Crl.A. No.332-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.332-DB of 2001 DATE OF DECISION: October 20, 2009 GAMDOOR SINGH AND OTHERS ...APPELLANTS VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE JITENDRA CHAUHAN. PRESENT: MR. VINOD GHAI, ADVOCATE FOR THE APPELLANTS. MS. MANJARI NEHRU KAUL, ADDL.A.G., PUNJAB. ASHUTOSH MOHUNTA, J. The appellants, namely, Gamdoor Singh, Chhota Singh @ Surinder Singh, Major Singh, Bhag Singh @ Mallu, Paramjit Singh @ Pohla and Pipal Singh are aggrieved by the judgement of conviction and order of sentence dated 16.5.2001, passed by the Addl. Sessions Judge, Ferozepur vide which they have been convicted and sentenced as under:- Accused Under Section Sentence Gamdoor Singh 148 IPC R.I. for 1 year 302 IPC Imprisonment for life and Fine of Rs.5000/-. In default, further R.I. for 1 year. 307 IPC R.I. for 5 years and fine of Rs.2000/-. In default, further R.I. For 6 months. 307/149 IPC R.I. For 5 years and fine of Rs.2000/-. In default, R.I. for 6 months. 325/149 IPC R.I. for 2 years and fine of Rs.1000/-. In default further R.I. for 3 months. 323/149 IPC R.I. for 6 months. Crl.A. No.332-DB of 2001 -2- Accused Under Section Sentence 25 Arms Act R.I. for 3 years and fine of Rs.1000/-. In default, further R.I. For 6 months. Chhota Singh @ Surinder Singh 148 IPC R.I. for 1 year 302/149 IPC Imprisonment for life and fine of Rs.5000/-. In default, further R.I. for 1 year. 307/149 IPC R.I. For 5 years and fine of Rs.2000/-. In default, R.I. for 6 months. 307 IPC R.I. for 5 years and fine of Rs.2000/-. In default, further R.I. For 6 months. 325/149 IPC R.I. for 2 years and fine of Rs.1000/-. In default further R.I. for 3 months. 323/149 IPC R.I. for 6 months. Major Singh 148 IPC R.I. for 1 year 302/149 IPC Imprisonment for life and fine of Rs.5000/-. In default, further R.I. for 1 year. 307/149 IPC R.I. For 5 years and fine of Rs.2000/-. In default, R.I. for 6 months. 325 IPC R.I. for 2 years and fine of Rs.1000/-. In default, R.I. for 3 months. 323/149 IPC R.I. for 6 months. 323 IPC R.I. for 6 months. Bagh Singh @ Mallu 148 IPC R.I. for 1 year 302/149 IPC Imprisonment for life and fine of Rs.5000/-. In default, further R.I. for 1 year. 307/149 IPC R.I. for 5 years and fine of Rs.2000/-. In default, R.I. for 6 months. 325/149 IPC R.I. for 2 years and fine of Rs.1000/-. In default, R.I. for 3 months. 323/149 IPC R.I. for 6 months. 323 IPC R.I. for 6 months. Crl.A. No.332-DB of 2001 -3- Accused Under Section Sentence Paramjit Singh @ Pohla 148 IPC R.I. for 1 year 302/149 IPC Imprisonment for life and fine of Rs.5000/-. In default, further R.I. for 1 year. 307/149 IPC R.I. for 5 years and fine of Rs.2000/-. In default, R.I. for 6 months. 307 IPC R.I. for 5 years and fine of Rs.2000/-. In default, R.I. for 6 months. 325/149 IPC R.I. for 2 years and fine of Rs.1000/-. In default further R.I. for 3 months. 323/149 IPC R.I. for 6 months. 27 Arms Act R.I. for 3 years and fine of Rs.1000/-. In default, further R.I. for 6 months. Pipal Singh 148 IPC R.I. for 1 year 302/149 IPC Imprisonment for life and fine of Rs.5000/-. In default, further R.I. for 1 year. 307/149 IPC R.I. for 5 years and fine of Rs.2000/-. In default, R.I. for 6 months. 325/149 IPC R.I. for 2 years and fine of Rs.1000/-. In default further R.I. for 3 months. 323 IPC R.I. for 6 months. 323/149 IPC R.I. for 6 months. All the substantive sentences have been ordered to run concurrently. The case of the prosecution is unfolded by the statement of Davinder Singh S/o Sukhmander Singh, who stated that he is a resident of village Bannawala and does the work of cultivation. It was stated that on 8.10.1992, at about 9.15 p.m., he alongwith his brother Baljinder Singh and his father Sukhmander Singh were returning from their fields after irrigating their agricultural land from the fields known as 'Phuman Wala Khet'. His father Sukhmander Singh was holding a gandasa, whereas he and Crl.A. No.332-DB of 2001 -4- his brother Baljinder Singh were having spades (Kahis). When they were at a short distance from their house which is situated in the fields (Dhani), Gamdoor Singh S/o Gurdev Singh, Jat, armed with .12 bore gun, Pohla Singh S/o Iqbal Singh, Jat, armed with .12 bore gun, Pipal Singh S/o Nikku Singh, armed with a gandasi, Major Singh S/o Gopal Singh armed with Gandasa, Bagh Singh @ Mallu armed with a dang and Rinta @ Chhota @ Surinder Singh armed with 12 bore gun, all residents of village Bannawala came out from the cotton (Narma) fields of Malook Singh. It was a moon- lit night. Gamdoor Singh raised a lalkara that the complainant side should be taught a lesson for preventing them from throwing the earth on the passage and on saying so, Gamdoor Singh again fired a shot at Sukhmander Singh which hit him on the side of his right leg. On hearing the raula, Davinder Singh's uncle Sukhdit Singh, Sukhdayal Singh and Modan Singh Ss/o of Kaka Singh came there. Gamdoor Singh again fired a shot from his gun which hit on the left knee of the complainant. Thereafter, Pohla Singh fired a shot with his gun which hit Sukhdit Singh. Chhota Singh S/o Amar Singh also fired a shot which hit Modan Singh on his right palm and on the back of his right fingers. Thereafter, Pipal Singh gave a gandasi blow which hit Modan Singh on the right side of his head. Major Singh, Bagh Singh @ Mallu and Pipal Singh also inflicted injuries on Sukhdayal Singh. Bagh Singh gave a dang blow which hit the complainant on the upper side of his right foot. In their defence, the complainant side also inflicted injuries on some persons. On raising hue and cry, the accused persons fled away from the spot with their respective weapons. The complainant party immediately arranged a tractor-trolley and proceeded towards Civil Hospital, Fazilka. But, when they reached near the hospital, Sukhmander Singh died, whereas Crl.A. No.332-DB of 2001 -5- all the other injured were admitted in the hospital at Fazilka, where they were medically examined by the Doctor. It was also stated by Davinder Singh that the cause of grudge was that Gamdoor Singh was throwing earth in the common passage by digging the same from his fields with the help of leveller of a tractor and raising its level, as a result of which, it had become very difficult for the complainant side to pass through. Gamdoor Singh was restrained from throwing the earth and on this count there was also a quarrel between them in the morning on the date of the occurrence. It was because of this grudge that Gamdoor Singh, in connivance with the other accused, caused injuries in the manner described above. The aforementioned statement of Davinder Singh was recorded at 5.30 a.m. on 9.10.1992, by SI Joginder Singh (PW14), Incharge Police Post Arniwala and on the basis of the statement (FIR Ex.PN/2) was recorded and the special report reached the Ilaqa Magistrate at 9.00 a.m. at Fazilka. The complainant Davinder Singh was medico-legally examined at Civil Hospial, Fazilka. Apart from him, all the other injured persons were also admitted in the hospital and were given medical treatment. The dead body of Sukhmander Singh was sent for post-mortem examination and the statement of witnesses were recorded. S.I. Joginder Singh prepared the inquest report after the dead body of Sukhmander Singh was identified by Sukhdev Singh and Makhan Singh. S.I. Joginder Singh sought opinion of the Doctor regarding the fitness of injured Pipal Singh to make statement but, the Doctor opined that Pipal Singh and Paramjit Singh were not fit to make statements. The Investigating Officer went to the place of occurrence and a rough site plan with marginal notes was prepared. Blood stained earth and simple earth was lifted from the spot and the same were sealed Crl.A. No.332-DB of 2001 -6- separately in a parcel with the seal bearing impression “JS” and the sealed parcels were taken into possession vide memo attested by the witnesses. Six empties of 12 bore gun were also lifted from the spot and the empties were sealed in a parcel with the seal of “JS” in a parcel and the sealed parcels were taken into possession vide separate memos. Thereafter, the Investigating Officer recorded the statement of witnesses. On the next day, opinion was again sought regarding fitness of Pipal Singh and Paramjit Singh to make statements and they were declared fit to make a statement by the Doctor. Statement of injured were recorded by the Investigating Officer. On return to the Police Station, the entire case property was deposited with the MHC. On 18.10.1992, Gamdoor Singh and Chhota were arrested. Gamdoor Singh was carrying a gun which was taken into possession. Three live cartridges were also recovered from him. The gun and the cartridges were taken into possession vide separate memo attested by the witnesses after sealing the same. On the same day, when the Police party was returning to the Police Station, Major Singh, Pipal Singh and Bagh Singh, accused were also arrested. Major Singh and Pipal Singh were carrying gandasas and the same were also taken into possession. Accused Paramjit Singh was arrested on 27.10.1992, when the Police party had gone to Civil Hospital, Dabwali Kalan. He was interrogated and on interrogation, he suffered a disclosure statement, wherein he disclosed that he had kept concealed a gun in a room meant for chaff in his Dhani. On the basis of his disclosure statement, .12 bore gun alongwith 4 live cartridges were got recovered from the place disclosed by the accused Paramjit Singh and they were also sealed and taken into possession. Crl.A. No.332-DB of 2001 -7- After completion of the investigation, the police presented the challan in the Court and copies of documents were supplied to the accused and the case was committed to the Court of Sessions for trial by the Judicial Magistrate Ist class, Fazilka vide order dated 12.1.1993. On receipt of the case, charge under Section 148/302/307/325/323/149 IPC was framed against the accused. Apart from the above, charge under Section 25, 27 and 30 of Arms Act was also framed against the accused Gamdoor Singh against Pohla @ Paramjit Singh. All the accused pleaded not guilty to the charges and claimed trial. In order to substantiate the charge, the prosecution examined Dr. Birbal Dang PW1, Dr. Ashwani Loona PW2, Dr. J.C. Garg PW3, Davinder Singh, PW4, Mathura Dass, PW5, Parkash Chander, Arms Clerk PW6, Sukhdial Singh PW7, Modan Singh PW8, Subhash Chander PW9, Constable Paramjit Singh PW10, HC Ranjit Singh PW11, Constable Balbir Singh PW12, Constable Sukhwinder Singh PW13, S.I. Joginder Singh PW14, Constable Onkar Singh PW15 and tendered into evidence report of Forensic Science Laboratory Ex.P24, report of Chemical Examiner Ex.P25, reports of Serologist Exs.P26 and P27. After closure of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. Accused denied all the allegations of the prosecution and pleaded their false implication. Defence version of Gamdoor Singh accused is that he is innocent. On the day of occurrence he alongwith his servant Pipal Singh and Paramjit Singh came from the dhani and then sighted Sukhmander Singh armed with gandasi, Sukhdit Singh armed with gandasi, Davinder Singh armed with spear, Baljinder Singh armed with dang, Sukhdial Singh armed with dang, Modan Crl.A. No.332-DB of 2001 -8- Singh armed with gandasi. Sukhmander Singh gave gandasi blow to him but he saved himself. Pipal Singh came forward to rescue him and Sukhmander Singh gave gandasi blow to Pipal Singh on his head and when Paramjit Singh came to rescue Pipal Singh, he was given spear blow by Davinder Singh, Sukhdit Singh gave to blow to Paramjit Singh on the left side of his forehead. Modan Singh gave gandasi blow to Pipal Singh from its reverse side on his left eye and Sukhdial Singh gave a dang blow to Pipal Singh. Baljinder Singh gave a dang blow to Paramjit Singh. Sukhdit Singh gave a gandasi blow to Paramjit Singh. Modan Singh gave a gandasi blow to Paramjit Singh. Then he fired 2/3 shots in self defence as well as in defence of Paramjit Singh and Pipal Singh and to scatter the assailants. There was land dispute with the complainant party. Complainant party came to murder him and he acted in self defence. Defence plea of accused Chhota Singh @ Surinder Singh is that on the day of occurrence, he alongwith his servant Pipal Singh and Paramjit Singh came from the dhani and then sighted Sukhmander Singh armed with gandasi, Sukhdit Singh armed with gandasi, Davinder Singh armed with spear, Baljinder Singh armed with dang, Sukhdial Singh armed with dang and Modan Singh armed with gandasi, Sukhmander Singh gave a gandasi blow to Gamdoor Singh, but he saved himself, Pipal Singh came to rescue Gamdoor Singh then Sukhmander Singh gave gandasi blow to Pipal Singh on his head and when Paramjit Singh came forward to rescue Pipal Singh, he was given barchhi blow by Davinder Singh. Sukhdit Singh gave blow to Pipal Singh on left side of his forehead. Modan Singh gave a gandasi blow to Pipal Singh. Baljinder Singh gave dang blow to Paramjit Singh, Sukhdit Singh gave gandasi blow to Paramjit Singh. Modan Singh also gave Crl.A. No.332-DB of 2001 -9- gandasi blow to Paramjit Singh. Then Gamdoor Singh fired 2/3 shots in self defence as well as in defence of Paramjit Singh and Pipal Singh and to scatter the assailants. There was land dispute between Gamdoor Singh and the complainant. The complainant party came to murder Gamdoor Singh and he acted in self defence. Same defence plea was taken by Major Singh, Paramjit Singh and Pipal Singh. However, defence plea of accused Bagh Singh is that he is innocent. He was falsely implicated in this case. Opportunity was given to the accused to lead defence evidence, then the accused examined Dr. Narinder Kumar Sethi DW1. The trial Court after going through the entire evidence held all the accused guilty for having committed murder of Sukhmander Singh and also causing injuries to the injured sentenced them in the manner as described in the opening paragraph of this judgement. Mr. Vinod Ghai, counsel for the appellants has contended that the prosecution witnesses have suppressed the genesis of the entire occurrence. It has been argued that it was the complainant party which raised objection to Gamdoor Singh for filling the earth in the passage. Sukhmander Singh gave a gandasa blow to Gamdoor Singh, but Gamdoor Singh retreated and in the meantime, Pipal Singh came forward to rescue him. Pipal Singh was given injuries and when Paramjit Singh came forward to rescue Pipal Singh and Gamdoor Singh, then Paramjit Singh was also inflicted injuries by the complainant side. Learned counsel has submitted that as per the medical evidence, the complainant side had caused five injuries on the person of Paramjit Singh and one of the injuries, which was inflicted on the left Pinna, was found to be grievous. The complainant side also inflicted four injuries on the person of Pipal Singh and it was in self- Crl.A. No.332-DB of 2001 -10- defence that Gamdoor Singh had fired at the knee of Sukhmander Singh. Counsel for the appellants has drawn our attention to the cross-examination of PW7 Sukhdial Singh who has admitted that he picked up the gandasi of Sukhmander Singh and had inflicted injuries on the accused side in his self- defence. He has also admitted that he inflicted injuries to Pipal Singh and Pohla @ Paramjit Singh. Counsel for the appellants has further contended that Gamdoor Singh had no intention to kill Sukhmander Singh. It is contended that the fire arm injury caused to Sukhmander Singh was on his knee. Learned counsel submits that as injury caused to the deceased Sukhmander Singh was on his knee and not on any vital part of the body, therefore, it can easily be inferred that accused Gamdoor Singh had no intention to kill Sukhmander Singh. PW2 Dr. Ashwani Loona, Medical Officer, Civil Hospital, Fazilka conducted the post mortem examination on the body of Sukhmander Singh and found the following injuries:- “Multiple lacerated punctured wounds with inverted margins about 30 in number, each measuring 0.25 cm x 0.25 cm, in an area of 26 cms x 15 cms on the posterior as well as medial aspect of right knee joint, extending upward upto lower part of thigh and downward upto upper part of leg. There was swelling on the posterior aspect of knee joint. Clotted blood was present on the leg and foot. On dissection pallets were seen embedded in the underlying muscles, knee joint space was filled with blood, muscles were also soaked with blood. Popleteal vessel was punctured at three places and it was lacerated. Surrounding Crl.A. No.332-DB of 2001 -11- area was filled with clotted blood. 10 pallets were recovered from the site and after packing and sealed sent to police. Underlying subcutaneous tissues were congested. Rest of the organs were healthy. Stomach contained about 250 CC of undigested milky juice.” In the opinion of the Doctor, the cause of death was due to shock and haemorrhage, as a result of the fire arm injury, which was sufficient to cause death in the ordinary course of nature. In his cross- examination PW2 Dr. Ashwani Loona has stated that gun shot injury was caused on the Popetial Vessel which was punctured at three places and the patient had died due to puncturing of this vessel due to loss of blood. The Doctor has stated that Popetial Vessels are big blood vessels and if this big vessel is punctured, then there will be profuse bleeding. The Doctor has further opined that had the aforesaid vessel not been punctured, then there was possibility of survival of the patient. Learned counsel contends that the accused Gamdoor Singh could not have had the knowledge that injury caused on the lower part of the thigh would result in puncturing the Popetial Vessel which would cause excessive bleeding, as a result of which the victim would die. Learned counsel has further submitted that all the other injured persons on the complainant side had received injuries on the non- vital parts of the body. Learned counsel has further submitted that the complainant Davinder Singh suffered two injuries. Injury No.1 which was a lacerated wound 7 cms. x 5 cms. on the front of left knee joint was declared to be grievous whereas, injury No.2 on the medial aspect of right foot was declared to be simple. PW1 Dr. Birbal Dang, Medical Officer, Fazilka also medico legally examined Sukhdit Singh and found three fire arm injuries on Crl.A. No.332-DB of 2001 -12- his person. All the three injuries were declared to be simple in nature. PW1 also medico-legally examined Sukhdial Singh and found five injuries on his person. Injuries No.1, 2, 4 and 5 were declared to be simple in nature whereas, injury No.3 which was 6 cms. x 4 cms. over back of left hand extending down to left little finger was declared to be grievous in nature. The Doctor also examined Modan Singh and found three injuries on his person. Injury No.1 was with a blunt weapon whereas, injuries No.2 and 3 were fire arm injuries. All the three injuries were declared to be simple in nature. Injury No.2 which was a fire arm injury, was over the surface of the right hand extending above to the wrist and lower down to the fingers and injury No.3 which was at the back of the fingers of the right hand was also declared to be simple in nature. The Doctor had opined that injuries on the person of Davinder Singh, Sukhdit Singh and Modan Singh were below thigh portions of their bodies and were caused by a fire arm which was fired from a short distance. Learned counsel submits that the accused despite being armed with fire arms had intentionally not caused any injury on any vital part of the body and even if it is assumed that the accused had caused injuries to the complainant side, it was only with an intention to cause hurt and not to cause death of any person. Learned counsel further submits that most of the injuries were simple in nature and even the grievous injuries were on non-vital parts of the body. It has lastly been contended that as there was no intention on part of Gamdoor Singh to cause the death of the deceased Sukhmander Singh, who died as a result of receiving gun shot injuries on his right knee, therefore, his conviction under Section 302 IPC be set aside and at the most, he be convicted under Section 304 Part-II IPC. Learned counsel has further Crl.A. No.332-DB of 2001 -13- contended that as far as other accused are concerned, even if they are held to be guilty for having given injuries to the injured persons, at the most, they may be liable for their individual acts only. The arguments raised by the counsel for the appellants have been strongly controverted by the counsel appearing the State. It has been contended that on behalf of the State that the accused bore grudge against Sukhmander Singh as he had objected to raising of the passage. It is on this count that all the accused came armed with 12 bore guns, gandasis and other lethal weapons and have committed the murder of Sukhmander Singh. Learned State counsel has also argued that the entire occurrence had been admitted by the accused and hence they have rightly been convicted and sentenced by the trial Court. We have heard the learned counsel for the accused-appellants and the State at length. A perusal of the aforementioned facts clearly shows that Gamdoor Singh had fired from his .12 bore gun at Sukhmander Singh, which hit him on his right knee joint, as a result of which the Popetial Vessel was punctured at three places. As a result of puncturing of the Popetial Vessel, there was excessive loss of blood, which resulted in the death of Sukhmander Singh. PW2 Dr. Ashwani Loona has categorically opined that had the aforesaid Vessel not been punctured, then there was a possibility of survival of the patient. The fact that Gamdoor Singh had fired on Sukhmander Singh on his right knee shows that he had fired on the non- vital part of the body and did not have the intention to cause his death. A perusal of the injuries suffered by the complainant Davinder Singh, Sukhdit Singh, Sukhdial Singh and Modan Singh also shows that the injuries were Crl.A. No.332-DB of 2001 -14- caused on the non-vital parts of their bodies and hence, it can easily be inferred that accused did not have the intention to cause death of any person, but only intended to cause bodily injuries. However, Sukhmander Singh died on having received the gun shot injury. It is pertinent to note that three of the accused were armed with guns, but none of them gave any injury on any vital part of the body. Apart from the above, five injuries were caused to the accused Paramjit Singh, one of which was on the left Pinna, and said injury was found to be grievous. Four injuries were found on the person of Pipal Singh. These injuries have not been explained by the prosecution. Thus, it cannot be said with certainty that it was the accused who were the aggressors and not the complainant party. If the accused were the aggressors and they had initiated the attack on the complainant party, then it was very