Criminal Appeal No.78-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Bhupinder Singh and others APPELLANT VERSUS The State of Punjab RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present:- Shri Vinod Ghai, Advocate for the appellants. Shri Satinder Singh Gill, Additional A.G. Punjab. MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 1.2.2001 of the learned Additional Sessions Judge, Jalandhar, whereby he convicted Bhupinder Singh son of Paramjit Singh, Paramjit Singh son of Gurdip Singh, Jaspal Singh son of Paramjit Singh and Dial Singh son of Gurdip Singh under Section 302 read with Section 34 I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs.5,000/- each, in default to further undergo RI for six months. They were also convicted under Sections 323/34 I.P.C. and sentenced to undergo RI for six months. Further, they were convicted under Section 324/34 I.P.C. and Criminal Appeal No.78-DB of 2001 -2- sentenced to undergo RI for one year and to pay fine of Rs.1000/- each and in default to further undergo RI for 2 months. The case of the prosecution is unfolded by the statement of Sukhwinder Singh Ex.PL, given to SI Sukhdev Singh at Cinema Chowk G.T.Road, Kartarpur. Sukhwinder Singh stated that he is a resident of Vishvakarma Market, Kartarpur. He makes furniture in Vishkarma Market, Kartarpur. His residence is at the back side of the shops. On 9.2.1999 he and his father Jai Singh, brothers Malkiat Singh, Surinder Singh and Amarjit Singh who had come from Dubai, were working in their shop. At about 12 noon Jaspal Singh alias Laddi son of Paramjit Singh armed with a Kirpan, Bhupinder Singh son of Paramjit Singh armed with a Dagger, Paramjit Singh son of Gurdeep Singh armed with a Datar and Dial Singh son of Gurdip Singh armed with a Dang came out of their house situated on the opposite side. Paramjit Singh raised a lalkara to catch hold of them, so that they be taught a lesson, for stopping their generator. Thereafter Bhupinder Singh gave a Dagger blow hitting the abdomen of Amarjit Singh on which Amarjit Singh, fell down. Paramjit Singh gave a Datar blow, hitting on the left shoulder of Jai Singh. Jaspal Singh alias Laddi gave a Kirpan blow hitting, below the left eye of Malkiat Singh. Thereafter Dial Singh gave Dang blows hitting Surinder Singh, Malkiat Singh and Jai Singh. An alarm was raised. Balwinder Singh son of Swaran Singh resident of Vishvakarma Market, Kartarpur, reached the spot, who rescued them. The motive for the commission of the offence was that Paramjit Singh placed the exhaust of the generator towards the house of the complainant party. The smoke of the generator used to enter their shop and house. Complainant had asked Paramjit Singh to divert the face of the exhaust cylinder, but he instead got angry with this and the accused caused injuries to the complainant party. The injured alongwith Amarjit Singh were taken to the Civil Hospital, Kartarpur. Amarjit Singh was referred to Civil Hospital, Jalandhar and he died at 9 p.m. on 10.2.1999. Criminal Appeal No.78-DB of 2001 -3- On the basis of this statement F.I.R. Ex.PL/1 was recorded on 10.2.1999 at 12.35 a.m. at Police Station Kartarpur. The special report reached the J.M.I.C. Jalandhar on the same day at 6.05 a.m. The prosecution to prove its case, brought into the witness-box Dr.Kanwal Harpreet Singh Sekhon PW-1, Dr.Naresh Kumar PW-2, Dr.Dinesh Kumar PW-3, Sukhwinder Singh PW-4, Malkiat Singh PW-5, Surinder Singh PW- 6, Jai Singh PW-7, Dalip Singh Draftsman PW-8, ASI Rattanjit Singh PW-9, Sukhbir Singh PW-10, Dr.Gurpal Singh PW-11, Jaimal Singh PW-12, HC Baljinder Singh PW-13, Gian Singh PW-14 and SI Sukhdev Singh PW-15. Learned counsel for the appellants has argued, that there is a delay in lodging of the F.I.R. Occurrence had taken place on 9.2.1999 at 12 noon in the area of Vishvakarma Market which is only one furlong from the police station. F.I.R. Ex.PL/1 came into existence on 10.2.1999 at 12.35 a.m. i.e. after a delay of 12 hours. Special report reached the J.M.I.C. Jalandhar at 6.05 a.m. on 10.2.1999. The delay between the occurrence and the special report reaching the J.M.I.C. at Jalandhar is 18 hours. No explanation has come from the side of the prosecution regarding this delay. Sukhwinder Singh PW-4 author of the F.I.R. Ex.PL/1 was not injured. If he was present at the time of the occurrence, he would have first gone to the police station and recorded his statement, if he had seen the occurrence. Both Malkiat Singh PW-5 and Surinder Singh PW-6 the injured eye- witnesses were examined at 1.25 p.m. on 9.2.1999 at Civil Hospital, Kartarpur. Dr.Kanwal Harpreet Singh Sekhon PW-1 has stated, in his testimony, that he sent intimation to the police at 2.50 p.m. on 9.2.1999. The Investigating Officer purposely and deliberately delayed recording