Crl.A. No.467-DB of 2006 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.467-DB of 2006 DATE OF DECISION: November 11, 2009 AVTAR SINGH AND OTHERS ...APPELLANTS VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE JITENDRA CHAUHAN. PRESENT: MR. VANEET SHARMA, ADVOCATE FOR THE APPELLANTS. MR. A.S. GREWAL, ADDL.A.G., PUNJAB. ASHUTOSH MOHUNTA, J. The appellants have challenged the judgement of conviction and order of sentence dated 12.6.2006, passed by the Sessions Judge, Amritsar vide which the appellant Pargat Singh S/o Avtar Singh has been convicted under Section 302 IPC whereas, Avtar Singh and Pargat Singh son of Dara Singh have been convicted under Section 302 read with Section 34 IPC and all the accused have been sentenced to undergo R.I. for life. Further appellant No.2 has been ordered to pay a fine of Rs.25,000/- and in default of payment of fine he has been ordered to undergo further R.I. for 2 years whereas, appellants No.1 & 3 have been ordered to pay a fine of Rs.10,000/- each and in default to further undergo R.I. for 1½ years. The case against the accused was registered on the basis of the statement made by Harpal Singh, complainant (PW2), who stated that on 24.7.2003, at about 11.00 a.m. the officials of Electricity Board conducted a Crl.A. No.467-DB of 2006 -2- raid at the tubewells of village Dhariwal in order to detect illegal running of electric motors with the help of stolen electric energy. In pursuance to the raid conducted, about 30 such motors were detected and their owners were issued notices and were given 10/15 days time to deposit the fine. The complainant and the accused party were suspecting each other for being instrumental in having the raid conducted. On that account, a quarrel had taken place between the deceased Jaswant Singh and accused Avtar Singh in which the accused had threatened to kill Jaswant Singh. Complainant Harpal Singh alongwith the deceased Jaswant Singh and one Darbara Singh requested the officials of the Electricity Board near 'Jhanj Ghar' for not imposing the fine. Thereafter, the complainant accompanied by Darbara Singh (PW5) and Jaswant Singh (deceased) started to return to their houses. At about 5.30 p.m. when they reached in front of Gurdwara, Avtar Singh alongwith his son Pargat Singh who was armed with 12 bore double barrel gun and Pargat Singh S/o Dara Singh who was also armed with 12 bore double barrel gun came out of Avtar Singh's house. Avtar Singh raised a lalkara that the complainant party be taught a lesson for getting their electric motors detected and also for contesting elections against them. At that time Jaswant Singh was ahead by about 2 karams from the complainant and Darbara Singh. On exhortation by Avtar Singh, his son Pargat Singh fired two shots at Jaswant Singh from his 12 bore double barrel gun, the first of which hit on the left side of the chest of Jaswant Singh whereas, the second shot hit him on the left side of abdomen and left arm. As a result of the gun shots, Jaswant Singh fell down and died at the spot. The accused ran away from the spot while firing from their guns. Crl.A. No.467-DB of 2006 -3- The complainant accompanied by Darbara Singh immediately left for Police Station Lopoke after leaving Banta Singh to guard the dead body. On reaching the Police Station, Harpal Singh made a statement before Gurnam Singh SHO (PW13) on the basis of which FIR (Ex.PB) was recorded at 7.00 p.m. After recording the statement made by the complainant, Gurnam Singh SHO came to the place of occurrence where he collected the blood stained earth, and put the same in a plastic bag and sealed the same with his seal 'GS'. Gurnam Singh also found two empty cartridges from the place of occurrence which were also converted into separate parcels and sealed with his seal and deposited the case property with Kulwinder Singh MHC (PW11). Thereafter Gurnam Singh (PW13) prepared the inquest report and sent the dead body for post mortem examination to Government Medical College, Amritsar alongwith an application (Ex.PP) for conducting the post mortem on the dead body of Jaswant Singh. Dr. Ashok Chanana PW1 conducted the post mortem on the dead body of the deceased and found three fire arm injuries which are as under:- “1) Multiple (13) punctured lacerated wounds varying in size from 0.3 x 0.2 cms to 0.2 x 0.2 cms with clotted and blood stained margins circular to irregular in shape were present on the front and left side of chest of its middle 1/3rd mostly. The pattern of dispersion of wounds was in 15 x 10 cms area. On Dissection-Injury No.1 communicated with the right pleural cavity afer injuring the intervening structures i.e. structures of chest wall, left pleura, left lung, pericardium, Crl.A. No.467-DB of 2006 -4- heart, right pleura and right lung. Clotted blood was present in the track. The track was of divergent type. From the trach, five pelletes were found. Each pleural cavity contained 150 cc of fluid and clotted blood. 