IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Murder Reference No.12 of 2005 Date of decision : December 22, 2006. State of Punjab .... Appellant versus Des Raj .... Respondent Crl. Appeal No. 10-DB of 2006 Des Raj .... Appellant versus State of Punjab .... Respondent Crl. Appeal No.670-DBA of 2006 State of Punjab .... Appellant versus Jaswant Kaur and others .... Respondents. Crl. Revision No. 1835 of 2006 Chand Singh .... Petitioner versus State of Punjab & others .... Respondents. CORAM : HON'BLE MR.JUSTICE VIRENDER SINGH . HON'BLE MR.JUSTICE A.N.JINDAL. Present : Mr. R.S. Ghai, Sr. Advocate with Mr. Vinod Ghai, Advocate for the appellant and accused-respondents. Mr. M.S. Sidhu, Sr. DAG, Punjab Murder Reference No.12 of 2005, -2- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 Mr. R.S. Rai, Advocate with Mr. N.S. Dhaliwal, Advocate for the complainant. A.N. Jindal, J. This judgment disposes of a murder reference No.12 of 2005 filed by State of Punjab, Criminal Appeal No.670-DBA of 2006 filed by State of Punjab, Criminal Appeal No.10-DB of 2006 filed by Des Raj accused-appellant (hereinafter referred to as 'the accused') and Criminal Revision No.1835 of 2006 filed by Chand Singh-complainant, in respect of the judgment dated 7.12.2005 passed by the learned Sessions Judge, Sangrur, vide which the following reliefs have been sought :- 1) Murder Reference No.12 of 2005, State of Punjab vs. Des Raj, vide which State of Punjab has sought confirmation of the death sentence awarded to Des Raj accused vide judgment dated 7.12.2005 passed by the learned Sessions Judge, Sangrur. 2) Criminal Appeal No.10-DB of 2006, Des Raj vs. State of Punjab. The accused-appellant Des Raj has sought the reversal of the impugned judgment and his acquittal in the case. 3) Criminal Appeal No.670-DBA of 2006, State of Punjab vs. Jaswant Kaur & others. State of Punjab has challenged the impugned judgment dated 7.12.2005 passed by the learned Sessions Judge, Sangrur, whereby the trial Court while convicting and sentencing the accused-appellant Des Raj, had acquitted the accused-respondents Jaswant Kaur, Pavitar Singh, Harminder Singh @ Happy, Pargat Singh @ Rajinder Singh, Baljinder Kaur and Harjit Kaur (hereinafter referred to as 'the respondents'). A prayer has been made to set aside the order of acquittal and convict all the accused- respondents (hereafter referred to as 'the accused'). Murder Reference No.12 of 2005, -3- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 4) Criminal Revision No.1835 of 2006, Chand Singh vs. State of Punjab and others, whereby the complainant has prayed for setting aside the order of acquittal and convicting the accused under Section 302 IPC. A further prayer has been made for awarding adequate compensation to the family of the deceased. A persistent quarrel between the neighbours over the throwing of garbage in front of the house of the complainant turned the brain of the retired police official (Constable) who having been provoked due to the quarrel of the ladies, with a motive to end the feud for ever opened the attack, killing three persons and causing injuries to other four, on the evening of 16.2.2003 at village Qilla Rehmatgarh. As a sequel of which Des Raj accused-appellant (hereinafter referred to as 'the accused') and six others namely Jaswant Kaur wife of Des Raj, Pavitar Singh, Harminder Singh alias Happy and Pargat Singh alias Rajinder Singh all sons of Des Raj, Baljinder Kaur wife of Harminder Singh and Harjit Kaur wife of Pargat Singh, were sent up for trial by the S.H.O. Police Station Malerkotla. On conclusion of the trial, all the accused except accused Des Raj were acquitted of the charges framed against them, whereas Des Raj accused was convicted under Section 302 IPC and was sentenced to death with the directions that he be hanged by the neck till he is dead. The occurrence giving rise to the trial culminating into conviction and death sentence to the accused Des Raj, from where the present appeals as well as reference came up before us for disposal, took place at village Qila Rehmatgarh, Tehsil Malerkotla, on 16.2.2003, at about 4.00 PM. The dispute emerged between two neighbours over the throwing of garbage in front of the door of the deceased. Chand Singh (complainant) son of Kabli Singh resident of Village Rehmatgarh, had three brothers namely Bhagwan Singh, Lal Singh (Both deceased) and Rajwinder Singh. Manjit Kaur is his wife, whereas Shamsher Sigh, Udham Singh and Sohan Singh are his sons and Sonia Kaur is his daughter. Murder Reference No.12 of 2005, -4- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 Des Raj, who is the son of the brother of his grand father, retired from the police department. The houses of both the accused and the complainant and their families adjoin each other. On 16.2.2003, there was a Bhog ceremony of Path at village Rehmatgarh on account of birth anniversary of Baba Ravi Dass. At the time of occurrence, Des Raj was the President of Ravi Dass Committee. After the end of “langer”, family of Chand Singh complainant and Des Raj accused returned to their houses. At about 4.00 PM, a quarrel ensued between the wife of Chand Singh namely Manjit Kaur and Jaswant Kaur wife of accused Des Raj. The bone of contention between the quarrel was that family of Des Raj had been throwing rubbish in front of the house Chand Singh. Manjit Kaur wife of Chand Singh had objected Jaswant Kaur over the throwing rubbish in front of their house. Jaswant Kaur condemned Manjit Kaur and challenged that she would do in the same way and she (Manjit Kaur) was no body to restrain her. On hearing the quarrel, the family of Chand Singh including his brothers Lal Singh, Bhagwan Singh; son Shamsher Singh; nephew Tarlok Singh came out of the house. The accused Des Raj armed with his double barrel gun also came out of the house along with his family. He challenged that if they opened their voice, then he would destroy them. While saying so, he fired shot from his gun towards Manjit Kaur, which hit on the left side of her head. Consequently, she fell down. When Shamsher Singh came at the rescue of her mother (Manjit Kaur) and made a bid to stop the flow of blood from her head by placing his hand, then the accused (Des Raj) fired another shot from his gun at Shamsher Singh which hit his right hand. Shamsher Singh raised hue and cry which attracted Bhagwan Singh and Lal Singh. Accused Des Raj again loaded his gun and fired shots towards them, hitting left side of the chest of Bhagwan Singh. He fired another shot hitting left flank of Lal Sigh, who also fell down. Accused Harminder Singh alias Happy; Pavitar Singh; Pargat Singh; Jaswant Kaur and their two daughter-in-laws continued exhorting “daddy; do not leave any member of their family alive today”. At this, Des Murder Reference No.12 of 2005, -5- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 Raj accused, again loaded his gun and fired shot towards Chand Singh complainant, hitting on his right arm, head and some of the pellets hit Tarlok Singh and a small child Raveena. The accused Des Raj also fired shots in the air. He further uttered that “he would kill the family members of the complainant whosoever remained alive”. As a result of the incident, Manjit Kaur and Bhagwan Singh died at the spot, whereas Lal Singh died in the hospital. Des Raj accused fled away from the spot along with weapon of offence. On receipt of the ruqa from the Civil Hospital, Malerkotla regarding the injured persons including Lal Singh, ASI/SHO Harwinder Singh along with other police officials reached Civil Hospital, Malerkotla and after seeking fitness of the injured Chand Singh to make the statement recorded his statement Ex.P48, on the basis of which FIR Ex.P48/B was recorded at the Police Station City Malerkotla, on the same day at about 8.50 PM. Special reports sent to the Illaqa Magistrate was received by him on the same day at 10.20 PM. He also moved application Ex.PJ, Ex.PK and Ex.PL to know about the fitness of Raveena, Shamsher Singh and Tarlok Singh but they were declared unfit to make the statement. Shamsher Singh and Tarlok Singh and others were declared unfit to make the statement vide endorsements Ex.PJ/1, Ex.PK/1 and Ex.PL/1. Then ASI Harwinder Singh went at the spot and prepared inquest reports Ex.PV, Ex.PX and Ex.PZ. He also lifted six empties of .12 bore from the spot which were converted into parcels. Blood soaked earth found near the dead body of Manjit Kaur and Bhagwan Singh were also lifted and were converted into parcels. All these parcels were taken into possession vide memo Ex.P73. He sent the dead bodies for postmortem examination along with applications Ex.PV/1 and Ex.PW/2. He prepared the rough site plan Ex.P74, got the place photographed and took the photographs into possession vide memo Ex.PCC. On 17.2.2003, Constable Manjit Singh handed over a parcel containing clothes of Manjit Kaur, Bhagwan Singh and Lal Singh deceased which were taken into possession vide memo Ex.P75. Constable Manjit Murder Reference No.12 of 2005, -6- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 Singh also took into possession two parcels containing pellets vide memo Ex.PAA. On 17.2.2003, Tarlok Singh and Shamsher Singh were declared fit to make the statements. Shamsher Singh handed over his clothes which were taken into possession vide memo Ex.P55. Chand Singh also produced his blood stained clothes which were taken into police possession vide memo Ex.P49. On 25.2.2003, ASI Harwinder Singh arrested the accused Des Raj and recovered a double barrel .12 bore gun along with two live cartridges. From his further search, 8 more live cartridges were recovered and the same were taken into possession by him vide memo Ex.PFF. He also arrested accused Jaswant Kaur on 5.5.2003. On completion of the investigation, Des Raj and Jaswant Kaur accused were challaned, whereas accused Pavitar Singh, Pargat Singh, Harminder Singh alias Happy, Baljinder Kaur and Harjit Kaur were found innocent and they were placed at column No.2 of the report. However, they were subsequently summoned by the Court to face trial vide order dated 7.8.2003. On their appearance in the Court, they were charged under Sections 148/302/307 read with Section 149 IPC and Section 27 of the Arms Act, to which they pleaded not guilty and claimed trial. During trial, the prosecution in order to bring home the charge against the accused examined Dr. Shital Jain (PW1), Chand Singh (PW2), Shamsher Singh (PW3), HC Gurmej Singh (PW4), HC Bikkar Singh (PW5), Amrik Singh (PW6), Surinder Nath Sharma (PW7), HC Jagtar Singh (PW8), Constable Harbhajan Singh (PW9), ASI Baljit Singh (PW10), Dr. N.C. Garg (PW11), Avtar Singh (PW12), Khushi Mohd. (PW13) and ASI Harwinder Singh (PW14). After examining the aforesaid witnesses, the prosecution closed its evidence. When examined under Section 313 of Cr.P.C. all the incriminating circumstances appearing against them were put to them, to which they pleaded as incorrect. Accused Pavitar Singh, Harminder Singh alias Happy, Pargat Singh, Baljinder Kaur and Harjit Kaur pleaded that they were found innocent during the enquiry. Murder Reference No.12 of 2005, -7- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 In their defence, the accused examined Constable Ram Singh (DW1), Tarlochan Singh (DW2), Gajjan Singh (DW3), Raj Verma (DW4), HC Avtar Singh (DW5) and Mohd.Salim (DW6). Constable Ram Singh (DW1) produced the enquiry file. Tarlochan Singh (DW2) stated that on 16.2.2003, there was birth anniversary of Baba Ravi Dass. Harminder Singh and his wife Baljinder Kaur came to the Gurdwara at about 2.00 PM. He also saw them at 8.00 PM there. Gajjan Singh (DW3) stated that Baljinder Kaur and her husband Harminder Singh came to the village Gurdwara on 16.2.2003 at about 2.00 PM and he also saw them at 8.00 PM when Drama was played in the village. Raj Verma (DW4) has stated that he did not take any photographs on 16.2.2003. HC Avtar Singh (DW5) has stated that case diary dated 29.3.2003 bears the signatures of DSP Rajbachan Singh. Mohd. Salim (DW6) has stated that he is the Secretary of Muslim Football Club, Malerkotla. A football tournament was held at Sangrur from 13.2.2003 to 16.2.2003. Accused Pargat Singh is a player of football and is associated with the club. Accused Pargat Singh came with him on 16.2.2003 to watch a match being played at Sangrur and he stayed there till the prize distribution i.e. up to 6.45 PM. On scrutiny of the entire evidence, the trial Court while acquitting accused Pavitar Singh, Harminder Singh alias Happy, Pargat Singh, Baljinder Kaur, Harjit Kaur and Jaswant Kaur, convicted accused Des Raj under Section 302 IPC and sentenced him to death for causing murder of Manjit Kaur, Bhagwan Singh and Lal Singh. However, no separate sentence for causing fire arm injuries to Shamsher Singh, Chand Singh, Tarlok Singh and Raveena has been passed though he was also held guilty under Section 307 IPC. The gun of the accused was ordered to be confiscated to the State. Aggrieved by the aforesaid judgment, the State of Punjab made a murder reference for confirmation of death sentence awarded to the accused Des Raj. At the same time, Chand Singh revisionist preferred a Criminal Revision No.1835 of 2006 for upsetting the order of acquittal Murder Reference No.12 of 2005, -8- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 passed qua accused Pavitar Singh, Harminder Singh alias Happy, Pargat Singh, Baljinder Kaur, Harjit Kaur and Jaswant Kaur. Similarly, the accused Des Raj has also preferred an appeal against his conviction and sentence awarded by the trial Court. While assailing the impugned judgment of conviction, learned counsel for the appellant has urged that the case is based on the testimony of the interested witnesses namely Chand Singh (PW2) and Shamsher Singh (PW3). Their testimony looses the credibility in view of their status as such that there is delay in lodging the FIR. Again it has been urged that the accused Des Raj did not commit the crime. Actually when Chand Singh, Manjit Kaur and brother of Chand Singh and his sons came to their house, they felt irritated over the filth lying in front of their house and they suspected that it has been thrown by Jaswant Kaur. They entered the house of the accused along with 5-6 other relatives and started abusing Jaswant Kaur. Some of the persons of the complainant party armed with dangs and gandasas entered the house of the accused and dragged Jaswant Kaur by catching her hair and beat her in the street. On hearing the hue and cry, the people who had come from the function came at her rescue and grappled with those persons. Then some people in order to save the life of Jaswant Kaur fired two shots to scare the complainant party. Des Raj accused in order to have redress his grievance went to the police station but the police did not record his complaint but registered the case against the accused. Learned counsel for the appellant further urged that the motive is also missing in this case. Consequently they prayed for extending benefit of doubt to the accused Des Raj. Having given our thoughtful consideration to the aforesaid contentions, as regards delay in lodging the FIR, on close scrutiny of the record, it transpires that the same is shorn of any such delay suggesting explanation by the prosecution. The occurrence took place on 16.2.2003 at 4.00 PM in which two persons died at the spot; one died in the hospital and four other persons suffered gun shot injuries. The injured were admitted in the hospital, then doctor sent ruqa in response to which ASI Murder Reference No.12 of 2005, -9- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 Harwinder Singh (PW14) reached the hospital and after obtaining the fitness of the injured Chand Singh from the doctor to make statement, vide endorsement Ex.PH/1, recorded his statement which was completed at 7.30 PM, on the basis of which FIR Ex.P48/B was recorded at 7.40 PM vide DDR No.27 dated 16.2.2003. The FIR reached the Illaqa Magistrate Malerkotla at 10.20 PM. All this goes to show that the statement of Chand Singh Ex.P48 was recorded within three hours of the occurrence on the basis of which FIR was recorded without any delay and it reached the Illaqa Magistrate within three hours. After taking into consideration the time consumed by the police in completing the formalities and the time taken by the doctor in sending the ruqa after taking care of the injured it could be said that no time was lost in lodging the FIR. The deceased were none else but the persons from the brotherhood of the complainant. There was no reason to substitute the accused in place of the real culprits. The injured witnesses Chand Singh (PW2) and Shamsher Singh (PW3) have fully supported the case as set up in the first information report. Under these circumstances, it would be held to be established that the FIR was shorn of any such delay as to suggest any false implication or concoction of the prosecution version. As regards the motive, both the witnesses namely Chand Singh (PW2) and Shamsher Singh (PW3) have clearly depicted that since Manjit Kaur (deceased) felt irritated over the throwing of the rubbish in front of their house, altercated with Jaswant Kaur (since acquitted). The utterances made by the accused refer to such altercations between them since earlier also, therefore, though the motive for committing such mutiny may not be sufficient but aggravation given by the intoxicant must have given sufficient provocation to the accused and he wanted to vanish this quarrel forever. From the suggestion made to Chand Singh (PW2) and Shamsher Singh (PW3) that they assaulted Jaswant Kaur on throwing rubbish in front of their house also supports the motive on the part of Des Raj accused to commit the crime and it also cannot be said that the case lacks motive. However, the proof of motive is never indispensable. Murder Reference No.12 of 2005, -10- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 Where there is a clear proof of motive for the crime that lends additional support to the findings of the Court that the accused was guilty but the absence of clear proof of motive does not necessarily lead to the contrary conclusion. If the prosecution leads sufficient evidence to prove the commission of the crime, then even absence of motive does not help the case of the accused so as to extend them benefit of doubt. At the same time, it is also well settled by now that the motive always locks up in the mind of the accused and some time it is difficult to unlock. People do not act wholly without motive. The failure to discover the motive of an offence does not signify its non-existence. The Apex Court has gone to the extent that the prosecution is not bound to prove the motive. A reference, if any, can be made to the judgment delivered by the Apex Court in case State of Haryana vs. Sher Singh and others, AIR 1981 Supreme Court 1021 wherein their Lordships observed as under :- “The prosecution is not bound to prove motive of any offence in a criminal case, inasmuch as motive is known only to the perpetrator of the crime and may not be known to others. If the motive is proved by prosecution, the Court has to consider it and see whether it is adequate. In the instant case the motive proved was apparently inadequate, although it might be possible.” As such, failure to discover motive of an offence does not signify its non existence. The failure to prove motive is not fatal as a matter of law. It may also be observed that men do not act wholly without motive but sometimes grave offences are committed on trivial matter. In the instant case, not only from the evidence led by the prosecution but from the defence set up by the accused, the motive is writ large that altercation had occurred on account of throwing of the rubbish by the family of the accused party and the accused Des Raj who was under the influence of liquor having fed-up with the on going feud thought it a correct solution to remove the source of quarrel. Thus, motive in this case cannot be said to have not been proved by the prosecution when the Murder Reference No.12 of 2005, -11- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 occurrence was spoken to by eye-witness and the same was supported by medical report, it was not necessary to investigate the motive behind such commission of the offence. In other words, where a murderous assault has been established by clear ocular evidence, motive pales into insignificance. The aforesaid observations were made in case Baitullah and another vs. State of U.P., AIR 1997 (SC) 3946. In the instant case the occurrence took place in the broad day light. Manjit Kaur, Bhagwan Singh, Lal Singh (all the three deceased), Shamsher Singh, Tarlok Singh, Raveena and Chand Singh (all the four injured) suffered injuries. Out of these two injured witnesses namely Chand Singh (PW2) and Shamsher Singh (PW3) have deposed consistently to prove their injuries and that the injuries were caused to them and deceased at the hands of Des Raj accused. The testimony of the injured eye witnesses is supported by medical evidence, therefore, in these circumstances motive pales into insignificance. As regards the plea of self-defence, it needs to be observed that none from the neighbourhood has been examined in order to establish that the complainant party was the aggressor rather it has come to the surface that Manjit Kaur (deceased) and Jaswant Kaur accused quarrelled with each other on account of throwing of the rubbish, then Des Raj accused opened fire under the influence of liquor which hit Manjit Kaur. On hearing it, the complainant and his family including Bhagwan Singh, Lal Singh, Tarlok Singh came out of the house. Des Raj and his family including three sons namely Pargat Singh, Pavitar Singh and Harminder Singh alias Happy and daughter-in-law Baljinider Kaur and Harjit Kaur also came out of the house. When Shamsher Singh came at the rescue of Manjit Kaur, then Des Raj again fired a shot which hit his right hand. When Shamsher Singh raised hue and cry, Bhagwan Singh and Lal Singh brothers of Chand Singh also came forward. Des Raj again loaded his gun and fired a shot which hit left side of the chest of Bhagwan Singh who fell on the ground. Des Raj again fired a shot which hit Lal Singh in his left flank. Des Raj again loaded his gun and fired a shot towards Chand Murder Reference No.12 of 2005, -12- Crl. Appeal No. 10-DB of 2006, Crl. Appeal No.670-DBA of 2006 & Crl. Revision No. 1835 of 2006 Singh hitting him on his right arm and head. Some of the pellets hit Tarlok Singh and a child Raveena. Though the witnesses namely Tarlochan Singh (DW2) and Gajjan Singh (DW3) stated that Harminder Singh alias Happy and his wife Baljinder Kaur were present in the Gurdwara; and Mohd. Salim (DW6) stated that accused Pargat Singh was present with him in connection with match at Sangrur, yet none of the persons who had