Crl. Appeal No. 761-DB of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 761-DB of 2006 Date of Decision : January 31, 2009 Bikram Singh and another .... Appellants Vs. State of Punjab .... Respondent CORAM : HON'BLE MR. JUSTICE MEHTAB SINGH GILL HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. T. S. Sangha, Senior Advocate with Mr. H. S. Sangha, Advocate for the appellants. Mr. S. S. Gill, Addl. A. G., Punjab. * * * L. N. MITTAL, J. : Bikram Singh and his son Gamdoor Singh have preferred this appeal to assail judgment and order dated 04.10.2006 of learned Sessions Judge, Ferozepur, whereby Bikram Singh was convicted under Section 302 of the Indian Penal Code (in short – IPC) and sentenced to undergo life imprisonment and to pay fine of Rs.10,000/- and in default of payment of fine, to undergo further rigorous imprisonment for one year, whereas Gamdoor Singh has been convicted under Section 302/34 IPC and awarded the same sentence. Crl. Appeal No. 761-DB of 2006 2 The prosecution case in brief is as under :- Nirmal Singh (since deceased), resident of Village Hardasa, had sold some land with right to take away a kikker tree standing in the wall of the plot. However, Bikram Singh-appelllant no.1 wanted to cut the said tree forcibly. About 15 days prior to occurrence, both the appellants tried to cut the tree, but the deceased party stopped them. Matter was taken to Panchayat. However, being wheat harvesting season, it was advised by the Panchayat that the matter would be resolved after harvesting season is over. However, on 04.05.2003, both the appellants were cutting the tree again. Complainant Gurmail Singh, resident of adjoining Village Mankian Wali, a distant relative of the deceased, but otherwise close to him, was going to Talwandi Bhai on scooter at about 12:30 P.M. On reaching Village Hardasa, he found Nirmal Singh and his son Gurvinder Singh standing in front of their house. The complainant stopped there. Nirmal Singh told him about the dispute regarding tree with the appellants as mentioned above and asked the complainant that they should go and stop the appellants. Accordingly, the complainant-Gurmail Singh, Nirmal Singh and his son Gurvinder Singh reached the spot, where kikker tree was being cut. Gamdoor Singh was cutting a large branch of the tree with the help of handsaw. Another large branch of the tree had already been cut and thrown on the ground. Nirmal Singh asked Gamdoor Singh not to cut the tree and they all should stick to the decision to be taken by the Panchayat. However, Gamdoor Singh loudly asked his father Bikram Singh to teach a lesson to the deceased party for stopping them from cutting the tree, as earlier also, the appellants had been stopped from cutting the tree. Bikram Singh brought gun of .315 bore from his house and climbed on the manger along the wall in his house and fired from his gun towards Nirmal Singh, who was hit on the chest and fell on the ground. The complainant-Gurmail Singh raised alarm. Gamdoor Singh fled away leaving behind the handsaw. Crl. Appeal No. 761-DB of 2006 3 Bikram Singh also went away with his gun. One Balraj Singh reached the spot on hearing the alarm and sound of gunshot. Nirmal Singh was taken to Civil Hospital, Zira after arranging conveyance, but he was declared dead by the doctor. Doctor sent intimation Ex.P-8 to Police Station, Zira. Thereupon, SI Major Singh, Station House Officer of the Police Station reached the hospital and recorded statement Ex.P-11 of the complainant- Gurmail Singh. After making endorsement Ex.P-11/A on it, Major Singh sent the same to Police Station, where on its basis, FIR Ex.P-11/B was recorded. Major Singh prepared inquest report Ex.P-6 of the deceased and sent the dead body for autopsy. Dr. Nirmal Dass conducted post-mortem examination on 05.05.2003 and found the following injuries on the dead body :- “1. A circular lacerated wound 3.0 x 3.0 cm in size was present on the upper part of front of chest in the midline of the sternal region, 5 cm below the supera sternal notch, 33 cm above the umbilicus, 12.5 cm from the right nipple at 2 o'clock position and 5 feet from the sole of heal of right foot. The margins were inverted and clotted blood was present. The abrasion collar was present on the right half of the upper margin and the right margin of the wound. There was no burning, scorching or tattoing present. 2. An irregular lacerated wound 4.5 cm x 4.0 cm in size musclue deep was present horizontally on the back of the lower end of right fore-arm in its postero lateral region. Clotted blood was present. It was lying 2.5 Crl. Appeal No. 761-DB of 2006 4 cm above the wrist joint. The wound was narrow in its medial half and widened in its outer half with the margins everted. No burning, scorching or tattoing was present. 3. A redish blue contusion 3.5 x 2.75 cm was present on the back of left side of chest 9.0 cm below the inferior angle of the left scapula crepitus was felt. On dissection injury No.1 the injury No.1 was penetrated in the left plueral cavity after injuries/lacerating/fracturing the intervening structure i.e. the skin, anterior chest wall, fracturing the sternum, lacerating the left pleura, the upper and mid zones of the left lung, all the chambers of the heart, pericardium lacerated the greater vessels of the heart, found lacerated. The fifth rib under injury No.3 was found fractured into two pieces which were inter spursed in the lacerated left lung parenchyma. Two chips of metallic pieces were found in the upper and mid zone of left lung. A big distorted metallic piece and a chip metallic piece were removed from underneath the skin of injury No.3. Clotted blood was present in the track of the wound and fractured sites. The left pleural cavity contained 1500 cc of fluid and clotted blood. All the four metallic pieces were put in a glass vial containing cotton, Crl. Appeal No. 761-DB of 2006 5 packed sealed labelled, duly signed and handed over to the police.” Cause of death was opined to be laceration of heart and lung (both vital organs) as a result of fire arm injury No.1, which was sufficient to cause death in ordinary course of nature. All the injuries were ante mortem. Probable duration between injuries and death was almost immediately and between death and post-mortem examination within 12 to 24 hours. From the spot, SI Major Singh lifted blood stained earth and simple earth in sealed parcels vide memo Ex.P-12. One safa (long piece of cloth) stained with blood was also seized from the spot in sealed parcel vide memo Ex.P-13. A small handsaw from the spot was seized vide memo Ex.P-14 along with tree branch. Rough site plan Ex.P-15 of the place of occurrence was also prepared. Statements of witnesses were recorded. Clothes of the deceased and a sealed vial of bullet handed over by the doctor were also seized vide memo Ex.P-16 on 05.05.2003. Accused Bikram Singh was arrested. After making disclosure statement Ex.P-17, he got recovered a rifle of .315 bore. An empty cartridge was found in the rifle. A small bag containing eight live cartridges of .315 bore was also recovered. Separate sealed parcels were prepared and seized vide memo Ex.P-18. Rough site plan Ex.P-20 of the place of recovery was also prepared. On 17.05.2003, accused Gamdoor Singh was arrested. After making disclosure statement Ex.P-23, he got recovered a receipt regarding arms' license in his name regarding the aforesaid rifle and one arms' license in the name of Bikram Singh vide memo Ex.P-24. Rough site plan Ex.P-28 of the place of recovery was prepared. Scaled site plan was also prepared by draftsman. Initially only Bikram Singh was put to trial for offence under Section 302 IPC, whereas Gamdoor Singh was challaned for offence under Section 30 of the Arms Act. However, on prosecution application under Section 319 of the Code of Criminal Procedure (in short – Cr.P.C.), Crl. Appeal No. 761-DB of 2006 6 Gamdoor Singh was also summoned. Charge under Section 302 IPC against Bikram Singh and Section 302 read with Section 34 IPC against Gamdoor Singh was framed. They pleaded not guilty and claimed trial. In support of its case, the prosecution examined 12 witnesses namely Sukhwant Singh, Arms Clerk in the office of District Magistrate, Ferozepur (PW-1), HC Karam Singh (PW-2), Dr. Nirmal Dass (PW-3), who conducted post-mortem examination on the dead body, Manohar Lal Garg (PW-4), who prepared scaled site plan, HC Darshan Singh (PW-5), Complainant Gurmail Singh (PW-6), Gurvinder Singh (PW-7), son of the deceased, SI Major Singh (PW-8), ASI Shiv Dayal (retd.) (PW-9), HC Tarlochan Singh (PW-10), Constable Satnam Singh (PW-11) and HC Sukhwinder Singh (PW-12). They all have broadly stated according to the prosecution version narrated above. The accused, in their statements under Section 313 Cr.P.C., denied all the incriminating circumstances appearing against them in the prosecution evidence and claimed to be innocent. They did not lead any evidence in their defence. Learned Sessions Judge, vide impugned judgment and order dated 04.10.2006, convicted and sentenced the appellants as already noticed herein above. Feeling aggrieved, the convicts have preferred the instant appeal. We have heard learned counsel for the parties and perused the case file with their assistance. We find merit in the contention of learned counsel for the appellants that the case against appellant no.2 Gamdoor Singh is not free from reasonable doubt. In this context, it has to be noticed that there is a general tendency to rope in innocent persons along with real culprit. That apart, only lalkara or exhortation has been attributed to Gamdoor Singh. Crl. Appeal No. 761-DB of 2006 7 Even the exhortation was not to kill the deceased. Gamdoor Singh allegedly exhorted his father Bikram Singh to teach a lesson to the deceased party. At that time, Bikram Singh was also not armed with any weapon, much less fire-arm. Thus, Gamdoor Singh, even by exhorting his father to teach the deceased party a lesson, could not have meant that the deceased be killed. For this reason, Gamdoor Singh also cannot be held vicariously liable with the aid of Section 34 IPC as he did not share common intention with his father to kill the deceased. No active role has been attributed to Gamdoor Singh even by the prosecution. Gamdoor Singh did not cause any injury to anybody. Gamdoor Singh was also found innocent by the police and was later on summoned by the Court on prosecution application under Section 319 Cr.P.C. Keeping in view all these circumstances, we are of the considered opinion that Gamdoor Singh deserves benefit of doubt. However, prosecution case against Bikram Singh-appellant no.1 stands proved beyond reasonable doubt. Complainant Gurmail Singh (PW-6) and Gurvinder Singh (PW-7) are eye-witnesses of the occurrence. Gurvinder Singh, being son of the deceased, is natural eye-witness. Statements of both these eye-witnesses are credible and their veracity could not be impeached in any manner in their lengthy cross-examination. FIR in the case was also lodged very promptly. The occurrence took place at about 12:30 P.M., in Village Hardasa, which is at a distance of about seven miles i.e. 11 kms. from Police Station Zira, as mentioned in the FIR. After the occurrence, the deceased was taken to Zira after arranging conveyance. The doctor declared the deceased as dead and sent intimation Ex.P-8 to the police at 02:40 P.M., whereupon SI Major Singh reached the hospital and recorded statement Ex.P-11 of the complainant and made his endorsement Ex.P-11/A on it at 04:30 P.M. Registration of formal FIR commenced at 04:40 P.M., and after it was recorded, the FIR was sent as special report to the Magistrate, who received the same at 07:55 P.M. It Crl. Appeal No. 761-DB of 2006 8 thus turns out that the FIR was lodged very promptly. It was specifically mentioned in the FIR that appellant no.1 had fired from his gun. Names of eye-witnesses were also mentioned in the FIR. In these circumstances, FIR assumes significance and is a material piece of evidence. There is also no reason why appellant no.1 would be falsely implicated. On the other hand, motive for the crime stands established because it has not been denied by the defence that there was dispute between the parties regarding ownership of the kikker tree. It was suggested in cross-examination to the complainant, who admitted the suggestion as correct, that Nirmal Singh (since deceased) was claiming ownership of the kikker tree and the accused were also claiming its ownership and there was dispute between them over it. Thus, motive for the crime is also fully established. It thus emerges that the prosecution case against appellant no.1 is fully proved beyond reasonable doubt and he has been rightly convicted by the trial court. Learned counsel for the appellants contended that it was a blind murder, which took place at about 09/10:00 A.M. The contention is hypothetical and is not substantiated by any evidence. It is correct that probable duration between death and post-mortem examination was stated by Dr. Nirmal Dass to be 12 to 24 hours and in view thereof, the possibility of the murder having taken place at 09/10:00 A.M., could not be ruled out. However, at the same time, this statement of Dr. Nirmal Dass is not in conflict with the prosecution version that the murder was committed at 12:30 P.M. Exact time of murder could not be opined by the doctor and since medical evidence on this aspect does not rule out time of occurrence to be 12:30 P.M., there is no reason to discard the sworn statements of the eye-witnesses that the occurrence took place at 12:30 P.M. Learned counsel for the appellants also argued that there has Crl. Appeal No. 761-DB of 2006 9 been delay in lodging the FIR and in receipt of special report by the Magistrate. However, there has been no such delay, as already noticed herein above. On the other hand, the FIR was lodged very promptly and the special report also reached the Magistrate without delay. Learned counsel for the appellants emphatically contended that according to the prosecution version, only one shot was fired from rifle whereas injuries found on the dead body would show that the same were caused by pellets of a shot fired from gun. It was also contended that injury no.1 represents the entry wound and there is no corresponding exit wound, but the bullet fired from rifle would have exited from the body on account of its high velocity. It was also contended that injury no.2, also caused by a fire arm, has not been explained by the prosecution. It was also submitted that dimension of entry wound no.1 is larger than the size of bore .315 of the rifle. It was also submitted that injury no.3, which resulted in fracture, could not have been suffered by mere fall. In sum and substance, the contention was that medical evidence is in conflict with the ocular evidence. The contention, although apparently attractive, is however without substance. It appears that when the shot was fired from the rifle, the deceased raised his arm in defence and the bullet grazed past the right forearm causing injury no.2 and then entered the chest causing entry wound no.1. Since the bullet grazed past the right forearm, its velocity decreased and the bullet, after entering the chest, could not exit. In addition to it, the metallic pieces found inside entry wound no.1 rule out the possibility of firing from .12 bore gun. On dissection of injury no.1, it was found