Crl.Appeal No.254-DB of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No.254-DB of 2004 Date of decision: February 13 ,2008 1. Joginder Singh son of Dalip Singh 2. Nishan Singh son of Joginder Singh 3. Skattar Singh son of Dalip Singh, all residents of village Chappa,PoliceStaion Chabhal,District Amritsar. ...........................appellants Versus. State of Punjab ...........................respondent. CORAM: HON'BLE MR.JUSTICE J.S.KHEHAR HON'BLE MR.JUSTICE SHAM SUNDER Present: Mr.Vikram Chaudhary,Advocate for the appellants. Mr. S.S.Bhinder Additional Advocate General,Punjab, for the respondent. Sham Sunder,J. This appeal is directed against the judgment of conviction and the order of sentence dated 24.2.2004, rendered by the Additional Sessions Judge (adhoc), Amritsar, vide which it convicted the accused and sentenced them as under : “Joginder Singh, accused was awarded life imprisonment and a fine of Rs.5,000/- and in default of payment of fine to further undergo RI under Section 302 IPC each and Nishan Singh and Sakkar Singh were also awarded life imprisonment and fine of Rs.5,000/- and in default of payment of fine to further undergo RI for a Crl.Appeal No.254-DB of 2004 2 period of two months under Section 302/34 IPC, Joginder Singh was awarded RI for a period of five years and a fine of Rs.1,000/- and in defualt of payment of fine to further undergo RI for a period of one month under Section 307 IPC. Sakattar Singh and Nishan Singh were awarded RI for a period of five years and a fine of Rs. 1,000/- and in default of payment of fine to further undergo RI for a period of one month under Section 307/34 IPC. Sakattar Singh was awarded RI for a period of five years and a fine of Rs.1,000/- and in default of payment of fine to further undergo RI for a period of one month under Section 307 for murderous assault on Sucha Singh and each of Joginder Singh and Nishan Singh were awarded RI for a period of five years and a fine of Rs.1,000/- and in default of payment of fine to further undergo RI for a period of one month , Skattar Singh was further sentenced to undergo R.I. for five years and to pay a fine of Rs.1000/-, in default to undergo R.I. for one month, under Section 307/34 I.P.C. for murderous assault on Balbir Singh and each of Joginder Singh and Nishan Singh were awarded RI for a period of five years and a fine of Rs.1,000/- and in default of payment of fine to further undergo RI for a period of one month under Section 307/34 IPC.” All the substantive sentences, were ordered to run concurrently. However, Ajmer Singh, accused, was acquitted of the the charge framed against him. 2. The facts in brief, are that on 3.12.1999, at 9.00 P.M., Bhupinder Singh along with his family members was present in his out house (baihak) when Joginder Singh son of Dalip Singh armed with double barrel 12 bore gun, Sakattar Singh, his brother also having double barrel gun, Nishan Singh armed with Kulhari and Crl.Appeal No.254-DB of 2004 3 Ajmer Singh carrying sota were seen coming. Bhupinder Singh apprehended that they were likely to cause them injuries. He then asked his brother Sucha Singh and nephews Balbir Singh and Kulbir Singh to pick up their arms to defend themselves. Thereafter, Bhupinder Singh, his brother Sucha Singh Nephews Kulbir Singh and Balbir Singh were going towards the road and when reached near the same, Joginder Singh, accused raised an exhortation that they be caught hold and taught a lesson, for conducting irrigation from their tubewell. He then fired a shot, from his gun, which hit the left thigh of Bhupinder Singh. Joginder Singh fired a second shot, hitting Kulbir Singh, little below his hip, who fell down. Thereafter, Sakattar Singh, fired a shot, from his gun, which hit the left leg of Sucha Singh, who also fell down. Sakkatar Singh, then fired another shot which hit the left thigh of Balbir Singh. The accused caused them more injuries when they were lying, on the ground, with their respective weapons. In the meanwhile, hearing their hue and cries, Sukhwant Singh son of Narain Singh, who was already present in the out-house (baihak) of the complainant and their wives, Jeeto and Biro came there and then all the accused fled from the spot, with their respective weapons, in their jeep. 3. Sukhwant Singh took the injured to Shri Guru Teg Bahadur Hospital, Amritsar, and they were got admitted there. In the meanwhile, Kulbir Singh, succumbed to the injuries, sustained by him in the said occurrence. On receipt of the telephonic message, from the control room at Tarntaran, SHO Hardev Singh, along with Harvinder Singh and other Police officials came to the Hospital, aforesaid. After obtaining the opinion of