Criminal Appeal No.307-DB of 2000 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Tarsem Singh and others APPELLANTS VERSUS State of Punjab RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE JUSTICE (MRS.) DAYA CHAUDHARY Present:- Mrs.Baljit Mann, Advocate for the appellants. Shri Manoj Bajaj, Senior D.A.G. Punjab assisted by Shri Sandeep Majithia, Advocate. MEHTAB S.GILL, J. This is an appeal against the judgment/order dated 6.7.2000 of the learned Additional Sessions Judge, Amritsar whereby he convicted Tarsem Singh son of Gurmukh Singh, Jujhar Singh son of Desa Singh, Kashmir Singh son of Niranjan Singh, Satnam Singh son of Sardara Singh and Amar Singh son of Hazara Singh under Section 302/149 I.P.C. and sentenced them to undergo imprisonment for life and to pay a fine of Rs.2000/- each, or in default, to further undergo RI for six months. They were also convicted under Sections 323/326/148 and 149 I.P.C. and sentenced to undergo various terms. Tarsem Singh was also Criminal Appeal No.307-DB of 2000 -2- convicted under section 27 of the Arms Act and sentenced to undergo RI for 1-1/2 years. The case of the prosecution is unfolded by the statement of Harbans Singh Ex.PB given to Baldev Singh, SI/S.H.O. at Guru Nanak Dev Hospital, Amritsar. Harbans Singh stated that he is a resident of Atalgarh. He has seven brothers namely Mohinder Singh, Joginder Singh, Charan Singh, Dalbir Singh, Kashmir Singh, Swaran Singh, Harbans Singh and Kans Singh. All of them live separately. Kans Singh was an Inspector working in the Police Department. He was murdered on 17.4.1991 by the terrorists at Samana Mandi, District Patiala. All the brothers were given arms by the State Police to protect themselves. Tarsem Singh son of Gurmukh Singh resident of Atalgarh was their neighbour. He was recruited as an S.P.O. and was posted as Gunman with them. He also had a .12 bore licenced gun. Tarsem started living with the complainant party. After some time he started harassing them. They did not keep him as their Gunman. On 25.4.1994 they lodged a complaint with the higher authorities and Tarsem Singh was dismissed as an S.P.O. His government rifle was deposited in the police station. Tarsem Singh kept this grudge in his mind. On 6.3.1995 Harbans Singh, Dalbir Singh and Charan Singh were riding a motor cycle No.PBE-2551. They were coming back from the Court of Captain P.S.Shergill where proceedings under Sections 107/151 Cr.P.C. were pending between them and accused Satnam Singh and party. At about 7 p.m. when the complainant party reached the house of Gujjar Singh and reached the bridge of the canal, Jujhar Singh son of Desa Singh, Kashmir Singh son of Niranjan Singh standing on both sides of the road obstructed the passage by catching hold of a turban from both sides. Harbans Singh's brother Dalbir Singh was driving the motor cycle. The motor cycle was stopped and they enquired as to what was the matter. Thereafter Tarsem Singh Criminal Appeal No.307-DB of 2000 -3- fired from his SBBL gun from the left side which hit Dalbir Singh below his left ear. Harbans Singh, Dalbir Singh and Charan Singh fell down. Amar Singh gave a Kirpan blow which hit Charan Singh on his right arm. Satnam Singh gave a Kirpan blow to Charan Singh which hit on his right eye-brow. Harbans Singh raised a hue and cry and thereafter Tarsem Singh and his companions ran away from the place of occurrence with their respective weapons. The cause of grudge is that both the complainant party and the accused party were members of Nish Kalank Baba Jiwan Singh, Sabha. This Sabha bifurcated. Tarsem Singh joined the Sabha and thereafter, relations between both the complainant and accused party became very strained. Tarsem Singh had this grudge also in his mind that he had been dismissed from service and the complainant party was the cause of it. Thereafter Harbans Singh took his brothers to Guru Nanak Dev Hospital, Amritsar, and got him admitted in the hospital. Dalbir Singh was declared dead after some time. On the basis of this statement, F.I.R. Ex.PB/2 was recorded on 7.3.1995 at 12.20 a.m. and the special report reached the Illaqa Magistrate on the same day at 9.55 a.m. The prosecution to prove its case, brought into the witness-box Dr.Sukhwider Singh PW-1, Harbans Singh PW-2, Charan Singh PW-3, Sukhwant Kaur PW-4, Darshan Singh PW-5, Constable Harbans Singh PW-6, Constable Jarnail Singh PW-7, Dr.Inderbir Singh Gill PW-8, SI Sanjiv Kumar PW-9, Rishi Ram Draftsman PW-10, HC Jaswinder Singh PW-11, Constable Rajinder Kumar PW-12, Dr.Gurmanjit Rai PW-13, Constable Sahib Singh PW-14, Dr.Parveen Kumar Garg PW-15, Inspector Baldev Singh PW-16, MHC Narinderjit Singh PW-17 and Anokh Raj Clerk PW-18. Mohinder Singh Mate, P.W.D. appeared as DW-1. Learned counsel for the appellants has argued that lodging of the Criminal Appeal No.307-DB of 2000 -4- F.I.R. is