Sucha Singh vs State Of Punjab

Sucha Singh ... Appellant

Versus

State of Punjab ... Respondent

JUDGMENT

S.B. Sinha, J.

1. This appeal is directed against a judgment and order dated 24.5.2007

passed by a Division Bench of the High Court of Punjab and Haryana at

Chandigarh in Criminal No.809 DBA of 1997 allowing an appeal preferred

by the respondent herein from a judgment of acquittal passed by the learned

Sessions Judge.

2

2. The prosecution's case is as under:

At about 8.00 pm on 16.2.1991, one Gurdev Chand (PW4), his brother

Sheru (PW5), aged 11 years and another brother Sakander (the deceased)

aged about 13 years had gone outside the village to answer the call of nature.

Appellant who is said to have been armed with `datar' along with one

Manga came on their way. Whereas Manga is said to have raised a `lalkara'

that the complainant be taught a lesson for selling adulterated liquor with

water, Sucha Singh gave a `datar' blow on the deceased. Allegedly, Manga

gave a `datar' blow on Sheru (PW5). On their raising cries, Bhindi, younger

brother of the first claimant, came on the spot, whereafter the accused ran

away with their weapons. The deceased was removed to civil hospital,

Pathankot where he died.

3. A first information report was lodged at about 12.05 noon on

17.2.1991.

4. Before the learned Trial Judge, inter alia, Gurdev Chand (PW4) and

Sheru (PW5) were examined to prove the prosecution's case. The learned

Trial Judge noticed that although a charge under Section 307 of the Indian

Penal Code (IPC) had been framed against Manga, but the first informant, in

his supplementary statement had accepted that Manga was empty handed. It 3

was on the aforementioned premise that the appellant by reason of

amendment of the charge had been charged under Section 302 and 307 of

the IPC whereas Manga was charged under Section 302/34 and 307/34 of

the IPC.

The learned Trial Judge recorded a judgment of acquittal, inter alia,

on the following findings:

1) The difference between the statement in the first information report

and the supplementary statement was very vital. The allegations

against Manga had been withdrawn only upon noticing that his right

hand being amputated, he was not in a position to inflict any injury.

2) Statement of Gurdev Chand was held not to be trustworthy keeping in

view the change in his stand also in regard to the sequence of events.

Whereas in his first statement, he stated that Sakandar had first been

attacked by Sucha Singh, in his supplementary statement, he alleged

that Sheru had been the first victim whereafter Sakandar ran away.

He was chased for a sufficient distance and an injury was inflicted on

his body with a `datar'.

3) The omission in the first information report that Sheru was taken to a

civil hospital before the first information was lodged was only to 4

explain the delay in lodging the first information report although such

an allegation had not been made in the first information report.

4) Whereas in his first statement, Gurdev Chand alleged that Sheru had

been inflicted only with one a single injury by Manga, but later he

stated that three-four injuries had been inflicted on his person whereas

in the medical report only a single injury was found on the person of

both the deceased and Sheru.

5) There were contradictions in the matter of lodging of the first

information report as it was said to have been lodged by Gurdev

Chand after riding on a cycle for 12 kms. and the police met him at

Jugial. He had stated that on his way back, the cycle had been kept in

police vehicle while according to Inspector Amrik Singh (PW7), the

cycle had been kept in a shop at Jugial.

6) The first information report was found to be ante-timed even the

blood was not found on the spot.

7) The evidence of the child witnesses was not corroborated.

8) The prosecution had not been able to prove any motive on the part of

the accused.

5

5. The High Court, on an appeal preferred by the State against the said

judgment opined :

i) The maxim falsus in uno, falsus in omnibus should not have been

applied by the Trial Court as discrepancies in testimonies can occur

due to error of observations, error of memory or due to mental

disposition such as shock and horror at the time of occurrence.

ii) Delay in lodging of the first information cannot be a ground to doubt

the correctness of the prosecution case.

iii) Motive to commit an offence is immaterial where reliable direct

evidence is available.

iv) Keeping in view the nature of the evidence brought on record, clause

thirdly to Section 300 of the IPC would be applicable.

v) The evidence of the child witness had not been tutored and, thus, no

corroboration thereof was required.

The High Court, on the aforementioned findings, while upholding the

judgment of acquittal passed in favour of Manga, convicted the appellant

under Section 302 of the IPC.

