BALDEV SINGH Vs. J P SINGH

JUDGEMENT

(1.) THIS appeal arises out of an internecine fight between two brothers and their family members vide judgment dated 2 -8 -1994 and 5 -8 -1994 passed by the learned 2nd Addl. Sessions Judge, Jammu, the appellants were convicted under Section 302 read with Section 34 RPC and sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/ - each. The appellant Onkar Singh has also been convicted under Section 323 RPC and sentenced to undergo simple imprisonment for six months and to pay a fine of Rs.2000/ -. The deceased Jagdev Singh was the real brother of the appellant Baldev Singh and uncle of appellant Onkar Singh. The appellants are the father and the son. The matrix of the prosecution case is that on 17 -7 -1991, the complainant Balwan Singh and his father deceased Jagdev Singh were cultivating their land in village Agwan, Tehsil R.S.Pura, when at about 8.30 AM the appellant accompanied by Smt Sunita Devi and Smt. Anita Devi (daughters of appellant Baldev Singh} criminally tres -passed there. The appellants were carrying spades (Kahis) in their hands and they threatened the deceased and the complainant to immediately desist from doing any work, otherwise face the physical liquidation. The deceased resisted the threat by pleading that the land "belonged to him and they were not doing any objectionable act Such an excuse was a bolt from the blue for the appellant Baldev Singh, who lost his senses and gave a blow with the spade on the head of Jagdev Singh. He was followed by the appellant Onkar Singh who did the same thing as he also inflicted an injury with the spade on the head. There -after, they inflicted more injuries on the back and other parts of the body of the deceased. When complainant came to the rescue of his father he was attacked by the appellant Onkar Singh, who inflicted two injuries which landed on the right arm and the back. Smt. Sunita Devi and Smt. Anita Devi threw stones on the complainant and the deceased. The deceased Jagdev Singh fell on the ground and on this happening, the appellants alongwith Smt. Sunita Devi and Anita Devi dis -appeared from the spot. The complainant took the injured Jagdev Singh to R.S.Pura Hospital where he was admitted. Babu Ram Sharma, Sub Inspector received the information of the incident who arrived in the Hospital and recorded the statement of the complainant. The deceased Jagdev Singh was un -conscious and he could not regain senses till he succumbed to the injuries. On the basis of this statement at 1.30 PM, the case was registered under Fir No. 185/91 in Police Station, R.S.Pura for the Commission of offences under Sections 307/447/324 RPC read with Section 34 RPC. On the same day, the injured Jagdev Singh was shifted to SMGS Hospital, Jammu where he died on 31 -7 -1991. On 20 -5 -1992, the appellants alongwith Smt. Sunita Devi and Smt. Anita Devi were charged by the learned 2nd Addl. Sessions Judge, Jammu for the commission of offences under Sections 362/34.447. 323 RPC. They pleaded not guilty and the prosecution examined Balwan Singh PW -1, Smt Raj Kumari PW -2, Sahib Singh PW -3, Ajit Singh PVV -4, Nasib Singh PW -5, Subash Singh PW -6, Can pat Rai PW -7. Surjit Kumar patwari PW -8. Dr. V.K. Verma PW -9, Dr. S.D. Thakur PW -10, Joginder Lal Constable PW -11, Ravinder Kumar Chalotra (SHO Police) PW -12 and Babu Ram SI PW -13 as witnesses. Relying upon the prosecution evidence, the learned Judge held the appellants guilty for the commission of murder of Jagdev Singh. Appellant No.2 was also found guilty for causing simple hurt to complainant Balwan Singh. They were convicted and sentenced as stated above. The co -accused Smt Sunita Devi and Smt. Anita Devi were acquitted.

(2.) THE appellants have challenged their conviction and sentence on the grounds that the trial court has mis -appreciated the evidence. The testimony of sole eye witness namely, complainant Balwan Singh was of shaby and shaky nature but the same has been treated as credulous and relied upon. He had given two different versions of the alleged occurrence i.e. one in the FIR and the other in his statement in court. It was stated in the FIR that some inhabitants of the village had witnessed the occurrence but none of them was examined in the court. In the statement given on oath in the court, he had stated that the villagers were working in their fields at a distance. The deceased had not died because of the injuries sustained by him but the death was caused because of infection of the wounds. There was no evidence to establish that the appellants had caused the injuries and they were sufficient in the ordinary course of nature to have caused the death. Undue delay was caused in lodging the report. The statements of the appellants were not recorded in accordance with the provisions of section 342 Cr.P.C. Heard the arguments.

(3.) THE learned counsel appearing for the appellants has contended that there were three witnesses of the alleged occurrence namely, complainant Balwan Singh, Smt Raj Kumari and Sahib Singh. Complainant Balwan Singh and Sahib Singh are the sons of the deceased and Smt Raj Kumari is his widow. The case was registered at the instance of Balwan Singh whose statement EXPW -BS (the basis of FIR) was recorded on the day of the occurrence (17 -7 -1991) by Babu Ram PW -13. The complainant Balwan Singh had not in the FIR mentioned the names of his brother Sahib Singh and mother Smt Raj Kumari to have witnessed the occurrence. But according to him, the occurrence had been witnesses by some inhabitants of the village Agwan. He did not name anybody. Nor such person was examined as a witness. Had his brother and mother witnessed the occurrence, he would have mentioned this fact in the FIR. The trial judge has weighed this fact in true perspective and rightly discarded the testimony of these two planted witnesses. After the elimination of the evidence of these two witnesses and in the absence of any account given by any alleged eye witness of the FIR, there remains the sole testimony of complainant Balwan Singh which because of its diversity of nature and inherent was not sure about the time of occurrence as in the FIR he had stated that the occurrence took place at about 10.15 AM but in his statement in the court he has stated that the occurrence took place at 8 AM or 8,30 AM. In his statement in the court, he had resiled from the statement of the FIR that some inhabitants of the village had witnessed the occurrence. In the FIR the genesis of the occurrence is the criminal trespass committed by the appellants and co -accused Smt. Sunita Devi and Smt. Anita Devi in the land possessed by the deceased whereas, in the statement on oath it is stated that the appellants were cutting the common boundary of the land and when they were challenged they made spontaneous attack with spades. That these material contradictions cannot be reconciled and the irresistible conclusion is that he had not seen the occurrence and his testimony should be discarded.