Criminal Appeal No.432-DB of 2006 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Avtar Singh and another APPELLANTS VERSUS The State of Punjab RESPONDENTS CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE L.N.MITTAL Present:- Shri Jasbir Singh Chahal, Advocate for the appellants (in Cr.A.No.432-DB of 2006). Shri S.P.S.Sidhu, Advocate for the appellants (in Cr.A.No.485-DB of 2006). Shri S.S.Bhinder, Additional A.G. Punjab. MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.432-DB of 2006 and Criminal Appeal No.485-DB of 2006, as they arise out of the same judgment/order dated 28.4.2006 of the learned Sessions Judge, Ferozepur whereby he convicted Avtar Singh son of Hazara Singh, Tarlok Singh son of Santokh Singh, Jasbir Singh Criminal Appeal No.432-DB of 2006 -2- son of Jaswant Singh, Jaswant Singh son of Hazara Singh and sentenced them as under :- NAME OF CONVICT OFFENCE SENTENCE Jasbir Singh, Jaswant Singh, 148 I.P.C. RI for one year each. Avtar Singh and Tarlok Singh. Jasbir Singh 302 I.P.C. RI for life, fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for 9 months. Jaswant Singh, Avtar Singh, 302/149 IPC RI for life, fine of Rs.10,000/- each. In Tarlok Singh. default of payment of fine to further undergo RI for nine months each. Avtar Singh 307 I.P.C. RI for 10 years, to pay a fine of Rs.5,000/-. In default of payment of fine to further undergo RI for six months. Jasbir Singh, Jaswant Singh 307/149 IPC RI for 10 years each and to pay a fine of and Tarlok Singh. Rs.5,000/-. In default of payment of fine to further undergo RI for six months each. Jaswant Singh 307 I.P.C. RI for 10 years, to pay a fine of Rs.5,000/-. In default of payment of fine, to further undergo RI for six months. Jasbir Singh, Avtar Singh 307/149 IPC RI for 10 years each and to pay a fine of and Tarlok Singh. Rs.5000/- each and in default of payment of fine, to further undergo RI for 6 months each. All the substantive sentences were ordered to run concurrently. Santokh Singh died during the pendency of trial, appeal against him thus abated. F.I.R. Ex.P28/B was got recorded by Jasbir Singh (accused/ appellant). Jasbir Singh stated that he is a resident of Village Phallianwala and lived in his Dhani (a house in the fields). On 13.4.2000, he along with his brother Sukhwinder Singh, his mother Iqbal Kaur and Dilbag Singh, Tarlok Singh sons of Santokh Singh residents of Sawahwali were present in Jasbir Singh's Dhani (out house). Wheat harvesting combine had arrived in their fields for harvesting wheat. Criminal Appeal No.432-DB of 2006 -3- Darshan Singh son of Tara Singh, Gurnam Singh son of Bhag Singh, Driver Gurcharan Singh son of Jeet Singh, Rajwant Singh son of Gurcharan Singh residents of Manawa both Foremen were present in the fields to operate the combine. It was about 9.30 p.m. The lights of the combine were on. It was also a moon lit night. Jasbir Singh's Dhani was surrounded by 30/35 persons including females from all the four sides and they were raising Lalkaras that today, Jasbir Singh should be taught a lesson for occupying the disputed land. In the meantime, shots were fired towards the Dhani of Jasbir Singh. The dry stalks of wheat was set on fire by a mob. Lahora Singh, Kishore Singh sons of Nihal Singh armed with Dangs, Makhan Singh, Kashmir Singh sons of Amir Singh armed with Dangs, Bahal Singh son of Bishan Singh armed with Sota, Balbir Singh son of Bahal Singh armed with Soti, Sohan Singh son of Waryam Singh, Gurcharan Singh son of Sohan Singh, Jaswant Singh son of Sohan Singh, Balbir Singh son of Nagar Singh residents of Fallianwala armed with Dang/Soti came near Jasbir Singh's Dhani and said that today Jasbir Singh etc. should be killed. Jasbir Singh fired six shots in the air from the licensed gun of his father to scare the crowd away. When the mob came near Jasbir Singh's Dhani, he fired two shots towards them to save his life and the lives of his family members which hit Sohan Singh, Gurcharan Singh, Jaswant Singh and Balbir Singh. About six months back Jasbir Singh had taken possession of the disputed land from Nihal Singh etc. Jasbir Singh and his family had sown wheat crop there. On the basis of this statement F.I.R. Ex.P28/B was recorded on 14.4.2000 at 1.30 a.m. at Police Station Jalalabad. On