not prompt, it has been recorded after due deliberations and consultations. Presence of Harbans Singh PW-2 at the place of occurrence is doubtful as per the prosecution, he was standing only two Karams away from the deceased, but he did not receive any injury from the gun shot fired by Tarsem Singh or by the Kirpan blow allegedly given by Satnam Singh and Amar Singh. The main target was Harbans Singh PW-2, but he did not receive any injuries. It was Harbans Singh complainant and Tarsem Singh appellant who were in litigation with each other since the year 1994. Harbans Singh PW-2 is not a witness to the inquest proceedings Ex.PM, but two other persons Satbir Singh and Kashmir Singh who have not been brought into the witness-box, have been shown as being present when the inquest proceedings were taking place. The medical evidence does not corroborate the ocular account. It has been stated by the witnesses and as per site plan Ex.PR, that the shot fired by Tarsem Singh was fired from a distance of three Karams, but as per the post- mortem report Ex.PK, there was blackening and singeing of the skin. This blackening and singeing could not have been on the body of the deceased, if the shot was fired from a distance of 15 feet, i.e. three Karams. If Satnam Singh had given a Kirpan blow on the right eye brow which is ¾ x ¼ cm injury, it could have also had a corresponding cut on the forehead or cheek of Charan Singh PW-3. X- Ray of the arm of Charan Singh PW-3 was done after a gap of 20 days. No explanation has come as to why the X-Ray was done so late. No empty was recovered from the place of occurrence. The empty cartridge and the gun allegedly used by appellant Tarsem Singh was sent to the F.S.L. on the same day. Appellants Jujhar Singh and Kashmir Singh were empty-handed and Criminal Appeal No.307-DB of 2000 -5- it has been alleged that they had a turban in their hand which they used to stop the motor cycle. Neither the turban, nor the motor cycle have been recovered. Learned counsel for the State has argued that the F.I.R. is prompt. It has come in the evidence of Charan Singh PW-3 that they were coming after attending the proceedings under Sections 107/151 Cr.P.C. pending in the Court of the S.D.M. The relations between both the parties were strained. Tarsem Singh was a S.P.O. with the complainant party. They had got him dismissed from service as he started misbehaving with them. He kept a grudge in his mind. Appellants were waiting for the complainant party to come and thereafter they were attacked. The evidence of both the eye-witnesses Harbans Singh PW-2 and Charan Singh PW-3 is trust-worthy and inspires confidence. The three brothers were coming back after attending the Court of S.D.M. No cross-examination worthwhile has been done to demolish the statements of these two witnesses, which they gave in their examination-in-chief. We have heard the learned counsel for the parties and perused the record with their assistance. The occurrence took place on 6.3.1995 at 7 p.m. Harbans Singh PW-2, Charan Singh PW-3 and Dalbir Singh deceased were coming back after attending the Court of S.D.M. where proceedings under Sections 107/151 Cr.P.C. were pending between both the parties. They were way-laid by appellants Tarsem Singh, Satnam Singh and Amar Singh. F.I.R. Ex.PB/2 came into existence on 7.3.1995 at 12.20 a.m. and the special report reached the Illaqa Magistrate, Amritsar on the same day at 9.55 a.m. Harbans Singh PW-2 took his injured brother Dalbir Singh and Charan Singh PW- 3 to Guru Nanak Dev Hospital, Amritsar and it is thereafter that Baldev Singh Criminal Appeal No.307-DB of 2000 -6- S.H.O. PW-16 recorded the statement of Harbans Singh PW-2. The argument of the learned counsel for the appellants that Harbans Singh PW-2 is a planted witness, does not cut much ice. It has come in the statements of Harbans Singh PW-3 and Charan Singh PW-3 and the Investigating Officer SI Baldev Singh PW-16, that the statement of Harbans Singh PW-2 was recorded at Guru Nanak Dev Hospital, Amritsar. F.I.R. Ex.PB/2 is believeable to the extent of appellants Tarsem Singh, Satnam Singh and Amar Singh having committed the murder of Dalbir Singh and giving injuries to Charan Singh PW-3. Charan Singh PW-3 the injured witness was examined on 7.3.1998 at 8.30 a.m. by Dr.Sukhwinder Singh PW-1 who found the following injuries on his person :- (1) A lacerated wound ¾ x ¼ cm on the outer angle of right eye. Depth not probed. Clotted blood was present. (2) Stitched wound 7 cm long with 7 stitches on the outer aspect of right fore-arm, 4 cm above the wrist joint. Both these injuries are not superfluous, but serious injuries. After X- ray of injury No.2, it was found that the right fore-arm of Charan Singh PW-3 was fractured. The injuries on the person of deceased Dalbir Singh, who was examined on 7.3.1995 at 9 a.m. by Dr.Gurmanjit Rai PW-13 and who prepared the post- mortem report Ex.PK. He found the following injuries on his person :- (1) A lacerated wound 2 x 1.5 cm present on the left side of the face, 1 cm in front of ear lobule. The margins were inverted, blackening, singing and burning of hair of beard present around the wound in an area of 6.5 x 5 cm. Clotted blood was present. (2) Reddish brown abrasion 1 cm long present on the outer aspect of the right eye-brow. (3) Reddish brown abrasion 0.75 x 0.3 cm on the right side of the face 1 cm outer to angle of eye. It is pertinent to mention here that the post-mortem on the body of Criminal Appeal No.307-DB of 2000 -7- Dalbir Singh was conducted on 7.3.1995 at 9 a.m. At that moment of time, F.I.R. Ex.PB/2, the inquest report Ex.PN and all other documents were in the hands of Dr.Gurmanjit Rai PW-13. F.I.R. qua Tarsem Singh, Satnam Singh and Amar Singh is trustworthy. The cause of death was injury No.1, i.e. the fire arm injury. Learned counsel for the appellants has argued that the medical evidence does not corroborate the ocular account. Dr.Gurmanjit Rai PW-13 has opined that the margins of the injuries were inverted, blackening, singing and burning of hair of beard was present around the wound. In the site plan Ex.PR, it has been shown that the SBBL gun was fired from a distance of five karams i.e. about 15 feet. We cannot overlook this fact that the length of the butt and barrel of the gun is about 4 feet. The distance given by the Investigating Officer in the site plan Ex.PR is only approximate. Complainant party stopped the motor cycle, and as per the statement of both the eye-witnesses to the occurrence i.e. Harbans Singh PW-2 and Charan Singh PW-3, Tarsem Singh appellant fired from his gun on the left ear of Dalbir Singh deceased in a standing position. Both appellants Satnam Singh and Amar Singh gave Kirpan blows. It is clear that all the three appellants i.e. Tarsem Singh, Satnam Singh and Amar Singh were standing close to the complainant party after they had stopped the motor cycle. Tarsem Singh could not have stood about 15 feet away and then fired his SBBL gun. He would have hit Amar Singh and Satnam Singh also who were standing next to the deceased. We can safely presume that Tarsem Singh appellant was standing next to deceased Dalbir Singh when the shot was fired at him. The site plan Ex.PR seems to be not correct regarding the place from where the shot was fired, after going through the evidence of the two eye-witensses i.e. Harbans Singh PW-2 and Charan Singh PW-3, and the medical evidence. SI Baldev Singh PW-16 has stated that he recovered the empty of .12 Criminal Appeal No.307-DB of 2000 -8- bore gun from the place of occurrence. He made it into a parcel vide memo Ex.PD. The SBBL gun was recovered from appellant Tarsem Singh vide disclosure statement Ex.PT and four live cartridges were also taken into possession along with the strap vide memo Ex.PT/2. The motive for the commission of the offence was that Tarsem Singh appellant had a grudge against Harbans Singh PW-2 and his brothers. After being posted as S.P.O., he started misbehaving with them, Harbans Singh PW-2 and his brothers reported the matter to the senior officers and got him dismissed. It has come in evidence that proceedings under Sections 107/151 Cr.P.C were pending between the three brothers i.e. deceased Dalbir Singh, Harbans Singh PW-2 and Charan Singh PW-3 on the one side and appellant Tarsem Singh and others on the other side. Charan Singh PW-3 is a stamped witness. Injuries inflicted on him are those which cannot be self-suffered or with a friendly hand. If he did want to have himself injured, there was no need to have himself hit with kirpan on his face. We do not have any hesitation in coming to the conclusion that appellants Tarsem Singh, Satnam Singh and Amar Singh are guilty of the murder of Dalbir Singh and for giving injuries to Charan Singh PW-3. As far as appellants Kashmir Singh and Jujhar Singh who were empty-handed, it seems that they have been falsely implicated. The turban which they used to stop the motor cycle, which was a piece of evidence against them, has not been recovered. The motor cycle which they stopped has also not been recovered. They have not given any injury to the deceased or Charan Singh PW-3. Neither they raised any lalkara instigating others to inflict injuries on Dalbir Singh. Criminal Appeal No.307-DB of 2000 -9- Appellants Jujhar Singh and Kashmir Singh are given the benefit of doubt and are acquitted of all the charges framed against them. Appeal qua them is allowed. Conviction and sentence of appellants Tarsem Singh, Satnam Singh and Amar Singh is maintained as awarded by the learned trial Court. Appeal qua them is dismissed. ( MEHTAB S.GILL ) JUDGE ( DAYA CHAUDHARY ) April 28, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO