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Wednesday, May 8, 2013

murder case =version of P.W.3, the so-called eye-witness, that when the High Court chose to disbelieve his version, insofar as it related to the other three accused on the same reasoning, it ought to have acquitted the appellant as well.= when the presence of P.W.3 at the place of happening of the occurrence was thus fully established with the support of P.W.4, as rightly concluded by the trial Court, as well as, the High Court, the only other question was whether the rest of the statement made by P.W.3 merited any acceptance. In that respect, we find that the High Court made a close scrutiny of the version of P.W.3 and has found that he was a totally independent witness and he had no axe to grind against the appellant. In fact, his statement that he could not identify the other accused, as rightly held by the Division Bench of the High Court, was a very fair statement. When he also belonged to the same village, there was no reason for him to implicate the appellant alone. Therefore, the conclusion of the High Court that such a fair statement made by the witness, namely, P.W.3 cannot be used to totally erase his version, was perfectly justified. Further, because he did not make any attempt to go to rescue of the deceased cannot be put against the witness, inasmuch as when four persons were assaulting the deceased with dangerous weapons that too in the night hour in the present day set up, one cannot expect an unarmed person to get himself entangled and suffer unnecessary harm to himself. Moreover, the occurrence took place late in the light at around 9 pm and, therefore, prudence might have dawned upon him not to fall a cheap prey at the hands of such criminals who were already assaulting a person with a dagger and other weapons. Equally his conduct in having come back to the place of occurrence in the early morning at around 7.30 am along with P.W.4 only shows his earnestness in disclosing what he witnessed on the previous night to the police. The recoveries made at the instance of the appellants also fully supported the case of the prosecution.- We say so, since we are convinced that the version of P.W.3 was wholly reliable and there was no reason to doubt his version in order to apply the principles set out in the above referred decisions. 20. We, therefore, do not find any merit in this appeal. The appeal fails and the same is dismissed.


Page 1
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.2356 OF 2009
Palwinder Singh ….Appellant
VERSUS
State of Punjab ….Respondent
J U D G M E N T
Fakkir Mohamed Ibrahim Kalifulla, J.
1. This appeal is directed against the judgment of the Division
Bench of Punjab & Haryana High Court at Chandigarh dated
12.09.2008 in Criminal Appeal No.350-DB of 1998.
2. The case of the prosecution as projected before the Court
below was that the deceased Dr. Jasbir Singh was running a
chemist shop in the village Wadala Banger, that on 20.08.1996
at 08:00 pm, the cousin of the deceased P.W.2 Gurmeet Singh,
along with one Baldev Singh wanted to meet the deceased,
that he was proceeding from Kalanaur in his scooter and that
near Mir Kachana, near a brick kiln, they found people
gathered around on the road and learnt that somebody was
Criminal Appeal No.2356 of 2009 1 of 14Page 2
murdered. When they went to the spot P.W.2 found that his
cousin Dr. Jasbir Singh was found dead with stab wounds and
blood was oozing out. He also found the scooter belonging to
the deceased lying nearby. He further found 100 rupee
currency notes were also lying scattered around the deceased.
P.W.2, thereafter, asked his companion Baldev Singh to remain
at the spot and proceeded to lodge a report, which came to be
registered as FIR No.115 under Section 302, 392 read with 34
IPC on 20.8.1996.
3. P.W.11 the Assistant Sub-Inspector visited the place of
occurrence, examined the body of the deceased, prepared the
inquest report and sent the body for postmortem. He also
collected the currency notes, which were in 100 rupee
denomination, the scooter and a rope measuring about 24
feet, which was lying near the dead body. Blood stained earth
was also collected from the spot.
4. P.W.1 Dr. Kulwant Singh, conducted the postmortem
examination on the body of the deceased on 21.08.1996.
Exhibit PA is the postmortem certificate issued by him
Criminal Appeal No.2356 of 2009 2 of 14Page 3
wherein, as many as 8 injuries were noted by him. At the
instance of P.W.14, Om Prakash, P.W.12, the Investigating
Officer, arrested four accused including the appellant on
26.08.1996. Based on the admissible portion of the
confessional statement of the appellant, as well as the other
accused, various recoveries were made including weapons,
cash, two gold rings with the inscription ‘JSK’ and one wrist
watch.
5. The prosecution examined 15 witnesses and marked PA
postmortem certificate, PV and PX Report of Chemical
Examiner and PY and PZ report of Serologists. When the
incriminating circumstances were put against the appellant
and the other accused under Section 313, they denied the
same and pleaded that they have been falsely implicated.
They also examined D.Ws.1 and 2 on their side. P.Ws.3 and 4
were examined as eye-witnesses of whom P.W.4 was treated
hostile.
6. Having considered the evidence of the prosecution, in
particular the version of P.Ws.1 to 4, the medical report, the
Criminal Appeal No.2356 of 2009 3 of 14Page 4
serologist report, chemical examiner’s report and the
recoveries made at the instance of the accused, the trial Court
found all the accused guilty of the offences alleged against
them and while convicting them for the said offences, imposed
the sentence of life with fine of Rs.2500/- each and in default
to undergo further rigorous imprisonment for six months under
Section 302 read with 34 IPC. For the offence proved under
Section 392 read with 34 IPC, sentence of 10 years rigorous
imprisonment with a fine of Rs.1000/- and in default to
undergo rigorous imprisonment for three months was imposed.
The sentences were directed to run concurrently.
7. On appeal by all the four accused, the High Court by the
judgment impugned in this appeal confirmed the conviction
and sentence imposed on the appellant and acquitted the rest
of the accused from all the charges.
8. We heard Mr. Vikas Mahajan, learned counsel for the appellant
and Ms. Bansuri Swaraj, learned counsel for the
respondent/State. Learned counsel for the appellant mainly
contended that there were too many contradictions in the
Criminal Appeal No.2356 of 2009 4 of 14Page 5
version of P.W.3, the so-called eye-witness, that when the High
Court chose to disbelieve his version, insofar as it related to
the other three accused on the same reasoning, it ought to
have acquitted the appellant as well.
The learned counsel
contended that the arrest of the appellant based on the
version of P.W.14, was not true, that since the appellant was
involved in some other criminal case earlier, he was falsely
implicated in the case on hand. Learned counsel contended
that there was no evidence to show that there was any
matching of blood group in order to hold that the appellant
was involved in the murder of the deceased.
9. As against the above submissions, Ms. Bansuri Swaraj, learned
counsel for the State contended that though P.W.4 was treated
hostile, his version insofar as his going along with P.W.3 to the
place of occurrence and the factum of the deceased being
attacked by certain persons as stated by PW-3 was fully
corroborated and consequently the conclusion reached by the
trial Court based on the eye-witness account of P.W.3,
supported by the version of P.W.4 to that extent read along
with the medical evidence for convicting appellant and the
Criminal Appeal No.2356 of 2009 5 of 14Page 6
confirmation of the same by the High Court in the impugned
judgment, does not call for interference.
10. Having heard learned counsel for the appellant as well
as the respondent/State and having bestowed our serious
consideration to the case pleaded and on perusal of the
material papers including the judgment of the High Court, as
well as the trial Court, we are also convinced that the
conviction and sentence imposed on the appellant cannot be
assailed.
11. The thrust of the submission of the learned counsel for
the appellant was that the whole case of the prosecution was
built upon P.W.3 and his version was wholly unreliable. The
learned counsel in support of his submission, placed reliance
upon the decisions reported in Govindaraju alias Govinda v.
State by Sriramapuram Police Station and another -
(2012) 4 SCC 722 paragraph 25 and Lallu Manjhi and
another v. State of Jharkhand - (2003) 2 SCC 401. By
relying upon the above-said decisions, learned counsel
Criminal Appeal No.2356 of 2009 6 of 14Page 7
contended that P.W.3 could not have witness the occurrence
as deposed by him.
12. We perused the evidence of P.W.3. The version of
P.W.3 was that on the date of occurrence, namely, 20.08.1996,
he went to Batala to see his sister who was married in
Sagarpura adjoining Batala, that around 8.00 p.m. he started
from his sister’s house and on the way he met P.W.4 who
agreed to provide a lift to P.W.3. It is his further version that
when both of them reached a brick kiln at Mir Kachana around
8.45 or 9.00 p.m. they saw the deceased as well as the
accused in a melee among whom the appellant was one of
them. He, however, stated that he was not able to identify the
rest of the accused. He also stated that appellant and the
three other persons were attacking the deceased by giving
dagger blows and that he saw the appellant giving such
specific dagger blows on the palm of the right hand of the
deceased, as well as, wrist on the chest. He also stated that
further dagger blows were also inflicted upon the deceased.
According to P.W.3, he could notice the above incident with
the aid of the head lamp of the scooter.
Criminal Appeal No.2356 of 2009 7 of 14Page 8
13. In the cross-examination, he stated that the other
accused muffled their faces and he was able to mention their
names with the help of the police personnel. He also stated
that it was 10 p.m. and, therefore, he left that place and on
the next day morning he first informed his family members
and along with P.W.4 he met police officials by around 8 or
8.40 a.m. at the place of occurrence where the body was still
lying where he also gave his statement. According to him,
none of the relatives of the deceased met him. He also fairly
stated that he did not make any attempt to rescue the
deceased.
14. P.W.4 who was treated as hostile supported the
version of P.W.3 upto the factum of assault on the deceased
by 4 or 5 persons near brick kiln of Mir Kachana, including the
lift which he extended to P.W.3 on Dera Baba Nanak Road near
Tonga stand. He also mentioned that both of them were going
to village Wadala Banger. He, however, stated that he could
not identify any of the accused who were assaulting the
Criminal Appeal No.2356 of 2009 8 of 14Page 9
deceased. He also expressed his inability to identify the
appellant.
15. P.W.1, Dr. Kulwant Singh identified the postmortem
certificate issued by him as Exhibit PA and deposed that he
noticed the following injuries on the body of the deceased:
“1. An incised wound C shaped 4 cm x ¼ cm on the
Palmer side of right wrist joint, muscle deep.
2. An incised wound 1½ x ¼ cm on the palmer side
of right hand in the middle, muscle deep.
3. An incised penetrating (both sides) wound
spindle shaped 3 cm x 1 cm on the front of right
shoulder joint, muscle deep.
4. An incised penetrating (both sides) wound
spindle shaped 2 ½ cm x 1 cm on right lateral
side and lower part of the chest on the interior
axillaries line 17 cm from the axilla.
On dissection underlying liyar was ruptured and
whole abdominal cavity was full of blood.
5. An incised penetrating wound (both side) spindle
shaped 2 ½ cm x 1 cm on the front and upper
part of left side of chest, 6 cm from midline 2 cm
below clavical.
On dissection: underlying left lung was ruptured
and thorax cavity is full of blood
6. An incised penetrating wound (both side) spindle
shaped 2 ½ cm x ½ cm on the front and left side
of chest 2 cm medial to the left nipple.
Criminal Appeal No.2356 of 2009 9 of 14Page 10
On dissection: underlying chest wall and
pericardieum was pierced. Heart was ruptured
and pericardieum was full of blood.
7. Incised penetrating wound ¾ cm x 1 ½ cm (both
side) spindle shaped on the left side of abdomen
19 cm from the umbilicus and parallel) do it.
On dissection: The abdominal cavity was
ruptured. Colon on left side was ruptured.
Abdominal cavity was full of blood.
8. 6 incised penetrating wounds (spindle shaped,
sharp from both sides) 2 cm x 1 cm, 3cm x 1½
cm, 2 ½ cm x 1cm, 2cm x ½ cm, 2 cm x ½ cm,
2cm x ½ cm on the back and left side of chest.
All were muscle deep.”
16. The Investigating Officer, P.W.12, deposed that based
on the interrogation, the appellant made a confessional
statement and the admissible portion of which was to the
effect that he had concealed one dagger used in the crime
near a Shisham tree near brick kiln of Mir Kachana, apart from
the concealment of one ring, one shirt and pant and Rs.1200/-
in the iron box lying in his house, which were recovered under
Exhibit PQ attested by Harjinder Singh. P.W.14 Om Prakash
deposed that all the four accused met him and confessed
about the killing of the deceased and that he produced them
before the police. P.W.5, the wife of the deceased Jasbir Singh
stated that her husband used to wear two gold rings with the
Criminal Appeal No.2356 of 2009 10 of 14Page 11
impression ‘JSK’, one Titan wrist watch and one purse and that
above articles were missing from the dead body of her
husband.
