Crl.Appeal No.224-DB of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.224-DB of 1998 Date of decision: January 22 , 2008 1. Hardip Singh son of Harbant Singh; 2. Harbant Singh son of Darbara Singh; and 3. Lakhwinder Singh son of Ram Singh, all residents of village Galria, Police Station Mukerian, District Hoshiarpur. ...................................appellants Versus State of Punjab ....................................respondent. CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR.JUSTICE SHAM SUNDER Present: Ms. Baljeet Mann,Advocate, for the appellants. Mr. V.K.Jindal,Additional Advocate General, Punjab, for the respondent. Sham Sunder,J. This appeal is directed against the judgment of conviction dated 25.3.1998 and the order of sentence of the even date, rendered by the Court of Additional Sessions Judge, Hoshiarpur, vide which it convicted Lakhwinder Singh, appellant for the offence punishable under Section 302 of the Indian Penal Code; convicted Hardip Singh and Harbant Singh,apellants, for the offence punishable under Section 302 read with section 34 of the Indian Penal Code; further convicted Hardip Singh for the offence punishable under Section 324 of the Indian Penal Code , further convicted Crl.Appeal No.224-DB of 1998 2 Harbant Singh and Lakhwinder Singh for the offence punishable under Section 324 read with section 34 of the Indian Penal Code; and further convicted Hardip Singh,Harbant Singh and Lakhwinder Singh, for the offence punishable under section 148 of the Indian Penal Code and sentenced Lakhwinder Singh to imprisonment for life, and to pay a fine of Rs.1000/-, and in default of payment of fine, to further undergo RI for three months, for the offence punishable under section 302 of the Indian Penal Code; and further sentenced him to undergo RI for two years, for the offence punishable under section 324 read with section 34 of the Indian Penal Code and also sentenced him to undergo RI for six months, for the offence punishable under Section 148 of the Indian Penal code; sentenced Hardip Singh and Harbant Singh to imprisonment for life, and to pay a fine of Rs.1000/-each, and in default of payment of fine, to further undergo RI for three months each; for the offence punishable under section 302 read with section 34 of the Indian Penal code; further sentenced Hardip Singh to undergo RI for two years for the offence punishable under section 324 of the Indian Penal Code; further sentenced him to undergo R.I. for six months for the offence punishable under Section 148 I.P.C.; further sentenced Harbant Singh to undergo RI for two years, for the offence, punishable under section 324 read with section 34 of the Indian Penal Code; and also sentenced him to undergo RI for six months, for the offence punishable under Section 148 of the Indian Penal Code. Labh Singh and Chanan Singh accused were acquitted. All the substantive sentences were ordered to run concurrently. Crl.Appeal No.224-DB of 1998 3 2. The facts, in brief, are that on 26.8.1993, Harjinder Singh son of Fauza Singh, resident of Mukerian was going in a truck, bearing registration No. PB-07-4116, at about 12.30 p.m., along with Raj Kumar Walia son of Ganga Bishav, Kuldip Singh son of Sulakhan Singh, Balbir Singh son of Diwan Singh and Ashwani Kumar son of Dhian Singh, towards the office of the Food Corporation of Indian, Mukerian, to fill the tender, in the said office and when they reached the said office at Mukerian, they found Harbant Singh Ex-President of Truck Union Mukerian along with Lakhwinder Singh, Labh Singh, Sarpanch, Hardip Singh and Chanan Singh already present there, with their trucks bearing registration numbers HIU-1581 and PAT-1424. They were sitting on a Tirpal. Harbant Singh was armed with a Takua, Hardip Singh was armed with a kjrch and Lakhwinder Singh was armed with a pistol. They proclaimed that they would not let the complainant, to fill the tender. Lakhwinder Singh fired a shot, from the pistol, which hit the left knee of Kuldip Singh. Hardip Singh gave a blow on the chest of Raj Kumar Walia with kirch ( knife). Harbant Singh gave a Takua blow on the head of Balbir Singh. The other persons accompanying the accused raised slogans. Upon this, the gunmen of Raj Kumar Walia, fired at the members of the accused party, as a result whereof, the accused ran away, from the spot. A vehicle was arranged, and injured Raj Kumar Walia, Balbir Singh and Kuldip Singh were removed to Civil Hospital,Hoshiarpur. Later on Kuldip Singh son of Sulakhan Singh, expired in CMC Hospital,Ludhiana on 6.9.1993, where he had been referred. On the basis of the statement of Crl.Appeal No.224-DB of 1998 4 Harjinder Singh, FIR was registered. Post mortem on the dead body of Kuldip Singh was conducted. Medicolegal examination of Raj Kumar Walia and Balbir Singh was also conducted. The