. No.43-DB of 2006

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side was containing blood mixed with chf 100cc approximately.

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2. Reddish contusion 9½ x1½ cms size on the right chest in mid axillary line obliquely placed. On dissection underlying three ribs 8^th , 9^th and 10^th were fractured and embedded in liver as well as lung tissues. There was blood present in the lung cavity about 500cc. An imperitonial cavity was about 800cc.

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3. Lacerated wound 3½x1cm size on the medial aspect of right leg. 6cms above right ankle joint. Underlying bone was fractured and was protudering out. Clotted blood was present.

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4. Lacerated wound 3/4^th x ½ cm on the lateral aspect of left leg, 10 cms above left ankle joint. Wound was muscle deep and underlying bone was intact. Clotted blood was present.

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5. Reddish abrasion 1x2cms on the back of right elbow.

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6. Reddish abrasion 2cmsx1½ on the left upper arm, 5 cms above the left elbow joint.

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7. Reddish contusion 6cms x 1½ cms just above injury no.6.

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8. Reddish contusion 6cms x 1 ½ cms on the lateral aspect of right upper arm.

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9. Reddish contusion 8 x 1½ cm in size obliquely placed on the lumber rigion near the mid line. ”

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They opined that Shinder Pal died due to shock and haemorrhage as a result of multiple ante mortem injuries he received. Those injuries were sufficient to cause death in the ordinary course of nature.

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g) PW8 DSP Baldev Singh took up the case for investigation on 17.6.2001. One Jeet Singh, Sarpanch of the village produced accused Parkash Chand @ Ghola, Ravi Kumar @ Babu and Ajit Singh before him. He arrested and interrogated them. Disclosure statements given by the accused were recorded by him. A dang from the residential room of accused Parkash Chand was recovered by PW8 based on the disclosure statement (Ex.PK) given by accused Parkash Chand. He also recovered one dang under the heap of fodder from the house of accused Ravi Kumar on the basis of disclosure statement (Ex.PL) made by him. One gandasi under the heap of cow-dung was also recovered based on the disclosure statement (Ex.PM) given by the accused Ajit Singh. Those accused were sent for remand to judicial custody.

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h) On 19.7.2001, when PW8 was present in the Police Station, Ajit Singh, Sarpanch of the village produced accused Baljit Singh and Swaran Singh. Accused Baljit Singh produced before him one kulhari (Ex.P4) and he took the same into possession vide memo (Ex.PN).

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i) He having completed the investigation laid final report as against the accused.

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All the accused-appellants have set up a plea in their statement under Section 313 Cr.P.C. that a false case has been foisted on them at the instance of their opponents.

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On the side of the defence, DW1 Puran Singh son of Ujagar

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Singh was examined. He has deposed that his Dera was situate within the jurisdiction of village Chhina Retwala. When he was present at his Dera he sighted 5 persons causing injuries to Shinder Pal. But the accused who were facing the trial were not the persons who caused injuries to Shinder Pal. After the assailants fled away from the spot, he went near the injured Shinder Pal and asked him who actually caused injuries to him. But Shinder Pal replied that he failed to identify the assailants. He sent his younger brother Kripal Singh to pass on the information to the house of Shinder Pal. Shinder Pal's wife and his son came to the spot only after half an hour. Thereafter, the wife of Shinder Pal brought a vehicle from the Gurudwara and took him to the hospital.

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DW2 Surjit Singh has deposed that he knew Shinder Pal resident of Chhina Retwala. Shinder Pal was engaged by him for rasing moosal. On the previous day of the occurrence, he was in his house till about 9.00 p.m. raising moosal. The next day at about 5.30 AM Shinder Pal left the house of DW2 to his house. On the way Shinder Pal was murdered.

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The trial Court having relied upon the evidence of PW2 and PW3, the eye witnesses in this case, in the background of the medical evidence returned a verdict of conviction as against these accusedappellants as stated supra.

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Learned counsel appearing for the accused-appellants Sham Lal and Baljit Kumar would vehemently submit that the medical evidence does not lend support to the evidence of PW2, eye witness in this case. As per the version of PW2 many persons had collected over there before ever PW2 reached the place of occurrence, but no independent witness was examined

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by the prosecution. There is an inordinate delay in lodging the FIR. PW2 did not choose to give any statement, nor the police though it fit to record her statement at the scene of occurrence. It is an unfortunate case where all these accused-appellants who were given a clean chit by the investigating official were roped-in by the trial Court invoking the provision under Section 319 Cr.P.C. and convicted them, leaving the other accused who were in fact challaned by the police officials to go scot-free. Motive for the murder was not established by the prosecution. There are major discrepancies in the evidence of PW2 and PW3. PW3 could not have witnessed the occurrence as he had started from his house only after hearing the hue and cry raised by his mother. No specific over-act was attributed to these accused-appellants. Therefore, the accused-appellants Sham Lal and Baljit Kumar are entitled to acquittal.

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Learned counsel appearing for the appellant Raghbir Chand having adapted the arguments submitted by learned counsel appearing for the accused-appellants Sham Lal and Baljit Kumar would further submit that the accused-appellant Raghbir Chand was implicated falsely in a blind murder. The recovery of kulhari without any blood stains would not support the case of the prosecution. Therefore, accused Raghbir Chand also is entitled to acquittal.

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Per contra , learned Addl.A.G., Punjab appearing for the State would submit that the ocular testimony of PW2 and PW3 would establish the case of the prosecution beyond reasonable doubt that these accusedappellants perpetrated the crime of murder. The medical evidence also lends corroboration to the evidence of the eye witnesses. Therefore, there is

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no reason to upset the well considered verdict of the trial Court.

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PW2 and PW3, the wife and son of deceased Shinder Pal have spoken in one voice that appellant Raghbir Chand armed with kulhari attacked on the back of the head and right leg. Of course, PW2 would depose that Raghbir Chand gave a kulhari blow from the sharp side on the back of the head of her husband. In the same breath, she would also depose that the very same accused gave two kulhari blows from the reverse side on the back of the head of her husband. As per the evidence of PW2, totally three blows had been delivered on the head of the deceased. One blow was delivered using the sharp edged portion and two blows had been delivered using the blunt portion.

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PW4 the Doctor who conducted the post mortem examination has deposed that only lacerated wound was found on the left parietal region. On dissection, the skull bone was found broken into pieces. There was laceration of brain matter. If the blunt portion of the weapon was used to cause injury on the very same part of the body which already received an injury with a sharp edged weapon, the cut injury or incised wound would get obliterated and only the laceration caused subsequently with blunt portion of the weapon alone would be patently visible. No wonder, PW4 has spoken to the lethal lacerated wound found on the left parietal region of the deceased. Even otherwise, it would be very difficult for a witness to exactly zero-in on the side of the weapon which was used, standing at a distance of 100 paces from the scene of occurrence. Further PW2 being the wife of the injured would not have had the inclination to note down which part of the weapon was used to launch attack on her husband. In view of the

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above, we find that there is no patent discrepancy between the ocular and medical evidence. Even assuming for the sake of arguments that there was some discrepancy, such a discrepancy is very well explainable as noted above.

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In the above context, learned counsel appearing for the appellants cited a decision of this Court in Naresh vs. State of Haryana , 2005(2) RCR(Criminal) 450, wherein it has been held as follows:-

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“ 20. In Criminal Appeal No.621-DB of 1996, Manbharri

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and others v. State of Haryana, decided on 8.2.2005 , this Court has held as under:-

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“We are conscious of the fact that law required acceptance of testimony of the eye-witness, whose presence is proved for their receiving injuries in the very occurrence where some body has died, but the same is true where medical evidence may support such a version. It also requires to be accepted where the medical evidence may be such which may be capable of two interpretations and one interpretation may support the prosecution version, but if the medical evidence may be in sharp contrast to ocular evidence, to that extent, even the statement of a witness, whose presence may be proved, has to be rejected.”

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21. In the case in hand also, the entire version given by the prosecution is contradictory to the medical evidence. As per the above settled position of law, when there is a minor

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contradiction between ocular version and medical evidence, the ocular version will prevail but when the medical evidence is totally contradictory to the ocular version, the ocular version is to be discarded. Therefore, the learned trial Court has not rightly appreciated the evidence and has wrongly convicted the appellants. ”

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In the instant case, as already pointed out by us, the entire ocular testimony is found not contradictory to the medical evidence. The small inconsistency found in the medical evidence and the ocular testimony could be very well reconciled. Further, in the facts and circumstances of the present case, it is found that the sharp edged as well as blunt portion of a weapon had been used. Therefore, in our considered view, the ocular testimony available on record cannot be simply discarded on the flimsy ground that the medical evidence was contradictory to the ocular version. In view of the above, we conclude that the aforesaid decision would not apply to the facts and circumstances of this case.

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PW2 is found to be a totally illiterate woman. She was the wife of deceased labourer Shinder Pal. She has stated very categorically that he followed her husband within a few minutes. It is quite common in the village that both the men and women folk would throng to a place where water is available for the purpose of answering nature's call. No wonder, PW2 had followed her husband. PW3 also would depose that one could reach the place of occurrence which was a canal minor within about 5 minutes from his house. After all, the occurrence had taken place in the early morning at 6.00 a.m. The hue and cry raised by PW2 would have

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definitely attracted PW3. With all speed PW3 would have reached the scene of occurrence to rescue his father. The other villagers would have definitely gathered, as the canal minor was found located close by the village. We do not entertain any doubt about the presence of PW2 and PW3 at the scene of occurrence. At any rate, non-examination of other witnesses does not go to the root of the case, inasmuch as the ocular testimony of PW2 and PW3 is found credible and trustworthy.

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PW2 would depose that the police also arrived at the place of occurrence when she brought the vehicle from a Gurudwara to take her husband to the hospital. The police also accompanied her to the Civil Hospital, but she did not choose to disclose anything about the occurrence to the police. But the statement of PW2 was recorded by the police only at the Civil Hospital. None of the police officials would speak to the fact that the police had an occasion to accompany PW2 in the vehicle which proceeded to the hospital. Even otherwise, PW2 and PW3 who had received a rude shock on account of the murderous attack launched as against Shinder Pal would not have been in a position to describe cogently the occurrence which took place at the scene of occurrence. PW2 had given statement to the police after coming out of the shock she received on account of such an inconsolable calamity in the family.

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The occurrence had taken place at 6.00 a.m. on 31.5.2001. The First Information Report was registered at 2.50 p.m. and the same had reached the Court of the learned Judicial Magistrate at 8.20 p.m. Of course, there is some delay in lodging the FIR and sending the special report to the learned Judicial Magistrate.

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Every delay in registering the case and sending the special report to the Judicial Magistrate would not prove fatal to the case of the prosecution. If the delay has given any scope for fabrication of the case prejudicing the accused, then such a delay may prove fatal to the case of the prosecution.

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This Court in Pritpal Singh vs. The State of Punjab , 1987(2) RCR 68 has observed as follows:-

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“ 12. Shri P.S.Mann, Senior Advocate, counsel for the appellant, has argued that there is unexplained delay in the lodging of the report. The contents of the intestines of Himmat Singh deceased suggest that he had died early in the morning before sunrise. The report was lodged at noontime. It has been wrongly shown to have been lodged at 10.25 a.m. The report reached the hands of the learned Magistrate at Ludhiana, itself at 1.50 p.m. The Courts are not far away from Police Station, Division No.6. There is no explanation whatsoever for this delay in lodging the report. There is merit in this contention. Even according to the prosecution witnesses, the occurrence took place at about 6 a.m. According to Rachhpal Singh, he made a statement at 10 a.m., i.e., four hours after the incident. It could not have taken such a long time for Rachhpal Singh to travel a distance of a kilometre or so. Further, if the report has been actually recorded at 10.25 a.m., it would have reached the learned Magistrate within 15 or 20 minutes. Though delay in lodging a

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report is not fatal to the prosecution case, it robs the prosecution story of its spontaneity. It lays it open to the charge that garbled version of facts has been put up, false witnesses have been introduced and innocent persons have been accused. A delayed report enjoins the Court to sift the prosecution evidence with still greater care and caution. ”

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In the instant case, it has been well established that it was only PW2 and PW3 who had taken the injured to the hospital for treatment. The occurrence had taken place at the early hours nearby the village where PW2 and PW3 were living alongwith the deceased. The Court has found that their ocular testimony inspires confidence. Therefore, there would have been no occasion for the investigating agency to fabricate anything in this case. Even otherwise, as held in the above the decision by this Court, the Court will have to be on guard when there is a delay in lodging the report and sift the prosecution evidence with greater care and caution.

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The Hon'ble Supreme Court in Ram Jag and others vs. The State of U.P. , (1974) 4 Supreme Court Cases 201 has held as follows:-

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“16. According to the prosecution the occurrence took place at about 4 p.m. And since the First Information Report was lodged at about 12.30 at night at the Tarabganj police station which is at a distance of about 4 miles from the scene of occurrence, the learned Sessions Judge held that there was undue delay in lodging the Report and that the delay was not satisfactory explained. It is true that witnesses cannot be called upon to explain every hour's delay and a common sense

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view has to be taken in ascertaining whether the First Information Report was lodged after an undue delay as to afford enough scope for manipulating evidence. Whether the delay is so long as to throw a cloud of suspicion of the seeds of the prosecution case may depend upon a variety of factors which would vary from case to case. Even a long delay in filing report of an occurrence can be condoned if the witnesses on whose evidence the prosecution relies have no motive for implicating the accused. On the other hand, prompt filing of the report is not an unmistakable guarantee of the truthfulness of the version of the prosecution.”

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It has been categorically held by the Hon'ble Supreme Court that if the evidence let in by the prosecution does not throw any cloud of suspicion, the delayed report of an occurrence pales into insignificance. There was also no motive for PW2 and PW3 to implicate accused-appellant Raghbir Chand. Therefore, in the instant case, the delay in reporting the crime to the police and sending the special report to the Judicial Magistrate does not create any dent in the case of the prosecution.

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It is true that accused-appellant Raghbir Chand was given a clean chit by PW8 DSP Baldev Singh. But the Court based on the evidence let in by the prosecution summoned accused Raghbir Chand invoking its jurisdiction under Section 319 Cr.P.C. There is nothing wrong in convicting the accused who was brought under Section 319 Cr.P.C. and acquitting the accused who were originally challaned. It all depends upon the convincing evidence produced before the Court to prove a charge. It is

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noted that PW8 DSP Baldev Singh had in fact given a clean chit to accused-appellant Raghbir Chand based on the evidence he had collected. It appears that he had not adverted to the statements recorded from PW2 and PW3 by the police official who investigated the case before ever PW8 took up the charge of investigation.

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It is not as if that there was no motive for the murder. PW2 and PW3 have cogently spoken to the fact that as Shinder Pal had to give evidence in a case, budging not the pressure emanated from one of the accused, he was attacked on the fateful day. Therefore, we do not find any weight in the submission made by learned counsel appearing for the appellants that no motive for the murder was projected by the prosecution.

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Of course, none of the villagers who gathered at the scene of occurrence was examined by the prosecution. The Court would scout for corroboration only when the evidence of PW2 and PW3 per se did not convince the Court of the charges framed as against the accused. It is not the quantity of evidence, but the quality matters.

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In view of the above discussion, we find that the prosecution has established beyond reasonable doubt that accused-appellant Raghbir Chand has committed the murder of Shinder Pal punishable under Section 302 IPC.

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Coming to the role of accused-appellants Sham Lal and Baljit Kumar, we are not in a position to confirm the conviction recorded by the trial Court as against them, based on the evidence of PW2 and PW3. PW2 has deposed that Sham Lal was armed with a dang and delivered a blow on Shinder Pal alongwith three other accused. Never has she spoken about the

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attack alleged to have been launched by accused Baljit Kumar. But PW3 son of PW2 has deposed that Baljit Kumar also gave dang blow on Shinder Pal alongwith the other accused. It is found that PW2 and PW3 were not sure of the exact role of appellant Baljit Kumar. In other words, they have come out with a totally contradictory version as to the role of accused Baljit Kumar.

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On a careful perusal of the judgement of the trial Court, we further find that the other accused who allegedly delivered a dang blow on Shinder Pal have been relieved of the charge of murder. If at all accused Sham Lal and Baljit Kumar had accompanied the main accused Raghbir Chand with an intention to cause death of Shinder Pal, they would have also come to the scene of occurrence armed with lethal weapons. In view of the above, we genuinely doubt the case of the prosecution that accusedappellants Sham Lal and Baljit Kumar also participated and delivered dang blows on the deceased. The benefit of doubt will have to be given to those two accused-appellants.

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The prosecution could not establish that 5 or more persons in the company of accused Raghbir Chand committed the crime. Therefore, the charge under Section 148 IPC is found not established. Consequently, the accused-appellant Raghbir Chand is convicted for the offence under Section 302 IPC simplicitor.

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In view thereof, Crl.A. No.43-DB of 2006 is allowed. Accused-appellants Sham Lal and Baljit Kumar are acquitted of the charges under Section 148, 302 read with Section 149 IPC. Accused Sham Lal is undergoing sentence. He be set at liberty forthwith, if his custody is not

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required in connection with any other criminal case. Accused Raghbir Chand is acquitted of the charge under Section 148 IPC. He is convicted of the charge under Section 302 IPC simplicitor. The sentence imposed by the trial Court as against him for the offence under Section 302 read with Section 149 IPC is maintained for the offence under Section 302 IPC simplicitor. Consequently, Crl.A. No.563-DB of 2006 is dismissed.

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(M.JEYAPAUL) JUDGE January 17, 2012 ( S.S. SARON ) Gulati JUDGE

Sham Lal and Anr. v. State of Punjab

Case brief

What is this about?

What did the court decide?

Sham Lal and Anr. v. State of Punjab

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Cases cited

Parties & counsel

Coram

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