In the High Court of Punjab and Haryana at Chandigarh ...... Criminal Appeal No.885-DB of 2004 ..... Date of decision:9.12.2008 Gurdip Singh and another .....Appellants v. State of Punjab .....Respondent .... Coram: Hon'ble Mr. Justice S.S. Saron Hon'ble Mrs. Justice Sabina Present: Mr. R.S. Sandhu, Advocate for the appellants. Mr. S.S. Gill, Additional Advocate General, Punjab for the respondent-State. ..... S.S. Saron, J. This appeal has been filed by Gurdip Singh (appellant No.1) and his wife Swaran Kaur (appellant No.2) against the judgment and order dated 9.9.2004 passed by the learned Additional Sessions Judge, Ferozepur whereby the appellants have been convicted for the offence under Section 302 Indian Penal Code (`IPC' – for short) and sentenced to undergo imprisonment for life; besides to pay a fine of Rs.2,000/- each. In the event of default of payment of fine to undergo further rigorous imprisonment for six months. The FIR (Ex.PB/2) in the case has been registered on the statement (Ex.PB) of Chanan Singh-complainant (PW-3) on 21.5.2002 at Cr. A. No.885-DB of 2004 [2] 5.10 p.m. The FIR is as regards the incident which occurred on the same day at 5.30 a.m. It is alleged by Chanan Singh-complainant (PW-3) that on 21.5.2002 in the morning he was returning to his house after easing himself outside in the field. His younger brother Baljeet Singh (deceased) was thereafter going to ease himself. When he reached near the house of Gurdip Singh (appellant No.1), then he (Gurdip Singh) armed with `Gandasa', his elder son Karaj Singh (since declared juvenile) armed with `Sela' and his younger son Saraj Singh (not sent-up for trial) was armed with `Sota' and his wife Swaran Kaur (appellant No.2) having a `Thapa' suddenly came out of their house in pursuance of a scheme they had already made. At that time, it was about 5.30 a.m. Immediately after coming out of the house, they grappled with Baljeet Singh (deceased)-brother of the complainant and dragged him to their house. They tied his (Baljeet Singh's) legs and arms with ropes and hurled blows; besides, and inflicted injuries on him with their respective weapons. Baljeet Singh (deceased) raised enough alarm (Raula) but the aforesaid four persons continued causing injuries to him. They caused a number of injuries on his right and left arms, back, head and leg. Chanan Singh-complainant (PW-3) raised a `raula' (alarm) to rescue him. On hearing his `raula' (alarm), Mehal Singh (PW-9), elder brother of Chanan Singh-complainant (PW-3) also came at the spot In the meanwhile, the accused fled from the spot with their respective weapons. Chanan Singh-complainant (PW-3) witnessed the entire occurrence. The cause of the grudge, it is submitted, was that Gurdip Singh (appellant No.1) had a doubt that the complainant's brother Baljeet Singh (deceased) had illicit Cr. A. No.885-DB of 2004 [3] relations with his wife Swaran Kaur (appellant No.2). Then the complainant side untied the legs and arms of their brother Baljeet Singh, who was unconscious due to the number of injuries that he received. Thereafter, Harjinder Singh son of Gurbax Singh (PW-8) son of their paternal uncle also came there. After arranging a vehicle, they sent Harjinder Singh with Baljeet Singh for getting him admitted in the hospital at Ferozepur. Harjinder Singh (PW-8) got Baljeet Singh admitted in the hospital. The doctor had treated him. Chanan Singh-complainant (PW-3) and his brother Mehal Singh (PW-9) came to the Government Civil Hospital at Ferozepur after arranging money. The statement of Chanan Singh- complainant (PW-3) was recorded by Gurdip Singh, Sub Inspector, In- charge, Police Post, Sodhi Nagar (PW-10). Chanan Singh-complainant (PW-3) heard his statement and accepted it as correct. On the basis of the said statement, FIR (Ex.PB/2) was registered. Sub Inspector Gurdip Singh (PW-10) had, in fact, received a wireless message from the SHO, Police Station, Ghall Khurd that Baljeet Singh (deceased) was admitted in the Civil Hospital at Ferozepur due to receipt of injuries. On receipt of the said message, Gurdip Singh, SI (PW-10) along with other police officials reached Police Station City, Ferozepur and obtained MLR in respect of Baljeet Singh and reached Civil Hospital, Ferozepur. Thereafter, a written opinion was obtained regarding the condition of Baljeet Singh, injured, however, the doctor declared him unfit to make a statement. Then the aforesaid statement (Ex.PB) of Chanan Singh was recorded who had witnessed the occurrence. In terms of the medico-legal report, the doctor Cr. A. No.885-DB of 2004 [4] observed that Baljeet Singh had received 23 injuries in all. Out of these injuries No.1, 8, 9, 12, 13, 14 and 22 were mentioned to have been caused with sharp edged weapon. The remaining injuries were with blunt weapons. Injuries No.8, 10, 13, 14 and 23 were kept under observation and the remaining injuries were declared simple in nature. From the medico legal report and the statement of Chanan Singh (PW-3), commission of offences punishable under Sections 324, 323 and 34 IPC was made out. Accordingly, `Ruqa' (memo) was sent to the police station through Constable Sudesh Kumar for registration of a case (FIR). On receipt of the `Ruqa' (memo) at the police station, FIR for the aforesaid offences was registered by Bikram Singh, ASI, SHO, Police Station Ghall Khurd. The special report was received by the Chief Judicial Magistrate at 10.05 a.m. on 22.5.2002. The investigation in the case was conducted by Gurdip Singh, Sub Inspector (PW-10). After recording the statement of Chanan Singh (PW-3) and registration of the FIR (Ex.PB/2), the Investigating Officer went to the spot with Angrej Singh, Constable and Chanan Singh-complainant (PW-3). Kulwant Singh and Harjinder Singh (PW-8) met him at the place and they were joined in the investigation. The spot which was pointed out to SI Gurdip Singh (PW-10) was inspected. The blood stained earth and ordinary earth from the spot where the incident had occurred was lifted, which was put in a parcel and taken in possession vide memo (Ex.PJ). The sealed parcels containing blood stained and ordinary earth are MO-1 and MO-2 respectively. Rough site plan (Ex.PK) which contains marginal notes Cr. A. No.885-DB of 2004 [5] was prepared. Kulwant Singh produced before Gurdip Singh, SI (PW-10) seven pieces of rope, which were converted into parcels and after collecting seal from Angrej Singh, Constable, that parcel was sealed. The specimen seal was prepared and returned to Angrej Singh, Constable. The sealed parcel was taken in possession vide memo Ex.PL. The said parcel is MO-3. Harjinder Singh (PW-8) produced before SI Gurdip Singh (PW-10) torn shirt and one blood stained `Pajama' alleged to have been worn by Baljeet Singh (deceased) at the time of occurrence. The same was also converted into a parcel and sealed. Specimen of the seal was separately prepared and after use it was again returned to Angrej Singh, Constable. The sealed parcel MO-4 was taken in possession vide memo (Ex.PH). The statements of witnesses were recorded by Gurdip Singh, SI (PW-10). On return to the Police Station, Gurdip Singh, SI PW-10 deposited the case property with Kewal Singh, MHC. On 21.5.2002 an application (Ex.PG/1) was made by Gurdip Singh, SI (PW-10) to the doctor regarding the condition of Baljit Singh and as to whether he was fit for making a statement. The doctor, however, declared him unfit to make a statement. He described all the 23 injuries on the person of the injured Baljeet Singh to be dangerous to life. Besides, Baljeet Singh (deceased) was referred for treatment to DMC (Dayanand Medical College), Ludhiana. Gurdip Singh, SI (PW-10) on return to the Police Station in view of the injuries being declared dangerous to life added the offence under Section 307 IPC by making a report (Ex.PM) in the DDR in this regard. On coming to know about the death of Baljeet