the doctor, about the condition of Bhupinder Singh, he recorded his statement Ex.PR, which was thumb marked by him. Endorsement Ex.PR/1, thereon, Crl.Appeal No.254-DB of 2004 4 was made and it was sent to the Police Station, resulting into recording of FIR Ex.PC. Thereafter, SI, Hardev Singh went to the dead house of the Hospital and prepared the Inquest report Ex. PE of the dead body of Kulbir Singh, who was identified by Satwant Singh and Mohinder Singh. Thereafter, the dead body was entrusted to Constable Iqbal Singh and Constable Karaz Singh. An application Ex. PL was moved, seeking the opinion of the doctor, regarding the condition of Balbir Singh. He was declared fit to make statement. Thereafter, an application, Ex. PM, was also preferred by the said Sub Inspector, seeking opinion of the doctor about the condition of Sucha Singh. He was declared fit to make statement. Thereafter, Hardev Singh, SI, went to the place of occurrence, and recovered therefrom four empty cartridges Ex. PI to Ex.P-4 of twelve bore gun, and converted the same, into a parcel and sealed the same with the seal “HS”. The parcel was taken into possession vide memo Ex. PY, attested by ASI Shiv Nath and Santokh Singh. Blood stained earth from the place of occurrence was lifted, which was converted into a parcel. The parcel was sealed and taken into possession vide memo Ex. PZ. Site plan Ex.PAA of the place of occurrence was prepared. The blood stained clothes of Sucha Singh and Balbir Singh were converted into separate parcels and taken into possession vide Ex. PBB and PCC, respectively. Blood stained chaddar of Bhupinder Singh was also taken into possession. 4. After the post-mortem examination, on the dead body of Kulbir Singh, Constable Iqbal produced the clothes of the deceased which were converted into a parcel, sealed with the seal and taken into possession vide memo Ex.PEE. On reaching the Police Station, all the parcels were deposited with the M.H.C., with seals intact. In the meanwhile, Iqbal Singh, another brother of Crl.Appeal No.254-DB of 2004 5 Bhupinder Singh, on seeing them, in injured condition, also died, on the same night, due to shock. Inquest report of the dead-body of said Iqbal Singh was also prepared. .Joginder Singh, accused, was arrested on 13.12.1999 and at that time he was carrying his licensed DBBL gun Ex.P-5 bearing No.77839. The said gun was converted into a parcel, which was sealed and taken into possession vide Ex. PFF, attested by Harminder Singh. Gun was deposited with the M.H.C. on the same day. 5. On 23.12.1999, Sakattar Singh, accused was produced by Gurmit Singh. He was arrested. The statements of other witnesses were also recorded. The remaining accused were also arrested. After the completion of Investigation, the accused were challaned. 6.. 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 302, 302/34, 307 and 307/34 of the Indian Penal Code, was framed against them. It was read over and explained to them, to which they pleaded not guilty, and claimed judicial trial. 7. The prosecution, in support, of its case, examined Doctor Gurman Jeet Rai, Lecturer, Forensic Medicine, Government Medical College, Amritsar, PW-1, who conducted the post-mortem examination, on the dead-body of Kulbir Singh on 4.12.1999 at 1.00 P.M. and found the following injuries on his person:- 1. Lacerated wound 2.4 x 2 cm was prsnt on back of trunk in limbosacral region, 4 cm above mid line crease of buttocks, blackening was present around margins of Crl.Appeal No.254-DB of 2004 6 wound and margins were found inverted.” This injury was found ante-mortem, in nature, having been caused by shot from gun fire. According to the doctor the death of Kulbir Singh occurred on account of shock and hemorrhage, as a result of injury No.1 on his person which was sufficient to cause death in the ordinary course of nature. The probable time that lapsed between injury and death was 6 hours and between death and post mortem was within 12 hours. 8, On 4.12.1999 at about 11.00. A.M., Doctor Gur Iqbal Singh conducted medico-legal examination of Bhupinder Singh and found the following injuries on his person:- “1. 6.5 x 6 cm lacerated wound on front of left thigh 2.5 cms above upper border of patella. Margins were irregular, reddish and swollen and inverted. Margins abraded and bruised and blackening present all around. 2. 8.2 x 7.7. cmlacratd wound on inner side of left thigh 7 cms, above border of patella. Margins were irregular everted, reddish and swollen. Both the injuries were declared simple, in nature, after the receipt of X-ray report, caused by smooth bored fire arm. The probable duration of the injuries was within 12 to 24 hours. On the same day, Doctor Gur Iqbal Singh at 11.20 A.M., conducted medico legal examination of Sucha Singh son of Shingara Singh and found the following injuries on his person:- “1. 10 x 8 cm lacerated wound on front of left leg, Crl.Appeal No.254-DB of 2004 7 2.5 cm below tibial tiberosity. Margins inverted, swollen, abraded and cruise, blackening present all around the margins, clotted blood was present. 2. 16.5. x 9 cm lacerated wound on outer aspect of left leg, 3.5 cm below and lateral to lower border of patella.Margins were averted, reddish and swollen.Clotted blood was present and irregular. After receipt of X-ray report injury Nos.1 and 2 were declared grievous in nature caused by gun shot. The probable duration of the injuries was within 12 to 24 hours. 9. On the same day at 11.40 A.M., Doctor Guriqbal SinghPW2 conducted medicolegal examination of Balbir Singh and found the following injuries on his person: “ 1. 1.7 x 0.4 cm reddish own abrasion on medial side of left leg, 1.5 cm above medial maleous. 2. 0.8 x 0.6 cm reddish brown abrasion on front and inner side of left leg, 5 cm below knee joint. 3. 3.5 xm x 3.5 cm lacerated wound on antero lateral of left thigh, 14 cms. Above upper border ofleft patella. Margins were reddish and swollen,irregular abreded and bruise., blackish discolouration was present all around the margins, clotted blood was present. 4. 14 cmx 11 cm lacerated wound on antero medial of left thigh, 13 cms. Above upper border of left patella. Margins were irregular, everted, reddish and swollen,clotted blood was present. All the injuries were declared simple, in nature. Injuries No.1 and 2 were caused by blunt weapon. Injuries No.3 and 4 were caused by Crl.Appeal No.254-DB of 2004 8 smooth bored fire-arm. 10. Dr. Raminder Singh, PW-3 declared Bhupinder Singh, Balbir Singh and Sucha Singh fit to make statements. Doctor Narinder Singh, PW-15, conducted Radiological examination of the injuries on the person of Bhupinder Singh, Sucha Singh and Balbir Singh. 11. Bhupinder Singh,PW.4, is the complainant, in this case. He made statement in consonance with the contents of Ex.PR, on the basis whereof the FIR was registered Balbir Singh, PW-5, and Sucha Singh, PW-6, other injured, also corroborated the statement of Bhupinder Singh. 12. Manjit Singh, Arms Clerk of the Office of District Magistrate, PW-7 deposed that the arm licence of 12 Bore double barrel gun No. 77839 was issued by the SDM, Tarntaran on 7.12.1977 in the name of Joginder Singh son of Dalip Singh r/o Village Chhapa. Rishi Ram,Draftsman, PW-8, prepared the scaled map Ex.PT. Tarsem Singh, PW-9, tendered his affidavit Ex.PU in evidence. Karaz Singh, Constable, PW-10 tendered his affidavit Ex.PV, in evidence. Inspector Kashmir Singh, CIA staff, PW-11, partly investigated this case. Hardev Singh, SI/SHO Police Station, Chabhal (PW-12)conducted the investigation, in this case, Constable Kulwant Singh, PW-13, tendered into evidence his affidavit Ex.PKK, and Head Constable Jaspal Singh, PW-14, tendered into evidence his affidavit Ex.PLL. Thereafter, the Additional Public Prosecutor closed the prosecution evidence. 13. The statements of the accused under Section 313 Cr.P.C., were recorded. They pleaded false implication. They also stated that they were innocent. 14. In defence, the accused examined Ashwani Kapoor, at Crl.Appeal No.254-DB of 2004 9 the relevant time posted as DSP, Crime,DW-1, who conducted inquiry in this case and proved Ex.DW1/A, copy of the enquiry report. Thereafter, the accused closed their defence evidence. 15. After hearing the Additional Public Prosecutor for the State, the Counsel for the accused, and, on going through the evidence,on record, the trial Court, convicted and sentenced the accused, as stated above. 16. Feeling aggrieved, against the judgment of conviction and the order of sentence, referred to hereinbefore, the instant appeal was filed by the accused/appellants. 17. We have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 18. The Counsel for the appellants, at the very outset, contended that the prosecution suppressed the very genesis of the occurrence. He further contended that the accused were going, on the road, away from the out house of the complainant party, and the members of the said party, came to the road, and caused injuries, as a result whereof, two members of the accused party, were seriously injured. He further contended that the members of the complainant party were aggressors. It was further contended by him that even, the injuries on the person of two injured, on the side of the accused, were not explained by the prosecution. He further contended that, as such, the entire case of the prosecution was doubtful. He further contended that the trial Court erred in recording conviction and awarding sentence to the accused, though, they were not the aggressors. He further contended that the FIR was lodged after 13 hours of the occurrence, and the delay was not explained, as a result whereof, the story was concocted and the accused were falsely Crl.Appeal No.254-DB of 2004 10 implicated. 19. On the other hand, the Counsel for the respondent contended that the accused were aggressors. He further contended that as many as, three members of the complainant party, were injured and one more member of the said party, died in the said occurrence. He further contended that injuries on the person of two members of the accused party, were self suffered. He further contended that the trial Court was thus, right in recording conviction and awarding sentence to the accused. 20. First coming to the delay, in lodging the FIR, it may be stated here, that the occurrence took place on 3.12.1999 at 9.00 P.M. The place of occurrence is at a distance of 3 kms, from Police Station Chabhal, District Amritsar. As many as, four members of the complainant party were injured, out of whom one died immediately after the receipt of injuries. The first concern of the kith and kin was to remove the injured to the Hospital, so as to ensure that they were provided the best medical aid, to save their lives. It was night time. Sometime must have been consumed for arranging a vehicle for removing the injured to Shri Guru Teg Bahadur Hospital, Amritsar, which is at a sufficient distance from the place of occurrence. Sufficient time must have also been consumed by the kith and kin of the injured to arrange money for the purpose of purchase of medicines, required for the medical treatment of the injured. The time of arrival of Bhupinder Singh, Sucha Singh and Balbir Singh injured in Shri Guru Teg Bahadur Hospital, Amritsar, was 11.45 P.M., on 3.12.1999 as is evident from Ex.PD, PF and PH, their medico- legal reports. As soon as, the SHO concerned received the message regarding the admission of the injured and the death of Kulbir Singh, he reached the SGTB Hospital, Amritsar and recorded Crl.Appeal No.254-DB of 2004 11 the statement of Bhupinder Singh, one of the injured after he was declared fit to make the same, by the doctor at 10.50 A.M., on 4.12.1999 on the basis whereof, the FIR was recorded at 11.00 A.M. It was, under these circumstances, that delay of 13 hours, in lodging the FIR occurred. It was held in Ravinder Kumar and another V.State of Punjab 2002(1) CCC 41 (SC) that there can be so many factors, leading to delay, in lodging the First Information Report. It was further held in the said authority, that rural people, might be ignorant of the need for informing the police of a crime, without any lapse of time, and it is also not too uncommon among urban people; lack of adequate transport facilities for them to reach the Police Station; kith and kin of the deceased might take some appreciable time to regain a certain level of tranquillity of mind or sadativeness of temper for moving to the Police Station; persons who are supposed to give such information themselves could be so physically impaired that the police had to reach them on getting nebulous information about the incident and there can be no exhaustive catalogue of instances,which could cause delay in lodging the First Information Report. The principle of law, laid down, in the aforesaid authority, is fully applicable to the present case. It may be stated here that almost all the members of the family of Bhupinder Singh had been caused injuries, and virtually there was no body to take care of them. For the reasons, referred to hereinbefore, such a delay occurred. The delay thus, stood duly explained. Even otherwise, on account of delay, no dent was caused in the case of the prosecution, as on reappraisal, the evidence of the prosecution witnesses, who can be said to be stamped witnesses, as they were injured during the same occurrence, has been found to be cogent, convincing, reliable and trustworthy. In these circumstances, the possibility of concoction of Crl.Appeal No.254-DB of 2004 12 story, false implication of the accused, and the introduction of false witnesses, did not at all arise. The submission of the Counsel for the appellants, being without merit, must fail, and the same stands rejected. 21. Coming to the next contention of the Counsel for the appellants, that the members of the complainant party, were aggressors, it may be stated here, that this fact is not proved from the evidence on record, as would be discussed hereinafter. Bhupinder Singh, PW4, in his statement in clear-cut terms stated that he and his family members were present in the out house ( baihak),when the accused came in a jeep and he saw them from a distance of 1-1/2 killas. It has come in the evidence that the accused were on the road, which is at a distance of 1-1/2 killas, from the out house of Bhupinder Singh. It was admitted by Bhupinder Singh,during the course of his cross-examination that, at that very time, he informed his family members that the accused were coming towards them, and they should also go towards them. He further admitted that he asked other members of his family to arm them with weapons to defend them as the accused were coming armed with various types of weapons. According to Bhupinder Singh,PW4, thereafter he along with his brother Sucha Singh, and nephews Balbir Singh and Kulbir Singh, started from the out house (baihak) and after covering a distance of 1-1/2 killas, reached the road, where the accused were present, armed with various types of weapons in a jeep. The occurrence took place at the road at a distance of 1-1/2 killas, from the out house of Bhupinder Singh,as is evident from Ex.PAA, the site plan of the place of occurrence prepared by the Investigating Officer. Balbir Singh(PW-5) during the course of cross-examination, stated that after hearing the exhortation Crl.Appeal No.254-DB of 2004 13 Bhupinder Singh came outside the house. He,however, denied that they were asked by Bhupinder Singh to bring the weapons. However, he was confronted with his previous statement Ex.DA,portion A to A1, wherein this fact was found recorded. Virtually, almost similar admissions were made by Sucha Singh, during the course of his cross-examination. It was thus proved that the members of the complainant party, on seeing the accused, armed with various types of weapons, on the road, in a jeep, at a distance of 1-1/2 killas, from their out-house,went there. The occurrence took place on the road. What for the members of the complainant party, armed with weapons had gone to the road, where the accused were standing, in a jeep armed with weapons, at a distance of 1-1/2 killas, from their out-house. Had it been their intention to defend themselves, against the assault of the accused, they would have remained inside their house and as and when they (accused) had opened attack at them, they (members of the complainant party) would have certainly been in a better position to repulse the same from their house. No explanation, whatsoever, was furnished by Bhupinder Singh, as to what prompted him, and other members of his family, to go to the road, at a distance of 1-1/2 killas, from their house, where the accused were in a jeep.Had the accused gone to the house, of Bhupinder Singh, where he along with his family members was residing, for the purpose of attacking them, then it would have certainly been said that the complainant party caused injuries, on two members of the accused party, in their self defence, and, in that event, the members of the accused party, would have certainly been held to be aggressors. It appears that the members of the complainant party went to the road at a distance of 1-1/2 killas, from their out-house, where the accused were standing Crl.Appeal No.254-DB of 2004 14 with their weapons, just with a view to enter into a free fight. Some of the injuries on the person of two members of the accused party,which are being narrated,in the subsequent paragraph, were grievous in nature. The principle of law, laid down in Bachan Singh and others V. The State 1969 P.L.R.393 (P&H(DB) and Gaja Nand V.State of Uttar Pradesh AIR 1954 (SC) 695, was to the effect, that a free fight is that when both sides mean to fight from the start, go out to fight, and there is a pitched battle, the question of who attacks and who defends, in such a fight, is wholly immaterial and depends upon the tactics adopted by the rival commanders. It is to be seen, as to whether, the principle of law, is applicable to the facts of the present case or not. Various factors from which, it could be concluded, that it was a case of free fight, have been narrated above. From the said factors, it can be concluded, that the accused were not the aggressors, but it was a case of free fight, where both the parties armed with various types of weapons, measured their strength, and caused injuries, on each other. The trial Court was also right in holding so. The finding of the trial Court,that it was a case of free fight, is in consonance with the ocular as well as medical evidence, produced on the record. 22. Coming to the contention of the Counsel for the respondent, that the injuries on the person of Sakattar Singh and Nishan Singh were self suffered, it may