Crl.Appeal No.412-DB of 2001 & anr. -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.Appeal No.412-DB of 2001 Karnail Singh .....APPELLANT Versus State of Punjab ....RESPONDENT Crl.Appeal No.410-DBA of 2005 State of Punjab .....APPELLANT Versus Jarnail Singh and others ....RESPONDENTS DATE OF DECISION: FEBRUARY 17, 2010 CORAM: HON'BLE MR.JUSTICE SATISH KUMAR MITTAL HON'BLE MR.JUSTICE JORA SINGH --- Present: Ms. Deipa Singh, Advocate (Amicus Curiae), for the appellant in Crl.A.No.412-DB of 2001. Ms. Gurveen H. Singh, Addl.A.G.,Punjab, for the respondent in Crl.A.No.412-DB of 2001 and for the appellant in Crl.A.No.410-DBA of 2005. Mr. A.S. Syan, Advocate, for respondents No.2,3,6 and 7 in Crl.A.No.410-DBA of 2005. .. SATISH KUMAR MITTAL, J. This judgment shall dispose of Criminal Appeal No.412-DB of 2001 filed by accused Karnail Singh against his conviction and sentence, and Criminal Appeal No.410-DBA of 2005 has been filed by the State of Crl.Appeal No.412-DB of 2001 & anr. -2- Punjab against the acquittal of seven accused from the charges levelled against them. 2. In this case, death of Mohanjit Singh son of Balkar Singh had taken place on 6.8.1998 in the residential house of complainant Balkar Singh in village Bhail due to fire arm injury. For the said offence, eight persons were tried by the Court of Session. Vide judgment of conviction and order of sentence dated July 11, 2001 passed by the Additional Sessions Judge, Amritsar, only one accused, namely, Karnail Singh was convicted under Sections 302 IPC and 27 of the Arms Act, and sentenced to undergo imprisonment for life and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo further RI for six months under Section 302 IPC. He was further sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.500/- and in default of payment of fine, to undergo further RI for three months under Section 27 of the Arms Act. However, both the sentences were ordered to run concurrently. The remaining seven accused, namely, Jarnail Singh, Mehal Singh, Malkiat Singh, Skattar Singh, Sarup Singh, Gurdev Singh and Sukhdev Singh were acquitted from the charges as their involvement in the alleged offence was not proved by the prosecution beyond any reasonable doubt. 3. In this case, the formal FIR (Ex.PE/1) was registered at Police Station Goindwal Sahib on 7.8.1998 at 1.35 AM on the basis of the statement (Ex.PE) made by Balkar Singh (father of the deceased) to Inspector Amarjit Singh (PW12) at 12.20 AM on that day on the turning of canal minor in the area of village Fatehbad. In his statement (Ex.PE), complainant Balkar Singh stated that on the day of the occurrence which had taken place at 8.30 PM on 6.8.1998, he along with his family members Crl.Appeal No.412-DB of 2001 & anr. -3- (two sons, including deceased Mohanjit Singh, one daughter, parents and brother's wife) was sitting in his house. Then accused Karnail Singh armed with .12 bore gun, Jarnail Singh, armed with .12 bore gun, Mehal Singh, armed with gandasi (all the three accused are real brothers), Sarup Singh armed with Kirpan, Malkiat Singh armed with .12 bore gun, Skattar Singh, armed with gandasi (all the three accused are real brothers and sons of accused Jarnail Singh), Gurdev Singh, armed with .12 bore gun and Sukhdev Singh, armed with datar (both are real brothers and sons of Kakkar Singh), climbed on the roof of residential house of accused Karnail Singh from the side of the street. Karnail Singh was raising lalkara that they (complainant party) be taught a lesson for blocking the street. On hearing that lalkara, his son Mohanjit Singh came in the court-yard of house to see who was giving the lalkara, then accused Karnail Singh fired a gun shot straight with his .12 bore gun on his son with intention to kill and that fire hit him on the left side of his neck. After that, accused Jarnail Singh fired with his gun, which hit on the chest of his son. Then Malkiat Singh fired with his gun, which hit on the left cheek, eyebrow of left eye of his son, who ran back side to save his life. Then accused Gurdev Singh fired with his gun which hit his son on back side of shoulders on the left upper arm and on the elbow of left arm. Thereupon his son fell down in the court- yard. His father Banta Singh, his brother Tara Singh, his another son Jagjit Singh, his mother Joginder Kaur, his brother's wife Jagir Kaur, his wife Balwinder Kaur and his daughter Mohni were raising hue and cry and saw the entire occurrence by standing under the back of wall, back of door and under the shadow of court-yard with their own eyes. Electric bulbs of their court-yard and roofs were on. On hearing their noise, his father's elder Crl.Appeal No.412-DB of 2001 & anr. -4- brother Dara Singh and Capt. Gurcharan Singh, residents of village Bhail came at the spot and tried to save his son but he had since died. Then accused Mehal Singh, Sarup Singh, Skattar Singh and Sukhdev Singh were raising lalkaras and saying that they were coming down and all of his family members should be finished and will not be allowed to lift the dead body. By saying so, all the assailants along with their respective weapons ran away from the spot on the four wheeler tempo. It was stated that the cause of grudge was that accused Karnail Singh had constructed the street which leads in between their houses. 4. After registration of the case, the police came on the spot, prepared the inquest report, took the blood stained earth and sent the dead body of Mohanjit Singh for post-mortem examination. At that time, the police party had also taken into possession four empty cartridges from the roof of the house of accused Karnail Singh. 5. On 7.8.1998 at 10.15 AM, PW3-Dr. K.K. Singh conducted the autopsy of the deceased. He found the following four injuries on the body of the deceased:- “1. 20 lacerated punctured wounds with surrounding blackening present over the anterior and lateral aspect of left chest. The wounds varied in size from 6 mm x 4 mm to 3 mm x 3 mm. On dissection of the chest left pleural cavity was full of dark coloured blood. The left pleura and left lung were having punctured multiple wounds 3 mm x 3 mm in size. There was a single punctured wound on the left posterior later aspect of the heard. 2. Multiple lacerated punctured wounds with surrounding blackening varying in size from 6 mm x 4 mm to 2.5 mm to 1.5 mm spread over the anterior posterior aspect of left Crl.Appeal No.412-DB of 2001 & anr. -5- upper limp. More so in the region of the upper arm and scattered in the region of lower arm and fore arm. On dissection haemo toma was present subcutaneously and in the muscle plaints. Two pallets could be identified and dissected out from the arm. 3. Multiple lacerated punctured wound about 15 in number with surrounding, blackening present on the anterior and a later aspect of the left side of neck. The wound carried in size from 6 mm x 4 mm to 3 mm x 2.5 mm. On dissection extensive hemotoma was present in the subcutaneous tissue and muscle plaints. A through and through punctured wound in the left cartoid artery could be identified. One pallet could be identified from the neck region. 4. Three punctured lacerated wounds by surrounding blackening over the left eye lid and left cheek present. On dissection sub cutaneous hemotoma. The left eye ball was punctured and vitreous came out of it. One pallet could be identified and dissected from the eye lid. All the injuries were found to be ante-mortem in nature. In his opinion, the cause of death was due to shock and haemorrhage as a result of injuries sustained by the deceased, which were sufficient to cause death in the ordinary course of nature. All the four injuries found on the body of the deceased were fire-arm injuries. Four pallets were also recovered from the body of the deceased at the time of post-mortem examination. In cross- examination, this witness has specifically stated that on the back side of the deceased, there was no injury. He has also specifically stated that he could not tell that from how much distance the shots would have been fired. 6. During the investigation, accused Karnail Singh, Jarnail Singh, Mahal Singh, Sarup Singh, Skattar Singh, Malkiat Singh and Gurdev Singh Crl.Appeal No.412-DB of 2001 & anr. -6- were arrested. On the disclosure statement (Ex.PJ) made by accused Karnail Singh, one .12 bore gun (Ex.P1) and a photo-copy of the licence (Ex.P1/A) of the gun were got recovered from his residential house, which were taken into possession vide recovery memo (Ex.PJ/1). From accused Jarnail Singh, Malkiat Singh and Gurdev Singh, no recovery (except four-wheeler by accused Malkiat Singh) was made, who, according to the complainant version, were having .12 bore guns from which they had fired shots. From accused Mehal Singh and Skattar Singh, one gandasi each and from accused Sarup Singh, a kirpan were got recovered on their disclosure statements, which were taken into possession vide recovery memos Ex.PK/1, Ex.PM/1 and Ex.PL/1, respectively. Accused Sukhdev Singh was found innocent and was not challaned, who later on during the trial was summoned under Section 319 Cr.P.C. to face the trial. The investigating agency also sent the recovered gun and four empty cartridges to the Forensic Science Laboratory for chemical examination. Out of four, three empty cartridges were found to have been fired from the recovered gun. 7. The trial Court framed charge under Sections 148, 302 IPC and 27 of the Arms Act against accused Karnail Singh, Jarnail Singh, Malkiat Singh and Gurdev Singh, whereas charge under Sections 148, 302/149 IPC was framed against accused Mehal Singh, Skattar Singh, Sarup Singh and Sukhdev Singh alias Sukha to which all the accused pleaded not guilty and claimed trial. 8. In support of its case, the prosecution examined 12 witnesses. Out of nine eye-witnesses, including Dara Singh and Capt. Gurcharan Singh, who had seen the alleged occurrence, only two eyewitnesses, namely, PW2-Balwinder Kaur wife of complainant Balkar Singh and PW6-Balkar Crl.Appeal No.412-DB of 2001 & anr. -7- Singh have been examined by the prosecution. 9. PW3-Dr. K.K. Singh has proved that the deceased had died due to the fire-arm injuries which were sufficient to cause death in the ordinary course of nature. PW12-Inspector Amarjit Singh has proved the recovery of .12 bore licensed gun (Ex.P1) at the instance of appellant Karnail Singh. The recoveries of two gandasis from accused Skattar Singh and Mehal Singh on their disclosure statements have also been proved, but according to the prosecution version, those weapons were neither used in the alleged crime nor any injury was caused by the said accused. The recovery of four wheeler on the disclosure statement made by accused Malkiat Singh, on which all the accused were alleged to have run away from the spot after committing the crime, has also been proved vide recovery memo Ex.PV/1. 10. In their statements under Section 313 Cr.P.C., all the accused claimed innocence. Except accused Karnail Singh, they stated that they were not present at the time of the alleged occurrence and have been falsely implicated in this case. In his statement, accused Karnail Singh stated that on the day of the occurrence, the deceased party took liquor and raised cat calls, and came in the street in front of his house. They started raising provocating abuses. He went to the roof top to stop them. Then the deceased party started throwing brick bats and advanced towards the door of his house threatening that they will kill his family, then he fired from his licensed gun in his and his family's self defence. His other co-accused reside separately and were not present at that time. While his gun was taken from his house and he was kept in illegal detention. Hence, he was innocent. 11. Thereafter, the accused were called upon to lead evidence in defence, but they did not lead any evidence in defence. Crl.Appeal No.412-DB of 2001 & anr. -8- 12. The trial Court, after appreciating the evidence available on the record, convicted accused Karnail Singh under Sections 302 IPC and 27 of the Arms Act and sentenced him to undergo imprisonment for life, as referred to above, and acquitted the remaining seven accused, namely, Jarnail Singh, Mehal Singh, Malkiat Singh, Skattar Singh, Sarup Singh, Gurdev Singh and Sukhdev Singh, by giving them the benefit of doubt. Against the said judgment, the aforesaid two appeals have been filed. 13. First of all we have heard learned counsel for the State in Crl.Appeal No.410-DBA of 2005 filed by the State against acquittal of the seven accused. The learned counsel argued that the prosecution has fully established on record that all the eight accused had participated in the occurrence with common intention and object. Four of the accused, namely, Karnail Singh, Jarnail Singh, Malkiat Singh and Gurdev Singh had caused fire-arm injuries from their respective guns which they were having in their hands at the time of the alleged occurrence. Both the eyewitness, namely, PW2-Balwinder Kaur wife of complainant Balkar Singh and PW6-Balkar Singh, have fully supported the prosecution version to that effect. They have specifically given the place of injuries caused by four of the accused individually. The testimony of the aforesaid two eyewitnesses also has been fully corroborated by the medical evidence. However, the trial Court while ignoring the testimony of the eyewitnesses, has illegally acquitted Jarnail Singh, Malkiat Singh and Gurdev Singh on minor contradictions and on account of the fact that no gun was got recovered from their possession. Learned counsel further argued that the aforesaid three accused have been illegally acquitted by the trial Court. 14. Regarding the other four accused, namely, Mehal Singh, Crl.Appeal No.412-DB of 2001 & anr. -9- Skattar Singh, Sarup Singh and Sukhdev Singh, learned counsel argued that both the aforesaid two eyewitnesses (PW2 and PW6) have categorically proved that these persons were also present at the time of the occurrence and had participated in the same by raising lalkaras. At the time of the alleged occurrence, they were having gandasis, kirpan and datar in their hands which were subsequently got recovered on their disclosure statements. Learned counsel further argued that all the accused after committing the crime had left the place of occurrence on a four-wheeler which has also been got recovered on the disclosure statement made by accused Malkiat Singh. Learned counsel argued that though these four persons did not cause any injury to the deceased, but their actual participation in the alleged occurrence with common intention and object has been duly proved. Therefore, these persons are also liable to be convicted under Section 302 read with Section 149 IPC, but the trial Court has acted illegally while also acquitting them by giving them the benefit of doubt. 15. Regarding accused Karnail Singh, learned counsel argued that he has admitted his presence at the time of the occurrence on the roof of his house and having caused a fire-arm shot to the deceased from there, but he had taken the plea that he had caused that fire-arm shot to the deceased in order to save him and his family from the deceased party as while coming in the street they were throwing brick bats and were going to attack his family. Learned counsel argued that from the facts and circumstances of the case, it has been clearly established that the said accused had exceeded to his self defence and while taking the said fact into consideration, the trial Court has rightly convicted the said accused for committing the offence under Crl.Appeal No.412-DB of 2001 & anr. -10- Sections 302 IPC and 27 of the Arms Act and sentenced him to undergo imprisonment for life. 16. On the other hand, learned counsel for the acquitted accused (respondents No.2,3,6 and 7 in Crl.A.No.410-DBA of 2005) has argued that in the instant case on a dispute of construction of a wall in the street, the occurrence had taken place in which only accused Karnail Singh had participated and caused fire-arm shot to the deceased in self defence, but all the other accused were falsely implicated by the police as the brother-in-law of the complainant, namely, Gurdip Singh was SI in the police. He argued that except from accused Karnail Singh, no gun was recovered from Jarnail Singh, Malkiat Singh and Gurdev Singh, who alleged to have given fire-arm injuries to the deceased. He further argued that none of the other accused had caused any injury and their presence was shown on the roof of the house of accused Karnail Singh having armed with gandasis, kirpan and datar in their hands. But the trial Court has rightly not relied upon the testimony of the two eyewitnesses with regard to the presence of all the acquitted persons, keeping in view various facts and circumstances, and contradictions in the statements of the eyewitnesses and the recoveries made from them. Learned counsel argued that in the facts and circumstances of the case, the view taken by the trial Court is the only possible view. There is no illegality or infirmity in the judgment of the trial Court which requires any interference by this Court against the acquittal of seven accused. 17. We have heard the arguments of the learned counsel for the appellant Karnail Singh in detail. She argued that though the appellant has not led any evidence to prove his defence to the effect that he had caused fire-arm shots to the deceased in his self defence, but from the evidence led Crl.Appeal No.412-DB of 2001 & anr. -11- by the prosecution, it has been established that the alleged occurrence had taken place in the street and not in the court-yard of the house of the deceased. While referring to the site-plan of the place of occurrence, learned counsel argued that the distance between the place, where the accused and deceased were standing, was more than 30 feet, whereas in the medical evidence (statement of PW3-Dr. K.K. Singh) it has come on record that blackening was found in all the four wounds which suggests that the gun shots were fired from the close range. This fact indicates that the occurrence had taken place in the street and not in the court-yard of the house of the appellant. Secondly, learned counsel, while referring to the statement of PW12- Inspector Amarjit Singh, argued that the said witness had stated that he came to know during the investigation that brick bats were used at the time of the occurrence. Learned counsel argued that these facts, which have come on the record, clearly support the defence version taken by the appellant. Therefore, the trial Court has acted illegally while not accepting the defence version of the accused and convicting him for the offence under Section 302 IPC. 18. We have considered the arguments of the learned counsel for the parties and gone through the record of the case. 19. From the medical evidence available on the record (post- mortem report [Ex.PB] and the statement of PW3-Dr. K.K.Singh), it has been proved by the prosecution that deceased Mohanjit Singh had died due to fire-arm injuries sustained by him, which were sufficient to cause death in the ordinary course of nature. Though the blackening was found present surrounding multiple lacerated punctured wounds, but PW3-Dr. K.K. Singh in his cross-examination has specifically stated that he could not tell that Crl.Appeal No.412-DB of 2001 & anr. -12- from how much distance the fire-arm shots would have been fired. During the post-mortem examination, four pallets were taken out from the body of the deceased which were handed over to the police. Except the four fire-arm injuries, there was no injury on the body of the deceased by any blunt weapon or by any brick bats. Except deceased Mohanjit Singh, no other person either from the side of the complainant or the accused got injured in the said occurrence. According to the prosecution, four fire-arm injuries were caused to the deceased by four accused, namely, Karnail Singh, Jarnail Singh, Malkiat Singh and Gurdev Singh. Two eyewitnesses, namely, PW2- Balwinder Kaur and PW6-Balkar Singh have stated to this effect while appearing in the Court. Soon after the occurrence, four empty cartridges were recovered from the roof of the house of accused Karnail Singh and on 15.8.1998 on his disclosure statement, one .12 bore gun along with its licence was recovered from this house. The other three guns, which according to the prosecution, were used by accused Jarnail Singh, Malkiat Singh and Gurdev Singh, were not recovered. The four cartridges were got analyzed along with recovered gun (Ex.P1) from the Forensic Science Laboratory. As per the copy of the said report (Ex.PX), out of four cartridges, three cartridges were opined to have been fired from .12 bore SBBL gun, which was recovered from accused Karnail Singh. One cartridge `Mark C/3' could not be compared due to lack of sufficient individual characteristic marks. In our opinion, these facts clearly indicate that in the alleged occurrence only one gun, which was recovered from accused Karnail Singh, was used because there were only four fire-arm injuries on the body of the deceased. The version given by the two eyewitnesses (PW2- Balwinder Kaur and PW6-Balkar Singh), who were highly interested Crl.Appeal No.412-DB of 2001 & anr. -13- witnesses and having the reasons to falsely implicate more accused for the alleged occurrence because of the dispute between the parties about the construction of the street, in our opinion, have rightly not been relied upon to the extent that four accused, namely, Karnail Singh, Jarnail Singh, Malkiat Singh and Gurdev Singh had caused four fire-arm injuries from four different .12 bore guns to the deceased. The statement given by PW2- Balwinder Kaur to the effect that accused Gurdev Singh fired from his gun, which hit on the backside of his son, is also not supported by medical evidence. PW3-Dr. K.K. Singh has categorically stated that there was no injury on the back of the deceased. As per the prosecution witnesses, all the family members of complainant Balkar Singh, including his father Banta Singh, his brother Tara Singh, his another son Jagjit Singh, his mother Joginder Kaur, his brother's wife Jagir Kaur, his wife Balwinder Kaur and his daughter Mohni had seen the occurrence. In addition to them, two other witnesses, namely, Dara Singh and Capt. Gurcharan Singh, who had come in the midst of the occurrence, had also seen the occurrence, after causing of the fire-arm injuries, but none of them have been examined. So, the version given by the two eyewitnesses regarding causing four fire-arm injuries to the deceased by four accused has neither corroboration from the independent witnesses nor from the medical evidence. The remaining four accused, namely, Mehal Singh, Sarup Singh, Skattar Singh and Sukhdev Singh, were alleged to have participated in the occurrence only by raising lalkaras and they did not cause any injury to the deceased. It is not the case of the prosecution that they threw any brick bats towards the family of the complainant. Out of these four persons, one is real brother of accused Karnail Singh, Skattar Singh and Sarup Singh are the sons of Jarnail Singh. Crl.Appeal No.412-DB of 2001 & anr. -14- The other two persons, namely, Gurdev Singh and Sukhdev Singh are the sister's sons of Karnail Singh and they are residents of different villages. In spite of that, they have been implicated in this case by naming them also as participants in the alleged occurrence. The trial Court after taking into consideration the prosecution evidence and the fact that the brother-in-law of the complainant, namely, Gurdip Singh, was SI in the police, has rightly