that it penetrated in left plueral cavity after injuring/lacerating/fracturing the intervening structures i.e. skin, anterior chest wall, fracturing the sternum, lacerating the left pleura, the upper and mid zones of the left lung, all chambers of the heart, pericardium and greater vessels of the heart. On account of these intervening structures also, the bullet could not exit the Crl. Appeal No. 761-DB of 2006 10 body. Two chips of metallic pieces were found in upper and mid zones of left lung and a big distorted metallic piece and a chip of metallic piece were removed from underneath the skin of injury no.3. Fifth rib under injury no.3 was also found fractured into two pieces, which were inter spursed in the lacerated left lung parenchyma. It thus emerges that three small metallic pieces and a big distorted metallic piece were recovered from the body. The big metallic piece could not be from a gun cartridge. On the other hand, the bullet fired from the rifle caused injuries to several organs coming in the way and ultimately fractured fifth rib under injury no.3 and possibly, the lead of the bullet fragmented resulting in three small pieces in addition to the main big metallic piece recovered from the body. It is thus manifest that it was a bullet fired from rifle and not pellets fired from a gun cartridge. The pellet from gun cartridge would not have resulted in a single entry wound. On careful scrutiny of the medical evidence, it becomes manifest that the fire arm used was rifle and not gun. The contention that injury no.3 resulting in fracture of fifth rib into two pieces could possibly be caused by lathi blow inflicted with great force, but has not been explained by prosecution witnesses, also cannot be accepted because the said fracture could result by fall on hard surface and also the said fracture could have been caused by the bullet because a big distorted metallic piece and a chip of metallic piece were removed from underneath the skin of injury no.3. It clearly probablizes that the fracture of fifth rib into two pieces was caused by the missile fired from the fire arm and not by lathi blow. Learned counsel for the appellants next argued that there is no evidence of motive inasmuch as no Panchayat Member nor purchaser of the plot from the deceased has been examined as witness nor sale deed has been produced in evidence. The argument appears to be attractive on first blush, but is in fact, devoid of any substance because it was defence suggestion to the complainant in cross-examination that there was dispute between the Crl. Appeal No. 761-DB of 2006 11 parties over ownership of the kikker tree. The same motive has been alleged by the prosecution. Learned counsel for the appellants also contended that branches of the kikker tree, which was in the wall, were spreading on both sides and the deceased came there and when the dispute arose, a single shot was fired and therefore, the case falls under Section 304-I IPC. The contention cannot be accepted. The deceased did not come to the property of the appellants. On the other hand, appellant no.2 was cutting the disputed tree and the deceased party went there to stop the cutting of the tree. There was no quarrel between the parties and the occurrence cannot be said to be result of sudden fight or sudden quarrel. On the other hand, the dispute regarding the tree was already pending for quite some days and there was no sudden provocation. Appellant no.1, after being exhorted by his son, brought rifle from inside his house and then fired at the deceased. It was thus a calculated murder and not result of any sudden quarrel or provocation. Judgment of Hon'ble Supreme Court in the case of Jagat Singh vs. State of Haryana , reported as 1976 Crl. L. J. 2002 relied on by learned counsel for the appellants, is completely distinguishable on facts. In that case, there was aggressive posture of the students against the accused, who was Director of Physical Education in a college. The accused in order to protect himself, came armed with gun. In these circumstances, conviction was altered from that under Section 302 IPC to one under Section 304 IPC. The facts of that case are completely distinguishable from the facts of the instant case. In the instant case, appellant no.1 is clearly guilty of offence under Section 302 IPC because he had the requisite knowledge as well as intention and there was no sudden quarrel or provocation. It emerges from the aforesaid discussion that guilt of appellant no.1 Bikram Singh under Section 302 IPC is proved beyond reasonable doubt. Crl. Appeal No. 761-DB of 2006 12 As a necessary consequence of the aforesaid discussion, appeal filed by appellant no.2-Gamdoor Singh is allowed and he is acquitted of the charge against him giving him benefit of doubt. If in custody, he be set at liberty forthwith, if not required in any other case. Appeal of Bikram Singh- appellant no.1 is, however, dismissed. If on bail, he shall surrender to the bail bonds or shall be arrested to undergo the remaining sentence. The appeal stands disposed of accordingly. ( L. N. MITTAL ) JUDGE January 31, 2009 ( MEHTAB SINGH GILL ) monika JUDGE