Jarnail Singh & Ors vs State Of Punjab

Jarnail Singh and Ors. ...Appellants

Versus

State of Punjab ....Respondent

JUDGMENT

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred by the appellants against the judgment

and order dated 31st August, 2005 of the Punjab and Haryana High Court

dismissing their appeals and affirming the conviction and sentence awarded

by the Trial Court vide its judgment and order dated 8.1.2004 in Sessions Trial under Sections 302, 148, 149, 307, 364, 342, 506, 201, 120-B of the

Indian Penal Code, 1860 (in short the `IPC') and under Section 30 of the

Arms Act, 1959 (in short the `Arms Act') awarding life imprisonment and

other sentences.

2. The facts and circumstances giving rise to this appeal are, that an

First Information Report (in short the `FIR') was lodged on 24th June, 2000

on the basis of a statement of Darshan Singh (PW-4) that he was living with

his sister Gurcharan Kaur for the last 3= years at village Nandpur as his

nephew Gurjeet Singh, son of his sister Gurcharan Kaur, had been murdered

by Rattan Singh and Balbir Singh, close relatives of Gurcharan Kaur in

1997. On 23rd June, 2000 at about 10.00/11.00 p.m., when Darshan Singh

(PW-4) was having his meal at his tube well after preparing his fields for

plantation of paddy crop, about 30 persons armed with fire arms came in

five vehicles (cars and jeeps) from the side of village Dadiana. They started

shouting and firing shots in the air. They came to the tube well and caught

hold of Darshan Singh (PW-4) and injuries were inflicted on him with the

butts of rifle on his head, chest and back. Migrant labourers (migrated from

Bihar) sitting on the tube well also suffered injuries. There had been a

dispute on the land as the same was purchased by Inderjit Singh (Accused)

2 from Rattan Singh, Balbir Singh and Rajwinder Kaur. Inderjit Singh wanted

to take possession of the land from the complainant party forcibly.

3. The migrant labourers tried to run away, however, one Jaldhar

received the gun injury who was taken by the assailants in the jeep

alongwith two other labourers Sikandar Rai (PW-6) and Babu Lal (PW-7)

under the pretext that the injured will get proper treatment at Patiala.

Darshan Singh (PW-4) alongwith two labourers Nand Kishore and Budhu

was detained in a room of the tube well. In the morning at 6.00 a.m., the

assailants took Darshan Singh (PW-4) alongwith Nand Kishore and Budhu

in a car to village Dadiana. There had been 3.12 bore guns in the car and

after taking them to several places they were brought back to the tube well at

10.30 a.m.

4. On the basis of the said report, a case was registered under Sections

342/336/323/506/148/149/120-B IPC and under Sections 25/27/54/59 of the

Arms Act. On 27th June, 2000 statement of Babu Lal (PW-7) was recorded.

He deposed that he was taken alongwith Jaldhar injured, with Sikandar Rai

(PW-6) and they were taken to Ambala Railway Station in a vehicle and

had been given Rs.900/- for meeting the expenses to travel back to Bihar.

However, they came back to Mohali and informed the other migrant

3 labourers about the incident and, also, that he was suspicious that Jaldhar

had been killed. Thus, on the basis of the said statement, Sections 307 and

364 IPC were added to the previous sections. Again on 4th July, 2000

statement of Sikander Rai (PW-6) was recorded. He had stated that Jaldhar

died on the spot but in order to avoid the hue and cry of the labourers, the

assailants had taken the dead body under the pretext to get him proper

treatment and the dead body was thrown in the canal at about 2.30 a.m. in

the night. He had been threatened that, in case, he disclosed the factum of

the death of Jaldhar he would also be killed. Thus, on the basis of his

statement, offence punishable under Section 302 IPC was also added.

