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Evidence not connected with the deceased, Discharged in Section 302 IPC

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH

CRA-D-364-DB of 2002
Date of decision: 12.09.2013

Sukhwinder Singh .Appellant

Vs.

State of Punjab .Respondent

CORAM: HON’BLE MR.JUSTICE JASBIR SINGH
HON’BLE MR.JUSTICE G.S.SANDHAWALIA
*****
1. Whether Reporters of local papers may be allowed to see the judgment?
2. Whether to be referred to the Reporters or not?
3. Whether the judgment should be reported in the Digest?

Present: Mrs. Aditi Girdhar, Advocate for the appellant.
Mrs. Ritu Punj Addl. Advocate General, Punjab
*****
G.S.Sandhawalia, J.

1. The present appeal has been filed by Sukhwinder Singh, sole accused against the judgment of conviction recorded by the Addl. Sessions Judge, Gurdaspur on 18.3.2002. Vide said judgment the appellant had been sentenced for life and a fine of ` 5,000/- had been imposed for committing murder of Surjit Singh on 14.2.1997 under Section 302 IPC in FIR No.9 dated 15.2.1997 registered at Police Station Dhariwal.

2. The incident in question is alleged to have taken place on 14.2.1997 at 8.00 P.M. in village Sidhwan and was witnessed by both the brothers of the deceased namely Lakhbir Singh-PW1 and Dalip Singh-PW2. As per Ex.PA, which is the statement of Lakhbir Singh given to Sanjeev Kumar, ASI-PW-10, they were five brothers who were living separately in the village. On a day earlier, on 14.2.1997 at about 8.00 P.M., he and his brother Dalip Singh was present along with Surjit Singh Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh deceased in front of the house of Surjit Singh. The electric light of house of deceased Surjit Singh was on and at that point of time appellant Sukhwinder Singh armed with Datar came to the house of the deceased and told him that he would be taught a lesson for eating his cock (Rooster) and gave a Datar blow on the right side of the head of Surjit Singh. Thereafter another blow was given on the left side and third blow was given on the right wrist of Surjit Singh. On raising of noise by the brothers, the appellant ran away along with his weapon of offence and the witnesses started taking care of the injured. Thereafter, informant went to Naushera Majja Singh to make arrangement of vehicle to take Surjit Singh to Civil Hospital but could not make any arrangement. The injured was taken in the morning to the hospital in rickshaw for treatment and by the time he had expired. Vide Ex. PC, the Medical Officer sent intimation to the Police Post regarding receiving of dead body at 9.00 A.M. on 15.2.1997 which was brought by Dalip Singh. The said statement was made to Sanjeev Kumar, ASI at 10.30 AM which reads as under:-

“Statement of Lakhbir Singh son of Tara Singh, Jat resident of Sidhwan aged about 37 years.

Stated that I am resident of village Sidhwan and employed as a teacher in Govt. Primary School at village Theh Gulam Nabi. Daily morning, I go to my duty and in the evening I return to my house. We were five brothers and all live separately. Yesterday on 14.2.1997 I and my brother Dalip Singh were present in the house of my brother Surjit Singh. At about 8 PM I and my brother Dalip Singh along Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh with Surjit Singh came out of the house of Surjit Singh in front of his door. At that time there was a light of electric bulb which is fitted at the house of Surjit Singh. In the meantime, Sukhwinder Singh @ Sukha son of Bawa Singh Ramgharia of our village Sidhwan armed with ‘datar’ came from his house and in our presence told Surjit Singh to teach a lesson for eating cock and gave a ‘datar’ blow on the right side of the head of my brother Surjit Singh thereafter Sukhwinder Singh again gave another blow to Surjit Singh which fell on the left side of head of Surjit Singh. Sukhwinder Singh also gave another ‘datar’ blow which hit on the right wrist of Surjit Singh. I and my brother Dalip Singh raised ‘raula’ “MAR DITTA MAR DITTA” then Sukhwinder Singh ran away from the spot along with Datar. After that I and my brother started to taking care of my injured brother Surjit Singh. After leaving Dalip Singh near the Surjit Singh injured went to Naushera Majja Singh in order to make arrangement for a vehicle in order to remove Surjit Singh to the Civil Hospital, Naushera Majja Singh. But I could not make arrangement of the conveyance at Naushera Majja Singh. Today early in the morning I and my brother Dalip Singh took Surjit Singh to the Civil Hospital, Naushera Majja Singh in a rickshaw for treatment where Doctor Sahib declared my brother dead. Motive of grievance is that on 25.12.1996 my brother Surjit Singh had a dispute with Sukhwinder Singh regarding eating of his Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh cock and thereafter the matter was compromised by the respectables. That on this reasons Sukhwinder Singh was harbouring grudge with my brother and for this reason last night Sukhwinder Singh caused injuries to my brother Surjit Singh with a ‘datar’ and murdered him. That I was going to lodge a report and you have come. Proceedings be taken.

Sd/ in English (Lakhbir Singh) Attested Sd/ Sanjeev Kumar, ASI I/C P.P. Naushera Majja Singh 15.2.1997.

Ex. P.A./1.

Police Proceedings Today one medical chit received in Police Post from Doctor Civil Hospital Naushera Majja Singh through the ward servant in which written regarding the dead body of Surjit Singh son of Tara Singh Jat r/o village Sidhwan. At this I ASI along with C. Joginder Singh No.3, PHG Parkash Chand No.233, PHG Dharam Pal No.1154, S.P.O. Gurwinder Singh AC/470 reached in Civil Hospital Naushera Majja Singh for taking necessary proceedings where dead body of deceased Surjit Singh is lying in the verandha of Hospital and near the dead body of Lakhbir Singh and his brother Dalip Singh are present. Lakhbir Singh made above said statement before me which was read over and explained to him word by word. He put his signature in English under his statement after admitting it to be correct.

Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh I attest it. The above said statement discloses the commission of offence u/s 302 IPC. So original writing is being sent through S.P.O. Gurwinder Singh No.AC/470 to the Police Station for registration of a case. After registration of case, case number be intimated. Special reports be sent to the higher officers. Control room be informed through wireless message. I am busy in investigation.

Today in Civil Hospital Sd/ Sanjeev Kumar, ASI at Naushera Majja Singh I/C N.M.Singh, P.P.

At 10.30 AM 15.02.1997.”

3. On the said statement information was sent for registration of the case and FIR Ex. PA/2 was lodged at 11.50 AM by the Additional SHO and was received by the Magistrate at 12.45 PM. Sanjeev Kumar ASI, Incharge of Police Post, Naushera Majja Singh prepared the inquest report Ex. PB in which the deceased Surjit Singh was identified by his brothers Dalip Singh and Pritam Singh. Dead body was sent to Civil Hospital, Gurdaspur for conducting post-mortem examination vide request Ex. PJ. Sanjeev Kumar, ASI went to the spot along with complainant Lakhbir Singh and prepared rough site plan Ex. PQ and lifted blood stained earth from the spot and made it into a parcel and was taken into possession vide memo Ex. PR. The SHO, Tilak Raj (PW7) thereafter took over the investigation and took into possession the blood stained clothes and viscera (Ex. PM) from the Civil Hospital, Gurdaspur after the post-mortem examination and duly sealed the same. He arrested the appellant on 23.2.1997 and on interrogation the appellant on 25.2.1997 got recorded a disclosure statement Ex. PN and got Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh recovered one Datar from the pond near his house which was stained with blood and taken into possession vide memo Ex. PN/1, rough sketch thereof Ex.PN/2. The rough site plan of the place of recovery of Datar was prepared as Ex. PN/3 and thereafter the challan was presented against the appellant.

4. Vide impugned judgment the trial Court convicted the appellant after taking into consideration the statements of ten prosecution witnesses examined and brushed aside the defence of the appellant on the ground that Lakhbir Singh-PW1 and Dalip Singh-PW2, who are brothers of deceased Surjit Singh had given unanimous version about the occurrence and had been cross-examined on behalf of the accused but nothing had come on record to show that the occurrence had not taken place as alleged by them. The statements made by them as per the trial Court was corroborated by the statement of Dr. Raj Kumar-PW5, who conducted the post-mortem on the dead body of Surjit Singh on 15.2.1997 at 5.40 PM. The plea of the defence counsel that the injuries were caused on 13.2.1997 as per the statement of Dr. Raj Kumar-PW5 was also rejected. It was held that no evidence had been brought on record to show that the deceased was a man of bad habits and was nuisance in the village and that brothers of the deceased had inflicted injuries upon him. Motive in the case was held to be proved as there was a dispute regarding killing of a Rooster and it was held that it was sufficient for the appellant to have inflicted the injuries upon the deceased. The contention that there was delay of more than 14 hours in lodging the FIR even though the Police Post was only at a distance of four kilometers from the village was also rejected on the ground that Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh there was no previous enmity between the parties to implicate him falsely and the delay was not fatal in view of the direct evidence on the file. The plea of alibi that the appellant was present in marriage which took place in Gurdaspur on 14.2.1997 was also rejected on the ground that photographs and video cassette could be doctored and did not establish that the accused was not present in the village on 14.2.1997. The fact that the accused did not take the said plea in the statement under Section 313 Cr.P.C. also weighed with the trial Court.

5. The Legal Aid Counsel appointed to assist this court has ably submitted that the presence of Lakhbir Singh-PW1 and Dalip Singh-PW2 alleged eye witnesses was doubtful and they have been introduced by the prosecution at a subsequent stage to falsely implicate the appellant. There was delay in lodging of FIR since the incident took place on 14.2.1997 at 8.00 PM whereas the statement was only made on 15.2.1997 at 10.30 AM to Sanjeev Kumar, ASI and FIR was lodged at 11.50 AM. It was pointed out that once the eye witnesses were present at the time of incident, the question of not reporting the matter to the Police Post, which was adjacent to the Civil Health Centre at Naushera Majja Singh was not believable. The motive regarding dispute of Rooster was highly unlikely for a person to have committed murder of the deceased and nothing had been brought on record by the presence of any independent witness that the such a dispute had occurred as alleged on 25.12.1996 and thereafter compromised. Accordingly, it was submitted that the statements of the alleged eye witnesses have to be examined with care and caution and their conduct had to be taken into account.

Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh

6. The State on the other hand defended the judgment of the trial Court and submitted that it was a case of eye witnesses account who were relatives of the deceased and they would not have falsely implicated any one and let the real culprit go free. There was no enmity with the accused for them to be named and recovery of the blood stained Datar had been effected at the instance of the appellant- accused.

7. After hearing counsel for the parties and examining the evidence on record, we are of the opinion that the alleged eye witnesses account cannot be relied upon as there are discrepancies in the statements and the behaviour of the witnesses is highly unlikely. As per Ex. PA reproduced above, two brothers were witness to the incident of assault on Surjit Singh which took place at 8.00 P.M. on 14.2.1997 in front of the house of the deceased. It is the case of the witnesses itself that they were five brothers in total and all were living separately. The complainant Lakhbir Singh was employed as a teacher in the Government Primary School and posted at village Theh Gulam Nabi. As per the site plan Ex. PE, eye witnesses were standing at a distance of 5- 6 feet from Sukhwinder Singh when the incident took place and thus, the brothers were three in numbers but the eye witnesses made no effort along with deceased to restrain the appellant from causing any injury upon the deceased which is highly unlikely. The appellant being alone would not have caused injuries only on the person of Surjit Singh in the presence of eye witnesses and they would have being brothers made effort to catch the appellant being more in number even though he was armed with Datar. The presence of the witnesses was also unnatural as Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh from a perusal of the site plan (Ex.PE) also, it would be clear that the deceased was living in a room at the back of the house of Pritam Singh brother of deceased. There was an open courtyard in between and it is admitted by PW-10 Sanjeev Kumar ASI that the house of Lakhbir Singh, complainant is at a distance from the place of occurrence and that he had not seen the house of Lakhbir Singh though the house of Dalip Singh was adjoining. There was a wall in between the house of deceased and Dalip Singh and there was no window or door in that wall. In the cross-examination of Lakhbir Singh-PW1, it has also come on record that he and Dalip Singh were residing in the same house with a separate kitchen and back side of their house was towards the house of Surjit Singh which consists of only one room and front of the house of Surjit Singh was left vacant.

8. Thereafter also conduct of the witnesses is highly unlikely and shrouded with very suspicious circumstances. As per Lakhbir Singh-PW1 deposition he left the injured along with his brother Dalip Singh and went to Naushera Majja Singh for arranging conveyance for removing the injured to Hospital and since no vehicle was available so the injured was not removed on the said night. However, in cross- examination he admitted that he had gone to Naushera Majja Singh on a cycle which was at a distance of four kilometers crossing villages Athwal and Suchetgarh which were located on the pucca road. The Police Post was located in the Civil Health Centre, Naushera Majja Singh itself where he had gone for search of vehicle at about 9.00 PM, however, he did not feel the necessity of reporting the matter to the police on account of the fact that he would first arrange the medical aid.

Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh He went to the house of one Aaya Singh of village Naushera Majja Singh, who had a van but he was not available in the village. He stayed in village Naushera Majja Singh for 20-25 minutes and then returned to the village at 9.30/9.45 PM. According to him the deceased was still alive when he reached back and that his other brother Pritam Singh was not in village on that day and he felt that since he could not get the conveyance as such he did not feel necessity to go to the Police Post. It was only on 15.2.1997 at 8.15 AM they removed Surjit Singh from the village who was alleged to be all right and on the way also they did not report to the police and on reaching Civil Health Centre, Naushera Majja Singh information was sent by the Doctor though the Police Post was adjacent to the said Health Centre.

9. Similar is the deposition of Dalip Singh-PW2 that he had stayed back to take care of his brother Surjit Singh and Lakhbir Singh had gone to Naushera Majja Singh for arranging conveyance. He further stated that no arrangement for the conveyance was made from village Naushera Majja Singh to take the injured to the hospital and that the hospital was near the Police Post. On return of his brother he enquired only for the conveyance and did not enquire whether he had lodged the report with the police or not. He also in cross-examination admitted that Surjit Singh remained unconscious during the night and they had been putting water in his mouth and water flowed out side from his mouth and they took him in hospital in rickshaw which was arranged at 8.00 A.M. In cross-examination he also admitted that the police did not bring the cot and the bed sheet from the village on which the injured had been put. Thus, behaviour of the eye witnesses who were close Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarhrelatives being brothers of the deceased is highly unnatural. If they had been present at the spot at the time of assault they would have firstly tried to apprehend the appellant and then also would have gone to the police station to lodge a complaint. Lakhbir Singh-PW1 as noticed is not an illiterate or helpless person but a teacher in the Government Primary School and was well aware of his rights. Once had he had gone on a cycle all the way to arrange conveyance to Naushera Majja Singh, he would have also intimated to the police about the said incident. Even no effort was made to arrange any conveyance from village Sidhwan where four brothers were residing. Neither any effort was made to arrange conveyance from the adjoining two villages which fall on the way and the injuries that were caused on the person of the deceased were such that it would have caused apprehension in their mind that if medical aid was not given, the person may be die, since two of the injuries were on the scalp. As per post-mortem report Ex. PF prepared by PW-5 Dr. Raj Kumar, following injuries were noticed on the dead body of deceased:-

“1. An incised wound measuring 6 X 0.5 cm present in the scalp situated 8 cm above the attachment of pinna lying parallel to the long axis of the scalp on the right parietal region of the scalp. Injury was bone deep. Clotted blood was present in the depth of the wound.

2. An incised would 8 x 0.5 cm situated at the same level as injury no.1 and again parallel to the sagittal plane of the skull situated on the left parietal region of the skull. Under lying skull bone was cut through and through in the whole length of the bone. On opening of the skull the duramater Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh was also seen to be cut along with the arachnoid mate. On further exploration piamater cut sharply to the extent of 3 cm at the posterior end of the bone cut. Under the piamater cut a haemotoma measuring 4 x 4 cm present on the brain surface, underneath. The brain matter underlying haemotoma also found to be cut, on removal of Piamater in the saggital fissure about 100 cc of blood in a fluid state was drained out from the middle cranial fossa.

3. An incised wound 2 x 5 CM. Skin deep present on the radial aspect of right wrist near the joint line. Clotted blood was present in the depth of the wound.”

10. As noticed above, the deceased had also become unconscious as per statement of Dalip Singh-PW2 but still no effort was made to remove him to the hospital. Thus, these sequence of events go on to show that the presence of the alleged eye witnesses was doubtful and their statements cannot be accepted.

11. It has come on record that the accused was living separately with a keep and there was suggestion to the witnesses that he did not enjoy good reputation in the village. The presence of witnesses as per site plan of scene of occurrence is apparently doubtful and not believable. He had, however, kept a woman and not solemnised marriage and she belonged from Bihar. The said woman was not present at the time of incident and as per the eye witnesses she had gone to meet her relations two days prior to the occurrence. The deceased had also consumed alcohol which would be clear from Chemical Examination Report Ex. PG and the alcohol concentration was Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarhestimated as 63.25mg/100 ml. of blood. The prosecution had not brought any independent witness on record to prove the motive of the appellant that the injuries had been inflicted on account of alleged incident regarding killing of Rooster on 25.12.1996 though it is admitted by Lakhbir Singh that dispute had been got compromised by the respectables of the village. The motive was an important factor which was to be proved which the prosecution failed to do so by producing any independent witness. It is a matter of record that inspite of the fact that injured was taken to hospital in the morning but still they made no effort to report the matter to the police for reasons best known to them. The information was sent by the Doctor at 9.00 A.M. on 15.2.1997 wherein it was mentioned that dead body of Surjit Singh aged about 45 years had been brought by Dalip Singh. All these cumulative factors go on to show that deceased was not having good relations with his brothers and living separately with a keep though he was 45 years old. The location of the house was such that the presence of alleged eye witnesses was not possible and as noticed above was not natural. Therefore, their evidence has to be examined with care. The said principle was laid down in Arjun and others Vs. State of Rajasthan 1994 AIR (SC) 2507. The relevant observations read as under:-

“Learned counsel for the appellants first contended that there was long standing enmity between the complainant and some of the witnesses on one hand and the appellants on the other and some criminal proceedings between them were going on when the alleged incident took place and hence it was due to this enmity that the appellants were Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh falsely implicated. It was also submitted that Bahori, PW 1 and Sat Pal Singh, PW 7 are close relatives of the deceased and other prosecution witnesses are also close associates and, therefore, there is possibility of false implication of the appellants in the crime in question. It is an admitted fact that the complainant and the appellants were on inimical terms and some criminal proceedings were pending between them even at the time when the occurrence took place. It is equally true that Bahori, PW 1 is the brother of the deceased and informant Sat Pal Singh, PW 7 is the son of the deceased. But we are not convinced by the aforesaid arguments that either on account of animosity or on account of relationship they did not divulge the truth but fabricated a false case against the appellants. It is needless to em- phasise that enmity is a double edged sword which can cut both ways. However, the fact remains that whether the prosecution witnesses are close relatives of the deceased victim or on inimical terms with the deceased involved in the crime of murder, the witnesses are always interested to see that the real offenders of the crime are booked and they are not, in any case, expected to leave out the real culprits and rope in the innocent persons simply because of the enmity. It is, therefore, not a safe rule to reject their testimony merely on the ground that the complainant and the accused persons were on inimical terms. Similarly the evidence could not be rejected merely on the basis of relationship of the Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh witnesses with the deceased. In such a situation it only puts the Court with the solemn duty to make a deeper probe and scrutinize the evidence with more than ordinary care which precaution has already been taken by the two courts below while analysing and accepting the evidence.

12. The delay in lodging of FIR is another factor against the case of the prosecution. It is, thus, apparent that it was only in the morning that the body of the deceased was discovered and at that point of time he was taken to hospital. In order to solve the crime, the appellant had apparently been introduced with a weak motive as noticed above regarding fight over a slaughter of Rooster which had taken place more than 1-1/2 months back which was never proved by producing any independent witness. Similarly on the issue of delay, it has time and again been held that the prompt lodging of FIR is necessary to obtain earliest information regarding the way in which the crime was committed and the names of real accused along with their role and use of weapon. In the present case as noticed above, the occurrence took place at 8.00 PM but no effort was made to get the FIR lodged. Rather the injured was taken to the hospital only the next day and thereafter it was only the Doctor who had sent intimation to the police post which was adjoining the Civil Health Centre. This delay leads to a doubt in the mind of the Court as to who was the real accused and motive which led to the murder of Surjit Singh in the present case especially keeping in view the background of his estrangement from his family. The delay seems to have been vitally used to introduce the appellant into picture and there seems to be deliberation and consultation in lodging of the FIR. The Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, ChandigarhApex Court in Thulia Kali Vs. The State of T.N. 1972(3) SCC 393 held as under:-

“First information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The importance of the above report can hardly be overestimated from the standpoint of the accused. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as names of eye witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of after thought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in the lodging of the first information report should be satisfactorily explained. In the present case, Kopia, daughter-in-law of Madhandi deceased, according to the prosecution case, was present when the accused made murderous assault on the deceased. Valanjiaraju, stepson of the deceased, is also alleged to have arrived near the scene of occurrence on being told by Kopia. Neither of Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarhthem, nor any other villager, who is stated to have been told about the occurrence by Valanjiaraju and Kopia, made any report at the police station for more than 20 hours after the occurrence, even though the police station is only two miles from the place of occurrence. The said circumstance, in our opinion, would raise considerable doubt regarding the veracity of the evidence of those two witnesses and point to an infirmity in that evidence as would render it unsafe to base the conviction of the accused-appellant upon it.”