Singh, Gurdip Singh, SI (PW-10) went to the Civil Hospital, Ferozepur. His Cr. A. No.885-DB of 2004 [6] dead body was lying at the place which was taken in possession. Inquest report (Ex.PN) in respect of dead body was prepared. At that time the dead body was identified by Nishan Singh and Harjinder Singh (PW-8) and Mehal Singh (PW9). The police papers for getting the post-mortem conducted were handed over to Harbel Singh, Head Constable and Swaran Singh, Constable along with application (Ex.PB/1). On the following day after the death of Baljeet Singh on 24.5.2002 one `Pajama' was produced before SI Gurdip Singh (PW-10) by Swaran Singh, Constable which was taken in possession vide memo (Ex.PO). The `Pajama' is MO-5. The statement of Constable Swaran Singh was recorded and the `Pajama' was deposited with MHC, Police Station, Ghall Khurd. On 12.6.2002, Gurdip Singh and Swaran Kaur (appellants No.1 and 2) were arrested in the presence of Gurkanwaljit Kaur, Lady Constable, Amarjit Singh, Head Constable and other police officials. The cause of their arrest was disclosed and memos to that effect Ex.PP and Ex.PR were prepared. Thereafter, personal search of Gurdip Singh (appellant No.1) was carried out and two currency notes of Rs.50/- each were recovered and memo Ex.PS was prepared. Personal search of Swarn Kaur was conducted by the Lady Constable but nothing was recovered and memo Ex.PT in this regard was prepared. Both the accused were detained in the lock up. Gurdip Singh (appellant No.1) on interrogation in the presence of Lady Constable and Nishan Singh disclosed that he had kept concealed one `Gandasa' under the ground by the side of footpath of the canal minor near the bridge within the limits of Karmuwala about which only he had the knowledge and could get Cr. A. No.885-DB of 2004 [7] the same recovered from the said place. His disclosure statement (Ex.PU) was recorded. Thereafter, Swaran Kaur (appellant No.2) made a disclosure statement (Ex.PV) regarding concealing a `Thapa' by the side of footpath of the canal minor near the bridge of Karmuwala of which only she had the knowledge and could get the same recovered. Gurdip Singh, SI (PW-10) then along with the accused Gurdip Singh (appellant No.1) and Swaran Kaur (appellant No.2) and the two witnesses and Angrej Singh, Constable reached the bridge at Karmuwala in a jeep. While in police custody Gurdip Singh (appellant No.1) in pursuance of his disclosure statement got recovered a `Gandasa' after removing the soil with his hands. Rough sketch (Ex.PU/1) of the `Gandasa' was prepared and it was taken in possession vide memo (Ex.PU/2). A sealed parcel of the `Gandasa' was prepared which is MO-6, rough site plan of the place of recovery (Ex.PU/3) with correct marginal notes was prepared. Swaran Kaur (appellant No.2) in pursuance of her disclosure statement (Ex.PV) got recovered a `Thapa' from the place disclosed by her after removing the soil with her own hands. A rough sketch (Ex.PV/1) thereof was prepared. The `Thapa' was converted into a parcel with the seal of `GS' of Gurdip Singh, SI after receiving back the seal from Nishan Singh. The sealed parcel MO-7 was taken in possession vide memo (Ex.PV/2). Specimen seal was separately prepared and the seal was handed over to Nishan Singh. A rough site plan (Ex.PV/3) of the place of recovery with correct marginal notes was prepared. The statements of the witnesses were recorded. On coming back to the police station the case property was deposited with the MHC. In the course of investigation Cr. A. No.885-DB of 2004 [8] Gurdip Singh, SI (PW-10) arrested the other accused also. After completion of investigation, charge report (challan) was prepared by Jasbir Singh, SI/SHO and filed in Court of the Illaqa Magistrate. The said Court in view of the offence under Section 302 IPC having been alleged, committed the case to the Court of Sessions for trial which was entrusted to the Additional Sessions Judge, Ferozepur. The