6

6. The question which arises for consideration is as to whether the High

Court committed an error in interfering with the judgment of acquittal

passed by the learned Sessions Judge.

7. The story advanced by the prosecution starts with a motive on the part

of the complainant's mother selling of illicit liquor. In the first information

report, it was alleged by the first informant that his mother brought illicit

liquor and sold it to maintain her children. In his evidence, however, he

stated that his mother sold only two bottles of liquor occasionally.

If the brothers had nothing to do with the sale of liquor, as has rightly

been pointed by the learned Sessions Judge, that motive must be held to

have not been proved.

We may notice that PW5, however, categorically denied and disputed

that his mother sold any liquor or she earned her livelihood by doing liquor

work.

8. At this stage, we may also notice the injuries alleged to have sustained

by Sheru which according to Doctor Vijay Mahajan (PW2) were as under :

"1. An incised wound 10 x 1.5 cm running horizontally along the lower border of lowest mandible on left side going posteriorly to the post auricular area and 7

anteriorly over the chin. The underlying bone was cut partially. Anteriorly the wound bifurcated into two parts and went to the sub mandibular area. Fresh bleeding was present and x-ray examination was advised.

2. An incised wound 3 x = cm on the posterior surface of left ear pinna running horizontally. It was cartilage deep and fresh bleeding was present.

3. An incised wound 3 cm, linear skin deep running horizontally over the front of left neck.

4. An incised wound 5 x 0.5 cm bone deep running into transverse direction on the top of right shoulder joint. Fresh bleeding was present. There was corresponding cut in the shirt and sweater X-ray was advised.

5. An abrasion 3 x 2 cm on front of right knee joint."

Post mortem report, conducted by Dr. R.K. Khanna, (PW1), read as

under :

"1) An incised 16 cm x 8 cm x 6 cm deep wound obliquely placed over the right side of the neck, extending from the nape upwards to the tragus of right pinna with through and through cutting of right external pinna at its centre into two equal halves. Dissection revealed injury to subcutaneous tissues, muscles and bone in the mastoid region and 1st and 2nd vertebral bodies on its right side going obliquely upwards to the brain matter at the base of skull. The intervening bones 8

were sharply cut into pieces. Brain matter was oozing out of the wound after tearing the basal meanings. The intervening blood vessels and nerves were also cut.

In his opinion, the cause of death was injury to vital organ, i.e. brain and spinal cord which was sufficient to cause death in the ordinary course of nature. The injury was ante mortem in nature having been caused by sharp-edged cutting heavy weapon."

9. There is some discrepancies with regard to time of occurrence of the

incident also. Whereas according to PW4, the assailants of his brothers were

identified in a torchlight, PW5 stated that they had identified the accused in

the daylight and not under the torchlight. Even PW4, in his evidence,

admitted that he did not have any torch in his possession and, therefore, he

did not see the accused under the torchlight which was introduced for the

first time in his supplementary evidence. We may notice that in the first

information, it is stated, he produced a torch containing three cells. The

same has neither been seized nor produced.

He furthermore denied that Manga had given any `lalkara'. He

furthermore accepted that Manga's right arm was amputated. 9

It is also of some significance to note that the place of occurrence is at

a distance of about one km from their house. No evidence has been brought

on record as to how the parties are known to each other.

There is, therefore, significant contradiction in the matter of number

of injuries, time of occurrence, place of occurrence, sequence of events, the

manner of identification of the accused, lack of motive and false implication

of Manga. P.W. 4 made vital contradictions in his FIR vis-`-vis the

supplementary statement evidently keeping in view the physical condition of

Manga. It is, therefore, difficult to rely upon his testimony.

PW4 in his deposition furthermore denied to have made a statement

before the police that Sucha Singh had given a `datar' blow on Sakandar on

his neck.

10. PW4, in his evidence, even could not deny that Manga is an employee

in a private company and he remains at his place of work from morning till

evening.

11. For the reasons aforementioned, the impugned judgment of the High

Court cannot be sustained which is set aside accordingly and that of the 10

learned Sessions Judge is restored. Appellant is in custody. He would be set

at liberty forthwith unless wanted in connection with any other case.

12. The appeal is allowed accordingly.

.....................................J. [S.B. Sinha]

.....................................J. [Dr. Mukundakam Sharma] NEW DELHI;

MAY 13, 2009