2) Multiple (43) punctured lacerated wounds varying in size from 0.3 x 0.2 cms to 0.2 x 0.2 cms with clotted and blood stained margins circular to irregular in shape were present on the front and left side of abdomen in its middle 1/3rd mostly. The pattern of dispersion of wounds was in an area of 24 x 11.5 cm. On dissection-The injury communicated with the right paracolic region after injuring the intervening structures i.e. anterior abdominal wall, peritoneum, omentum, mesentery, stomach, liver and soft tissue structures of right retroperitoneal area. Clotted and fluid blood was present in the track. The small intestines was also perforated at places. Clotted blood was present at the perforations from which chyme was protuding out. The tract was of divergent type. From the track, 15(fifteen) pellets were recovered. The peritoneal cavity contained 2.5 litres of dark coloured fluid made up of blood, contents of stomach and small intestines. 3) Multiple (10) punctured lacerated wounds varying in size from 0.3 x 0.3 cms to 0.3 x 0.2 cms with clotted and blood stained margins circular to irregular in shape were present on the back of left forearm and left hand. On dissection-The wounds were muscle and bone deep. That Crl.A. No.467-DB of 2006 -5- track was of divergent type. From the track, three (3) pellets were recovered. Clotted blood was present in the track.” Dr. Ashok Chanan PW1 opined that cause of death was haemorrhage and shock and injuries to heart and other vital organs as a result of injuries No.1 and 2 which were sufficient to cause death in the ordinary course of nature. During post mortem examination pallets were recovered from the dead body which were sealed by the Doctor and the same were taken into possession vide memo Ex.PQ and was deposited with Kulwinder Singh MHC, PW11. Subsequently, the same were sent to the laboratory for examination. The accused Avtar Singh was arrested on 30.7.2003, whereas, the other accused were also arrested subsequently. Accused Avtar Singh was interrogated on 1.8.2003, by PW13 Gurnam Singh SHO in the presence of Balwinder Singh S.I. and Bhupinder Singh HC, upon which he disclosed that he had kept concealed one gun in the wooden almirah lying in his house and could get the same recovered. His stateemnt was reduced into writing which was duly signed by him and was attested by said witnesses. In pursuance to his disclosure statement Avtar Singh got recovered a 12 bore double barrel gun alongwith cartridges from the wooden box lying his house. On 10.10.2003, Balkar Singh, Commission Agent produced before Gurnam Singh PW13, Pargat Singh son of Avtar Singh, who was also arrested. After observing the formalities a 12 bore DBBL gun alongwith cartridges were sent to the Forensic Science Laboratory, Punjab for examination. Dr. S.N. Sharma submitted the result of examination Ex.PU and opined that one 12 bore K.F. Special cartridges case marked C/1 contained in parcel 'A' had been fired from left barrel of 12 bore DBBL gun Crl.A. No.467-DB of 2006 -6- No.5552-99. It was further opined that one 12 bore K.F. Special cartridges case marked C/2 contained in parcel 'A' had been fired from right barrel of 12 bore DBBL gun No.5552-99. Vide Ex.PV Dr.(Mrs.) Seema Sharda, Assistant Director (Biology), Forensic Science Laboratory, Punjab examined the blood stained earth which had been sent to the FSL and opined that the soil was stained with human blood. After receiving all the reports and completing the investigation, challan was put before SDJM, Ajnala, who committed the case to the Court of Sessions. The Court of Sessions Judge, Amritsar charged Pargat Singh for having committed the offence under Section 302 IPC and accused Avtar Singh for having committed the offence under Section 302 read with Section 34 IPC. Subsequently, an application was moved by the Public Prosecutor under Section 319 Cr.P.C. for summoning Pargat Singh S/o Dara Singh as an additional accused. This application was allowed vide order dated 23.12.2004, and Pargat Singh S/o Dara Singh was summoned as an accused to stand trial alongwith the other accused. In order to prove its case, the prosecution examined as many as 14 witnesses. An eye witness account has been given by the complainant Harpal Singh PW2. He has stated that on 24.7.2003, a raid was conducted by officials of the Electricity Board with regard to illegal running of electric motors with the help of stolen electric energy. The complainant side as well as the accused party suspected each other for being instrumental in having the raids conducted. On the same day, at about 5.30 p.m. while the complainant alongwith Darbara Singh and the deceased Jaswant Singh were