learned Additional Sessions Judge, Ferozepur vide order dated 22.4.2003 found sufficient grounds for presuming that the accused had committed an offence punishable under Section 302 IPC. They were accordingly charged on the allegations that both the accused (Gurdip Singh and Swaran Kaur, appellants No.1 and 2) on 21.5.2002 at about 5.30 a.m. in the area of Karmuwala did commit the murder by intentionally causing the death of Baljeet Singh and thereafter committed an offence punishable under Section 302 IPC. The accused-appellants pleaded not guilty to the charge and claimed trial. The prosecution in order to prove its case examined as many as 10 witnesses besides tendered documents in evidence. The statements of the appellants in terms of Section 313 of the Code of Criminal Procedure (`Cr.P.C.' - for short) were recorded. Both the appellants in their respective statements stated that the case was false and the PWs had falsely deposed; besides, it was stated that they had nothing else to say. In defence, Dr. Hardit Jyoti, Radiologist, Civil Hospital, Ferozepur (DW-1) and Tarlok Singh, Head Constable, MHC, Police Station, Vigilance, Ferozepur (DW-2) were examined and the defence evidence was closed. Cr. A. No.885-DB of 2004 [9] The learned trial Court after considering the evidence and material on record has convicted the appellants for the offence under Section 302 IPC and sentenced them to undergo imprisonment for life; besides pay a fine of Rs.2,000/- each. Aggrieved against the said judgment and order of the learned trial Court, the appellants have assailed the same by way of the present appeal. Learned counsel appearing for the appellants has submitted that the case against the appellants is absolutely false and the prosecution has failed to prove its case by leading cogent and convincing evidence. In any case, it is submitted that if the prosecution case is taken as it is, it would show that Gurdip Singh (appellant No.1) had gone to his field and when he returned he saw his wife Swaran Kaur (appellant No.2) in a compromising position with Baljeet Singh (deceased) and, therefore, on account of grave and sudden provocation he assaulted Baljeet Singh (deceased). Therefore, it is submitted that the Exception I to Section 300 IPC would apply and the appellants are not, in amy manner, liable for the offence. In the alternative, it is submitted that the offence even it is proved would be one which does not fall under Section 302 IPC but one which would fall under Section 304, Part-II IPC. All the injuries on the person of the deceased Baljeet Singh, it is submitted, were simple in nature and no injury is shown to have been caused on any vital part of the body. It is submitted that Gurdip Singh (appellant No.1) was armed with a `Gandasa' whereas the injuries as per the medico legal report have mostly been caused with blunt weapon and that too not with full force. Therefore, it is submitted that at the most the appellants Cr. A. No.885-DB of 2004 [10] would be liable for the offence under Section 304, Part-II IPC. Lastly, it is submitted that, in any case, Swaran Kaur (appellant No.2) would not be liable for the offence as it is the prosecution case itself that Gurdip Singh (appellant No.1) had suspicion that his wife Swaran Kaur (appellant No.2) was having illicit relations with Baljeet Singh (deceased). Therefore, in case this was so she would not participate in the commission of murder of Baljeet Singh (deceased) with whom she is said to be having illicit relations. In response, Mr. S.S. Gill, learned Additional Advocate General, Punjab appearing for the State has submitted that the prosecution has proved its case beyond shadow of doubt. It is submitted that eye witnesses account of Chanan Singh-complainant (PW-3), who is the brother of the deceased Baljeet Singh clearly establishes the nature and manner in which the injuries were caused to Baljeet Singh and on the strength of the same it is submitted that the conviction of the appellants is liable to be maintained and upheld. It is also submitted that the present is not a case of grave and sudden provocation, inasmuch as, there is nothing on record to show that Baljeet Singh (deceased) was seen in a compromising position with Swaran Kaur so as to hold that Gurdip Singh (appellant No.1) got enraged and committed the murder at the heat of passion keeping in view the large number of injuries i.e. 23 injuries on the person of Baljeet Singh (deceased). It is submitted that the present case does not remotely come within the parameters of Section 304, Part-II IPC and it is for all intents and purposes a case under Section 302 IPC. We have given our thoughtful consideration to the contentions Cr. A. No.885-DB of 2004 [11] of the learned counsel appearing for the respective parties and with their assistance gone through the records. Chanan Singh-complainant (PW-3) on whose statement (Ex.PB), FIR (Ex.PB/2) was registered has reiterated his version while appearing in Court. He was cross-examined by the learned defence counsel. Chanan Singh (PW-3) in his cross-examination stated as incorrect that Baljeet Singh (deceased) had illicit relations with Swaran Kaur (appellant No.2) and that the same was in the knowledge of all the villagers. It is also stated that Gurdip Singh (appellant No.1) had lodged a protest with him about 25 days earlier regarding the suspicion he had about the illicit relations of Baljeet Singh (deceased) with Swaran Kaur (appellant No.2). It is also stated as incorrect that Baljeet Singh (deceased) went to the house of the accused with Gurdip Singh (appellant No.1) when he was away to the fields and when he returned from the fields he saw him in a compromising position with his wife Swaran Kaur and caused injuries to him and thereafter, he informed the Sarpanch and ex-Sarpanch of the village. Harjinder Singh (PW-8) has deposed that on 21.5.2002 at about 5.45 a.m. he came from his fields to the village. When he reached in front of the door of the house of Gurdip Singh (appellant No.1), he found Baljeet Singh (deceased) son of the elder brother of his father lying there in an injured condition. He found Chanan Singh-complainant (PW-3) and Mehal Singh (PW-9) by his side. They asked him to arrange for a vehicle. He then arranged a vehicle in which Baljeet Singh was taken to the Civil Hospital, Ferozepur, and was admitted there where he was treated by the doctor. Cr. A. No.885-DB of 2004 [12] Baljeet Singh at that time had worn one shirt and `Pajama' which were soiled with blood. These clothes were removed and handed over to Harjinder Singh (PW-8) by the doctor. He brought the wearing apparels to the village on the same day i.e. 21.5.2002. When the Police visited the spot for investigation, Harjinder Singh (PW-8) produced the wearing apparels before the Police which were converted into parcels and sealed with the five seals bearing impression `GS'. The sealed parcels were taken in possession vide memo (Ex.PH) which was signed by him as a witness. His statement was recorded by the Police. In cross-examination, it is stated by Harjinder Singh (PW-8) that in his statement before the Police he had stated that Mehal Singh (PW-9) and Chanan Singh-complainant (PW-3) had asked him to arrange for a conveyance for removing the injured (Baljeet Singh) to the hospital. Thereafter, it is recorded as incorrect that he stated before the Police that it was Chanan Singh-complainant (PW-3) and Mehal Singh (PW-9) who arranged for conveyance and sent him (Harjinder Singh, PW-8) with Baljit Singh to the Civil Hospital, Ferozepur. Attention of the witness was drawn towards his statement (Ex.DC) recorded under Section 161 Cr.P.C. on 21.5.2002 and he was confronted with the portion `A to A' thereof wherein it was so recorded. Mehal Singh (PW-9) also deposed that about 1¾ years earlier at about 5.30 a.m. he was present in his house when he heard alarm of Chanan Singh (PW-3), on hearing which he went running towards the door of Gurdip Singh. At that time he saw Gurdip Singh (appellant No.1), Saraj Singh (not challaned by the Police), Karaj Singh (declared juvenile) and Swaran Kaur (appellant No.2) running towards the Cr. A. No.885-DB of 2004 [13] house of their brother Shabeg Singh. They had gone running to that place from the door of their house. Gurdip Singh and Swaran Kaur were present in Court and he duly identified them. At that time Gurdip Singh (appellant No.1) was armed with `Gandasa' and Saraj Singh was armed with `Sota'; Karaj Singh was armed with `Sela' and Swaran Kaur (appellant No.2) was armed with `Thapa'. He found his brother Baljeet Singh lying in an injured condition inside the house of Gurdip Singh by the side of the gate itself. At that time, he was lying tied with ropes. Chanan Singh (PW-3) was also present at that time. Both of them i.e. Mehal Singh (PW-9) and Chanan Singh (PW-3) found a knife in the kitchen of the house of Gurdip Singh and with the help of the same they started cutting the rope. In the meanwhile, Harjinder Singh (PW-8) also came there and they asked him to arrange a conveyance for removing Baljeet Singh to the hospital. They brought a jeep and sent Baljeet Singh in that jeep to the hospital. Mehal Singh (PW-9) and Chanan Singh (PW-3) arranged for money. Subsequently, the Police came at the spot which was shown by him to the Police. His statement was recorded by the Police in the hospital. Mehal Singh (PW-9) was cross- examined by the defence. In his statement made before the Police, he had stated that after taking knife from the kitchen of Gurdip Singh (appellant No.1) they had cut the rope of Baljeet Singh (deceased). He also stated that at that time he had seen the accused running towards the house of their brother Shabeg Singh. Attention of the witness was drawn towards his statement (Ex.D.1) recorded under Section 161 Cr.P.C. wherein it was not so recorded. His house is at a distance of 35 kms. from the house of Gurdip Cr. A. No.885-DB of 2004 [14] Singh. It may, therefore, be noticed that the statement of Chanan Singh (PW-3) who lodged the FIR, Harjinder Singh (PW-8) and Mehal Singh (PW-9) who reached the place of occurrence soon after the incident is quite consistent in material particulars and there is nothing to show that the murder of Baljeet Singh was not committed by Gurdip Singh (appellant No.1). Besides, it may be noticed that the injuries on the person of Baljeet Singh are quite substantial. Dr. Suneer Thakkar, Medical Officer, Civil Hospital, Ferozepur (PW-5) on 21.5.2002 at about 8.30 a.m. examined Baljeet Singh and found as many as 23 injuries on his person:- 1. 4 cm x 0.2 cm incised wound on the scalp on the posterior nuchal line profusely bleeding. 2. 2.5 cm x 0.5 cm lacerated wound on the right occipital region of scalp, profusely bleeding. 3. 2.5 x 0.3 cm lacerated wound on the left eye brow, clotted blood was present. 4. 1.5 cm x 1 cm lacerated wound on the right pinna lower side of tragus, clotted blood was present. 5. 2 cm x 2 cm abrasion on left cheek lateral to left eye, on zygomatic prominence. 6. 25 cm x 25 cm reddish and bluish contusion on the right shoulder extending to right deltoid region. 7. 2.5 cm x 0.5 cm lacerated wound on left cheek. Cr. A. No.885-DB of 2004 [15] 8. 1 cm x 1 cm incised wound on right elbow tip, profusely bleeding, X-ray was advised. 9. 2 cm x 0.2 cm incised wound on right hand web between thumb and index finger. 10. 10 cm x 8 cm reddish contusion on right forearm posterior lateral side, X-ray was advised. 11. 8 cm x 2 cm reddish contusion on right upper arm horizontally placed. 12. 1 cm x 1 cm incised wound on right lower limb 10 cm below knee. 13. 2 cm x 0.5 cm incised wound on right lower limb with underlying welling 8 cm x 8 cm, X-ray was advised. 14. 1.5 cm x 0.2 cm, 2 cm x 1 cm, 3 cm x 1 cm, 1 cm x 0.2 cm and 0.5 cm x 0.5 cm incised wounds on the right lower leg