statements of the witnesses were recorded. Site plan of the place of occurrence was prepared. Kirch was got recovered by Hardip Singh, on basis of his disclosure statement, which was taken into possession. After the completion of investigation, the accused were challaned for the offences punishable under Sections 148, 302, 302 read with section 149, 324 and 323 of the Indian Penal Code as also under Section 25/27 of the Arms Act. 3. On their appearance, in the Court of the Committing Magistrate, the accused were supplied the copies of documents, relied upon by the prosecution. After the case was received by commitment, charge under Sections 148, 302, 302 read with section 149, 307 and 323 of the Indian Penal Code as also under section 27 of the Arms Act was framed against the accused, to which they pleaded not guilty and claimed judicial trial. 4. The prosecution, in support of its case, examined, Paramjit Singh, Draftsman, PW1, MHC Resham Singh, PW2,Dr. Varun Satija, Reader Department of Radiology, CMC Hospital,Ludhiana,PW3, Dr.J.S. Purewal, Medical Officer,Civil Hospital, Hoshiarpur,PW4, Dr.Ram Lal, Emergency Medical Officer, Civil Hospital,Hoshiarpur, PW5, R.C. Sharma, Retired District Manager, Food Corporation of India, Hoshiarpur, PW6, Raj Kumar Walia, injured, PW7, Balbir Singh, PW8, Dr. M.K.Nanda, Resident in General Surgery, CMC Hospital,Ludhiana PW9, Dr. Jocob Mathew, Crl.Appeal No.224-DB of 1998 5 Resident of General Surgery, CMC Hospital, Ludhiana,PW10, Harjinder Singh, author of the FIR, PW11, Kashmir Singh,Constable, PW12, Ashwani Kumar,an eye-witness to the occurrence,PW13, Ram Dial, a gunman of Raj Kumar Walia, an eye-witness to the occurrence, PW14, Constable Jatinder Singh, PW15, Constable Devinder Singh, PW16, Dr.G.S.Randhawa,Pathalogist, Civil Hospital,Ludhiana, who conducted post mortem PW17, ASI Shiv Kumar, Police Station Mukerian PW18, Sub Inspector Harbhajan Dass, Police Station Mahilpur, PW19, ASI Vijay Kumar, CIA Staff,Hoshiarpur, PW20 and Inspector Manjit Singh,SHO, at the relevant time, Police Station Mukerian,PW21. The public prosecutor for the State, gave up some witnesses, as unnecessary. After tendering into evidence certain documents, he closed the prosecution evidence. 5. The statements of accused under Section 313 of the Code of Criminal Procedure were recorded. They were put all the incriminating circumstances appearing against them, in the prosecution evidence. Hardip Singh accused took up the plea that he was innocent. He further stated Dr. Kewal Krishan, former Finance Minister, Punjab, and an active Congress member belongs to Mukerian. His real brother Dr. Swaran Kumar was a member of the Truck Union, Mukerian. Harbant Singh was the President of Truck Union of Mukerian. Raj Kumar Walia and his companions were members of the Truck Union Mukerian. Dr. Swaran Kumar, Raj Kumar Walia and his companions wanted to remove Harbant Singh, from the office of President of Truck Union of Mukerian, and they had been trying their level best to remove Crl.Appeal No.224-DB of 1998 6 Harbant Singh, from the above said office. On the day, when the tenders were being called, at the office of Food Corporation of India, there was melee and commotion and the gunman of Raj Kumar Walia fired, as a result whereof, some persons, received injuries. It was further stated by him that Dr. Swaran Kumar, Raj Kumar Walia and his companions, in connivance with the police, got the aforesaid case, falsely registered against him and his co-accused. 6. Harbant Singh, Lakhwinder Singh, Labh Singh and Chanan Singh, accused, in their statements, took up the same pleas, as were taken up by Hardip Singh, accused, in their statements under section 313 Cr.P.C. The accused, however, did not lead any evidence in their defence. 7. After hearing the Public Prosecutor for the State, Counsel for the accused, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above and acquitted Labh Singh and Chanan Singh, accused. 8. Feeling aggrieved, against the judgment of conviction and the order of sentence, referred to above, the instant appeal was filed by the accused/appellants. 9. We have heard the learned Counsel for the parties, and have gone through the evidence and record of the case, carefully. 10. Ms. Baljeet Maan, Advocate Counsel for the appellants, produced a photo copy of the death certificate of Hardip Singh, one of the appellants, showing that he died on 13.8.2007. This document is taken on record. This document has not been disputed by the learned Counsel for the Crl.Appeal No.224-DB of 1998 7 respondent. Since, as per this document,Hardip Singh son of Harbant Singh, one of the appellants, has died, the appeal qua him stands abated. 11. The Counsel for the remaining appellants, at the very outset, contended that it was not proved, by the prosecution, that the death of Kuldip Singh, occurred on account of the direct result of the injuries sustained by him, at his knee with fire arm. In other words, she submitted that the death of Kuldip Singh was not homicidal. She further contended that no offence punishable under Section 302 and 302 read with section 34 of the Indian Penal Code was,thus, constituted. Dr. J.S. Purewal, Medical Officer, Civil Hospital,Hoshiarpur,PW4, medicolegally examined Kuldip Singh son of Sulakhan Singh, injured on 26.8.1993 at 1.20 p.m. and found two injuries on his person, which were caused by fire arm. Later on Kuldip Singh died on 6.9.1993. The most important evidence, with regard to the cause of death of Kuldip Singh is of Dr. G.S.Randhawa,Pathalogist, Civil Hospital,Ludhiana, PW17, who conducted postmortem examination on 7.9.1993, at 11.15 a.m. on his dead body, and found the following injuries: 1. Lacerated wound 1 cm in diameter on lower part of the thigh 2” above the patella. Margins of the wound were infected and inverted. 2. Lacerated wound 1 ½ cm in diameter on the posterior and lower portion of the thigh five inches above the popliteal fossa. Margins of the wound were infected and everted. On exploration it was communicating with injury No.1. Crl.Appeal No.224-DB of 1998 8 3. Surgical incised wound 11” x 2-1/2” on medial aspect of left thigh extending upto lower part of knee joint. Underneath muscles of the thigh were exposed and infected. Margins were also found infected. 4. Surgical incised wound 9” x 3” on medial aspect of left leg exposing the calf muscles which were found infected and patches of pus formation were found at places. Margins of the wound were infected. 5. Surgical incised wound 7” x 2” on outer aspect of left leg exposing the underneath calf muscle. Margins of the wound and exposed muscles were found infected. 6. Stitched and partially heeled wound 8” long on medial aspect of right thigh. 7. Stitched wound 1” in length transverse on lower end of right leg. 8. Left thigh and left leg were found swollen. He, in clear cut terms, stated that the cause of death in his opinion was due to septicaemic shock, as a result of multiple infected wounds, which were sufficient to cause death, in the oridnary course of nature. He further stated that injuries were ante-mortem in nature. During the course of his crossexamination, he further stated that injuries No.3,4 and 5 on the person of Kuldip Singh were on account of surgical intervention. He further stated that all the injuries on the dead body of Kuldip Singh were found infected. He further stated that infection is a process of pathological process. He further clarified that infection could also occur due to the Crl.Appeal No.224-DB of 1998 9 inadequate doses of antibiotic. He further stated that severe infection led to the formation of septicaemia. He further clarified that since the injuries were on the non-vital part of the body, he could have survived, had the infection not occurred. As stated above, he gave the cause of death of Kuldip Singh as septicaemic shock, on account of multiple infected wounds. He did not state, even a single word, in his statement that the death of Kuldip Singh was the direct result of the injuries, found on his body. The Doctor could be said to be the best expert, to prove the cause of death. Since, it was not proved, by the prosecution, that the death, in this case, was homicidal,in other words, on account of the direct result of the injuries, found on the body of Kuldip Singh, offence under Section 302 of the Indian Penal code, was not, at all, constituted. The submission of learned Counsel for the appellants, in this regard, thus, appears to be correct and is accepted. 12. The Counsel for the respondent, could not point out, any piece of evidence, on the record, where-from it could be proved that the death of Kuldip Singh was the direct result of the injuries, found on his person, and not due to septicaemic shock, as a result of multiple infected wounds. No clarification, was sought, from Dr. G.S.Randhawa,PW17. in his examination-in-chief as to whether the death of Kuldip Singh was the direct result of the injuries, caused on his person, and not due to infection of the wounds. The Counsel for the respondent, therefore, was unable to rebut the medical opinion, given by Dr. G.S.Randhawa,PW17, regarding the cause of death of Kuldip Singh, deceased. Crl.Appeal No.224-DB of 1998 10 13. It was next contended by the Counsel for the appellants, that the statement of Kuldip Singh, in this case, was not recorded, by the Investigating Officer, and no plausible explanation was furnished as to what prevented him from doing so. She further submitted that the evidence of Kuldip Singh, injured, who later on died, was material, and,therefore, his non-examination will certainly cast a serious doubt, on the case of the prosecution. The submission of the learned counsel for the appellants, in this regard, appears to be correct to some extent. The occurrence took place, on 26.8.1993, whereas, Kuldip Singh died on 6.8.1993, in C.M.C.Hospital, Ludhiana. Inspector Manjit Singh, PW21, the main Investigating Officer, in this case stated that he went to C.M.C. Ludhiana, and moved an application Ex.PO, before the Doctor for obtaining his opinion as to whether, Kuldip Singh,injured,was fit to make statement. He further stated that the Doctor, vide endorsement Ex.PO/1, opined that the patient was fit to make statement. He further stated that,however, Kuldip Singh did not make any statement. This application was moved by Inspector, Manjit Singh, on 28.8.1993. No contemporaneous record was maintained by Manjit Singh as to under what circumstances, Kuldip Singh, who was seriously injured, refused to make statement, which could be very material. There is, no record, that Manjit Singh,PW21, brought this fact to the notice of his supervisory Gazetted Officer. There is nothing on the record that he moved any application,before the competent Magistrate, for recording the statement of Kuldip Singh. Had any contemporaneous record been maintained by Manjit Crl.Appeal No.224-DB of 1998 11 Singh, PW21, that Kuldip Singh refused to make statement, though he was declared fit to make the same, by the Doctor, the matter would have been considered, in the light thereof. There is also nothing, on the record, as to in the presence of which witness, or in the presence of which Doctor, Kuldip Singh, refused to make a statement. In these circumstances, it can be said that Manjit Singh, Inspector, PW21 did not conduct the investigation, in a fair manner. As stated above, Since Kuldip Singh has already demised,but not on account of the direct result of the injuries on his person, it would be seen, as to what was the effect of non-recording of his statement, on the case of the prosecution. 14. It was next contended by the Counsel for the appellants, that, in fact, no occurrence, as set up by the prosecution, ever took place. She further submitted that, in fact, there was commotion when the parties of both sides had gone to the office of the Food Corporation of India, for filling the tender and, in that meele and commotion, the gunmen of Raj Kumar Walia fired shots, one of which hit Kuldip Singh. She further submitted that Lakhwinder Singh,appellant did not fire any shot, as a result whereof, injury on the person of Kuldip Singh was caused. It is, no doubt, true that Balbir Singh, an eye-wintess, PW8, and Harjinder Singh,PW11, the author of the First Information Report, did not support the case of the prosecution. They completely resiled from their statements. They were confronted with their previous statements, portion-wise,but they denied having made such statements. No reliance,therefore, could be placed, on their evidence. However, no doubt, the defence referred to above Crl.Appeal No.224-DB of 1998 12 was taken up by the accused, in their statements, under Section 313 Cr.P.C. It is to be seen, as to whether, the evidence of the other eye-witnesses, could be said to be sufficient to prove the occurrence or not. Ashwani Kumar, PW13, is one of the eye-witnesses to the occurrence. He, in clear-cut terms, stated that on 26.8.1993, at about 12.30 p.m., he along with Raj Kumar Walia, Balbir Singh and Kuldip Singh etc. was sitting in front of the office of the Food Corporation of India on a Dari, when Harbant Singh,Hardip Singh, Lakhwinder Singh, Chanan Singh, and Labh Singh came in a truck, bearing registration No.5181.Chanan Singh and Labh Singh raised exhortations that they would not allow them to fill the a tender. Lakhwinder Singh, fired a shot, from his pistol which hit Kuldip Singh, on his left knee. Hardip Singh gave a kirch blow to Raj Kumar Walia on left side of his chest. Harbant Singh attacked with the reverse side of Takua which hit the back side of head of Balbir Singh. Thereafter, Raj Kumar Walia, Kuldip Singh and Balbir Singh, injured, were taken to Civil Hospital,Hoshiarpur. He further stated that the gunmen provided to Raj Kumar Walia, namely,Hardial Singh and Nasib Singh, fired shots, from their quns, in the air, in order to save Raj Kumar Walia. Ram Dial, PW14,one of gunmen of Raj Kumar Walia, also corroborated the statement of Ashwani Kumar, PW13, in all material particulars. He stated that he fired, in the air, for personal safety. In his cross-examination,he in clear-cut terms, stated that when the injuries were being caused to the accused, they did not try to fire towards the lower portion of the accused, in order to save them. Raj Kumar Walia, PW7, one of the Crl.Appeal No.224-DB of 1998 13 injured, in his statement, stated that he was caused injury with kirch on his chest, by Hardip Singh. He did not support the case of the prosecution with regard to the injuries, caused on the person of Kuldip Singh and Balbir Singh. The evidence of Ashwani Kumar,PW13, Ram Dial,PW14 and Raj Kumar Walia, PW7 is reliable. No serious infirmity was found in their statements.Their statements are duly corroborated by the medical evidence. From their statements,duly corroborated by the medical evidence, it was proved that the occurrence took place, in the manner, set up by the prosecution. The mere fact that Harjinder Singh and Balbir Singh,PWs did not support the case of the prosecution, did not cast any doubt, on the evidence of Raj Kumar Walia, PW7, Ashwani Kumar, PW13, and Ram Dial,PW14. The occurrence did not take place, in the manner, suggested by the Counsel for the appellants. In this view of the matter, the submission of the Counsel for the appellants, being devoid of merit, must fail, and the same stands rejected. 15. It was next submitted by learned Counsel for the appellants, that Ram Dial,PW14, along with another gunman of Raj Kumar Walia, was detained by the police of Police Station Model Town, and they were released after about 4 to 5 days. No doubt, this fact was admitted by Ram Dial, PW14, during his cross-examination. From this circumstance, it could not be inferred that Ram Dial and Nand Kishore, the two Gunmen of Raj Kumar Walia, were the perpetrators of crime. They might have been detained by the police on account of some suspicion, but,ultimately, they were released when nothing was found against them. The mere fact that they were Crl.Appeal No.224-DB of 1998 14 detained by the police, for a few days, did not mean that the occurrence did not take place, in the manner, set up by the prosecution. In this view of the matter, the submission of the learned Counsel for the appellants, being without merit,must fail, and the same stands rejected. 16. Now, the next question that arises for consideration is as to what offence or offences was/were constituted and against which of the appellants/accused.Dr. M.K.Nanda, Resident in General Surgery, CMC Hospital,Ludhiana, PW9, medicolegally examined Kuldip Singh( now deceased), when he was admitted in CMC Hospital, Ludhiana and found the following injuries on his person: 1. There was a wound of entry 0.5 cm x 0.5 cm on the anterior part of left thigh with slight bluish discolouration at margins medial to patella and about 2 inches above upper level of patella. 2. Exist wound 0.5 cm x 0.5 cm size on the posterior aspect of thigh at mid-point 3 inches above poplitel foes. 3. Swelling of left thigh. 4. Left femoral angieogram showed a complete disruption of left femoral artery at its lower 1/3rd. He declared injuries No.1,2 and 3, on his person, as grievous in nature, and injury No.4 as dangerous to life. Duration of injuries was within 12 hours. He further stated that the kind of weapon used for these injuries was fire-arm possibly. He gave his report Ex.PM, under his signatures. He also proved Crl.Appeal No.224-DB of 1998 15 the handwriting and signatures of Dr. Naveen Kakkar,posted in the Department of Surgery of CMC Hospital, Ludhiana, on Ex.PN, Ex.PN/1, Ex.PO and Ex.PO/1. Lakhwinder Singh,one of the appellants/accused, fired a shot, from his pistol, which hit the left knee of Kuldip Singh. Since injury No.4 on the person of Kuldip Singh, which was the result of fire-arm, was declared dangerous to life by the aforesaid Doctor, it could be said that Lakhwinder Singh made an attempt to commit murder of Kuldip Singh( now deceased).The act of firing a shot from the pistol, was done by Lakhwinder Singh, with such intention or knowledge and under such circumstances, that,if he by that act he had caused the death of Kuldip Singh, he would have been guilty of murder. To justify conviction, under Section 307 of the Indian Penal Code, it is not essential that bodily injury capable of causing death, should have been inflicted. An attempt, in order to be criminal, need not be the penultimate act, foreboding death. It is sufficient, in law, if there is present an intent, coupled with some overt act, in execution thereof, such act being proximate to the crime intended and if the attempt had gone so far, that it would have been complete, but for the extraneous intervention which frustrated its consummation. There are different stages in a crime. First, the intention to commit it; second, the preparation to commit it; and third, an attempt to commit it. If, at the third stage, the attempt fails, the crime is not complete, but the law punishes for attempting the same. An attempt to commit crime, must be distinguished, from an intent to commit it, or preparation of its commission. Similar principle of law, was laid down, in Sagayam V.State Crl.Appeal No.224-DB of 1998 16 of Karnataka A.I.R.