IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 83-DB of 2002 DATE OF DECISION : 02.03.2009 Gurbachan Singh and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT Crl. A. No. 486-DB of 2002 DATE OF DECISION : 02.03.2009 Balwant Singh .... APPELLANT Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. S.P.S. Sidhu, Advocate, for the appellants (in Crl. A. No. 83-DB of 2002) Mr. S.S. Godara, Advocate, for the appellant (in Crl. A. No. 486-DB of 2002) Ms. Manjari Nehru Kaul, DAG, Punjab, for the respondent-State. * * * SATISH KUMAR MITTAL , J. This judgment shall dispose of Criminal Appeals No. 83-DB and 486-DB of 2002. Criminal Appeal No. 83-DB of 2002 has been filed by Crl. A. No. 83-DB of 2002 -2- Gurbachan Singh and Surjit Singh sons of Teja Singh and Criminal Appeal No. 486-DB of 2002 has been filed by Balwant Singh son of Arjan Singh. 2. Appellant Surjit Singh has been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 2,500/- and in default of payment of fine to further undergo rigorous imprisonment for six months under Section 302 IPC for committing the murder of his father Teja Singh; to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo rigorous imprisonment for three months under Section 460 IPC for committing lurking house-trespass in the night by entering into the house of his brother Amar Singh and causing death of his father Teja Singh and injuries to Amar Singh; and to undergo rigorous imprisonment for ten years and to pay a fine of Rs. 1,000/- and in default of payment of fine to further undergo rigorous imprisonment for three months under Section 307 IPC for attempt to commit murder of his brother Amar Singh. 3. Appellants Gurbachan Singh and Balwant Singh have been convicted and sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/- each or in default of payment of fine to further undergo rigorous imprisonment for three months under Section 302 read with Section 34 IPC; to undergo rigorous imprisonment for ten years each and to pay a fine of Rs. 1,000/- each or in default of payment of fine to further undergo rigorous imprisonment for three months under Section 460 IPC; and to undergo rigorous imprisonment for three years and to pay a fine of Crl. A. No. 83-DB of 2002 -3- Rs.1,000/- each or in default of payment of fine to further undergo rigorous imprisonment for three months under Section 307 read with Section 34 IPC. All the substantive sentences of the appellants have been ordered to run concurrently. 4. The brief facts of the case are that Teja Singh (deceased) was having four sons, namely Surjit Singh (accused), Kuldip Singh, Amar Singh (injured-complainant) and Gurbachan Singh (accused). He was owning 5 ¾ killas of land in village Mahuana Bodla, Tehsil Fazilka, District Ferozepur. The said land was given by him (Teja Singh) to his two sons, namely Kuldip Singh and Amar Singh, by suffering a court decree in their favour. Undisputedly, accused Surjit Singh and Gurbachan Singh had challenged the said court decree in the Civil Court and on the day of occurrence i.e. 7.6.1996, that civil suit was pending in the court. It is the case of prosecution that Surjit Singh and Gurbachan Singh were disinherited by their father Teja Singh from his property, because they were men of immoral character, as Surjit Singh had murdered his wife about 18/19 years earlier. Thereafter, both these brothers were residing in village Sardargarh (Rajasthan). 5. In this case, the law was set into motion on the basis of statement (Ex.P14) of Amar Singh (PW.5), recorded by Inspector Bhulla Singh (PW.11) in Civil Hospital, Fazilka, on 7.6.1996 at 3.30 A.M. On the basis of the said statement, a formal FIR (Ex.P20) was registered at Police Station Sadar, Fazilka. In the said statement, in addition to the above facts, Crl. A. No. 83-DB of 2002 -4- Amar Singh stated that on the night of 6.6.1996/7.6.1996, he and his wife Paramjit Kaur along with his father and children were sleeping on the cots in the court-yard. The electric bulb was on in the court-yard. At about 12.30 A.M., he and his wife Paramjit Kaur woke up on hearing some noise. They noticed that his elder brother Surjit Singh holding a .12 bore pistol in his right hand, Gurbachan Singh armed with hockey, accompanied by one other person of average height and aged about 25/30 years, whom he could recognize on coming before him, armed with knife, came to their house by jumping over their wall. Immediately on arrival, Surjit Singh made a fire shot by keeping pistol near the face of his father Teja Singh, when he was sleeping. Gurbachan Singh and other person started inflicting injuries to him (Teja Singh) with their respective weapons. When he tried to stand up from the cot, then Surjit Singh fired a shot upon him which hit his right arm and right flank. When he and his wife raised raula, then all the assailants ran away. He found that his father had succumbed to injuries. Thereafter, on hearing their noise, many persons gathered there. He was taken by Jathedar Joginder Singh resident of the village to Civil Hospital, Fazilka for treatment. The dead body of his father Teja Singh was lying in the house and his wife Paramjit Kaur was there to guard the dead body. Action was sought to be taken. 6. On the basis of the said statement (Ex.P14), a formal FIR (Ex.P20) was registered. Complainant-injured Amar Singh reached Civil Hospital, Fazilka on 7.6.1996 at 1.30 A.M. Dr. V.K. Mujral (PW.3), who Crl. A. No. 83-DB of 2002 -5- attended the injured, sent ruqa Ex.P12 to the Police at 1.30 A.M. At 2.30 A.M., on the same day, he medico legally examined injured Amar Singh, who was brought in the Hospital by Joginder Singh. He noticed the following injuries on the person of the injured : “1. Multiple lacerated punctured wounds varying in sizes from .25 cm to .25 cm in size on right upper limb present on antero lateral surface. There was collar of abrasion and blackening present around the wounds on right fore- arm in its middle on its lateral aspect. There were three punctured lacerated wounds with inverted margins 1.5 x 1.5 cm in size. Fresh bleeding was present from the wounds. There was collar of abrasion and blackening around the wound. Advised X-ray. 2. There were multiple punctured wounds, varying sizes from .5 cm x .5 cm present on the right side of the chest on its lateral surface and on its lower part in an area of 12 x 6 cm in size. There was collar of abrasion and blackening around the wound. Fresh bleeding was present. Corresponding to injury No.2 mark present on the Bunian worn by the patient 12 in number. Advised X- ray. 3. Another lacerated punctured wound with inverted margins on the right side of the chest, 12 cm below the right nipple, 2.5 cm x .5 cm in size. There was collar of abrasion and blackening around the wound. Fresh bleeding was present. X-ray was advised.” In his opinion, all the injuries were caused by fire-arm weapon. 7. As per the statement of PW.11 Inspector Bhulla Singh, on Crl. A. No. 83-DB of 2002 -6- receiving ruqa from the Doctor, he along with police party had gone to Civil Hospital, Fazilka, where Amar Singh was lying admitted. After obtaining the opinion of the Doctor regarding the fitness of Amar Singh to make statement, he recorded his statement (Ex.P14). The said witness further stated that in the Hospital, he also recorded supplementary statement (Ex.D1) of Amar Singh, in which the injured is alleged to have stated that in his previous statement, he had got recorded the name of Surjit Singh son of Teja Singh inadvertently. Actually, the person who fired with pistol upon him and his father was Balwant Singh son of Arjan Singh, Rai Sikh, resident of Sardargarh and the person armed with knife was Balwant Singh son of Bhagwan Singh resident of Sardargarh. Both these persons were known to him earlier, because they used to visit Fazilka with Gurbachan Singh to look after the cases and once or twice they had come to the village with Gurbachan Singh for compromise. He further stated that earlier, he was perplexed due to shock of the death of his father, but has now told the fact in full sense that he had got recorded the name of Surjit Singh inadvertently. 8. On 7.6.1996, at 9.30 A.M., Dr. Ajay Kumar Narang (PW.1) conducted the post mortem examination of deceased Teja Singh. He noticed the following injuries on the body of the deceased : “1. A lacerated wound 3.5 cm x 1 cm on right side of forehead, 5 cm above right eye brow, on exploration under lying bone was depressed and fractured, brain matter was lacerated, clotted blood was present. 2. A reddish contusion 7 cm x 5 cm on left side of fore-head Crl. A. No. 83-DB of 2002 -7- and temporal region, underlying tissue was acohymosed. 3. Lacerated wound 2.5 cm x .5 cm on outer side of left thigh, clotted blood was present. 4. An incised wound 3 cm x 0.75 cm on right cheek, wound muscle deep, haemotoma was present. 5. A lacerated wound 2 cm x 0.75 cm on bridge of nose underlying bone was fractured, haemotoma was present. 6. An incised wound 2.25 x 0.25 cm on the back of right hand, on its proximal part, wound muscle deep. 7. A lacerated wound with blackened marginal and collar of abrasion present around measuring 12 cm x 7 cm, extending all over the mouth and on both sides, both the lips were badly lacerated, teeth separated from socket and bone pieces were lying in the tissue, underlying mandible and maxilla on both sides and few teeth are found to be fragmented into multiple pieces, tip of tongue was acohymosed. In his opinion, injury No.7 was caused by firm-arm, whereas the other injuries were caused by blunt weapon and sharp edged weapon. He opined that the cause of death was due to shock and haemorrhage, being the collective result of injuries No.1 and 7, which were sufficient to cause death in the ordinary course of nature. All the injuries were found to be ante- mortem in nature. 9. After recording the statement of injured Amar Singh, the police party went to the spot. The cot along with bedding was taken into possession vide recovery memo Ex.P21. The second cot, on which injured Amar Singh was sleeping, was taken into possession vide recovery memo Crl. A. No. 83-DB of 2002 -8- Ex.P22. Pallets and wads were also taken into possession vide recovery memo Ex.P23. Besides this, one stick (upper portion of hockey), empties of .12 bore, one empty lying in the varandah, one piece of cloth which was stated to be entangled in a long barbed wire affixed on the wall of the house of Amar Singh, one nylon Chappal lying in the varandah and wrist watch lying near the cot were also taken into possession vide separate recovery memos Ex.P24, Ex.P26 to Ex.P30, respectively. After post mortem examination, clothes of the deceased were also taken into possession vide recovery memo Ex.P15. On the intervening night of 11/12.6.1996, Gurbachan Singh and Balwant Singh son of Arjan Singh were arrested near the bridge of canal minor in the area of village Mahuana Bodla. On search of accused Balwant Singh son of Arjan Singh, one country made pistol of . 12 bore with four live cartridges were taken into possession vide recovery memo Ex.P32. On search of accused Gurbachan Singh, no article was recovered. However, on his interrogation, he suffered a disclosure statement (Ex.P18) about concealing of the handle of hockey. On the basis of that disclosure statement, the said handle of hockey was got recovered and taken into possession vide recovery memo Ex.P18/A. During interrogation, accused Balwant Singh son of Arjan Singh suffered a disclosure statement (Ex.P17), in pursuance of which, a Chappal of right foot was recovered and taken into possession vide recovery memo Ex.P17/A. During investigation, Balwant Singh son of Bhagwan Singh (who has been acquitted by the trial court) was also arrested and in pursuance of his disclosure statement Crl. A. No. 83-DB of 2002 -9- (Ex.P19), he got recovered the torn shirt and knife, which were taken into possession vide recovery memo Ex.P19/A. 10. After completion of investigation, challan was filed against four accused, namely Gurbachan Singh, Balwant Singh son of Arjan Singh, Balwant Singh son of Bhagwan Singh and Surjit Singh son of Teja Singh. All the accused were then charge sheeted for the commission of offence punishable under Sections 302, 307, 460, 120-B IPC, read with Section 34 IPC, to which they pleaded not guilty and claimed trial. 11. In support of its case, the prosecution examined 12 witnesses, including PW.1 Dr. Ajay Kumar Narang, who conducted the post mortem of deceased Teja Singh, PW.3 Dr. V.K. Mujral, who medico legally examined injured Amar Singh, PW.5 Amar Singh (complainant) and PW.6 Paramjit Kaur wife of Amar Singh, PW.11 Inspector Bhulla Singh (Investigating Officer) and PW.12 SI Hira Singh, who partly investigated the matter. PW.5 and PW.6, while fully supporting the prosecution case, have specifically stated that on 7.6.1996, at about 12.30 A.M., when they along with Teja Singh (deceased) and their children were sleeping in the court yard of their house, accused Surjit Singh armed with a .12 bore pistol, Gurbachan Singh armed with a hockey stick, and one more person armed with knife, came to their house by jumping over their wall. Surjit Singh fired a shot on the face of Teja Singh, who was lying asleep on the cot, whereas Gurbachan Singh and the third accused Balwant Singh son of Arjan Singh continued causing injuries to Teja Singh with their respective Crl. A. No. 83-DB of 2002 -10- weapons. They further stated that when Amar Singh was about to stand up from the cot, then Surjit Singh fired a shot upon him which hit his right arm and right flank. 12. After the closure of prosecution evidence, statements of all the accused under Section 313 Cr.P.C., were recorded. They denied the evidence appearing against them and pleaded that they have been falsely implicated in this case by the complainant due to land dispute. However, they did not lead any evidence in defence. 13. After considering the evidence led by the prosecution as well as defence, hearing the arguments of learned Additional Public Prosecutor for the State and the defence counsel, the trial court came to the conclusion that the prosecution has fully proved its case against three accused, namely Gurbachan Singh, Balwant Singh son of Arjan Singh and Surjit Singh. They were accordingly convicted and sentenced, as stated earlier. However, accused Balwant Singh son of Bhagwan Singh was acquitted by giving him the benefit of doubt, as it was found that from the very beginning, both the eye witnesses, namely Amar Singh and Paramjit Kaur were speaking about three assailants, namely Surjit Singh armed with .12 bore pistol, Gurbachan Singh armed with hockey stick and Balwant Singh son of Arjan Singh armed with knife. Both of them did not name the fourth accused, namely Balwant Singh son of Bhagwan Singh. Therefore, the benefit of doubt was given to him and he was acquitted of the charges framed against him. Hence, these two appeals. Crl. A. No. 83-DB of 2002 -11- 14. Shri S.P.S. Sidhu, learned counsel appearing for appellants Gurbachan Singh and Surjit Singh and Shri S.S. Godara, learned counsel appearing for appellant Balwant Singh son of Arjan Singh submitted that in this case, the trial court has convicted the accused, while relying upon the statements of two alleged eye witnesses, namely PW.5 Amar Singh and PW.6 Paramjit Kaur, but the statements of both these witnesses are not trust-worthy and reliable. Learned counsel for the appellants submitted that PW.5 Amar Singh, in his statement Ex.P14 made before the police, stated that his two brothers, namely Surjit Singh and Gurbachan Singh, along with one other person, came to his house by jumping over the wall. At that time, Surjit Singh was holding a .12 bore pistol in his right hand, Gurbachan Singh was armed with hockey and the other person was armed with knife. According to him, this person was not known to him and he could recognize him, if he comes before him. Amar Singh further stated that Surjit Singh, who was having a .12 bore pistol, fired a shot on the face of his father Teja Singh, when he was sleeping, and the other accused started inflicting injuries to him (Teja Singh) with their respective weapons. Learned counsel submitted that on the same day, subsequent to his earlier statement Ex.P14, Amar Singh got recorded his supplementary statement Ex.D1, in which he had stated that inadvertently, he got recorded the name of Surjit Singh as a person, who fired a shot with his pistol, upon Teja Singh. Actually, the person, who fired shot with pistol upon Teja Singh and upon him, was Balwant Singh son of Arjan and the person who was armed with knife was Crl. A. No. 83-DB of 2002 -12- Balwant Singh son of Bhagwan Singh. According to learned counsel for the appellants, contrary to the said supplementary statement Ex.D1, made before the police, both the eye witnesses, while appearing in the court as prosecution witnesses, stated that accused Surjit Singh was holding a .12 bore pistol and fired a shot on the face of Teja Singh, when he was sleeping; and when the complainant Amar Singh tried to get up, a shot was fired upon him. Learned counsel further submitted that in his statement, PW.5 Amar Singh had admitted that Balwant Singh son of Arjan Singh and Balwant Singh son of Bhagwan Singh, both residents of village Sardargarh (Rajasthan) were earlier known to him, but he has not given any explanation/reason as to why the name of Balwant Singh son of Arjan Singh was not mentioned by him in his initial statement Ex.P14, made before the police. Learned counsel, while referring to the statement Ex.D2 made by Paramjit Kaur (PW.6) before the police on 7.6.1996, submitted that this witness also did not name Surjit Singh as one of the assailants, who was armed with .12 bore pistol and fired shots upon Teja Singh and Amar Singh. In her statement Ex.D2, Paramjit Kaur stated that after hearing the noise, she and her husband woke up and saw that Gurbachan Singh accused was armed with hockey and two other persons, out of whom one was holding pistol and other was with knife, were jumping over their wall. The person armed with pistol fired a shot with pistol on face of her father-in-law Teja Singh. Gurbachan Singh and the other person started inflicting injuries upon his person with hockey and knife. When her husband was just to stand up Crl. A. No. 83-DB of 2002 -13- from the cot, the person who was armed with pistol fired a shot, which hit on his right arm and right flank. Learned counsel submitted that contrary to the said statement Ex.D2 made before the police, this witness while appearing in the Court as PW.6, stated that Surjit Singh was armed with .12 bore pistol and he fired shots upon Teja Singh and Amar Singh. In view of this major contradiction/improvement in the statements of Amar Singh and Paramjit Kaur, learned counsel for the appellants submitted that their testimonies before the court are not trust-worthy and on the basis of such testimonies, conviction of three persons for committing the murder of Teja Singh is not safe. 15. Shri S.P.S. Sidhu further argued that during the investigation, the police investigated the case qua accused Surjit Singh only under Section 120-B IPC for hatching conspiracy by him to get his father killed. In this regard, Subhash Chander Sarpanch, before whom accused Surjit Singh is said to have made an extra judicial confession, was given up by the prosecution. Similarly, during investigation, statement of one Surinder Singh was recorded to the effect that he had heard Surjit Singh saying to his brother Gurbachan Singh to commit murder of their father Teja Singh by taking Balwant Singh with him, who is also having a pistol. Statements of both these witnesses were filed with the challan and they were also cited as prosecution witnesses, but during trial, both of them were given up by the prosecution and no evidence in this regard was led. He submitted that PW.11 SI Bulla Singh, the Investigating Officer, has admitted that Crl. A. No. 83-DB of 2002 -14- statements of these two witnesses were recorded during investigation. Learned counsel, while referring to the certificate Ex.D3, further argued that accused Gurbachan Singh is handicapped and he could not hold any stick or hockey, therefore, the allegation levelled against him that he caused injuries to Teja Singh with hockey is un-believable. 16. Shri S.S. Godara submitted that Balwant Singh son of Arjan Singh was falsely implicated in this case, as in the initial statement (Ex.P14) made by Amar Singh, he was not specifically named. He further submitted that merely on the basis of recovery of a .12 bore pistol from his personal search and recovery of a Chappal of right foot in pursuance of his disclosure statement, he could not have been connected with the alleged crime. 17. On the other hand, Ms. Manjari Nehru Kaul, learned Deputy Advocate General, Punjab, appearing on behalf of the respondent-State, submitted that testimonies of both the eye witnesses, namely PW.5 Amar Singh and PW.6 Paramjit Kaur, are wholly trust-worthy. PW.5 Amar Singh, who is an injured eye witness, in his initial statement (Ex.P14) made before the police, immediately within three hours of the occurrence, had categorically stated that three persons had participated in the alleged occurrence. Accused Surjit Singh was holding a .12 bore pistol and he fired shot on the face of Teja Singh and subsequently, he fired shot upon Amar Singh and the pistol used in the crime was recovered from accused Balwant Singh son of Arjan Singh. Learned counsel further referred to the report of the Deputy Director (Ballistics) Forensic Science Laboratory, Punjab, Crl. A. No. 83-DB of 2002 -15- Chandigarh (Ex.P.40), according to which two cartridges were fired from this pistol only. She further submitted that accused Gurbachan Singh was holding a hockey and he gave injuries to deceased Teja Singh. Subsequently, he also got recovered handle of hockey, which on examination by the Deputy Director (Physics) Forensic Science Laboratory, Punjab, Chandigarh, was found to have a perfect mechanical fit with the broken part of stick handle attached to hockey blade, recovered from the place of occurrence. In this regard, she referred to the report Ex.P38. Learned State counsel further submitted that accused Balwant Singh son of Arjan Singh caused injuries to Teja Singh with knife. She further submitted that the initial version given by PW.5 Amar Singh to the police is fully corroborated by the medical evidence. Learned counsel further argued that PW.5 Amar Singh, while appearing in the court, has categorically stated that in his supplementary statement (Ex.D1), he did not state to the police that earlier in his statement Ex.P14, he got recorded wrongly the name of Surjit Singh. He further stated that he was fully conscious and deposed about the incident correctly to the police in his statement Ex.P14. Learned counsel further argued that no specific suggestion was put to PW.5 Amar Singh that Surjit Singh was not present at the time of the alleged occurrence. The only suggestion put to him was