the same day i.e. on 14.4.2000 Sohan Singh son of Waryam Singh who had been arrayed as an accused in the F.I.R. Ex.P28/B on the basis of the statement of Jasbir Singh, made statement Ex.P27 to ASI Gurjant Singh. Sohan Singh stated that he is a resident of Chak Araiyanawla alias Fallianwala. On 14.4.2000 at 9.30 p.m. Sohan Singh's son Gurcharan Singh and Jaswant Singh Criminal Appeal No.432-DB of 2006 -4- were coming from their fields. When they reached near the fields of Resham Singh son of Gurdit Singh, Avtar Singh, Jaswant Singh, Santokh Singh, and a son of Santokh Singh and Bagicha Singh son of unknown resident of Fallianwala stopped them while they were coming. Jaswant Singh, Bagicha Singh and son of Santokh Singh were armed with a gun, Santokh Singh raised a Lalkara that they should not be allowed to go through the pathway. The son of Santokh Singh and Jaswant Singh fired shots towards them. The shots hit Sohan Singh, as well as his son Gurcharan Singh and Jawant Singh. When they raised an alarm, people from the neighbourhood came there. After arranging a tractor- trolly, Makhan Singh brought the injured to Civil Hospital, Jalalabad, where doctor referred the injured to Guru Gobind Singh Medical College Hospital. Sohan Singh's son died there. The cause of grudge was that Sohan Singh's son-in-law had a land dispute with Jaswant Singh etc. This was the reason that the accused party had fired at them. On the basis of this statement D.D.R. Ex.P.27 was recorded and on the basis of this D.D.R., special report was sent which reached the S.D.J.M. on the same day at 8.30 p.m. The prosecution to prove its case, brought into the witness-box Dr.Parveen Kumar Garg PW-1, Constable Gurmit Singh PW-2, Tejinderpal Singh Patwari PW-3, Dr.K.K.Aggarwala PW-4, Dr.Simmi Garg PW-5, HC Brij Lal PW- 6, Janak Singh Arms Clerk PW-7, Constable Sukhdev Singh PW-8, Dr.Sudhir Khichi PW-9, Sohan Singh PW-10, Jaswant Singh PW-11, Sulakhan Singh PW-12, ASI Gurjant Singh PW-13 and Arjan Singh Retd. SI PW-14. Darshan Singh appeared as DW-1. Learned counsel for the appellants has assailed the case of the prosecution on several counts, but the main thrust of his arguments is that Sohan Singh son of Waryam Singh kept changing his version, three times. The first version being D.D.R. Ex.P27. The second version being a supplementary Criminal Appeal No.432-DB of 2006 -5- statement Ex.D2 and the third version was his statement before the Court when he appeared as PW-10. F.I.R. Ex.P28/B in this case was recorded by Jasbir Singh (accused/appellant) where he admitted that he in his self-defence used his father's gun and injured Sohan Singh, Jaswant Singh and Gurcharan Singh. This was done to save himself and the life and property of his family, when Sohan Singh PW-10, Jaswant Singh PW-11 and Gurcharan Singh deceased along with other persons surrounded his house. If he had not done so, the whole family of his (Jasbir Singh's) would have been eliminated. In the first statement given by Sohan Singh PW-10 in D.D.R. No.13 Ex.P.27, he has stated that he reached near the fields of Resham Singh. Appellants stopped him along with his two sons Jaswant Singh PW-11 and Gurcharan Singh deceased. Santokh Singh raised a lalkara. The son of Santokh Singh and Jaswant Singh fired shots towards them in which Sohan Singh, Jaswant Singh and Gurcharan Singh got injured. Later on Gurcharan Singh died. In his supplementary statement Ex.D2 given on the same day i.e. on 14.4.2000, Santokh Singh PW-10 stated that he along with his sons and others was coming from his fields when appellant Jaswant Singh and Santokh Singh called them to his Dhani, so that the dispute could be compromised. Balbir Singh was also present there. Sohan Singh PW-10 along with Jaswant Singh and Gurcharan Singh went to the Dhani of Jasbir Singh, and when they were settling a compromise, an altercation ensued and Jasbir Singh then fired at them. Sohan Singh son of Waryam Singh in his third statement before the Court when he appeared as PW-10, has completely contradicted what he stated in his supplementary statement Ex.D.2 and stated that it was near the fields of Resham Singh that they were attacked with a .12 bore gun by appellant Jasbir Singh. He is the one who fired shots, which injured all three of them i.e. Sohan Criminal Appeal No.432-DB of 2006 -6- Singh PW-10, Jaswant Singh PW-11 and Gurcharan Singh deceased. By going through the the D.D.R. Ex.P27, statement Ex.D2 and statement of Sohan Singh given in Court as PW-10, the credibility of this witness is in doubt. He kept chainging his version of the occurrence. In fact, he was suppressing the genesis of the occurrence and was not stating the truth. It was the complainant party who went to the Dhani of Jasbir Singh to eliminate appellant Jasbir Singh's family and to destroy his property also. Sohan Singh PW-10 has been confronted with every line from the version he had given in Ex.P27 and Ex.D2 with the version he gave in Court as PW-10. The defence version is more probable where Jasbir Singh appellant has stated that it was the complainant party who attacked him and his companions and he fired in self defence. Appellants have explained their conduct, that everything was done in self defence. It has been admitted by both the witnesses Sohan Singh PW-10 and Jaswant Singh PW-11 that the land was in possession of the appellants and they are the ones who had sown the crop. Complainant in fact are the aggressors. The motive for the commission of the offence also lay on the shoulders and Sohan Singh PW-10, Jaswant Singh PW-11 and Gurcharan Singh deceased, as they are the ones who wanted to take possession of the disputed land illegally. Further, the only gun which has been recovered was that of Jasbir Singh and no other weapon was recovered. The empties tally with the gun recovered from Jasbir Singh. Jasbir Singh appellant had in private defence of body and property fired on the complainant party to save himself and the members of his family. Learned counsel for the State has argued that the appellants by recording F.I.R. Ex.P.28 in fact, wanted to put the Investigating Officer ASI Gurjant Singh PW-13 on a wrong track. It is the supplementary statement i.e. the Criminal Appeal No.432-DB of 2006 -7- D.D.R. Ex.P27, which is the correct version and this is corroborated by the statement given by Sohan Singh PW-10 in Court and by the statement of Jaswant Singh PW-11. The medical evidence also corroborates the ocular account. Both these witnesses Sohan Singh PW-10 and Jaswant Singh PW-11 are the eye- witnesses and are stamped witnesses. They were injured seriously due to the firing upon them by Jasbir Singh appellant. The occurrence had taken place near the fields of Resham Singh. The fields of Resham Singh were about 3 acres away from the Dhani of Jasbir Singh. As per the F.S.L. report Ex.P36, the S.B.B.L. gun recovered from appellant Jasbir Singh belonged to his father Jaswant Singh. The cartridges tallied with the gun. We have heard the learned counsel for the parties and perused the record with their assistance. Appellant Jasbir Singh son of Jaswant Singh has taken a specific plea of self defence in his statement under Section 313 Cr.P.C. has stated as under :- “Q.24 Have you anything else to say ? Ans. I am innocent. Jaswant Singh my father got the possession of land from PWs and their relations on a decree through police and had built a house and a chaubara and had sown the wheat crop in the land. On 13.4.2000 I was present in the house along with my family members and had also hired a combine of Darshan Singh son of Tara Singh resident of Padhri P.S. Makhu for harvesting the wheat crop. The lights of combine were on and it was moon-lit night also. It was 9./30 p.m. We heard cat cries and saw that our house was seized by number of persons saying that they will teach a lesson to us for taking possession of land. They were 30-35 in number. Among them was Lahora Singh, Pashora Singh, Makhan Singh, Kashmir Singh, Bahal Singh, Balbir Singh armed with Soties, Sohan Singh, Gurcharan Singh, Jaswant Singh, Balbir Singh son of Nagar Singh also armed with dangs etc. and were saying that they will kill us. My father was not present at the house, so apprehending danger I took out the gun of my father Jaswant Singh and fired in the air to scare those persons away. Criminal Appeal No.432-DB of 2006 -8- From those persons someone fired two shots towards me and also advanced further towards my house. Then in order to save myself and my family and other persons in our house, I fired two shots towards them and those hit Sohan Singh, Gurcharan Singh, Jaswant Singh and Balbir Singh and they were taken by others from place. I had fired from the roof of my house in self defence and defence of property. I made a statement before the police which formed the basis of F.I.R.” What he stated in his statement under Section 313 Cr.P.C., is the same version which he stated in the F.I.R. Ex.P28/B. He has tried to make out a case of self defence of life and property. If we go through the statements of Sohan Singh PW-10, Jaswant Singh PW-11, the injured eye-witnesses, the supplementary statement Ex.D2 given by Sohan Singh PW-10 and coupled with the statement given by the Investigating Officer ASI Gurjant Singh PW-13 the truthful version comes out. In his first statement Ex.P27, Sohan Singh PW-10 recorded D.D.R. No.13 wherein he has stated that when he along with Jaswant Singh PW-11, Gurcharan Singh deceased and Balbir Singh reached near the fields of Resham Singh, appellants stopped them and the son of Santokh Singh fired shot at them. Santokh Singh before that had raised a lalkara. These gun shots hit Gurcharan Singh, Jaswant Singh PW-11 and Sohan Singh PW-10. Gurcharan Singh died. Sohan Singh PW-10 when appearing in the Court, reiterated what he had stated in D.D.R. No.13 Ex.P27. He again stated that the occurrence had take place near the fields of Resham Singh and Jasbir Singh fired shots at them whereby both of them i.e. Sohan Singh PW-10, Jaswant Singh PW-11 and Gurcharan Singh deceased and one Balbir Singh were injured. In his statement Sohan Singh PW-10 has been confronted practically in every sentence of his statement, but he has reiterated what he has stated in D.D.R. No.13 Ex.P27. Criminal Appeal No.432-DB of 2006 -9- The truthful version in fact comes out by his statement given on the same day of occurrence i.e. 14.4.2000 i.e. the supplementary statement Ex.D2 which he gave to ASI Gurjant Singh PW-13. This version in fact is the correct version and Ex.D2 gets corroboration by the statement of the Investigating Officer, ASI Gurjant Singh PW-13. Sohan Singh stated in his supplementary statement Ex.D2 that he along with Jaswant Singh and Gurcharan Singh was coming from his fields when appellant Jaswant Singh and Santokh Singh called them to their Dhani. Balbir Singh was already sitting there. Sohan Singh PW-10, Jaswant Singh PW-11 and Gurcharan Singh deceased went to the Dhani of Jasbir Singh. There they tried to compromise a matter, but since a compromise could not be reached, Jasbir Singh took out his gun and fired at them. In that process Sohan Singh PW-10, Jaswant Singh PW-11 and Balbir Singh got injured and Gurcharan Singh got injured. Gurcharan Singh was so badly injured that he later died in hospital. It has come in the statement of Sohan Singh PW-10 that the distance between the Dhani of Jasbir Singh and the fields of Resham Singh is more than 3 acres. To clinch the issue as to whether the occurrence had taken place in the house of appellant Jasbir Singh or near the fields of Resham Singh, the statement of the Investigating Officer ASI Gurjant Singh PW-13 is very relevant. He has stated in his examination-in-chief that he inspected the spot and he lifted blood-stained earth from two places which was put in box and converted into a parcel and sealed with his seal bearing “GS”. Empty cartridges were recovered from two places, i.e. two empties from one place and six empties were taken from another place. On the interrogation of appellant Jasbir Singh he made a disclosure statement Ex.P32 and stated that he had concealed a gun which he had used in a big iron box in his house. He took the police party to his house and the SBBL gun was taken out from the iron box. The arms license was in his father' name Criminal Appeal No.432-DB of 2006 -10- (appellant Jaswant Singh). The gun was taken into possession vide memo Ex.P33. He has further stated in his cross-examination that nothing was recovered i.e. the empties, blood-stained earth, prints of tyres of Qualis from the place of occurrence, as per the earlier statement of Sohan Singh Ex.P26 i.e. near the fields of Resham Singh. The place of occurrence is pinpointed by the statement of ASI Gurjant Singh PW-13 when he states that he lifted the blood stained earth from the house of appellant Jasbir Singh and the parcel of blood stained earth was taken into possession vide recovery memo Ex.D4. This memo was attested by ASI Puran Singh. He further recovered two empties from outside the house of Jasbir Singh and six empties from the roof of the house of appellant Jasbir Singh which were taken into possession separately vide two recovery memos Exs.D5 and D6. The recoveries in fact have clinched the issue of where the gun shots were fired on the complainant party. It is clear from the statement of ASI Gurjant Singh PW-13 coupled with the statement of appellant Jasbir Singh under Section 313 Cr.P.C. and also coupled with the supplementary statement made by Sohan Singh PW-10 Ex.D2 that the occurrence had taken place in the house of appellant Jasbir Singh. Both appellant Jasbir Singh and Sohan Singh PW-10 tried to mislead the Investigating Officer by recording F.I.R. Ex.28/B and Sohan Singh PW-10 by recording D.D.R. No.13 Ex.D27 recorded on 14.4.2000 along with the statement given in Court when he appeared in the Court as PW-10. The occurrence in fact, had taken place as already discussed above, in the house of appellant Jasbir Singh. Further, the soil taken as per the F.S.L. report Ex.P35 from the house of appellant Jasbir Singh contained human blood. The S.B.B.L. gun as per the report of the F.S.L. Ex.P36 was the one which was used and the cartridges fired were from this very gun. The gun used by appellant Jasbir Singh belonged to his father appellant Jaswant Singh. Criminal Appeal No.432-DB of 2006 -11- From the evidence, it is clear that appellant Jasbir Singh allured Sohan Singh PW-10, Jaswant Singh PW-11 and Gurcharan Singh deceased to come to his house to effect a compromise. Little did the complainant party know that the intentions of appellant Jasbir Singh were evil. Instead of effecting a compromise, he opened fire on them in which Sohan Singh PW-10, Jaswant Singh PW-11, Balbir Singh and Gurcharan Singh were injured. Gurcharan Singh later died in the hospital. Balbir Singh did not come into the witness-box. The MLRs prepared by Dr.K.K.Aggarwal PW-4 of Sohan Singh PW-10 and Jaswant Singh PW-11 show that they were examined on 14.4.2000 at 8.15 a.m. The injuries on their person are gun shot injuries. The medical evidence corroborates the ocular account. In the post-mortem report Dr.K.K.Aggarwal PW-4 has also stated that the injuries on the person of Gurcharan Singh were gun shot injuries. With the above discussion and observations, we have no hesitation in coming to the conclusion that appellants Avtar Singh son of Hazara Singh, Tarlok Singh son of Santokh Singh and Jaswant Singh son of Hazara Singh have not committed the murder of Gurcharan Singh, nor have they injured Sohan Singh son of Waryam Singh PW-10 and Jaswant Singh son of Sohan Singh PW-11. It is Jasbir Singh son of Jaswant Singh who alone has caused gun shot injuries to Sohan Singh PW-10, Jaswant Singh PW-11 and Gurcharan Singh deceased. Criminal Appeal No.432-DB of 2006 qua Avtar Singh son of Hazara Singh, Tarlok Singh son of Santokh Singh and Criminal Appeal No.485-DB of 2006 qua Jaswant Singh son of Hazara Singh is allowed and they are acquitted of the charges framed against them. If in custody, they be set free forthwith, if not wanted in any other case. Conviction of appellant Jasbir Singh son of Jaswant Singh as already awarded by the learned trial Court, is maintained. Appellant Jasbir Singh is Criminal Appeal No.432-DB of 2006 -12- convicted under Section 302 and sentenced to imprisonment for life and to pay a fine of Rs.10,000/-, in default, to further undergo RI for 9 months. He is also convicted under Section 307 I.P.C. and sentenced to undergo RI for 10 years and to pay a fine of Rs.5000/, in default, to further undergo RI for six months for causing injuries dangerous to life to Sohan Singh PW-10 and Jaswant Singh PW-11. All the sentences shall run concurrently. Criminal Appeal No.485-DB of 2006 qua Jasbir Singh is dismissed. if on bail, appellant Jasbir Singh is directed to surrender before the C.J.M., Ferozepur to undergo the remaining part of his sentence. ( MEHTAB S.GILL ) JUDGE ( L.N.MITTAL ) March 5, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO