Crl. Appeal No. 360-DB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 360-DB of 2000 Date of Decision : March 19, 2009 Lakha Singh and others .... Appellants Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Ms. Baljit K. Mann, Advocate for the appellants. Mr. S. S. Gill, Addl. A. G., Punjab. * * * L. N. MITTAL, J. : This is appeal by Lakha Singh, his son Gurbrinder Singh and one Ninder Singh assailing judgment and order dated 14.06.2000 of learned Sessions Judge, Amritsar, whereby the appellants stand convicted and sentenced as under :- 1. Lakha Singh :- Under Section 302, read To undergo rigorous imprisonment with Section 34 IPC for life and to pay a fine of Rs.2500/-. Crl. Appeal No. 360-DB of 2000 2 In default of payment of fine, to further undergo rigorous imprisonment for five months. Under Section 324, read To undergo rigorous imprisonment with Section 34 IPC for one year. Under Section 325, read To undergo rigorous imprisonment with Section 34 IPC for two years and to pay a fine of Rs.500/-. In default of payment of fine, to further undergo rigorous imprisonment for one month. Under Section 323 IPC To undergo rigorous imprisonment for three months. Under Section 342 IPC To undergo rigorous imprisonment for six months. 2. Gurbrinder Singh :- Under Section 302, read To undergo rigorous imprisonment with Section 34 IPC for life and to pay a fine of Rs.2500/-. In default of payment of fine, to further undergo rigorous imprisonment for five months. Under Section 324 IPC To undergo rigorous imprisonment Crl. Appeal No. 360-DB of 2000 3 for one year. Under Section 325, read To undergo rigorous imprisonment with Section 34 IPC for two years and to pay a fine of Rs.500/-. In default of payment of fine, to further undergo rigorous imprisonment for one month. Under Section 323, read To undergo rigorous imprisonment with Section 34 IPC for three months. Under Section 342 IPC To undergo rigorous imprisonment for six months. 3. Ninder Singh :- Under Section 302, read To undergo rigorous imprisonment with Section 34 IPC for life and to pay a fine of Rs.2500/-. In default of payment of fine, to further undergo rigorous imprisonment for five months. Under Section 324, read To undergo rigorous imprisonment with Section 34 IPC for one year. Under Section 325 IPC To undergo rigorous imprisonment for two years and to pay a fine of Rs.500/-. Crl. Appeal No. 360-DB of 2000 4 In default of payment of fine, to further undergo rigorous imprisonment for one month. Under Section 323, read To undergo rigorous imprisonment with Section 34 IPC for three months. Under Section 342 IPC To undergo rigorous imprisonment for six months. All the sentences were ordered to run concurrently. Prosecution case, in brief, is as under :- Narinder Kaur lodged FIR by making statement Ex.P-E to Inspector Salinder Singh, Station House Officer of Police Station Beas on 24.10.1998 at 09:15 P.M. at Bus Adda Chowk, Village Sathiala. Narinder Kaur stated that her husband's brother Baldev Singh had land dispute with Lakha Singh accused. On 24.10.1998 at about 07:30 P.M., Narinder Kaur, her husband Ajit Singh (since deceased) and Baldev Singh were returning to their house. They reached near the house of Lakha Singh accused in the street. Lakha Singh raised lalkara that Ajit Singh be taught lesson for land dispute. Thereupon accused Gurbrinder Singh armed with datar and accused Ninder Singh armed with iron rod came from the house of Lakha Singh. Electric bulbs were lighting in front of the house of Lakha Singh. Lakha Singh caught hold of Ajit Singh and dragged him inside his house. Narinder Kaur and Baldev Singh also went inside the house of Lakha Singh. Gurbrinder Singh inflicted datar blow on the right side of head of Ajit Singh, who fell down. Gurbrinder Singh inflicted four more datar blows to Ajit Singh on his right wrist, front of right leg, fore-finger of right hand and left biceps near the ankle. Ninder Singh inflicted iron rod blows on right thigh and near right hand of Ajit Singh. Meanwhile, Lakha Singh brought Crl. Appeal No. 360-DB of 2000 5 his double barrel .12 bore gun from inside the room and inflicted gun butt blows on hip and left arm of Ajit Singh. The complainant and Baldev Singh raised alarm and stepped ahead to save Ajit Singh. However, all the three accused inflicted injuries to Baldev Singh with their weapons. Ajit Singh died at the spot. Ajit Singh and Baldev Singh were dragged from the courtyard and locked inside a room, whereas the complainant was pushed out from the house. Inspector Salinder Singh, after recording statement Ex.P-E of the complainant, made his own endorsement Ex.P-E/1 on it and sent it to Police Station, where FIR Ex.P-E/2 was registered on its basis. Inspector Salinder Singh along with other police officials, accompanied by complainant, went to the house of Lakha Singh accused. A room in the house was found bolted from outside. On opening the same, dead body of Ajit Singh was found lying in it on the ground and Baldev Singh was also lying injured there on the ground. Baldev Singh was removed to Civil Hospital, Baba Bakala with Constable Chaman Lal. Injury statement Ex.P-B and inquest report Ex.P-C of the deceased were prepared. The dead body was sent for post-mortem examination with request Ex.P-A. Blood was lifted from the spot with cotton vide memo Ex.P-N. One shoe of black colour of left foot of the deceased was also seized from the spot vide memo Ex.P-O. Rough site plan Ex.P-Q of the place of occurrence was prepared. One electric bulb was lighting in the courtyard and another bulb in the aforesaid room. Statements of witnesses were recorded. Dr. Ashok Chanana conducted post-mortem examination on the dead body of Ajit Singh and found as many as 21 injuries on the dead body. The injuries included 10 incised wounds including some perforated incised wounds. Injury no.2 consisted of six reddish bluish bruises, injury no.7 of seven reddish bluish bruises and injury no.8 of four reddish brown abrasions. Cause of death was opined to be haemorrhage and shock as cumulative effect of all the injuries, which were ante mortem and sufficient to cause death in ordinary course of nature. Dr. Gurpal Singh Randhawa Crl. Appeal No. 360-DB of 2000 6 medico-legally examined Baldev Singh injured and found eight injuries on his person. Injury no.8 consisted of several minor abrasions. Injury no.1 was incised wound and injury no.2 was closed fracture of left forearm and was, therefore, grievous. Statement of Baldev Singh was recorded in the hospital on 25.10.1998. All the three accused were arrested on 25.10.1998. Lakha Singh, after making disclosure statement Ex.P-R, got recovered a licensed double barrel .12 bore gun vide memo Ex.P-R/2. Gurbrinder Singh, after making disclosure statement Ex.P-S, got recovered a datar vide memo Ex.P-S/2. Similarly, accused Ninder Singh, after making disclosure statement Ex.P-T, got recovered a blood stained iron rod vide memo Ex.P-T/2. Sketches of all these weapons and rough site plans of places of their recovery were also prepared. On completion of investigation, all the three accused were sent for trial. Charge under Sections 342, 302/34, 324/34, 325/34 and 323/34 IPC was framed against the accused. They pleaded not guilty and claimed trial. In support of its case, the prosecution examined 11 witnesses. Dr. Ashok Chanana (PW-1) stated about post-mortem examination of the deceased. Dr. Gurpal Singh Randhawa (PW-2) stated about medico-legal examination of Baldev Singh. Gobinderpal Singh (PW-3) stated that he had taken photographs at the spot. HC Jarnail Singh (PW-4), HC Bhupinder Singh (PW-5), Constable Surjit Singh (PW-7) and Constable Mohan Singh (PW-8) tendered their respective affidavits Ex.P-J, Ex.P-K, Ex.P-L and Ex.P-M in evidence being formal witnesses. Narinder Kaur (PW-6) and Baldev Singh (PW-10) have broadly stated according to the prosecution version that all the three accused caused injuries to Ajit Singh resulting in his death and also caused injuries to Baldev Singh. They also stated about motive for the occurrence. Ramesh Pal (PW-9) is Reader of Sub-Divisional Magistrate, Baba Bakala. He stated from the register that an appeal in Khasra Girdawari case was decided on 18.05.1998 by Sub-Divisional Crl. Appeal No. 360-DB of 2000 7 Magistrate, Baba Bakala (as Collector) and the file was consigned to records. Baldev Singh (PW-10) was appellant no.5 in the said appeal. Inspector Salinder Singh (PW-11) stated about investigation of the case conducted by him. Report of Chemical Examiner Ex.P-X was also tendered in evidence. The accused in their examination under Section 313 of the Code of Criminal Procedure (in short – the Cr.P.C.) denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. Accused Gurbrinder Singh alleged that on the day of occurrence, at about 07:00 P.M., he was present in his house along with his parents Lakha Singh and Balbir Kaur and wife Gurvinder Kaur and also his sister Jatinder Kaur and her children. At about 07:15 P.M., Ajit Singh (since deceased) and Baldev Singh PW came drunk in front of the house and started abusing them and also knocked at their door. After some time, they went away, but returned after 15 minutes and started abusing them. They also pushed the outer door, which got opened. They entered the house. Ajit Singh was armed with datar and Baldev Singh with gandasi. They continued abusing them. Gurbrinder Singh took Ajit Singh in his arms and told that they would discuss the matter next morning. Baldev Singh inflicted gandasi blow on the head of Gurbrinder Singh. Baldev Singh aimed another gandasi blow towards Gurbrinder Singh, who, however, caught the gandasi from other side. Gurbrinder Singh snatched the gandasi from Baldev Singh after giving kick blow on his groins. Ajit Singh attacked Gurbrinder Singh with datar, but Gurbrinder Singh warded off datar blows with gandasi and in defence, inflicted gandasi blows to Ajit Singh till datar fell down from his hands. Baldev Singh got up and tried to catch Gurbrinder Singh, who gave some gandasi blows in self-defence to Baldev Singh, who fell down. Gurbrinder Singh, with help of his family members, dragged Ajit Singh and Baldev Singh to their room and bolted the door from outside. Lakha Singh went to Crl. Appeal No. 360-DB of 2000 8 Police Post in the village to lodge report. Police from there came to the spot and opened the door and found Ajit Singh dead and Baldev Singh sitting near him. False case was registered after consultation. Accused Ninder Singh alleged that he was not present at the spot at the time of occurrence. Accused Lakha Singh alleged that he was suffering from paralysis for the last 3-4 years and did not take any part in the occurrence. In defence, the accused examined two witnesses. Dr. Sahibjit Singh (DW-1) stated that on 26.10.1998 at 02:10 P.M., he medico-legally examined Gurbrinder Singh accused and found an incised wound 3 cm x 0.5 cm on the scalp. Clotted blood was present. Dr. Jagir Mundh (DW-2) stated that Lakha Singh accused was admitted in his private hospital on 20.11.1997 and discharged on 24.11.1997. His right side was paralysed. He has not fully recovered. His speech is slurred and right side of the body is weak. We have heard learned counsel for the parties and perused the case files with their assistance. Narinder Kaur complainant as PW-6 and injured Baldev Singh PW-10 have both stated that all the three accused caused injuries to Ajit Singh (since deceased) and to Baldev Singh. Their statements are corroborated by medical evidence. Injuries of Ajit Singh were cumulatively sufficient to cause death in ordinary course of nature. He suffered as many as 21 injuries and in fact, the number of injuries would come to 35 because injury no.2 consisted of six bruises, injury no.7 consisted of seven bruises and injury no.8 of four abrasions. Baldev Singh also suffered eight injuries including injury no.8 consisting of several abrasions. He also suffered grievous hurt as there was fracture of left forearm. Medical evidence thus fully corroborates the prosecution case. As a result of large number of injuries caused by the appellants to Ajit Singh, he succumbed to his injuries at the spot. After causing injuries to Ajit Singh and Baldev Singh in the courtyard, they were dragged into a room and confined there by bolting the door from outside. Crl. Appeal No. 360-DB of 2000 9 FIR in the case was also lodged very promptly. The occurrence started at about 07:30 P.M. Statement Ex.P-E of Narinder Kaur along with police proceedings thereon concluded at 09:15 P.M. and registration of FIR commenced at 09:55 P.M. and concluded at 10:40 P.M. and then special report reached the Magistrate at 04:00 A.M. The FIR, which was lodged very promptly, is, therefore, valuable piece of evidence corroborating the prosecution case. Occurrence was narrated in detail in the FIR and all the three accused were named therein along with roles played by them. Prompt lodging of FIR with all the aforesaid details establishes that the complainant had witnessed the occurrence. Injured witness Baldev Singh has also corroborated the version detailed in the FIR. Statements of Narinder Kaur and Baldev Singh could not be impeached in their lengthy cross- examination. Prosecution evidence is thus credible and sufficient to prove the prosecution case beyond reasonable doubt. Learned counsel for the appellants contended that photographer Gobinderpal Singh (PW-3) stated in cross-examination that the police had called him between 08:00 to 08:30 P.M. and it would support the defence version that appellant Lakha Singh had called the police. The contention cannot be accepted because Inspector Salinder Singh after sending intimation Ex.P-E with his endorsement Ex.P-E/1 at 09:15 P.M. immediately reached the spot and then called the photographer. The photographer might not have noted the exact time and he has not even stated the exact time as to when he was called by the police. This minor discrepancy in time cannot be said to be material to dent the prosecution case. Learned counsel for the appellants also argued that FIR has been ante-timed and the FIR was in fact lodged after delay. This argument is also unacceptable because there is nothing on record to substantiate the contention that the FIR has been ante-timed. On the other hand, statement Ex.P-E and endorsement Ex.P-E/1 thereon concluded at 09:15 P.M. and the Crl. Appeal No. 360-DB of 2000 10 FIR was registered from 09:55 P.M. to 10:40 P.M. Special report of the FIR also reached the Magistrate at 04:00 A.M. during the night itself without any delay. The FIR cannot be said to be ante-timed. Moreover, the occurrence stands admitted even by the appellants although in a different manner. The place of occurrence is also not in dispute. Cross-version of the occurrence came, for the first time, on 22.12.1998 i.e. about two months after the occurrence. Presence of appellants Lakha Singh and Gurbrinder Singh is not disputed even in statements under Section 313 Cr.P.C. and also in the cross-version. Even presence of Ninder Singh has been admitted in the cross-version stating that Ninder Singh had also come to their house and was present there at the time of occurrence. Even otherwise, there is consistent evidence of the prosecution contained in FIR and statements of Narinder Kaur and Baldev Singh PWs that all the three appellants had actively participated in the occurrence. The defence version that Gurbrinder Singh caused injuries to Ajit Singh (since deceased) and to Baldev Singh PW in self-defence is completely unacceptable because Gurbrinder Singh suffered only a single simple injury, whereas Ajit Singh suffered 35 injuries and Baldev Singh suffered eight injuries. Gurbrinder Singh single-handedly could not have caused so many injuries to Ajit Singh and Baldev Singh, if both of them had weapons i.e. datar and gandasi, as alleged by the appellants. It is thus apparent that the occurrence took place in the manner alleged by the prosecution and not in the manner alleged by the appellants. Learned counsel for the appellants next submitted that statement of Baldev Singh (PW-10) was not recorded by the police at the spot. However, reason for the same is not far to seek. Baldev Singh had suffered multiple injuries and his cousin Ajit Singh had already died on account of injuries caused to him. In these circumstances, it was imperative to send Baldev Singh to hospital to provide him immediate medical aid without any delay, instead of recording his statement at the spot. Learned counsel for the appellants also submitted that Inspector Crl. Appeal No. 360-DB of 2000 11 Salinder Singh did not search for the accused persons during night. This submission also has no force because the appellants were not seen at the spot when the police reached there, as stated by Narinder Kaur (PW-6). Proceedings at the spot also lasted till after midnight. The accused were arrested on the very next day i.e. on 25.10.1998. Learned counsel for the appellants contended that the appellants could not have known that the complainant party would be coming there. It was pointed out that the house of Lakha Singh, where the occurrence took place, does not fall on way from Sathiala Chowk to the house of the complainant party. Narinder Kaur has stated in cross- examination that their house is on west side of Batala Road, whereas house of Lakha Singh is second house in the street emerging from Batala Road on east side. The contention cannot be accepted. Narinder Kaur and Baldev Singh have stated that they were returning from Village Abadi to their house. Admittedly, there is Village Abadi towards east of house of Lakha Singh appellant as well. If they were returning from that side to their house lying on west of the house of Lakha Singh, the house of Lakha Singh would have fallen on their way. The defence version that Ajit Singh and Baldev Singh had come drunk to their house is also untenable because no smell of alcohol has been reported by the doctors either from dead body of Ajit Singh or from the person of Baldev Singh. Baldev Singh was medico legally examined at 10:40 P.M. i.e. just three hours after the occurrence. Even suggestion was not put to Dr. Gurpal Singh Randhawa (PW-2) in cross-examination that Baldev Singh had consumed alcohol or was smelling of alcohol. Learned counsel for the appellants contended that the occurrence admittedly took place in the courtyard of the house of appellant Lakha Singh and it would show that the complainant party had come there to attack the appellants. The contention is devoid of merit. If Ajit Singh and Baldev Singh had come prepared armed with datar and gandasi, then Crl. Appeal No. 360-DB of 2000 12 Gurbrinder Singh would not have escaped with a single simple injury and Ajit Singh and Baldev Singh would not have suffered such large number of injuries. On the other hand, medical evidence corroborates the prosecution version. Ajit Singh was taken from street to the courtyard. Then Baldev Singh also went there. Both of them were caused injuries there and then dragged into a room and shut there. Learned counsel for the appellants next contended that motive was against Baldev Singh and not against Ajit Singh because land dispute was with Baldev Singh and not with Ajit Singh. However, Ajit Singh is none else, but son of father's brother of Baldev Singh. In other words, they are cousins. Since both of them were together, injuries were caused to both of them. It is not a case where only Ajit Singh was caused injuries and Baldev Singh was spared. It is a different matter that more injuries were caused to Ajit Singh and the same proved fatal. However, it cannot be said that there was no motive for the occurrence. Learned counsel for the appellants also pointed out that X-ray examination of Baldev Singh was not conducted to prove that his injury no.2 was grievous. However, there is no force in this argument because Dr. Randhawa (PW-2) has stated that injury no.2 was closed fracture of left forearm. If the fracture was visible clinically, X-ray examination was not essential to establish that the said injury was grievous. Learned counsel for the appellants also contended that presence of Narinder Kaur complainant at the spot at the time of occurrence is doubtful as she did not intervene to save her husband nor she had any blood stains on her clothes nor she was confined in the room where Ajit Singh and Baldev Singh were confined. The contention is devoid of merit. The very fact that Narinder Kaur lodged FIR very promptly giving vivid description of the occurrence shows that she was present at the spot and had witnessed the occurrence. She has also stated that she was pushed out and was not allowed to intervene to save her husband. Obviously, she did not have any Crl. Appeal No. 360-DB of 2000 13 blood stains on her clothes because she was not allowed to intervene or go near her husband Ajit Singh or injured Baldev Singh nor any injury was caused to her. Moreover, Baldev Singh injured (PW-10) is a stamped eye- witness, whose presence at the spot is admitted even by the appellants. Learned counsel for the appellants also argued that investigation by Inspector Salinder Singh was tainted as he did not even get Gurbrinder Singh medico-legally examined. The argument is unacceptable because Gurbrinder Singh had a single simple injury and he was got medico-legally examined on 26.10.1998 after his arrest on 25.10.1998. Learned counsel for the appellants also argued that Lakha Singh – appellant no.1 suffered paralysis and was not in a position to participate in the occurrence. The argument has no force because he had suffered paralysis on 20.11.1997 and he was discharged from hospital on 24.11.1997 i.e. 11 months before the occurrence. Dr. Jagir Mundh (DW-2) has stated that right side of the body of Lakha Singh was still weak. However, Dr. Jagir Mundh has not stated the extent of said weakness. On the basis of testimony of this witness, it cannot be said that Lakha Singh could not have participated in the occurrence, as alleged by the prosecution. Learned counsel for the appellants also submitted that the case of the prosecution would, at best, fall under Section 304-I and not under Section 302 IPC. It was pointed out that only one simple injury of Ajit Singh (since deceased) was on his head and all the remaining injuries were on non-vital parts and the said injuries were also simple. It was also pointed out that Lakha Singh had brought his licensed gun, but did not fire any shot from it and only allegedly hit the deceased with butt of the gun and therefore, there was no intention to kill. It was also submitted that Deputy Superintendent of Police (DSP) had inquired into the matter and submitted report and on the basis thereof, even challan by the police was presented under Section 304 IPC and not under Section 302 IPC. It was also argued that the defence version is probable and at best, appellant Gurbrinder Singh Crl. Appeal No. 360-DB of 2000 14 exceeded the right of self-defence and for this reason as well, the case would fall within the purview of Section 304-I IPC only. Reliance in support of the aforesaid contention has been placed on four judgments of Hon'ble Supreme Court namely Ram Jattan and others vs. State of U.P. reported as 1994 A.I.R. (SC) 1130, Chuttan and others vs. State of M.P. reported as 1994 A.I.R. (SC) 1398, Sarman and others vs. State of M.P. reported as 1993 Cri. L. J. 63 and Adu Ram vs. Mukna reported as 2005 (10) S.C.C. 597. We have carefully considered the aforesaid contentions. In so far as injuries caused to the deceased