Crl.Appeal No.881-DB of 2007 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Date of decision:21.12.2011 (I) Crl.Appeal No.881-DB of 2007 Amarjit Singh ... Appellant vs. State of Punjab ... Respondent (II) Crl.Appeal No.863-DB of 2007 Baldev Singh ... Appellant vs. State of Punjab ... Respondent (III) Crl.Appeal No.860-DB of 2007 Joginder Singh ... Appellant vs. State of Punjab ... Respondent (IV) Crl.Appeal No.862-DB of 2007 Satnam Singh ... Appellant vs. State of Punjab ... Respondent (V) Crl.Revision No.1453 of 2008 Harnek Singh ... Petitioner vs. State of Punjab and others ... Respondents CORAM: HON'BLE MR. JUSTICE S.S.SARON. HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.H.S.Sandhu, Sr.Advocate, with Mr.Ramandeep Sandhu, Advocate, for the appellant in Crl.Appeal No.862-DB of 2007 Mr.Vikram Chaudhary, Advocate, for the appellant in Crl.Appeal No.881-DB of 2007 Mr.P.S.Hundal, Sr.Advocate, with Crl.Appeal No.881-DB of 2007 2 Mr.Dheeraj Mahajan, Advocate, for the appellant in Crl.Appeal No.863-DB of 2007 Mr.J.S.Bedi, Advocate, for the appellant in Crl.Appeal No.860-DB of 2007 Mr.Gautam Dutt, Advocate, for the petitioner in Crl.Revision No.1453 of 2008 Mr.S.S.Gill, Addl.AG, Punjab. ... JORA SINGH, J. By this common judgment, we propose to dispose of Crl. Appeal No.881-DB of 2007 (Amarjit Singh vs. State of Punjab), Crl. Appeal No.863-DB of 2007 (Baldev Singh vs. State of Punjab), Crl. Appeal No.860-DB of 2007 (Joginder Singh vs. State of Punjab) and Crl. Appeal No.862-DB of 2007 (Satnam Singh vs. State of Punjab), as the same have been preferred against the common judgment of conviction and order of sentence dated 14.9.2007 passed by the learned Sessions Judge, Jalandhar, in Sessions Case No. 17 of 2005, arising out of FIR No.23 dated 8.8.2001 under Sections 302/307/323/324/506/149/452/148/120-B of the Indian Penal Code (`IPC for short) and Sections 25/27 of the Arms Act, Police Station Lambra. By the said judgment, Satnam Singh, Joginder Singh, Amarjit Singh and Baldev Singh were convicted for the offences punishable under Sections 324/34/302 IPC. Appellant Amarjit Singh was also convicted for the offence punishable under Section 27 of the Arms Act. The appellants were directed to undergo imprisonment as under:- Satnam Singh U/Ss 302/34 IPC Imprisonment for life and to pay a fine of Rs.3,000/-, in default of payment of fine, to further undergo RI for two years. Crl.Appeal No.881-DB of 2007 3 U/s 324 IPC RI for two years, and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months. Joginder Singh U/Ss 302/34 IPC Imprisonment for life and to pay a fine of Rs.3,000/-, in default of payment of fine, to further undergo RI for two years. U/s 324 IPC RI for two years, and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months. Amarjit Singh U/S 302 IPC Imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for three years. U/Ss 324/34 IPC RI for two years, and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months. U/s 27 of the RI for three years and to pay a fine 5,000/-, in default of Arms Act payment of fine, to further undergo RI for nine months. Baldev Singh U/S 302 IPC Imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for three years. U/Ss 324/34 IPC RI for two years, and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months. Crl.Appeal No.881-DB of 2007 4 Bhupinder Singh, Harminder Singh @ Ford, Lakhwinder @ Lakha, Taminder Singh @ Kala, and Raju were acquitted of the charges levelled against them. Crl.Revision No.1453 of 2008 was preferred by Harnek Singh (complainant) to challenge the judgment of acquittal of Bhupinder Singh, Harminder Singh @ Ford, Lakhwinder @ Lakha, Taminder Singh @ Kala, and Raju. Case of the prosecution, in brief, is that Harnek Singh, complainant, is the resident of Village Miranpur. He lodged a report with the police on the allegation that on 7.8.2001 at about 7.00 PM, he was present in his house along with his