Uma Nath Singh, J.@mdashThis judgment shall also dispose of connected Criminal Revision No. 1099 of 1997 (Subhash Chander v. Tejinder
Singh and others), filed by the complainant for enhancement of sentence. Both the matters arise out of a judgment dated 23.7.1997 passed by
learned Sessions Judge, Ferozepur, in Sessions Case No. 208 of 1995 (ST No. 41 of 1997), holding accused Appellants Tejinder Singh,
Baljinder Singh and Ravinder Kumar (hereinafter referred to as `the accused persons'') guilty of charges under Sections 302/34 IPC and 449 IPC
and sentencing them each to undergo imprisonment for life with a fine of Rs. 3,000/-, with direction to further undergo RI for one year each in case
of default of payment of fine, on the first count, and RI for ten years with a fine of Rs. 2,000/-, with direction to further undergo RI for six months
each in default of payment of fine, on the second count. However, accused persons Baljinder Singh and Tejinder Singh have been held guilty also
under Sections 324 and 324/34 IPC, respectively, and have been sentenced to undergo RI for one year each, with direction that all the substantive
sentences shall run concurrently.
2. As per prosecution case, FIR (Ex. PK/2) was recorded at 11.30 p.m. on 7.2.1995 under Sections 307/452/34 IPC on the statement of eye-
witness Subhash Chander (PW-3), elder brother of the deceased. He has stated that he was the eldest of three brothers. Ashok Kumar was
younger to him and Prem Kumar (hereinafter referred to as `the deceased'') was the youngest. The deceased was employed at a VCR shop and
on the date of incident, he came to him at a three wheelers stand at about 6.30 p.m. This was also his version that the deceased informed him that
accused persons Dimpa alias Ravinder Kumar, Rinku alias Balwinder Singh and Pappi alias Tejinder Singh had scuffled with him. He advised the
deceased to go home with assurance that he would persuade them not to do so. The deceased left for the house and the complainant also followed
him. They reached near the house at about 8.00 p.m. An electric light was on in the street. All the three accused persons, namely, Tejinder Singh,
armed with kirch, Baljinder Singh, also with kirch, and Ravinder Kumar, empty handed, were standing near the house. On seeing the deceased,
Ravinder Kumar gave a lalkara saying ""Prem has come. He should not be allowed to escape today."" Thereafter, he had taken him into his grip and
co-accused Baljinder Singh gave a kirch blow on front side of his chest and another co-accused Tejinder Singh also caused a similar blow, which
hit below the neck on the left side on his chest. The deceased had rushed inside the house to save himself but accused Tejinder Singh again gave a
kirch blow on his right thigh. The deceased fell down in the house. While he was lying fallen, accused Baljinder Singh gave him further three blows
with kirch on his back side. Accused Tejinder Singh again gave one blow to the deceased on his left arm. The complainant raised an alarm and
also proceeded to save the deceased. In this process, Baljinder Singh alias Rinku caused two kirch blows to him also on his left thigh and left
buttock. On seeing oozing out of the blood from the body of the deceased, and when the complainant had raised an alarm, all the three accused
persons fled away with their weapons. According to the complainant, about two months back also, all the aforesaid three accused persons had
exchanged abuses with the deceased but the matter had been compromised in a Panchayat. The police after completion of the investigation put up
a challan against all the three accused persons.
3. The prosecution examined nine witnesses. Dr. Faqir Masih (PW-1) is the Autopsy Surgeon, who conducted the post-mortem examination on
the dead body of the deceased and gave his opinion on the nature of injuries and the cause of death. Dr. M.M.S. Dhillon (PW-2) had initially
examined the deceased when he had been brought by the complainant to the hospital and submitted an MLR. He also examined the complainant
later on at the request of the police. Subhash Chander (PW-3) is the complainant and the sole eye-witness of the incident. Constable Paramjit Lal
(PW-4) tendered his evidence on affidavit (Ex. PD), which he has also proved. Inspector Surjit Singh (PW-5) was the Additional SHO of Police
Station City, Ferozepur. He had received the MLR and investigated the case. Constable Jagjit Singh (PW-6) has also tendered his evidence on
affidavit (Ex. PT) and proved the document. He carried the special report to the residence of the Judicial Magistrate concerned. Veerpal Singh
(PW-7) was a Lineman of Punjab State Electricity Board. He had brought the register and stated on the basis of record that the electric supply to
the area of offence had continued uninterrupted. ASI Kewal Krishan (PW-8) has also tendered his evidence on affidavit (Ex. PV). However, at
the time of his cross-examination, he was reported to be dead. He was the MHC of Police Station City, Ferozepur. Amrit Pal Singh (PW-9) was
posted as SHO, PS City, Ferozepur, on 11.2.1995. He arrested accused Ravinder Kumar on 11.2.1995 and accused Baljinder Singh on
13.2.1995.