5. The police recovered the dead body of Jaldhar on 5.7.2000 from the

canal about 40 KM. away from the place of occurrence and post mortem was

conducted. After completing investigation, the charge sheet was submitted

against the appellants alongwith Inderjit Singh, Gurdeep Singh, Balbir

Singh, Kanwal Preet Singh and Amarjit Singh. The prosecution examined

19 witnesses to prove its case including the complainant Darshan Singh

(PW-4), Sikandar Rai (PW-6) and Babu Lal (PW-7). However, Amarjeet

Singh, who was leader of the assailants remained absconding and thus, could

not be put to trial. The trial Court convicted all the accused persons and

sentenced them to undergo RI for life under Section 302/149 IPC and to pay

4 a fine of Rs.1,000/- each, in default further to undergo RI for one year. They

were also sentenced to undergo RI for one year under Section 148 IPC. All

the accused persons were sentenced to undergo RI for five years under

Section 307/149 IPC and to pay a fine of Rs.500/- each; in default to further

undergo RI for one year. They were sentenced to undergo RI for two years

under Section 364 IPC and to pay a fine of Rs.100/- each; in default to

further undergo RI for one year. All the accused persons were sentenced to

undergo RI for six months under Section 342 IPC. They were also sentenced

to undergo RI for six month under Section 506 IPC. All the accused persons

were also sentenced to under RI for one year under Section 201 IPC and to

pay a fine of Rs.100/- each; in default to further undergo RI for one year.

All the accused persons were sentenced to undergo RI for six months under

Section 120-B IPC. Accused Inderjit Singh was also sentenced to undergo

RI for one year under Section 30 of the Arms Act and to pay a fine of

Rs.100/- each and in default to further undergo RI for one year.

6. Being aggrieved, all the convicted persons preferred six appeals

before the High Court which were heard together. The High Court vide its

judgment and order dated 31.8.2005 allowed the Criminal Appeals filed by

Gurdip Singh and Balbir Singh against whom the charge of conspiracy had

5 been framed and dismissed other four appeals and maintained the conviction

and sentences awarded by the Trial Court.

7. Against the said common judgment and order of the High Court,

Inderjit Singh (Accused), the purchaser of the land in dispute from Rattan

Singh, Balbir Singh and Smt. Rajwinder Kaur preferred the Special Leave

Petition before this Court and it stood dismissed. Kanwal Preet Singh did not

prefer any Special Leave Petition. The other remaining convicted persons

filed this appeal.

8. Shri Subhash Sharma, learned counsel appearing for the appellants

has agitated all the issues which had been raised before the Courts below and

his thrust of arguments had been that, the Criminal Appeals preferred by

Gurdip Singh and Balbir Singh had been allowed by the High Court

disbelieving the theory of conspiracy for taking possession of the said

disputed land forcibly. Therefore, if the foundation of the case disappears,

the entire case goes. More so, it is submitted that names of the appellants

had not been mentioned in the FIR. There was inordinate delay in lodging

the FIR. The dead body of the Jaldhar (deceased) was recovered after about

two weeks of the incident. The body was completely in a decomposed state.

Thus, it was not in a condition where one could identify the body and in

6 such a fact situation, the appellants ought to have, also been acquitted by the

High Court.

9. On the contrary, Shri Kuldeep Singh, learned counsel for the State has

submitted that the issue of delay in lodging the FIR has been fully

considered by the courts below and the courts were satisfied that there was

no delay at all as the complainant/informant remained in the custody of the

assailants. The doctors who conducted the post mortem deposed that the

body could be identified and it has been identified by Sikandar Rai (PW-6).

More so, the acquittal of Gurdip Singh and Balbir Singh by the High Court

would have no bearing on the merits of the case, for the reason, that Rattan

Singh and Balbir Singh had already sold the land to Inderjit Singh. They

wanted to get rid of the land as it had been a subject matter of litigation

between the parties for long and it was Inderjit Singh who had the grudge

and wanted to take forcible possession of the land from the complainant

party. The appeal lacks merit and is liable to be dismissed.

10. We have considered the rival submissions made by learned counsel

for the parties and perused the record.

7

11. The land in dispute belonged to one Dalip Singh who had three sons,

namely, Gurbux Singh, Hakam Singh and Rattan Singh. It appears that the

land had come in the share of Rattan Singh and as he was not having any

issue, he had taken in adoption Balbir Singh, son of his wife's sister.