wife. Then his nephew Daljit Singh came to his house and reported that when he was coming from Village Lambra towards Village Miranpur and was present near the Village, then Satnam Singh and his servant Raju tried to wrongfully restrain him but he managed to reach his house after saving himself from Satnam Singh and his servant Raju. Daljit Singh was made to understand and was sent to his house. In the meantime, he heard the voice of lalkara and shrieks in front of the house of Darshan Singh. Then he along with his wife Surinder Kaur had gone towards the house of Darshan Singh and sighted Satnam Singh armed with a kirpan, Amarjit Singh armed with a revolver, Harminder Singh @ Ford armed with a gandasi, Bhupinder Singh armed with a datar, Baldev Singh @ Dev and Joginder Singh @ Jindi armed kirpans, Kala armed with a gandasi and Lakha armed with a gandasi. Bhupinder Singh raised a lalkara that they be taught a lesson for taking the land of their brothers on lease and contesting the election of Sarpanch. Amarjit Singh fired a shot hitting the right side chest of Santokh Singh. When he had gone ahead to save Santokh Crl.Appeal No.881-DB of 2007 5 Singh, then Satnam Singh gave kirpan blow which hit on his head. On receipt of injury, he fell down. When he was lying on the ground, then Lakha and Kala gave blows from the reverse side of their respective weapons hitting on his back. The accused had also caused injuries with their respective weapons to Amrik Singh (PW7) and Surinder Kaur (PW6). Raula was raised and on hearing raula, Shaminder Singh and Surinder Kaur came at the spot, who saved them from the clutches of the accused. After causing injuries, the accused had fled away from the spot with their respective weapons. Motive to cause injuries was that land of the uncle of Amarjit Singh was on lease with them. His wife Surinder Kaur was the Sarpanch. Due to this reason, the accused had caused injuries to them. The injured were shifted to the hospital, where Santokh Singh had succumbed to his injuries. On receipt of wireless message, while present near Partapra Chowk, Inspector Harjinder Singh had gone to Civil Hospital, Jalandhar. Application (Ex.PT) was moved requesting the doctor to opine as to whether Harnek Singh, injured-complainant, was fit to make statement or not. Doctor opined that Harnek Singh was fit to make statement. Then statement (Ex.PD) of Harnek Singh was recorded at 1.35 AM during night time on 8.8.2001. After making an endorsement (Ex.PD/1), statement was sent to the police station, on the basis of which, formal FIR (Ex.PD/2) was recorded at about 2.25 AM on 8.8.2001. Special report was delivered to the Ilaqa Magistrate at 6.15 AM on 8.8.2001. Inspector Harjinder Singh, Investigating Officer, along with police officials and Surinder Kaur had gone to the mortuary, where dead body of Santokh Singh was lying. Inquest report (Ex.PC) was prepared. Crl.Appeal No.881-DB of 2007 6 Dead body was identified by Sukhwinder Singh and Gurdial Singh. The Investigating Officer came to know that Amarjit Singh was also lying admitted in the hospital and on his search, four live cartridges of .32 bore, one revolver and two empty cartridges were recovered from the revolver. Same were made into a sealed parcel sealed with the seal bearing impression `HS' and were taken into police possession vide memo (Ex.PF) attested by the witnesses. In view of the application (Ex.PB), dead body was handed over to the police officials for post mortem examination. The Investigating Officer along with other police officials had gone to the place of occurrence. Rough site plan was prepared with its correct marginal notes. Photographer was summoned at the spot, who took the photographs. An effort was made to apprehend the accused but they were not apprehended. On return to the police station, case property was deposited with the Incharge of the Malkhana. After post mortem examination, Constable