4. Accused Tejinder Singh and Baljinder Singh in their statements before the Court u/s 313 Code of Criminal Procedure pleaded innocence and
further stated that the deceased was a vagabond type person and he was doing nothing. They were falsely implicated in this case only on suspicion
that they had been defaming the deceased. The third accused Ravinder Kumar also pleaded innocence and further stated that he was a class fellow
of Baljinder Singh and was a college student. He was falsely implicated in this case because of his friendship with Baljinder Singh.
5. Heard learned Counsel for the parties and perused the records.
6. Learned Counsel for the Appellants has assailed the impugned judgment on the ground that there was a delay in the lodgement of the FIR. The
incident had taken place at 8.00 p.m., whereas the FIR was lodged at 11.30 p.m.; the presence of the eye-witness on the spot of incident was
doubtful, and the accused persons had no motive to commit the offence.
7. On the other hand, learned State counsel supported the impugned judgment and submitted that the ocular evidence of prosecution witnesses is
supported by the testimonies of Medical Officers (PW-1 and PW-2), as also by the ML Rs and Post-mortem report. Learned Counsel further
submitted that the motive need not be necessarily proved in every criminal case.
8. We have carefully considered the rival submissions and perused the records. The prosecution case is based on an eye-witness account of
Subhash Chander (PW-3), brother of the deceased (hereinafter referred to as `the eye- witness''). He, being an injured witness, has given a vivid
description of the incident. His testimony does not contradict his statement in the FIR. His presence on the spot is established by his MLR (Ex.
PH); evidence of the Investigating Officer, who had recorded his statement; statement of Dr. M.M.S. Dhillon (PW-2), who had medically
examined him at the instance of the police, and the post-mortem report of the deceased, which also bore his signature. The factum of presence of
the eye-witness on the spot, is supported by preponderance of evidence, and thus it certainly inspires confidence. The eye-witness is the elder
brother of the deceased; he had suffered injuries in the incident, and is also the author of the FIR. He has given the background of the case while
stating that on the date of incident at about 6.30 p.m., the deceased had come to him at the Auto Rickshaw Stand, Ferozepur City. The deceased
told him that all the three accused persons had tried to assault him. The eye-witness assured the deceased to go home and he would advise the
accused persons not to do so. However, at about 8.00 p.m., when he had returned home with the deceased from the VCR shop, where the
deceased was employed, he noticed the presence of all the accused. Narrating the actual incident, he has stated that in front of their house in the
street, all the accused persons were standing. It need to be noted that two of the accused persons, namely, Tejinder Singh and Baljinder Singh
were also the residents of the same street. They were armed with kirch, whereas co-accused Ravinder Kumar was empty handed. As regards the
possibility that the eye-witness could not have seen the incident, he has stated that an electric light was on in the street, which is further supported
by the evidence of Veerpal Singh (PW-7), a Lineman employed with the PSEB, who has stated on the basis of the record that the supply of
electricity had continued. Assigning specific roles to the accused persons, the eye-witness has stated that Ravinder Kumar had raised a lalkara
saying that the deceased had come; he be caught hold of, and he be not allowed to go. Accused Ravinder Kumar caught hold of the deceased and
took him into his grip. Accused Baljinder Singh gave a kirch blow hitting the deceased on his chest. He was followed by accused Tejinder Singh,
who also gave a kirch blow hitting the deceased on the left side of the neck. Having received two injuries, to save himself, the deceased rushed into
his house. But he was followed by the accused persons, who also entered into his house. At this stage, accused Tejinder Singh gave another blow,
hitting on the right thigh of the deceased. The deceased had fallen down on the ground, and thereafter, accused Baljinder Singh caused three more
blows, hitting the deceased on his back side. In the last, accused Tejinder Singh again gave another blow, hitting the deceased on his left arm.
