IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.108-DB of 2000 Date of Decision: 24.02.2009 Harbans Singh Appellant Versus State of Punjab Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MR. JUSTICE JORA SINGH Present: Ms.Baljit Kaur Mann, Advocate for the appellant Mr.D.S.Brar, DAG Punjab for the respondent-State …. Jasbir Singh, J. This judgment will dispose of Criminal Appeal No.108-DB of 2000 titled as Harbans Singh versus State of Punjab and Criminal Appeal No.587-DBA-2000 titled as State of Punjab versus Amarjit Kaur etc. as both the appeals have arisen out of a common judgment and order dated 16.2.2000. To dictate order, facts are being taken from Criminal Appeal No.108-DB of 2000. Criminal Appeal No.108-DB of 2000 2 It was allegation against Harbans Singh and three others that on 11.9.1997, at 9.30 AM, in the area of village Ammo Nangal, they, in furtherance of common intention, killed Gurinder Singh and caused injuries to Pargan Singh (PW2), Jasbir Kaur (PW3) and Kulwinder Kaur. Case of the prosecution as noticed by the trial Court in paragraph No.2 of its judgment, reads as under:- “The facts of the case in narrow compass are that Pargan Singh PW had gone to the house of his sister Jasbir Kaur at village Ammo Nangal for putting lintel in her house. Gurinder Singh and Kulwant Singh Mason were preset outside the house on the road and were cutting iron rods for preparation of lintel. At about 9.30 AM., on 11.9.1997, accused Harbans Singh and Amarjit Kaur came there and asked them to lift the iron rod from there, because that site belonged to them. Kulwant Singh, Pargan Singh, lifted the iron rods from there. Amarjit Kaur accused threw a brick bat towards Gurinder Singh, which hit him on the toe of the right foot and he retreated towards back side. In the meantime, Kulwinderjit Kaur, sister’s daughter of Pargan Singh also came there. On this, Amarjit Kaur exhorted her sister Parbhjot Kaur alias Shira to bring ‘knives’ and ‘sotas’. Shira armed with knife, Balwinder Kaur alias Bholi armed with iron pipe came there. Shira handed over the knife to her brother Harbans Singh and exhorted him to kill the complainant, so that the daily dispute was put to an end. Amarjit Kaur caught hold of Gurinder Singh from his arm, Criminal Appeal No.108-DB of 2000 3 while Harbans Singh gave a knife blow on the left side of the chest of Gurinder Singh. The second knife blow was inflicted by Harbans Singh accused on the left arm of Gurinder Singh. Kulwinderjit Kaur raised the alarm,” Maar Ditta, Marr Ditta,”, on hearing which, Jasbir Kaur and her husband Tarsem Singh attracted to the spot. On receipt of injuries, Gurinder Singh fell on the ground and Tarsem Singh, Jasbir Kaur and Kulwinderjit Kaur tried to pick him up when Balwinder Kaur accused gave a pipe blow on the right arm of Pargan Singh. Harbans Singh gave a knife blow to Pargan Singh. Harbans Singh gave a knife blow to Pargan Singh which hit him in the chest. Amarjit then snatched the pipe and gave a blow therewith to Kulwinderjit Kaur, which hit her under the right eye. Amarjit Kaur then gave a pipe below on the left wrist of Jasbir Kaur. On alarm being raised, the accused ran away from the spot with their respective weapons.” It was further case of the prosecution that thereafter Tarsem Singh got the injured admitted in the Civil Hospital at Batala. Gurinder Singh succumbed to his injuries at about 11.00 AM on that very day. Others were medico-legally examined by Dr.Gurmit Singh (PW1). Investigating officer went to the spot, collected blood stained earth from there, got prepared the rough site plan and completed other formalities. Appellant Harbans Singh surrendered before JMIC at Batala and on receipt of information, he was taken in custody by the investigating officer Inspector Criminal Appeal No.108-DB of 2000 4 Bikram Singh (PW10). On interrogation, he made a disclosure statement, which led to the recovery of weapon of offence (knife). On completion of investigation, final report was put in Court for trial. Appellant and his co-accused were charge sheeted for commission of offences under Sections 302, 323, 324 and 34 IPC. They pleaded not guilty and claimed trial. The prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to the accused, they denied the same, pleaded innocence and claimed false implication. Appellant Harbans Singh has taken the following defence:- “Gurinder Singh s/o Tarsem Singh had stored a saria in our plot which is adjacent to the house of Tarsem Singh for which the complainant party wants to forcibly occupy the said plot and there is a civil suit between the parties before Civil Judge, Batala in which a stay order was given by the civil court in my favour and against the complainant party and I also got stay order in civil appeal on the day of occurrence, complainant party who tried to occupy the said plot and they started cutting the saria. My sister Prabhjot Kaur had gone the said plot to lodge protest for lifting the iron saria in their plot when she lodged this protest, she was caught hold by Gurinder Singh and when I went there I saw her in his grip and under provocation, I took up one pointed sharp saria and wieled the same in Criminal Appeal No.108-DB of 2000 5 exercising the right of private defence of personal property. Other accused were not present on the spot. To the same effect was the statement of co-accused Prabhjot Kaur. Accused also led evidence in defence. The trial Court, on appraisal of evidence, found appellant Harbans Singh guilty for commission of an offence under Section 302 IPC and sentenced him to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- with a default clause vide the impugned judgment and order. However, others were acquitted. It is necessary to mention here that the State of Punjab has filed Criminal Appeal No.587-DBA of 2000 to lay challenge to order of acquittal passed in favour of three accused, namely, Amarjit Kaur, Prabhjot Kaur and Balwinder Kaur. Vide order dated 7.11.2000, a Division Bench of this Court granted leave to file an appeal qua Amarjit Kaur and qua two others, it was declined. Ms.Baljit Kaur Mann, Advocate appearing for the appellant has vehemently contended that the prosecution has failed to explain delay in recording the FIR. Occurrence alleged to have taken place at about 9.30 AM, however, FIR was got recorded at 1.50 PM. Police station was situated within five kilometers. She argued that the intervening period was used to concoct a false story against the appellant and his family members. She also argued that appellant Harbans Singh caused injury to the deceased, by picking up an iron rod, from the spot in self defence. There was no intention to kill Gurinder Singh. She further argued that at the maximum, offence committed by the appellant, would fall under the provisions of Section 304 Criminal Appeal No.108-DB of 2000 6 Part-I IPC and not under Section 302 IPC. Appellant caused only one grievous injury on vital part of the body of the deceased. Regarding appeal filed against Amarjit Kaur, she argued that the trial Court has rightly given her the benefit of doubt. She further stated that at the time when offence alleged to have been committed, she was only 17 years of age, as such, she was entitled to get benefit of the Juvenile Justice (Care and Protection of Children) Act, 2000. She remained in jail for about 2 ½ years, at this stage, to set aside her acquittal, would amount to exercise in futility. She prayed that appeal filed by the appellant bearing Criminal Appeal No.108-DB of 2000 be allowed and the appeal filed by the State bearing Criminal Appeal No.587-DBA of 2000 be dismissed. Prayer made has vehemently been opposed by the State counsel Mr.D.S.Brar, DAG Punjab, who, by making reference to the statements made by Pargan Singh (PW2) and Jasbir Kaur (PW3), argued that the prosecution has proved culpability of all the four accused, as such, the trial Court was not justified in acquitting three of them. By making reference to evidence on record he argued that appellant Harbans Singh had caused first injury on vital part of body of the deceased and thereafter, he also repeated the assault, which clearly indicates that he was bent upon to kill the deceased. On intervention of others, the appellant also caused injuries to PW2 and PW3 and Kulwinder Kaur with a knife. He stated that intention to kill the deceased was apparent on record. He further argued that Amarjit Kaur was initiator of the fight. It was she, who has opened assault and motivated others, to kill the deceased. She has been wrongly let off by the trial Court. Criminal Appeal No.108-DB of 2000 7 He prayed that judgment qua her be set aside and she be convicted of the offence with which she was charged. Counsel for the parties heard. Occurrence, in which Gurinder Singh was killed, is admitted. The dispute is only with regard to mode and manner in which injuries were caused to him. It was case of the prosecution that a dispute was going on between the appellant and family of the deceased, regarding a plot situated next to the house of the accused. Father of the deceased was raising construction on his plot. To put roof on the room, iron rods were being cut. Putting up of iron rods, in the disputed plot, was objected by Amarjit Kaur. Iron rods were shifted to another place, even then, she opened assault by throwing brick-bats upon the deceased Gurinder Singh and asked his family members to bring weapons and teach lesson to the deceased. Thereafter Harbans Singh caused injuries to the deceased with a knife. To the contrary, it was case of the defence that it was Prabhjot Kaur, who objected to the storage of iron rods by the deceased on the disputed plot. At that time, she was caught hold by the deceased. When appellant Harbans Singh reached there, he saw her in grip of the deceased. The appellant felt provocated, picked up a sharp pointed iron rod and used it in the exercise of right of private defence of personal property. After hearing both the parties, we feel that the prosecution was successful in proving commission of offence by the appellant. Post-mortem on the dead body was conducted by Dr.Gurmit Singh (PW1) on 11.9.1997, who found the following injuries on person of the deceased:- Criminal Appeal No.108-DB of 2000 8 “1. Incised penetrating wound 2x1cm on front of left chest, 9 cm above and towards medial side of left nipple and 1 cm from middle of sternum. 