the statement of Malkiat Singh PW- 5 and Surinder Singh PW-6 in connivance with the complainant party. It has come in the evidence of Dr.Kanwal Harpreet Singh Sekhon PW-1 that both Malkiat Criminal Appeal No.78-DB of 2001 -4- Singh PW-5 and Surinder Singh PW-6 signed on the MLRs Exs.PB and PC prepared by him of both these injured eye-witnesses. Jai Singh PW-7 was examined at 4.15 p.m. on 9.2.1999 by Dr.Naresh Kumar PW-2 and he also signed on his M.L.R. Ex.PG. This showed that the injured eye-witnesses were in a fit state of mind for recording their statements, but the Investigating Officer in connivance with the complainant deliberately delayed the recording of the F.I.R. so that innocent persons be roped in. Jaspal Singh appellant was also injured in this occurrence and was examined by Dr.Naresh Kumar PW-2 at 4.30 p.m. on 9.2.1999, his M.LR. is Ex.PH. No explanation has come from the side of the prosecution as to how did appellant Jaspal Singh receive injuries on his person. In fact, the genesis of the occurrence has been suppressed by the prosecution. It has come in evidence of the Investigating Officer SI Sukhdev Singh PW-15 and in the evidence of Dalip Singh Draftsman PW-8 who prepared the site plan Ex.PL, that the exhaust of the cylinder of generator was fixed in the wall of the appellants and its smoke came out in the street. Appellants had the right to instal a generator in their house and allow the smoke to go into the open stret. In fact, it was the complainant party who were the aggressors. The grudge for the commission of the offence was on the complainant party. It was they who were aggrieved by the smoke coming into their house and shop when the generator used to run. Finally, learned counsel for the appellants has argued that even if we take it that all the appellants were present, at the most it is a case under Section 304 Part-I I.P.C. The dispute was over the smoke coming out of the generator installed in the house of the appellants. There was no previous enmity between the parties. On the fateful day a small matter erupted into a fight where the complainant party was injured and Jaspal Singh appellant also received injuries. There is no previous enmity between the parties. It has come in evidence that Criminal Appeal No.78-DB of 2001 -5- before the injuries were inflicted, there was exchange of hot words. As per the site plan Ex.PN, the occurrence took place in the middle of the road where both the parties clashed with each other. One fatal blow was given by appellant Jaspal Singh which unfortunately led to the death of Amarjit Singh son of Jai Singh PW-7. Learned counsel for the State has argued that there is no delay in lodging of the F.I.R. The complainant party along with Sukhwinder Singh PW-4, complainant was busy in taking care of Amarjit Singh deceased, Malkiat Singh PW-5, Surinder Singh PW-6 and Jai Singh PW-7 who had been injured and were in a serious condition. As per the application Exs.PE and PF, the Investigating Officer SI Sukhdev Singh PW-15 wanted to record the statements of Malkiat Singh PW-5 and Surinder Singh PW-6, but the doctor declared them unfit to make a statement. The Investigating Officer was left with no other alternative, but to record the statement of Sukhwinder Singh PW-4. Sukhwinder Singh was taking care of his brothers and father. The motive for the commission of the offence was that the cylinder of the generator was facing towards the house and shop of the complainant party for the last several months. They were asking them to fix the exhaust in such a manner that its smoke does not come into their house and shop, as the smoke was causing a nuisance to them. The testimony of Malkiat Singh PW-5, Surinder Singh PW-6 and Jai Singh PW-7 the injured eye-witnesses cannot be overlooked, as it was natural for them to be in their house and going through the injuries on their person, it shows that these cannot be self inflicted. They are stamped witnesses. The injury on the person of Jaspal Singh appellant is a self-inflicted injury, only to make out a case of self defence. Appellant Bhupinder Singh was carrying dagger Ex.P2, Paramjit Singh datar Ex.P3, Jaspal Singh Kirpan Ex.P4 and Criminal Appeal No.78-DB of 2001 -6- Dial Singh Dang Ex.P5. They came out armed with deadly weapons. Complainant party did not have any arms and had innocently gone, to ask them to change the direction of the exhaust of their generator, but in this process they were attacked and injured grievously. No case of self defence is made out. It is a case of culpable homicide amounting to murder. We have heard the learned counsel for the parties and perused the record with their assistance. The occurrence had taken place at 12 noon on 9.2.1999. Statement Ex.PL, of Sukhwinder Singh PW-4 was recorded by SI Sukhdev Singh PW-15 at Cinema Chowk G.T.Road, Kartarpur, on the basis of which F.I.R. Ex.PL/1 came into existence on 10.2.1999 at 12.35 a.m. at Police Station Kartarpur. Special report reached the J.M.I.C. Jalandhar, on the same day at 6.05 a.m. There is a delay of 12 hours in recording of the F.I.R .Ex.PL/1 and a delay of 18 hours in the special report reaching the J.M.I.C., Jalandhar. Amarjit Singh deceased died on 9.2.1999 at 9 p.m. i.e. after 9 hours of the occurrence. Sukhwinder Singh PW-4 author of the F.I.R. was the only one who was not injured while his brothers i.e. Amarjit Singh deceased, Malkiat Singh PW-5 and Surinder Singh PW-6 were all injured along with his father Jai Singh PW-7. It was natural for complainant Sukhwinder Singh to first attend to his injured brothers and father and then to come and report the matter to the police. As per Dr.Kanwal Harpreet Singh Sekhon PW-1, Malkiat Singh PW-5 and Sukhwinder Singh PW-6 were examined at 1.25 p.m. on 9.2.1999 and thereafter MLRs Exs.PB and Ex.PC were prepared. Amarjit Singh was examined at 1.20 p.m. on 9.2.1999 and his M.L.R. Ex.PA was prepared. Dr.Naresh Kumar PW-2 examined Jai Singh PW-7 and prepared his M.L.R. Ex.PG at 4.15 p.m. on 9.2.1999 from the time of occurrence till 4.15 p.m. Sukhwinder Singh PW-4 was in the hospital and looking after his brothers. ASI Criminal Appeal No.78-DB of 2001 -7- Rattanjit Singh PW-9 moved an application before the Medical Officer to record the statement of Malkiat Singh PW-5 and Surinder Singh PW-6 and as per the doctor's opinion Exs.PE and PF, they were not fit to make statement. Though both Malkiat Singh PW-5 and Surinder Singh PW-6 did sign on the MLRs Exs.PA and PB, but merely signing would not show that they were in a fit state of mind to make their statements. It is the doctor's opinion which is final at that moment of time whether the patient is fit to make a statement or not. We are of the considered opinion that there is no delay in lodging of F.I.R. Ex.PL/1. The name of the appellants is mentioned, the weapon of offence is given. Appellant Bhupinder Singh was carrying dagger Ex.P2, Paramjit Singh datar Ex.P3, Jaspal Singh Kirpan Ex.P4 and Dial Singh Dang Ex.P5. The injuries inflicted have also been explained. The motive for the commission of the offence was that the appellants had installed a generator in their house and the cylinder (exhaust) of the generator was fixed in a wall of the appellants' house. The smoke emitted went into the street and then entered the house of the complainant. As per site plans Exs.PN and PL along with the statements of Dalip Singh Draftsman PW-8, the exhaust of the generator was in the wall of the appellants. The generator was also installed in the house of the appellants. A street separated the house of the appellants and the complainant party. It has come in the evidence of Malkiat Singh PW-5 and Surinder Singh PW-6 that before the fight took place, there was exchange of hot words. The occurrence as per the site plans Exs.PN and PL has taken place in the middle of the road. As there was resentment from the side of the complainant party regarding the exhaust of the generator, this resulted in a full-fledged fight, on the fateful day between the appellants and the complainant party. Appellant Jaspal Singh also received Criminal Appeal No.78-DB of 2001 -8- injuries. Apart from the grievance of the smoke coming out from the cylinder of the generator, there is no previous enmity between the parties. Appellant Jaspal Singh was injured in the occurrence. He was examined by Dr.Naresh Kumar PW-2 and his M.L.R. Ex.PH was prepared. Appellant Bhupinder Singh gave one injury i.e. a dagger blow to Amarjit Singh, but that injury was so serious, that it proved fatal, which culminated in his death. Unfortunately the small intestine of the deceased got cut and due to excessive haemorrhage it led to shock and cardio respiratory failure which caused the death of Amarjit Singh. With the above discussion and observations, we are of the considered opinion that the case of the appellants falls within the ambit of Section 304 Part-I I.P.C. i.e. culpable homicide not amounting to murder. Conviction of appellants is modified from Section 302 I.P.C. to Section 304 Part-I I.P.C. Sentence of the appellants is also modified. Appellant Bhupinder Singh son of Paramjit Singh is sentenced to undergo RI for 10 years, Jaspal Singh son of Paramjit Singh is sentenced to undergo RI for 4 years, Paramjit Singh and Dial Singh sons of Gurdip Singh are sentenced to undergo RI for 3 years. Fine shall remain intact. With the above modification in conviction and sentence of the appellants, appeal is dismissed. ( MEHTAB S.GILL ) JUDGE (JITENDRA CHAUHAN) August 31, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO Criminal Appeal No.78-DB of 2001 -9-