Pictorial diagram of the injuries (Ex. PD-1) contained the corresponding injury marks. The eye-witness had raised an alarm and proceeded to save
the deceased. In the process, he also received two kirch blows on the left side of thigh near buttock from accused Balwinder Singh. Thereafter, the
accused persons left the place with their weapons. Thus, it appears from the eye-witness accounts of the actual incident that the accused persons
having caused sufficient number of injuries to the deceased and also having caused two injuries to the eye-witness had left the place on their own.
The eye-witness did not report the matter to the police immediately, although the Police Station was situated at a distance of about 2 kms. The
explanation given for not doing so appears to be that the deceased had been bleeding profusely and therefore, the witness rushed him to the
Trauma Ward of Civil Hospital in his auto-rickshaw. Secondly, the eye-witness himself had also sustained injuries in his thigh region. According to
the eye-witness, after one hour, the police had come to the hospital, where he made his statement/ruqa (Ex. PK) at 11.15 p.m. Regarding the
information given to the police about the incident, it has come in the cross-examinations of Dr. M.M.S. Dhillon (PW-2) that the deceased had been
brought to the hospital by the eye-witness (PW-3), who gave his particulars and also signed at two places. Vide the statement of PW-2, the
deceased had been brought to the Civil Hospital at 11.55 p.m., and on medical-examination, he noticed the following injuries on his person:
1. Incised punctured wound 5 cms x 1 cm in the epigastric region, just right to the mid line. Fresh bleeding was present. Probing was not done.
Pressure bandage was applied. Advised for Surgeon''s opinion.
2. Incised punctured wound 4 cms x 1.25 cms on the lower part of the left chest, just distal to costal margin and extending upward on the back of
the lower limbs. Fresh bleeding was present. Probing was not done, obliquely placed. Pressure bandage was applied. Advised for Surgeon''s
opinion.
3. Incised punctured wound 5 cms x 2 cms on the lower part of right chest and extending to mid line. Wound was obliquely placed. Fresh bleeding
was present. Probing was not done. Pressure bandage was applied. Advised for Surgeon''s opinion.
4. Incised punctured wound 2.75 cms x 0.75 cm on the back of the left side of the chest, 8 cms from the mid line, obliquely placed 10 cms above
the injury No. 2. Fresh bleeding was present. Probing was not done. Pressure bandage was applied. Advised for Surgeon''s opinion.
5. Incised punctured wound 4 cms x 2 cms on the left half of manubrium sternil and extending to left side of the chest. Fresh bleeding was present.
Probing was not done. Pressure bandage was applied. Advised for Surgeon''s opinion.
6. Incised wound 2 cms x 0.75 cm on the posterio lateral aspect of the back of the upper part of the left forearm. Wound was muscle deep. Fresh
bleeding was present.
7. Incised wound 2 cms x 0.75 cm on the posterior lateral aspect of the middle of the right thigh. Fresh bleeding was present.
Corresponding cuts were present in the jersi, shirt, banyan and pant and were sent with the MLR. All the clothes were blood stained.
Injuries No. 1 to 5 were kept under observation. Injuries No. 6 and 7 were declared as simple in nature. All the injuries were caused by sharp
edged weapon and probable duration of the injuries was within six hours.
9. We have also perused the MLR of the deceased (Ex. PD) and found the signatures of the eye-witness at two places. Vide the MLR (Ex. PD)
of the deceased, in a printed column, it is noticed that the police was informed immediately. The police had reached the Trauma Ward at 9.30 p.m.
The evidence of PW-2 which corroborates the testimony of the eye-witness, appears to be reliable as the police had reached the hospital within
35 minutes of information. This is also noticed that the doctor PW-2 by sending a copy of the MLR to the police had informed them. He has
reiterated in his cross- examinations to have sent the MLR to the Police Station. It appears that the eye-witness was medically examined after his
statement had been recorded by the police at 11.20 p.m. Dr. Dhillon (PW-2) has stated that he medico-legally examined the eye-witness on police
request of Inspector Surjit Singh (PW-5). He has further stated that the patient was brought to him by Surjit Singh (PW-5) at 11.20 p.m. On
medical examinations, he noticed two injuries on his person:
1. Incised punctured wound 0.75 cm x 0.5 cm on the posterio-lateral aspect of the left thigh. Wound was muscle deep. Fresh bleeding was
present. Corresponding cut was present in the pant and underwear.
2. Incised punctured wound 0.5 cm x 0.25 cm on the posterio aspect of the upper part of left thigh, just below natal cleft and 5 cm behind injury
No. 1. Wound was muscle deep. Fresh bleeding was present. Corresponding cut in the pant and underwear was present.
Both the injuries were declared as simple in nature. The probable duration of the injuries was within six hours and the kind of weapon used was
sharp edged weapon.
10. The police seized incriminating articles in the hospital in presence of the eye-witness. His blood stained clothes and that of the deceased (who
was not yet dead) were removed by the Doctor and handed over the police. The police seized the clothes after making two parcels vide Exs. PL
and PM. The eye-witness (PW-3) and one Kulwant Singh (not examined) attested the seizure. The seal of the I.O. after seizure was handed over
to PW-3. The witness identified the seizure memos in the Court. The police had taken the eye- witness along to the place of occurrence where an
intimation regarding the death of the deceased was received. IO Surjit Singh (PW-5) has also stated that at the place of occurrence, he had
received information about the death of the deceased, therefore, he along with the eye-witness reached the Trauma Ward. From the evidence of
the eye-witness as also from the statements of Dr. M.M.S. Dhillon (PW-2) and the Investigating Officer (PW-5), it appears that from 8.55 p.m. till
the death of the deceased in the intervening night of 7 and 8.2.1995 at 1.45 a.m., the police remained engaged in the investigation of the case. It is
further revealed that the FIR had been lodged at 11.30 p.m. Constable Jagjit Singh (PW-6) had been handed over an envelope containing special
report at 12.40 a.m., which was received by learned Illaqa Magistrate at 9.00 a.m. Thus, there was no intentional delay on the part of the police in
completing this exercise. Moreover, in his cross-examination, PW-6 has also stated that the Duty Magistrate was asleep and, therefore, he did not
think it proper to deliver the report to him at that time. The eye-witness has also denied a defence suggestion that some Advocate, being the
President of a local Radha Swami Satsang, had come to the hospital. He has stated that he had remained standing by the side of the Doctor for
two hours when the deceased was being medical-legally examined. He had also shown his injuries to the Doctor and had made a request for his
medical-examination, but he was told by the Doctor to bring medicines during the course of treatment of his brother. He has reiterated the specific
individual roles attributed to each of the accused persons. Thus, his presence on the spot of incident and his testimony regarding the occurrence are
supported by the cogent material on record. As regards the medical evidence, the testimonies of Dr. M.M.S. Dhillon (PW-2), and Autopsy
Surgeon, Dr. Fquir Masih (PW-1), do not contradict each other. Except at once place, where PW-2 has stated that injury Nos. 1, 2, 3, and 5, as
given in the MLR of the deceased (Ex. PD), are less likely to be caused with kirch (Exs. P-1 and P-2), as the length of the wound is more than the
breadth of the blade of kirch (Exs. P-1 and P-2). Their testimonies appear to be consistent with each other. On the other hand, Dr. Faquir Masih
(PW-1) has noted the following injuries on the dead body of the deceased:
1. Stitched wound 4 cms long on left side of sternum in its upper part. On opening thorax cavity, there was cut fracture of third left rib cartilage.
There was small amount of blood in pleural cavity. Left lung was found healthy.
2. Stitched wound 2.75 cms long on back of left chest, 8.5 cms from mid line in middle part of the chest.
On dissection, injury was found to be muscle deep, congestion of surrounding tissues was present.
3. Stitched wound 5 cms long in lower part of right side of chest. On dissection, wound was going into abdominal cavity obliquely. On opening the
abdomen, small amount of blood was seen in peritoneal cavity. There were two stitched wounds on liver, one anteriorly and the other in posterio-
lateral aspect of liver corresponding to injury No. 3.
4. Stitched wound 4 cms on back and left side just below costal margins. On dissection, injury was going into retro peritoneal space with a big
retro peritoneal haematoma.
5. 2 cms x 0.5 cm incised wound which was muscle deep present on posterio lateral aspect of upper part of left forearm. Clotted blood was
present.
6. Incised 2 cms x 0.5 cm on posterio-lateral aspect of right thigh in its middle part. Clotted blood was present. Wound was extending 3 cms deep
into the thigh muscles.
7. 1.5 cms surgical venesection wound on medial side of right ankle. Wound was stitched.
Stomach was healthy and contained small amount of semi digested food. Liver was pale looking. Spleen was looking pale, but was healthy.
Bladder was empty. Rest all other organs were healthy and as described above.
In the opinion of the Doctor (PW-1), the cause of death in this case was haemorrhage and shock due to multiple stab wounds.
11. On seeing the kitch (Exs. P-1 and P-2), he had opined that the injuries found on the dead body could be caused with these weapons.
Similarly, the injuries mentioned in the inquest report (Ex. PB) also lend support to the medical evidence. The Investigating Officer (PW-5), has
explained that no one was ready to give a statement. His evidence supports the prosecution case regarding the seizure, arrest of the accused
persons and the statements of the witnesses.
12. Now coming to the involvement of the accused persons, accused Tejinder Singh and Baljinder Singh are the real brothers; they are the
residents of the locality of the deceased, and their presence and participation are fully proved by the evidence on record, as discussed
hereinabove. So far as, accused Ravinder Kumar is concerned, he is not a resident of the same locality but he was staying somewhere else, outside
Kashmiri Gate, Ferozepur. His role is only confined to lalkara and taking the deceased into his grip to facilitate the commission of offence. As per
pictorial diagram of the dead body of the deceased (Ex. PD/1), one of the injuries on the front side of the body is located near the abdomen. Such
injury may not have been possible if accused Ravinder Kumar had held the deceased into his grip. Secondly, the accused had no motive to commit
the offence and hence he was not carrying any weapon at the time of offence. He has taken a stand that he was a friend of accused Baljinder Singh
and therefore, was implicated in this case. Further, in his cross-examination, the eye-witness was confronted with his police statement, wherein he
has not mentioned that accused Ravinder Kumar had entered into his house. Moreover, by way of supplementary evidence, the eye-witness had
also projected his wife as another eye-witness, who was not produced in the witness box. Though the presence of the eye-witness is established
but it may not be safe to convict accused Ravinder Kumar solely on the basis of his evidence in the absence of other incriminating materials. The
accused does not have any background of enmity with the deceased, except the evidence of the eye-witness that two months earlier on cricket
ground in the college, there were exchange of abuses between accused Balwinder Singh and Ravinder Kumar on the one hand, and deceased
Prem Kumar on the other. Moreover, Hon''ble Apex Court in the matter of Dani Singh and Others Vs. State of Bihar, has held that an inference
about common intention has to be drawn from the act and conduct of the accused as well as other relevant circumstances of the case. Totality of
the circumstances must be taken into consideration to arrive at any such conclusion. It only depends upon the facts and circumstances of each
case. Moreover, an act in furtherance of common intention is an incident of fact and not of law. Though, the eye- witness herein is an injured
witness but is also a partisan witness, being the elder brother of the deceased. As such, his evidence has to be carefully scrutinised. Similarly, in the
case of Ram Udgar Singh Vs. State of Bihar, , Hon''ble the Apex Court has held that the duty of the Court is to separate grain from chaff and
apprise in each case as to what extent the evidence is worthy of acceptance. It is only when such separation is not feasible, the evidence is to be
discarded in toto.
13. In view of the aforesaid discussion, we allow the appeal in part and set aside the conviction and sentence of accused Ravinder Kumar, but
dismiss the appeal against the rest of the accused, namely, Tejinder Singh and Baljinder Singh. It is informed that all the three accused persons are
on bail, pursuant to suspension of their sentence. Accordingly, the bail bond of accused Ravinder Kumar shall stand discharged, whereas accused
Tejinder Singh and Baljinder Singh shall surrender to their bail bonds to undergo the sentence as awarded by the trial Court.
14. As regards the criminal revision for enhancement of sentence, this is an appeal of 1997 and on a careful appreciation of evidence, we have held
that the sole eye-witness (PW-3) is worth reliance only in respect of accused Tejinder Singh and Baljinder Singh. Further, this is not a case, which
would fall in the category of rarest of the rare cases, calling for extreme penalty of death sentence at this belated stage. Hence, the criminal revision
filed by the complainant is hereby dismissed. Moreover, learned Counsel for the complainant has not appeared to argue the case despite the fact
that the case has remained listed on Board for a long period.