Rajwinder Kaur got married with Balbir Singh. Gurbux Singh and his wife

Gurcharan Kaur were having the claim on the said land and, in this dispute,

their son Gurjit Singh was murdered in 1997 by Rattan Singh and Balbir

Singh. In the said case, Balbir Singh stood convicted and his appeal was

pending before the High Court. In view of long pending dispute over the

land it was decided by Rattan Singh, Balbir Singh and Rajwinder Kaur to get

rid of the same and an agreement to sell was executed in favour of Inderjit

Singh after receiving the sale consideration on 14th February, 2000. Inderjit

Singh after having the agreement, wanted to take forcible possession of land

from Gurcharan Kaur and her son Mandeep Singh. Rattan Singh, Balbir

Singh and Rajwinder Kaur after receiving the consideration money for the

land and executing the agreement might not be very much interested in the

land or to recover the possession thereof. Prosecution case had been that it

was Balbir Singh, who hatched the conspiracy to take forcible possession of

the land.

8

12. After considering the oral as well as documentary evidence on record,

the High Court came to the conclusion that the statement of Gurcharan

Singh (PW-18) in respect of the fact of hatching a conspiracy by Balbir

Singh and Gurdip Singh, at the bus stand Bassi Pathana on 21 st June, 2000

at 7.30/8.00 p.m. was not worthy of credence. Gurcharan Singh (PW-18), a

chance witness could not explain under what circumstances he was present

at the bus stand at the said time.

13. In Sachchey Lal Tiwari v. State of U.P. (2004) 11 SCC 410, this

Court while considering the evidentiary value of the chance witness in a

case of murder which had taken place in a street and passerby had deposed

that he had witnessed the incident, observed as under:

"If the offence is committed in a street only passer- by will be the witness. His evidence cannot be brushed aside lightly or viewed with suspicion on the ground that he was a mere chance witness. However, there must be an explanation for his presence there."

14. The Court further explained that the expression `chance witness' is

borrowed from countries where every man's home is considered his castle

and every one must have an explanation for his presence elsewhere or in

another man's castle. It is quite unsuitable an expression in a country like

9 India where people are less formal and more casual, at any rate in the matter

of explaining their presence.

15. The evidence of a chance witness requires a very cautious and close

scrutiny and a chance witness must adequately explain his presence at the

place of occurrence (Satbir v. Surat Singh (1997) 4 SCC 192; Harjinder

Singh v. State of Gujarat (2004) 11 SCC 253; Acharaparambath

Pradeepan & Anr. v. State of Kerala (2006) 13 SCC 643; and Sarvesh

Narain Shukla v. Daroga Singh and Ors. (2007) 13 SCC 360). Deposition of a chance witness whose presence at the place of incident

remains doubtful should be discarded (vide Shankarlal v. State of

Rajasthan (2004) 10 SCC 632). Conduct of the chance witness,

subsequent to the incident may also be taken into consideration particularly

as to whether he has informed anyone else in the village about the incident. (vide Thangaiya v. State of Tamil Nadu (2005) 9 SCC 650).

16. Gurcharan Singh (PW-18) met the informant Darshan Singh (PW-4)

before lodging the FIR and the fact of conspiracy was not disclosed by

Gurcharan Singh (PW-18) and Darshan Singh (PW-4). The fact of

conspiracy has not been mentioned in the FIR. Hakam Singh, the other

witness on this issue has not been examined by the prosecution. Thus, the

10 High Court was justified in discarding the part of the prosecution case

relating to conspiracy. However, in the fact situation of the present case,

acquittal of the said two co-accused has no bearing, so far as the present

appeal is concerned.

17. Undoubtedly, in the FIR appellants' name have not been mentioned.

The FIR is not the encyclopedia of all the facts relating to crime. The only

requirement is that at the time of lodging FIR, the informant should state all

those facts which normally strike to mind and help in assessing the gravity

of the crime or identity of the culprit briefly.

18. In the FIR, in addition to the names of Balbir Singh and Gurdip Singh,

name of Amarjit Singh, the absconding accused, has been mentioned. The

complainant Darshan Singh (PW-4) has also mentioned that he could

identify some of the assailants if they come before him. Thus, the

complainant was not aware of the names of all the accused persons. The

submission in this regard remain preposterous. The motive for committing

the offence has fully been explained therein that they wanted the forcible

possession of the land from the complainant party. The land in dispute had

also been the cause of murder of nephew of the informant Darshan Singh

(PW-4) as his nephew Gurjeet Singh was killed by Rattan Singh and Balbir

11 Singh, the vendors of the land to Inderjit Singh. The delay in lodging FIR

has fully been explained by the prosecution and both the courts below have

accepted the same. The concurrent findings recorded by the courts below on

this issue do not warrant any interference whatsoever in this Court. Sikandar

Rai (PW-6) and Babu Lal (PW-7) had been the two independent witnesses.

They had come from Bihar as migrant labourers. No explanation could be

furnished by Shri Subhash Sharma, learned counsel for the appellants as to

for what reason either of the said witnesses could depose falsely. Sikandar

Rai (PW-6) had been all along with the deceased Jaldhar and he had also

witnessed the throwing of his dead body in the canal. The Tata Sumo

vehicle used in the offence was recovered. It belonged to Inderjit Singh,

vendee of the land. There is full corroboration to the prosecution case by

Sikandar Rai (PW-6) and Babu Lal (PW-7). Both of them had been cross

examined by the learned counsel appearing for the appellants but nothing

could be elicited which could shake their credibility.

19. Darshan Singh (PW-4) was an injured witness. He had been examined

by the doctor. His testimony could not be brushed aside lightly. He had

given full details of the incident as he was present at the time when the

assailants reached the tube well.

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20. In Shivalingappa Kallayanappa v. State of Karnataka 1994 Supp

(3) SCC 235, this Court has held that the deposition of the injured witness

should be relied upon unless there are strong grounds for rejection of his

evidence on the basis of major contradictions and discrepancies, for the

reason that his presence on the scene stands established in case, it is proved

that he suffered the injury during the said incident.

21. In State of U.P. v. Kishan Chand and Ors. (2004) 7 SCC 629, a

similar view has been re-iterated observing that the Testimony of a stamped

witness has its own relevance and efficacy. The fact that the witness

sustained injuries at the time and place of occurrence, lends support to his

testimony that he was present during the occurrence. In case the injured

witness is subjected to lengthy cross examination and nothing can be elicited

to discard his testimony, it should be relied upon (vide Krishan & Ors. V.

State of Haryana (2006) 12 SCC 459). Thus, we are of the considered

opinion that evidence of Darshan Singh (PW-4) has rightly been relied upon

by the courts below.

22 The main contention raised by Shri Subhash Sharma, learned counsel

for the appellants is that identification parade was never held though it was

necessary in the facts and circumstances of the case for the reason that the

13 names of the appellants have not been mentioned in the FIR. However, we

do not find any substance in such an argument for the reason that S.I.

Gurdial Singh (PW-12), the investigating officer has made it clear in his

cross examination that identification parade could not serve any purpose for

the reason that the witnesses were present at the time of arrest of the

accused, rather they had been arrested on identification by the witnesses.

Babu Lal (PW-7) was present at the time of their arrest. At the time of

recovery of vehicle Tata Sumo, Sikandar Rai (PW-6) was present in the

vehicle itself and it was recovered when accused Inderjit Singh was driving

the vehicle and four other accused were also sitting therein. In such a fact

situation, though identification in a case like this, may be of paramount

importance, but in view of the fact that the accused had been identified by

the witnesses at the time of arrest itself, holding the identification parade

would have been a futile exercise/inconsequential.

23. Identification parade is of paramount importance in a criminal case.

In S.C. Bahri v. State of Bihar AIR 1994 SC 2420, this Court held that

when the accused person is not previously known to the witness concerned,

the identification of the accused by the witness soon after his arrest is of

great importance because it furnishes an assurance that the investigation is

proceeding on right lines in addition to furnishing corroboration of the

14 evidence to be given by the witness later in court at the trial. But the

position would be entirely different when the accused or culprit who stands

trial had been seen at times by the witness as it may do away with the

necessity of identification parade.

24. Where the accused has been arrested in presence of the witness

accused has been shown to the witness or even his photograph has been

shown by the Investigating Officer prior to test identification parade, holding

identification parade in such facts and circumstances remained

inconsequential. (vide Shaikh Umar Ahmade Shaikh v. State of Maharasthra

AIR 1998 SC 1922; Dastagir Sab & Anr. v. State of Karnataka (2004) 3

SCC 106; and Maya Kaur Baldevsingh Sardar & Anr. v. State of

Maharashtra (2007) 12 SCC 654).

25. It has been vehemently submitted by Shri Subhash Sharma, learned

counsel for the appellants that the dead body of Jaldhar, deceased had been

completely de-composed as it remained in the water for two weeks, and

there was no material before the trial Court to hold that the dead body

recovered from the canal was that of Jaldhar, deceased. The trial Court as

well as the High Court has considered this issue with care and caution. Dr.

D.S. Bhullal (PW-2) who conducted the post mortem alongwith Dr. O.P.

15 Aggarwal had opined that the death was due to fire arm injuries as the body

was having lacerated wound 0.5 cm x 0.5 cm on the right side of head

underneath skull bone and 1 cm x 0.75 cm lacerated wound with everated

margins was also present on the left side of the head. Underneath skull bone

shows irregular opening of the same size. Dr. Bhullal (PW-2) has deposed

that the body was highly decomposed and grossly swollen wearing shirt,

pant and underwear. The injuries found on the dead body were ante-mortem

and sufficient to cause death in the ordinary course of nature. The dead body

was identified by Sikandar Rai (PW-6) and Babu Lal (PW-7). The trial

Court had considered the deposition made by Dr. Bhullal (PW-2) and other

evidence particularly, the deposition of Sikandar Rai (PW-6) and Babu Lal

(PW-7) and came to the conclusion that, in spite of the fact, that the body

was highly de-composed as it remained in water for two weeks, the identity

of Jaldhar, the deceased stood proved from the consistent and cogent

statements furnished by Darshan Singh, complainant (PW-4) and two

labourers Sikandar Rai (PW-6) and Babu Lal (PW-7) who proved the

presence of the deceased at the relevant time when the incident had taken

place in which the fire shot was made by the accused. The witnesses had

fully identified the clothes found on the person of the deceased as they were

same at the time of incident and at the time of recovery of the dead body.

Had the victim/deceased was not having any injury on his person the

16 argument of the defence counsel could have been of some substance. But as

in the instant case, Dr. Bhullal (PW-2) proved the injuries of fire arm on

forehead of the deceased which was fully corroborated by the other

witnesses, the question of any doubt in identification of the dead body of

Jaldhar, deceased could not arise. The High Court has considered the issue

taking into account the depositions of other witnesses Sikandar Rai (PW-6)

and Babu Lal (PW-7) and affirmed the said finding.

26. In the instant case as the dead body of Jaldhar had been identified by

two fellow labourers and the medical evidence is same as that of ocular

evidence and the dead body was found with the clothes which Jaldhar was

wearing at the time of incident, the issue of identification does not require

any further consideration. In a case where the dead body is found in a jungle

which had been eaten away by vultures or other animals and garments have

also been found in torn condition and the dead body stood converted into a

skeleton and has been fully de-composed, the identification of the dead

body may not be a trustworthy evidence and in such a case the DNA test

may be required. (vide Keshav v. State of Maharashtra (2007) 13 SCC

284). But in the instant case, the facts are not the same. Thus, in view of the

above, we are of the considered opinion that the finding recorded by the

17 courts below on the issue of identification of dead body also does not call

for any interference.

18

27. In view of the above, we find no exceptional circumstance warranting

interference by this Court. Appeal lacks merit and is accordingly dismissed.

.................................J. (HARJIT SINGH BEDI)

.................................J. (Dr. B.S. CHAUHAN)

New Delhi, August 26 , 2009

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