Gian Singh had produced the clothes worn by the deceased and the same were made into a sealed parcel sealed with the seal bearing impression `HS'. Sealed parcel was taken into police possession vide memo (Ex.PX). On 8.8.2001, Investigating Officer was holding nakabandi near Bus Stand, Sangha, where Satnam Singh, Bhupinder Singh and Joginder Singh had surrendered before the police. Satnam Singh was interrogated in the presence of ASI Sarup Singh and Surinder Kaur. He suffered a disclosure statement (Ex.PG). Joginder Singh was also interrogated and suffered a disclosure statement (Ex.PH). Bhupinder Singh on interrogation suffered a disclosure statement (Ex.PJ). In pursuance of his disclosure statement, Satnam Singh got recovered a kirpan from the specified place. Crl.Appeal No.881-DB of 2007 7 Sketch of kirpan was prepared and the kirpan was taken into police possession vide memo (Ex.PG/1). Joginder Singh in pursuance of his disclosure statement got recovered a kirpan from the specified place. Sketch of kirpan was prepared and the kirpan was taken into police possession vide memo (Ex.PH/1). Bhupinder Singh in pursuance of his disclosure statement got recovered a datar from the specified place. Sketch of Datar was prepared and the datar was taken into police possession vide memo (Ex.PJ/1). Statements of the witnesses were recorded. On return to the police station, case property was deposited with the Incharge of Malkhana. On 12.8.2001, police party headed by Inspector Harjinder Singh along with Surinder Kaur was present near the turning of Village Lallian Khurd. Then Baldev Singh, Lakhwinder Singh, Harminder Singh and Taminder Singh were found present there. They were identified by Surinder Kaur and were apprehended. They were formally arrested in this case. They were produced before the Ilaqa Magistrate. On 12.8.2001, on interrogation, Baldev Singh suffered a disclosure statement (Ex.PK), which was signed by him and attested by the witnesses, Lakhwinder Singh suffered a disclosure statement (Ex.PL), which was signed by him and attested by the witnesses, Harminder Singh suffered a disclosure statement (Ex.PM), which was signed by him and attested by the witnesses and Taminder Singh suffered a disclosure statement (Ex.PN), which was signed by him and attested by the witnesses. In pursuance of his disclosure statement, Baldev Singh got recovered a kirpan from the specified place. Rough sketch of kirpan (Ex.PK/2) was prepared. Kirpan was taken into police possession vide memo (Ex.PK/1). In pursuance of his disclosure Crl.Appeal No.881-DB of 2007 8 statement, Lakhwinder Singh got recovered a gandasi from the specified place. Rough sketch of gandasi (Ex.PL/2) was prepared. Gandasi was taken into police possession vide memo (Ex.PL/1). In pursuance of his disclosure statement, Harminder Singh got recovered a gandasi from the specified place. Rough sketch of gandasi (Ex.PM/2) was prepared. Gandasi was taken into police possession vide memo (Ex.PM/1). After that in pursuance of his disclosure statement, Taminder Singh got recovered a gandasi from the specified place. Rough sketch of gandasi (Ex.PN/2) was prepared. Gandasi was taken into police possession vide memo (Ex.PN/1). Rough site plans of the places from where weapons recovered were also prepared. On 30.8.2001, Amarjit Singh was arrested. Licence of his revolver was taken into police possession on 31.8.2001 vide memo (Ex.PY). During the course of investigation, statement of Amarjit Singh (Ex.PZ) was recorded and the same was read over and explained to him, which was signed by him in token of its correctness. After making endorsement, statement of Amarjit Singh was sent to the police station but after investigation, his statement was found to be false. After completion of investigation, challan was presented in Court. As per order dated 22.11.2001 passed by JMIC, Jalandhar, case was committed to the Court of Session for trial. After hearing learned PP for the State, learned counsel for the accused and from the perusal of documents on the file, learned trial Court opined that a prima facie case is made out to frame charge under Sections 302/323/324/149/148/452 IPC and Section 27 of the Arms Act against the accused and they were charge sheeted accordingly. The accused did not Crl.Appeal No.881-DB of 2007 9 plead guilty and claimed trial. In order to substantiate its case, prosecution examined 14 witnesses. PW1 Dr.Surinder Singh on 8.8.2001 had conducted postmortem examination on the dead body of Santokh Singh and found the following injuries on his person:- “1. Incised wound 5 cm on the left side of skull, bone deep, underline bone fracture, clotted blood was present, at the site of the wound. 2. Incised wound 5 cm on the left side of skull 5 cm posterior to injury No.1. On opening the skull, there was subcutaneous haematoma on the left side of skull. Skull bone was fractured. There was sub dural haemorrhage on the left side. Brain matter was lacerated. 3. A punctured wound 5 cm x 5 cm, oval in shape on the left side of chest, with inverted margin, 3 cm from the midline laterally and 5 cm medial to the left nipple, lying at the 6th costo chondral junction on left side. On opening the chest cavity, the wound after piercing the chest wall enters the pericardial cavity by a piercing wound. Pericardial cavity was full of blood. The wound entered the heart, piercing the right ventricle by 1 cm x 1 cm and coming out of the left ventricle. The wound then piercing the diaphragm on the left side and tear on the upper lobe of spleen was present. A punctured wound of 1 cm x 1 cm was present on the left Crl.Appeal No.881-DB of 2007 10 splenic flexure of the large gut. Haemoperitoneum was present and soiling the peritoneal cavity with faecal matter was seen. 4. A punctured wound 1.5 cm x 1 cm present on the left side with everted margins 5 cm from the mid line laterally in the region of 10th rib. The 10th rib was fractured. Blackening of the skin seen at the site of injury No.3 and injury No.4. 5. A lacerated wound 2 cm x 1 cm present on the left scapular region. On dissection, haematoma was present. 6. Abrasions present on both the knee joint.” Cause of death was due to firearm injury and injury to the head. Injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was immediate and between death and postmortem was within 24 hours. PW2 Harnek Singh is the complainant and has reiterated his stand before the police as per his statement (Ex.PD). PW3 Surinder Kaur wife of Harnek Singh (PW2) is the eye witness. She has supported the version of Hernak Singh, complainant. PW4 Dalip Singh has prepared scaled map (Ex.PO). PW5 Dr.Harjit Singh on 7.8.2001 at 11.15 PM had medico legally examined Amrik Singh and found the following injuries on his person:- “1. Incised wound of size 5 cm x 1 cm on left parietal region in posterior part. It was bone deep and was running vertically. Fresh bleeding was present. Injury was kept Crl.Appeal No.881-DB of 2007 11 for x-ray examination. 2. Reddish contusion of size 6 cm x 2 cm on posterior surface of right forearm. 3. Lacerated wound of size 1/2 x 1/2 cm on inner surface of lower lip in the middle. Fresh bleeding was present. 4. Complaint of pain in lumber region. No external mark of injury was present. Patient had difficulty in movements and tenderness was present. This injury was kept for x-ray examination.” He had also medico legally examined Surinder Kaur and found the following injuries on her person:- “1. Incised wound of size 1 cm linear in shape present on lobule of right ear, skin deep. Fresh bleeding was present. 2. Linear abrasion of size 5 cm on right angle of mandible. 3. Linear abrasion of size 3 cm on right cheek oozing of blood was present. 4. Complaint of pain in right shoulder joint on posterior surface. No external mark of injury was present and there was difficulty of movements. Injury was kept for x- ray examination.” On the same day, he had medico legally examined Harnek Singh and found the following injuries on his person:- “1. Incised wound of size 6 cm x 1 cm on right fronto parietal region running vertically. Injury was bone deep. Fresh bleeding was present. Injury was kept for x-ray Crl.Appeal No.881-DB of 2007 12 examination and surgical opinion. 2. Diffused swelling of right shoulder joint. Pain and tenderness was present. Injury was on posterior surface. Injury was kept for x-ray examination. 3. Complaint of pain in epigastric region. No external mark of injury was present but tenderness was present. So injury was kept for surgical opinion.” In cross-examination, Dr. Harjit Singh stated that Amarjit Singh was medico legally examined on 7.8.2001 and noticed the following injuries on his person:- “1. Incised wound of size 10 cm x 3 cm on dorsal surface of the left hand extending from 2 cm above wrist joint obliquely towards the index finger and middle finger. The wound was muscle deep, cutting the index finger which was attached with skin and also cutting the base of middle finger. 1/ 2 depth underlying structures were cut. Fresh bleeding was present. Injury was kept for x-ray examination and ortho. opinion.” PW6 Surinder Kaur wife of Baldev Singh is the injured eye witness. She has supported the version of Harnek Singh, complainant. PW7 Amrik Singh is the third injured eye witness. He has also supported the version of Harnek Singh, complainant. PW8 Constable Gian Singh tendered his affidavit (Ex.PU). PW9 Sunil Kumar, Photographer, stated that on the request of police, he had gone to the place of occurrence and had taken photographs (Ex.P1 to Ex.P7). Ex.P8 to Ex.P14 are the negatives. Crl.Appeal No.881-DB of 2007 13 PW10 Inspector Harjinder Singh is the Investigating Officer. PW11 M.F. Faruqi stated that on 18.9.2001, he was SP (HQ), Jalandhar. Application (Ex.PAA) of Harnek Singh was marked to him for enquiry and after enquiry, submitted report (Ex.PBB). PW12 Sukhwinder Singh stated that inquest report (Ex.PC) was prepared in his presence. PW13 Amrik Chand stated that firearm licence (Ex.PCC) was issued in the name of Amarjit Singh. Entry of licence is proved at Sr.No.13166. PW14 MHC Saudagar Singh tendered his affidavit (Ex.PDD). After close of the prosecution evidence, statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C. for short). They denied all the prosecution allegations and pleaded to be innocent. Defence version of Satnam Singh was that there was a land dispute. Harnek Singh got the land transferred in his name and the suit was pending. Jagir Singh, Sarpanch, got the matter settled for an amount of Rs.1,50,000/-. Brother of Harnek Singh resides in Village Johal. Jagir Singh had filed a suit for recovery of Rs.1,50,000/- against Harnek Singh. Being cousin brothers of Jagir Singh, Sarpanch, they were falsely implicated in this case. Defence version of Amarjit Singh was that his father Jagir Singh got the matter settled with Harnek Singh. Rs.1,50,000/- was to be paid by Harnek Singh and he was to give possession but he did not give possession and got the land transferred in his name. One person of village Johal filed a suit for recovery and in that suit, Jagir Singh appeared as a Crl.Appeal No.881-DB of 2007 14 witness. Case is false. Earlier, Harnek Singh, Amrik Singh and Santokh Singh had attacked him while he was returning from his motor. He sustained injuries and was shifted to the hospital. Defence version of Baldev Singh was that he got visa and was falsely implicated in this case. Defence version of Joginder Singh was that Surinder Kaur came with the police. He was in his house. Case is false. Defence version of Harminder Singh was that Harnek Singh was inimical towards his family and due to this reason, he was falsely implicated. Defence version of Bhupinder Singh and Taminder Singh was that case is false. They were falsely implicated. Defence version of Lakhwinder Singh @ Lakha was that he was not present in the village on the day of occurrence. Case is false. Defence version of Raju was that he is a poor man. Case is false. In defence, DW1 Dr.Baldev Singh stated that on 8.8.2001 at about 12.40 PM, he had medico legally examined Raju and following injury was noticed on his person:- “1. Incised wound 13 cm x 1 cm x bone deep present on left temporo parietal region of head. The wound was bleeding to touch.” DW2 Dr.Ashok Bhagat on 8.8.2001 had x-rayed the injuries of Amarjit Singh. Ex.DD is the x-ray report prepared by him. DW3 Charanjit Singh stated that FIR No. 135 dated 28.11.1996 was registered at the instance of Rom Singh son of Lehmber Singh under Crl.Appeal No.881-DB of 2007 15 Sections 419/465 IPC against Harnek Singh and others. Ex. DJ is the copy of the FIR. DW4 Dr.H.S. Kahlon stated that on 24.5.1990, he had issued disability certificate (Ex.DK) of Bhupinder Singh. Disability was 80% due to amputation of right thigh. DW5 DSP Dharam Singh Uppal stated that enquiry was marked to him by SSP, Jalandhar. He had gone to the spot. Statements of the parties were recorded. After enquiry, Bhupinder Singh, Taminder Singh and Lakhwinder Singh were ordered to be placed in Column No.2. He had further recommended for filing charge sheet under Sections 326/324/34/506 IPC against Harnek Singh and Amrik Singh as a cross case. DW6 ASI Sarup Singh stated that Amrik Singh was arrested on 14.9.2001. In pursuance of his disclosure statement (Ex.DL), kirpan was recovered. DW7 Inspector Harjinder Singh stated that Harnek Singh was arrested by him on 1.10.2001, who is the prosecution witness in this case. Copies of decree sheets (Ex.DO and Ex.DO/1), plaint (Ex.DQ), written statement (Ex.DQ/1), Statement of Jagir Singh (Ex.DQ/2), statement of Harnek Singh (Ex.DQ/3), agreement (Ex.DQ/4), judgment dated 28.10.1998 (Ex.DQ/5), decree sheet dated 28.10.1998 (Ex.DQ/6), execution petition (Ex.DQ/7), statement of Baldev Singh (Ex.DQ/8) and statement of Harbhajan Kaur (Ex.DQ/9) were also tendered into evidence. After hearing learned PP for the State, learned counsel for the appellants and from the perusal of the evidence on the file, the appellants were convicted and sentenced as stated aforesaid. We have heard learned counsel for the appellants, learned State Crl.Appeal No.881-DB of 2007 16 counsel and learned counsel for the revisionist, and with their assistance have gone through the evidence on the file. Learned counsel for the appellants argued that according to the prosecution story, occurrence had taken place on 7.8.2001 at 7.00 PM. Statement of Harnek Singh (Ex.PD) was recorded at 1.35 AM during night time on 8.8.2001 but statement of Harnek Singh (Ex.PD) cannot be treated as an FIR because Surinder Kaur, one of the eye witnesses, while appearing as PW3, stated that when Santokh Singh was declared dead by the doctor, then she came to her village at 8.30 PM. At 9.00 PM, she was present at the spot. At that time, police was also present at the spot. Statement of Surinder Kaur was recorded on 7.8.2001 but her statement dated 7.8.2001 is not on the file. Further argued that place of occurrence was also changed from street to the house of Darshan Singh. Appellants party had no motive to commit the crime because complainant party was in possession of the land owned by the uncle of Amarjit Singh, appellant. Civil suit was filed. In fact, Jagir Singh, father of Amarjit Singh, had appeared as a witness in a civil suit filed against the complainant party. At the time of civil litigation, Jagir Singh was the Sarpanch. On account of appearance of Jagir Singh as a witness against the complainant party, the appellants were falsely implicated in this case. Daljit Singh, Shaminder Singh and Pargat Singh were not examined for the reasons best known to the prosecution. All male members, except those