returning back to their house through the street and when they reached near Crl.A. No.467-DB of 2006 -7- the Gurudwara, all the three accused came out of the house of Avtar Singh and on exhortation by Avtar Singh, his son Pargat Singh fired two shots from his double barrel gun on Jaswant Singh. The first shot hit him on the left side of his chest and the second shot hit him in the abdomen and left arm, as a result of which Jaswant Singh fell down and died on the spot. The entire occurrence was also witnessed by Darbara Singh PW5. To the same effect was the statement of Darbara Singh PW5 who also stated that it was Pargat Singh S/0 Avtar Singh who had fired both the shots at Jaswant Singh who died instantaneously on receiving the gun shot injuries. The prosecution examined PW1 Dr. Ashok Chanana, Associate Professor, Government Medical College, Amritsar and found three injuries on the person of the deceased and opined that the injuries were of ante mortem origin and were caused as result of discharge of fire arm. He further opined that cause of death in this case was haemorrhage and shock and injury to heart and other vital organs as a result of which injuries No.1 and 2 which was sufficient to cause death in the ordinary course of nature. The Doctor also handed over a small plastic jar containing pellets recovered from the deceased which were duly labelled and were addressed to SHO, Incharge Police Station Lopoke. The Investigating Officer, Inspector Gurnam Singh was examined as PW13 who deposed that the accused were arrested by him and on interrogation all of them made a disclosure statement and at the instance of the accused, the weapons of offence were recovered. The prosecution also examined various other formal witnesses and also tendered in evidence the report of FSL, inquest report, recovery memos and thereafter closed its case. Crl.A. No.467-DB of 2006 -8- Statements of all the accused were recorded under Section 313 Cr.P.C. and they pleaded that they are innocent and have been falsely implicated in the present case. The trial Court after going through the entire evidence led in the case found the statements made by the complainant PW2 and Darbara Singh PW5 to be trustworthy. According to the trial Court, the statements were duly corroborated by the medical evidence as well as by the report of the FSL. Accordingly the accused Pargat Singh S/o Avtar Singh was convicted under Section 302 IPC and the other two accused, namely, Avtar Singh and Pargat Singh S/o Dara Singh were convicted under Section 302 read with Section 34 IPC. Counsel for the appellants has argued that there was a considerable delay in sending the special report to the Illaqa Magistrate. Learned counsel submits that the occurrence had taken place on 24.7.2003, at about 5.30 p.m. in the street of village Dhariwal. FIR (Ex.PB) was registered at 7.00 p.m., on the basis of statement made by Harpal Singh PW2, however, the special report reached the Illaqa Magistrate at 6.00 a.m. on the following day. It is thus, contended that possibility of false implication of the accused cannot be ruled out. Learned counsel has placed reliance on the endorsement of the Magistrate that he received the special report on 25.7.2003 at 6.00 a.m. This argument of the counsel for the appellants is without merit as it has come in evidence of PW2 Harpal Singh as well as PW5 Dabara Singh, that on 24.7.2003, at about 5.30 p.m., the accused Avtar Singh had exhorted his son Pargat Singh to teach the complainant side a lesson. Upon this Pargat Singh had fired twice from his 12 bore DBBL gun hitting Crl.A. No.467-DB of 2006 -9- Jaswant Singh in the chest, abdomen and left forearm, as a result of which Jaswant Singh fell down and died at the spot. The FIR was registered promptly by complainant Harpal Singh PW2 at 7.00 p.m. Thereafter the special report was sent to the Magistrate through Nirvel Singh, Head Constable. Nirvel Singh had appeared as PW4 and in his affidavit Ex.PF had stated that he had delivered the special report to the Sub Divisional Judicial Magistrate on 24.7.2003. During his cross-examination he had denied the suggestion that special report was delivered by him to the Magistrate and the higher officers only on 25.7.2003. However, the endorsement on the special report by the Magistrate shows that the special report was delivered at 6.00 a.m. on 25.7.2003. Even if it is assumed that there was a slight delay in sending the special report to the Magistrate still, keeping in view the fact that the occurrence was witnessed by Harpal Singh PW2, it cannot be said that Pargat Singh S/o Avtar Singh had not killed Jaswant Singh. Both PW2 Harpal Singh and PW5 Darbara Singh had categorically stated that Pargat Singh had fired twice from his 12 bore DBBL gun hitting Jaswant Singh in the chest, abdomen and forearm, as