2. Incised penetrating wound 1 x ½ cm on left forearm, 8 cms below left elbow joint. Injury was muscle deep. 3. Lacerated wound 2 x 1 cm on right toe dorsal surface. Wound was muscle deep.” This witness further opined that on dissection, depth of injury No.1 was found from skin to aortic nuchal of heart. Left lung, pleura and upper part of heart were injured. Injuries No.2 and 3 were muscle deep. This witness also opined that all the injuries were ante mortem in nature and were sufficient to cause death in the ordinary course. This witness also medico- legally examined Pargan Singh (PW2) and found two injuries on his person. He also medico-legally examined Kulwinder Kaur and found one injury at her person. Jasbir Kaur (PW3) was also examined by him and he found one injury on her body. Nature of injuries caused to the deceased Gurinder Singh and others, clearly indicates that those could not have been caused with an iron rod as was projected by the defence. Doctor has specifically stated that incise wounds could have been caused with a knife. Vivid description as to how the occurrence had taken place was given by PW2 and PW3, who were injured witnesses. Despite lengthy cross- examination, the defence has failed to shatter their testimony. Merely because, there is some delay in recording the FIR, it cannot be said that the prosecution has tried to change its version. The trial Court has thoroughly Criminal Appeal No.108-DB of 2000 9 examined entire evidence and has rightly given benefit of doubt to three out of the four accused, named in FIR. There was a motive with the appellant to cause injuries to the deceased. Dispute regarding a plot was going on. Storage of iron rods in that plot by the deceased and his family was taken by the appellant, as if they were going to take possession of the plot, whereas there was no prove of the same. Not only in Civil Courts, in Criminal Courts also, parties are litigating against each other. It appears that with a view to settle scores, the appellant caused fatal injuries to the deceased with an intention to kill him. Argument of counsel for the appellant that delay in recording FIR has not been explained, is liable to be rejected. Occurrence had taken place at about 9.30 AM. Injured Gurinder Singh was shifted to Civil Hospital at Batala where he died at 11.00 AM. Statement of Pargan Singh (PW2) was recorded in the hospital by Vikram Chand (PW10) at about 1.10 PM. It was argued before us that when going to Batala, from village of the deceased, police station falls in between. Non-reporting of matter to the police station has not been explained. Gurinder Singh was seriously injured, at that time, it was main concern of the family members to save him and not to rush to the police station. It has also come on record that the police station was situated at some distance, away from the main road. May be with a view to first save the injured, family members did not go to the police station. Minor discrepancies indicated by the counsel for the appellant in statements made by the prosecution witnesses, are not fatal to the case of the prosecution. Criminal Appeal No.108-DB of 2000 10 So far as Amarjit Kaur is concerned, her age was only 17 years when occurrence had taken place. Though not agitated, but she was entitled to get benefit under the provisions of Juvenile Justice (Care and Protection of Children) Act, 2000. Role attributed to her is also minor in nature. The trial Court has given sufficient reasons in paragraph Nos.17 and 18 of the judgment, to say that possibility of roping in all members of the family, could not be ruled out. Both the families, even before this occurrence, were at litigation. In the FIR and depositions made by PW2 and PW3, there is also no mention as to whom Amarjit Kaur had caused injury with a rod. Regarding injury on foot of the deceased, attributed to Amarjit Kaur, it was said by Dr.Gurmit Singh (PW1) that it could be possible by fall against the hard surface. Otherwise also, in cases where two views are possible, the view favouring the accused has to be adopted. It was so said by their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748 and a Division Bench of this Court in State of Punjab v. Hansa Singh, 2001(1) RCR (Criminal) 775. In view of facts mentioned above, we feel that the prosecution was successful in bringing home guilt of the appellant-accused Harbans Singh. Accordingly, his conviction and sentence is upheld and appeal filed by him is dismissed. So far as appeal filed by the State against Amarjit Kaur is concerned, we feel that the trial Court was justified in acquitting her. Accordingly, appeal filed by the State fails and is dismissed. (Jasbir Singh) Judge Criminal Appeal No.108-DB of 2000 11 24.02.2009 (Jora Singh) gk Judge