13. Similar view has been taken in Rejeevan and another Vs. State of Kerala 2003(3) SCC 355, which reads as under:-

“15. As feared by the learned counsel for the appellants, the possibility of subsequent implication of the appellants as a result of afterthought, may be due to political bitterness, cannot be ruled out. This fact is further buttressed by the delayed placing of F.I.R. before the Magistrate, non- satisfactory explanation given by the Police Officer regarding the blank sheets in the Ex.P30 counter foil of the F.I.R. and also by the closely written bottom part of the Ex.P1 statement by PW1. All these factual circumstances read with the aforementioned decisions of this Court lead to the conclusion that it is not safe to rely upon the F.I.R. in the instant case. The delay of 12 hours in filing F.I.R. in the instant case irrespective of the fact that Police Station is situated only at a distance of 100 meters from the spot of incident is another factor sufficient to doubt the genuineness Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh of F.I.R. Moreover, the prosecution did not satisfactorily explain the delayed lodging of F.I.R. with the Magistrate.”

14. Even in the inquest report, the presence of Pritam Singh son of Tara Singh one of the brother is noticed who was not in picture prior to that though an effort was tried to make up for justifying his absence on the ground that he was not in the village on that day and though he had arrayed as a witness but was given up on the statement of the Addl. Public Prosecutor. The accused was arrested on 23.2.1997 but no effort was made to recover the weapon of assault till 25.2.1997. A perusal of the disclosure statement shows that it is again signed by Pritam Singh son of Tara Singh who was never examined as a witness and was given up by the prosecution. The recovery of the Datar in the absence of any independent witness, thus, cannot be accepted even though the Police had sufficient time to associate an independent witness at that point of time. The blood stained Datar was sent to the Chemical Examiner for report and though there was blood scraping on the same and they were sent to the Serologist to get the opinion as to whether it was human blood. The said report of the Serologist was never placed on record to prove the said fact and no effort was made to get the blood grouping matched with the blood stained clothes of the deceased which had been taken into possession vide memo Ex. PM.

15. It has been held in Kansa Behera Vs. State of Orissa 1987 (3) SCC 480 that in the absence of any proof that there was human blood on the weapon of offence, the same would not be an adverse circumstance against the accused. The relevant portion of the observations reads as under under:-

Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh “11. As regards the recovery of a shirt or a dhoti with blood stains which according to the serologist report were stained with human blood but there is no evidence in the report of the serologist about the group of the blood and therefore it could not positively be connected with the deceased. In the evidence of the Investigating Officer or in the report, it is not clearly mentioned as to what were the dimensions of the stains of blood. Few small blood stains on the clothes of a person may even be of his own blood especially if it is a villager putting on these clothes and living in villages. The evidence about the blood group is only conclusive to connect the blood stains with the deceased. That evidence is absent and in this view of the matter, in our opinion, even this is not a circumstance on the basis of which any infer-ence could be drawn.”

16. The cumulative effect of the above discussion would go on to show that the trial Court did not examine all these aspects and was biased from the fact that there was an eye witness account of the close relatives. It is settled law that eye witness account of the close relatives is not to be discarded, however, their statements have to be examined with due care and caution and to see whether it is worth credence. Caution is to be applied by the Court while scrutinising the evidence of interested witness and the quality of the evidence and not quantity is to be judged to place reliance on the credence of the statement and to find out whether it is cogent and credible. This examination was not carried out by the trial Court. The statements of the alleged eye witnesses do Kumar Pardeep 2013.10.01 12:45 I attest to the accuracy and integrity of this document Punjab and Haryana High Court, Chandigarh not inspire confidence and in the absence of any independent evidence and on account of delay in lodging the FIR, the conviction recorded against the appellant cannot be sustained. Accordingly, the appeal is allowed, the judgment of the trial Court is set aside and the appellant- accused, who is on bail during the pendency of appeal is acquitted of the charge of murder framed against him under Section 302 IPC. Accordingly, the bail bonds and surety bonds shall stand discharged.

(G.S.SANDHAWALIA)

JUDGE
12.09.2013 (JASBIR SINGH)
Pka JUDGE

Kumar Pardeep
2013.10.01 12:45
I attest to the accuracy and integrity
of this document
Punjab and Haryana High Court,
Chandigarh

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