Jasbir Singh Vs. State of Haryana
EmailAppeal: Criminal Appeal Nos. 157-158 of 2001
Petitioner: Jasbir Singh
Respondent: State of Haryana
Apeal: Criminal Appeal Nos. 157-158 of 2001
Judges: Dr. A.S. ANAND, CJI., R.C. LAHOTI & ASHOK BHAN, JJ.
Date of Judgment: Sep 20, 2001
Head Note:
CRIMINAL LAW
Criminal Procedure Code, 1973
Section 154 with Indian Penal code, 1860 – Section 302 and Evidence Act, 1872 – Section 3 – FIR – Delay ante-timed – Incident on 5.4.92 at about 6.30 p.m. – Copy received by illaqa magistrate on 6.4.92 at 2.30 p.m. – If creates doubt – Evidence showing registration at 8.30 p.m. on 5.4.92 – Medical evidence also showing death at about 6.30p.m. Held that FIR was neither delayed nor ante timed. Late receipt of copy by magistrate does not create doubt. (Para 4)
Evidence Act, 1872
Section 3 – Omissions – Incident of 5.4.92 – Search made by I.O. for accused in night – Not traceable – No mention in case diary – Testimonies of eye-witnesses, clear. Held that this omission cannot detract from clear testimony of witnesses. (Para 5)
Indian Penal Code,1860
Section 302 – Murder – Clear evidence that accused fired country made pistol – No body’s case that there was scuffle between the accused and deceased – No suggestion to eye-witnesses. Held that offence clearly falls under section 302. (Para 6)
JUDGEMENT:
ORDER
1. According to the prosecution case, on 5th April, 1992 at about 6.30 p.m. Khajan Singh was shot dead by the appellant by firing from a country-made pistol. First information report was lodged on the statement of father of the deceased, Inder, PW-2 at police station, Jatusana. According to the first informant, the appellant came to their house and asked deceased Khajan Singh to come out and go with the appellant. Younger son of the informant, Satpal, PW-1 went behind them, followed by the informant and his wife. When the appellant and deceased covered a distance of about 50/60 yards, the appellant allegedly took out a pistol from the right pocket of his pants and fired a shot from it which hit the deceased. On receipt of the injury, he fell down and died. The first informant and his wife, who were at a short distance of 15/20 paces from them, on hearing the firing of the shot, rushed to the place where the deceased had fallen down and put him on a cot. They took the dead body home and placed it in the courtyard of their house. PW-2 went to the police station to lodge the report. He lodged a report at about 8.30 p.m. on 5.4.1992. S.I. Karan Singh, PW-8, after registration of the case, proceeded to the spot. He prepared an inquest report exhibit PG. He then asked PW-7 to go to the village for investigations. On the next day, i.e., April 6, 1992, PW-7 S.I. Bhana Ram could not carry out the investigation at night and, therefore, he inspected the spot and prepared rough site plan. He took into possession one empty cartridge and blood-stained earth from the spot and after making them into separate parcels, sealed the same and sent them to the malkhana. The dead body of Khajan Singh was sent to general hospital, Rewari on 6.4.1992 in the morning for postmortem examination which was performed by PW-5, Dr. R.A. Gupta. The appellant was searched but not found. He was arrested on 10.4.1992 at 10.30 a.m. in the morning. On a disclosure statement made by the appellant, under section 27 of the Evidence Act, a country-made pistol was recovered from him. The pistol was sent to forensic science laboratory, Madhuban where the empty cartridge recovered from the spot on the morning of 6.4.1992 had already been sent. After completion of investigation, the appellant was sent up for trial. The additional sessions judge, Rewari, after recording evidence of the prosecution witnesses vide judgment dated 5.8.1995, convicted the appellant for an offence under section 302 IPC and section 25 of the Arms Act. The appellant was sentenced to undergo rigorous imprisonment for life for the offence under section 302 IPC and to pay a fine of Rs. 1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months. For an offence under section 25 of the Arms Act, the appellant was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo rigorous imprisonment for one month. Aggrieved by his conviction and sentence, the appellant preferred an appeal in the High Court of Punjab and Haryana. Vide judgment dated 27th January, 2000, the appeal was dismissed by the division bench of the High Court and conviction and sentence of the appellant was maintained for both the offences.
2. By special leave, the appellant is before us.
3. Mr. U.R. Lalit, learned senior counsel appearing for the appellant submitted that the first information report had been ante-timed and in support of this submission, he relied upon the receipt of the special report by the illaqa magistrate at 2.30 p.m. on 6th April, 1992. He also assailed the evidence of the eye-witnesses PW-1 and PW-2, the younger brother and father of the deceased. The main criticism of the evidence of these two eye-witnesses was based on certain admissions made in the cross-examination by PW-7, S.I. Bhana Ram and PW-8, S.I. Karan Singh. Learned counsel submitted that on the basis of the statements of PW-7 and PW-8, it appeared that Satpal, PW-1 and his mother Inderwati whose statements were not recorded on 5th April, 1992, had not actually seen the occurrence. It was further submitted that so far as PW-2 is concerned, the possibility that he roped in the appellant on a misguided suspicion, could not be ruled out. In support of this plea, it was submitted that appellant was not even searched on 5th April, 1992 and that indicated that the assailant was not known.
4. There is intrinsic evidence available on the record to show that FIR was lodged at 8.30 p.m. on the date of the occurrence at the police station by PW-2 Inder, father of the deceased. According to the medical evidence, taking into account the time that had elapsed between the postmortem and death of Khajan Singh, it is obvious that death of Khajan Singh had taken place at about 6.30 p.m. According to PW-2, occurrence took place at 6.30 p.m. on 5th April, 1992. Within a period of two hours, the FIR was lodged. It was, therefore, prompt and not delayed. There is no material on the record to show that it was ante-timed. PW-8, S.I. Karan Singh categorically stated that he had recorded the first information report exhibit PA at 8.30 p.m. on 5.4.1992. This statement has not been challenged in cross-examination. The mere fact that copy of the special report was received by the illaqa magistrate at 2.30 p.m. on 6th April, 1992 cannot create any doubt about the prompt lodging of the FIR.
5. During cross examination, PW-8 admitted that he had made a search for the appellant on the night of 5th April, 1992, after he had reached the village, but, the appellant was reported not to be present in the village or at his house. According to Mr. Lalit, this statement of PW-8 is not believable because he had not mentioned about it in the case diary. The omission to make an entry in the case diary regarding search of the appellant which had yielded no results on the night of the occurrence, cannot detract from the otherwise clear testimony of this witness. So far as PW-7 is concerned, he has also admitted that he had reached the village on the night of the occurrence itself and had been directed by S.I. Karan Singh to remain in the village for the night to carry on with the investigation. According to him, he could not inspect the site at night because there was no arrangement for light and at odd hours of night, there was also no arrangement for carrying dead body to the hospital either. His statement that he took into possession one empty cartridge and lifted blood-stained earth from the spot, has remained unchallenged in the cross-examination. The empty cartridge recovered from the spot had been sent to the forensic science laboratory soon after it was recovered. The recovery of the pistol was made on the disclosure statement made by the appellant on 10.4.1992 and the pistol was also examined by the forensic science laboratory. According to the report, exhibit PO from the forensic science laboratory “the 12 bore fired cartridge case C/1 (which had been recovered from the spot) had been fired from country-made pistol marked W/1” and “not from any other fire-arm even of same make and bore because every fire-arm has its own individual characteristic marks”. This evidence lends ample corroboration to the eye-witness account furnished by PW-1 Satpal and PW-2 Inder about the manner in which the deceased was shot at by the appellant. Both the trial court as well as the High Court, after careful perusal of their evidence, relied upon their testimony and with a view to satisfy our judicial conscience, we have also analysed the statements of PW-1 and PW-2. In our opinion, the appreciation of their evidence by the trial court as well as by the High Court neither suffers from any infirmity nor from any other error. Their testimony inspires confidence. We, thus, find that the eye-witness account not only receives corroboration from the medical evidence but also from the report of the forensic science laboratory, exhibit PO and is cogent, trustworthy and reliable.
6. Faced with this state of evidence, Mr. Lalit, learned senior counsel submitted that the offence did not fall under section 302 IPC. According to the learned senior counsel, the postmortem report prepared by Dr. R.A. Gupta, PW-5 indicated the direction of the injury and, therefore, the possibility that the pistol shot got fired during a scuffle between the appellant and the deceased, could not be ruled out. We are afraid we cannot agree. A perusal of statement of PW-5 Dr. R.A. Gupta, who conducted the postmortem examination, goes to show that the deceased died due to shock and coma resulting from firearm injury which had injured the vital organs like brain. It is nobody’s case that there was a scuffle between the appellant and the deceased. There is no suggestion made to that effect in the cross examination of either of the two eye-witnesses. On the other hand, the appellant set up a plea of alibi, which plea has not been accepted both by the trial court as well as the High Court and in our opinion, for good and cogent reasons. The argument regarding the nature of offence appears only to be an argument of despair. The offence, committed by the appellant clearly falls under section 302 IPC. The conviction and sentence of the appellant does not call for any interference.
7. We find no merit in these appeals which fail and are hereby dismissed.
1. According to the prosecution case, on 5th April, 1992 at about 6.30 p.m. Khajan Singh was shot dead by the appellant by firing from a country-made pistol. First information report was lodged on the statement of father of the deceased, Inder, PW-2 at police station, Jatusana. According to the first informant, the appellant came to their house and asked deceased Khajan Singh to come out and go with the appellant. Younger son of the informant, Satpal, PW-1 went behind them, followed by the informant and his wife. When the appellant and deceased covered a distance of about 50/60 yards, the appellant allegedly took out a pistol from the right pocket of his pants and fired a shot from it which hit the deceased. On receipt of the injury, he fell down and died. The first informant and his wife, who were at a short distance of 15/20 paces from them, on hearing the firing of the shot, rushed to the place where the deceased had fallen down and put him on a cot. They took the dead body home and placed it in the courtyard of their house. PW-2 went to the police station to lodge the report. He lodged a report at about 8.30 p.m. on 5.4.1992. S.I. Karan Singh, PW-8, after registration of the case, proceeded to the spot. He prepared an inquest report exhibit PG. He then asked PW-7 to go to the village for investigations. On the next day, i.e., April 6, 1992, PW-7 S.I. Bhana Ram could not carry out the investigation at night and, therefore, he inspected the spot and prepared rough site plan. He took into possession one empty cartridge and blood-stained earth from the spot and after making them into separate parcels, sealed the same and sent them to the malkhana. The dead body of Khajan Singh was sent to general hospital, Rewari on 6.4.1992 in the morning for postmortem examination which was performed by PW-5, Dr. R.A. Gupta. The appellant was searched but not found. He was arrested on 10.4.1992 at 10.30 a.m. in the morning. On a disclosure statement made by the appellant, under section 27 of the Evidence Act, a country-made pistol was recovered from him. The pistol was sent to forensic science laboratory, Madhuban where the empty cartridge recovered from the spot on the morning of 6.4.1992 had already been sent. After completion of investigation, the appellant was sent up for trial. The additional sessions judge, Rewari, after recording evidence of the prosecution witnesses vide judgment dated 5.8.1995, convicted the appellant for an offence under section 302 IPC and section 25 of the Arms Act. The appellant was sentenced to undergo rigorous imprisonment for life for the offence under section 302 IPC and to pay a fine of Rs. 1,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of three months. For an offence under section 25 of the Arms Act, the appellant was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- and in default of payment of fine, to further undergo rigorous imprisonment for one month. Aggrieved by his conviction and sentence, the appellant preferred an appeal in the High Court of Punjab and Haryana. Vide judgment dated 27th January, 2000, the appeal was dismissed by the division bench of the High Court and conviction and sentence of the appellant was maintained for both the offences.
2. By special leave, the appellant is before us.
3. Mr. U.R. Lalit, learned senior counsel appearing for the appellant submitted that the first information report had been ante-timed and in support of this submission, he relied upon the receipt of the special report by the illaqa magistrate at 2.30 p.m. on 6th April, 1992. He also assailed the evidence of the eye-witnesses PW-1 and PW-2, the younger brother and father of the deceased. The main criticism of the evidence of these two eye-witnesses was based on certain admissions made in the cross-examination by PW-7, S.I. Bhana Ram and PW-8, S.I. Karan Singh. Learned counsel submitted that on the basis of the statements of PW-7 and PW-8, it appeared that Satpal, PW-1 and his mother Inderwati whose statements were not recorded on 5th April, 1992, had not actually seen the occurrence. It was further submitted that so far as PW-2 is concerned, the possibility that he roped in the appellant on a misguided suspicion, could not be ruled out. In support of this plea, it was submitted that appellant was not even searched on 5th April, 1992 and that indicated that the assailant was not known.
4. There is intrinsic evidence available on the record to show that FIR was lodged at 8.30 p.m. on the date of the occurrence at the police station by PW-2 Inder, father of the deceased. According to the medical evidence, taking into account the time that had elapsed between the postmortem and death of Khajan Singh, it is obvious that death of Khajan Singh had taken place at about 6.30 p.m. According to PW-2, occurrence took place at 6.30 p.m. on 5th April, 1992. Within a period of two hours, the FIR was lodged. It was, therefore, prompt and not delayed. There is no material on the record to show that it was ante-timed. PW-8, S.I. Karan Singh categorically stated that he had recorded the first information report exhibit PA at 8.30 p.m. on 5.4.1992. This statement has not been challenged in cross-examination. The mere fact that copy of the special report was received by the illaqa magistrate at 2.30 p.m. on 6th April, 1992 cannot create any doubt about the prompt lodging of the FIR.
5. During cross examination, PW-8 admitted that he had made a search for the appellant on the night of 5th April, 1992, after he had reached the village, but, the appellant was reported not to be present in the village or at his house. According to Mr. Lalit, this statement of PW-8 is not believable because he had not mentioned about it in the case diary. The omission to make an entry in the case diary regarding search of the appellant which had yielded no results on the night of the occurrence, cannot detract from the otherwise clear testimony of this witness. So far as PW-7 is concerned, he has also admitted that he had reached the village on the night of the occurrence itself and had been directed by S.I. Karan Singh to remain in the village for the night to carry on with the investigation. According to him, he could not inspect the site at night because there was no arrangement for light and at odd hours of night, there was also no arrangement for carrying dead body to the hospital either. His statement that he took into possession one empty cartridge and lifted blood-stained earth from the spot, has remained unchallenged in the cross-examination. The empty cartridge recovered from the spot had been sent to the forensic science laboratory soon after it was recovered. The recovery of the pistol was made on the disclosure statement made by the appellant on 10.4.1992 and the pistol was also examined by the forensic science laboratory. According to the report, exhibit PO from the forensic science laboratory “the 12 bore fired cartridge case C/1 (which had been recovered from the spot) had been fired from country-made pistol marked W/1” and “not from any other fire-arm even of same make and bore because every fire-arm has its own individual characteristic marks”. This evidence lends ample corroboration to the eye-witness account furnished by PW-1 Satpal and PW-2 Inder about the manner in which the deceased was shot at by the appellant. Both the trial court as well as the High Court, after careful perusal of their evidence, relied upon their testimony and with a view to satisfy our judicial conscience, we have also analysed the statements of PW-1 and PW-2. In our opinion, the appreciation of their evidence by the trial court as well as by the High Court neither suffers from any infirmity nor from any other error. Their testimony inspires confidence. We, thus, find that the eye-witness account not only receives corroboration from the medical evidence but also from the report of the forensic science laboratory, exhibit PO and is cogent, trustworthy and reliable.
6. Faced with this state of evidence, Mr. Lalit, learned senior counsel submitted that the offence did not fall under section 302 IPC. According to the learned senior counsel, the postmortem report prepared by Dr. R.A. Gupta, PW-5 indicated the direction of the injury and, therefore, the possibility that the pistol shot got fired during a scuffle between the appellant and the deceased, could not be ruled out. We are afraid we cannot agree. A perusal of statement of PW-5 Dr. R.A. Gupta, who conducted the postmortem examination, goes to show that the deceased died due to shock and coma resulting from firearm injury which had injured the vital organs like brain. It is nobody’s case that there was a scuffle between the appellant and the deceased. There is no suggestion made to that effect in the cross examination of either of the two eye-witnesses. On the other hand, the appellant set up a plea of alibi, which plea has not been accepted both by the trial court as well as the High Court and in our opinion, for good and cogent reasons. The argument regarding the nature of offence appears only to be an argument of despair. The offence, committed by the appellant clearly falls under section 302 IPC. The conviction and sentence of the appellant does not call for any interference.
7. We find no merit in these appeals which fail and are hereby dismissed.