a result of which he died. Two empties from the gun were recovered from the spot by Gurnam Singh PW13 and this fact corroborates the statement made by the two eye witnesses. A similar matter came up for consideration before the Hon'ble Apex Court in Gurpeet Singh Vs. State of Punjab, 2006(1) Criminal Court Cases 117. In that case the FIR was registered on 22.1.1990 at 7.15 p.m., but the special report reached the concerned Magistrate in the night at 0002 hours. It was held therein that it is well settled that even if there is any delay in sending the special report to the Magistrate, that alone cannot effect the prosecution Crl.A. No.467-DB of 2006 -10- case if the same is otherwise found to be trustworthy. In the present case it has already been noticed that there is a graphic ocular account of the entire occurrence given by Harpal Singh PW2 and Darbara Singh PW5 and the ocular account stands duly corroborated by the post mortem report as well as by the report of the Forensic Science Laboratory. Apart from the above, the ocular account given by Harpal Singh PW2 and Darbara Singh PW5 has also been corroborated by Dr.Ashok Chanana, Associate Professor, Government Medical College, PW1 who conducted the post mortem examination of Jaswant Singh. According to PW1, three gun shot injuries were found on the person of the deceased which were ante mortem in nature. The Doctor had opined that the injuries were sufficient to cause death in the ordinary course of nature. During post mortem examination the Doctor had also recovered pellets from the body of the deceased which were put in a plastic bag and handed over to the concerned Police official for their examination. This also corroborates the fact that the deceased was killed, as a result of having received gun shot injuries. Moreover, as per the report of the Forensic Science Laboratory, Punjab (Ex.PU), two 12 bore K.F. Special Cartridge case and one 12 bore DBBL gun 5552-99 were sent for examination. It was opined by Dr. S.N. Sharma that one 12 bore K.F. Special cartridges case marked C/1 contained in parcel 'A' had been fired from left barrel of 12 bore DBBL gun whereas, the other cartridges case marked C/2 contained in parcel 'A' had been fired from right barrel of 12 bore DBBL gun. This also shows that Pargat Singh S/o Avtar Singh had fired upon Jaswant Singh from his 12 bore DBBL gun, as a result of which Jaswant Singh died on the spot. In view of the above, we are of the considered opinion that it Crl.A. No.467-DB of 2006 -11- was Pargat Singh S/o Avtar Singh who had fired from his 12 bore DBBL gun at Jaswant Singh, which resulted in his death and hence he has rightly been convicted and sentenced by the trial Court under Section 302 IPC. We have given our thoughtful consideration to the arguments raised by the counsel for the appellants. A perusal of the facts in the present case shows that as far as Pargat Singh S/o Dara Singh is concerned, he had neither raised any lalkara nor given exhortation to the accused Pargat Singh S/o Avtar Singh, who fired at the deceased. This accused had also not caused any injury to the deceased. There was no overt-act on his part to commit the murder of Jaswant Singh. In view of the above, benefit of doubt has to be given to this accused and accordingly, he is acquitted of the charges under Section 302/34 IPC. As far as accused Avtar Singh is concerned, he is alleged to have exhorted his son Pargat Singh to teach the complainant party a lesson. Asking the co-accused to teach the complainant party a lesson is entirely different from exhorting the co-accused to kill a person from the complainant side. In the present case, exhortation by Avtar Singh to his son Pargat Singh was only for teaching the complainant side a lesson. Moreover, this accused did not cause any injury to either the deceased or to Harpal Singh PW2 and Darbara Singh PW5, who were accompanying the deceased. No overt-act was played by this accused. In view of the above, we are inclined to give benefit of doubt to Avtar Singh also. The case of the prosecution is not free from doubt, as far as the appellant Avtar Singh is concerned and accordingly, we give him the benefit of doubt and acquit him under Section 302/34 IPC. Crl.A. No.467-DB of 2006 -12- As a result of the aforegoing discussion, the conviction of the accused Pargat Singh S/o Avtar Singh under Section 302 IPC and the sentence of R.I. for life alongwith the fine, as imposed by the trial Court, is upheld and the present appeal qua this accused-appellant is dismissed. However, the accused-appellants Avtar Singh S/o Sohan Singh and Pargat Singh S/o Dara Singh are given the benefit of doubt and are acquitted of the charges under Sections 302/34 IPC. The appeal is partly allowed. (ASHUTOSH MOHUNTA) JUDGE November 11, 2009 (JITENDRA CHAUHAN) Gulati JUDGE