17. The above evidence led by the prosecution, disclosed
that the deceased died of ante-mortem injuries and that it was
a homicidal death, which was fully supported by the version of
P.W.1 Dr. Kulwant Singh.
The injuries were all grievous in
nature and the deceased met with gruesome death. When we
come to the evidence of P.W.3 it is true that with regard to the
identity of the rest of the accused other than the appellant, he
stated that he could name them only at the instance of the
police personnel.
As far as his presence at the place of
occurrence was concerned, his version read along with the
evidence of P.W.4 discloses that the presence of both of them
was beyond any pale of controversy. Even as regards the
assault on the deceased, the version of P.W.3 was fully
corroborated by P.W.4.
Therefore, when the presence of P.W.3
at the place of happening of the occurrence was thus fully
established with the support of P.W.4, as rightly concluded by
the trial Court, as well as, the High Court, the only other
Criminal Appeal No.2356 of 2009 11 of 14Page 12
question was whether the rest of the statement made by P.W.3
merited any acceptance.
 In that respect, we find that the High
Court made a close scrutiny of the version of P.W.3 and has
found that he was a totally independent witness and he had no
axe to grind against the appellant. 
In fact, his statement that
he could not identify the other accused, as rightly held by the
Division Bench of the High Court, was a very fair statement.
When he also belonged to the same village, there was no
reason for him to implicate the appellant alone. 
He could have
simply stated that he knew the other accused also and that he
had noted their presence at the place of occurrence.
Therefore, the conclusion of the High Court that such a fair
statement made by the witness, namely, P.W.3 cannot be used
to totally erase his version, was perfectly justified.
 Further,
because he did not make any attempt to go to rescue of the
deceased cannot be put against the witness, inasmuch as
when four persons were assaulting the deceased with
dangerous weapons that too in the night hour in the present
day set up, one cannot expect an unarmed person to get
himself entangled and suffer unnecessary harm to himself.
Moreover, the occurrence took place late in the light at around
Criminal Appeal No.2356 of 2009 12 of 14Page 13
9 pm and, therefore, prudence might have dawned upon him
not to fall a cheap prey at the hands of such criminals who
were already assaulting a person with a dagger and other
weapons.
  Equally his conduct in having come back to the place
of occurrence in the early morning at around 7.30 am along
with P.W.4 only shows his earnestness in disclosing what he
witnessed on the previous night to the police. 
18. Therefore, we find force in the submission of the
learned counsel for the State that the presence of P.W.3 along
with P.W.4 at the time when the occurrence took place and the
identity of the appellant by P.W.3 and describing his
involvement in the commission of the offence as narrated by
him, was rightly believed by the trial Court, as well as, by the
High Court and we are also convinced that such a reliance
placed upon the eye-witness account of P.W.3 for convicting
the appellant with the aid of other witnesses is perfectly
justified. 
The recoveries made at the instance of the
appellants also fully supported the case of the prosecution.
19. Having reached the above conclusion, we find that the
reliance placed upon the decision reported in Govindaraju
Criminal Appeal No.2356 of 2009 13 of 14Page 14
alias Govinda (supra), as well as, Lallu Manjhi (supra) will
be of no avail to the appellant. 
We say so, since we are
convinced that the version of P.W.3 was wholly reliable and
there was no reason to doubt his version in order to apply the
principles set out in the above referred decisions. 
20. We, therefore, do not find any merit in this appeal. The
appeal fails and the same is dismissed. 
………….……….…………………………..J.
[Dr. B.S. Chauhan]
...……….…….………………………………J.
 [Fakkir Mohamed Ibrahim
Kalifulla]
New Delhi;
May 08, 2013.
Criminal Appeal No.2356 of 2009 14 of 14

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