IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 521-DB of 2005 Date of decision: 12.9.2008 Avtar Singh ..... Appellant Versus State of Punjab ..... Respondent CORAM : HON'BLE MR. JUSTICE S.S. SARON. HON'BLE MR. JUSTICE MOHINDER PAL. Present : Mr. Navdeep Singh, Advocate for the appellant. Mr. S.S. Gill, Addl. A.G., Punjab. S.S. SARON, J. This appeal has been filed by the appellant Avtar Singh against the judgment and order dated 02.04.2005 passed by the learned Sessions Judge, Amritsar to the extent the appellant has been held guilty and convicted for the offence under Section 302 Indian Penal Code (“IPC” - for short) and sentenced to undergo life imprisonment; besides, to pay a fine of Rs.7,000/- and in default of payment of fine, to undergo further rigorous imprisonment for a period of 2 years. By the same order dated 02.04.2005, Harwinder Kaur wife of the appellant (Avtar Singh) has been acquitted. Pardeep Singh (PW3) son of Sucha Singh (deceased) made a statement (Ex.PA) in respect of the incident that occurred on 30.12.2001 at 3/3.30p.m. On the basis of the said statement, FIR (Ex.PA/3) was registered. It is stated by the complainant Pardeep Singh (PW-3) that he along with his father Sucha Singh (deceased) and his mother Balwinder Kaur (PW4) were cleaning the ‘khal’ (water course) for irrigating their Crl. Appeal No. 521-DB of 2005 -2- wheat crop. It was at about 3/3.30 p.m. that Avtar Singh (appellant) and his wife Harwinder Kaur (since acquitted) started demolishing the water course, which leads to their fields and is in the joint ‘khata’ (holdings). Then Sucha Singh (deceased) father of the complainant Pardeep Singh (PW-3) went to Avtar Singh (appellant) so as to stop him from demolishing the water course. Pardeep Singh-complainant (PW3) also accompanied him. On stopping the accused (Avtar Singh) from demolishing the water course, Harwinder Kaur (since acquitted) wife of Avtar Singh (appellant) raised an alarm saying that Sucha Singh (deceased) be caught hold of as he had no concern with their water course. In the meantime, Avtar Singh (appellant) aforesaid inflicted a spade (kahi) blow hitting on the forehead of Sucha Singh (father of the complainant). As a result of the injury, Sucha Singh fell on the ground. Avtar Singh (appellant) thereafter, sat on the chest of the father of the complainant while he was lying on the ground. He (Avtar Singh) caught hold of him (Sucha Singh) from his neck and took out a knife from the right pocket of his pant and inflicted knife blows on the chest and lip of the father of the complainant-Pardeep Singh (PW-3). Meanwhile, mother (Balwinder Kaur PW-4) of the complainant while raising a noise came there at the spot. Then Pardeep Singh complainant (PW-3) and his mother (Balwinder Kaur PW-4) raised a hue and cry of “don't kill don't kill”. Thereafter, Avtar Singh (appellant) along with his wife Harwinder Kaur ran away from there with their weapons and hurled abuses. When Pardeep Singh -complainant (PW-3) and his mother (Balwinder Kaur PW4) reached near Sucha Singh, they found that he had succumbed to his injuries. Pardeep Singh complainant (PW-3) and his mother (Balwinder Kaur PW-4) had witnessed the entire occurrence. The complainant Pardeep Singh (PW-3) was going to the Police Station to give information. He left his mother to keep a watch on the dead body. The Police met him on the way. The motive of the crime was that Avtar Singh (appellant) wanted to demolish the water course of the joint ‘khata’ Crl. Appeal No. 521-DB of 2005 -3- (holdings) forcibly. On stopping him by the father of the complainant, Avtar Singh (appellant) and his wife Harwinder Kaur after conspiring with each other had murdered him (Sucha Singh-father of the complainant) by causing injuries. He had heard his statement and it was correct. The statement was attested by Wassan Singh, SI/SHO, Police Station Beas (PW- 10). The said SI/SHO Wassan Singh (PW-10) along with his gunman and ASI Kulwant Singh and other Police officials of Police Post Satiahala were present at the bus stand Sathiala when Pardeep Singh -complainant (PW-3) met them and got his aforesaid statement (Ex.PA) recorded. It was reduced into writing and read over and explained to him. After admitting it to be correct, the complainant signed it in Gurmukhi and Wassan Singh SI/SHO (PW-10) attested the same. From the said statement, offences under Section 302/34 IPC were made out. The writing was sent through constable Sawinder Singh to the Police Station for registration of a FIR. Jagtar Singh ASI on receipt of the writing registered the FIR, copy of which was sent to the spot for delivering it to SI/SHO Wassan Singh (PW-10). Special Reports in favour of the higher Officers were issued through constable Ashok Kumar. Inspector Nirmaljit Singh (PW-5), as per the orders of the SSP Majitha took over investigation of the case. During the course of his investigation, he on 10.1.2002 found Harwinder Kaur (since acquitted) to be innocent. He had raided the house of Avtar Singh (appellant) from time to time and he was ultimately arrested on 17.01.2002. Avtar Singh (appellant) while in custody was interrogated by Inspector Nirmaljit Singh (PW-5) and he made a disclosure statement (Ex.P3) with regard to the concealment of a ‘Kahi’ (spade) and a knife near the cremation ground near Gopi Mohalla in the area of Village Sathiala. He offered to get the same recovered. The disclosure statement (Ex.PJ) of Avtar Singh was recorded which he signed and it was attested by Baldev Singh, Member Panchayat and HC Balwinder Singh. In pursuance of the said disclosure statement, Avtar Singh (appellant) led the Police to the Crl. Appeal No. 521-DB of 2005 -4- place disclosed by him and got recovered a ‘kahi’ (spade) and a knife which were in the bushes. Blood stains were there on the ‘kahi’ (spade) but there were no stains on the knife. Sketches of the ‘kahi’ (spade) and knife Exs. PJ/1 and PJ/2 were prepared. The same were taken in possession vide memo Ex.PJ/3 which was attested by Surat Singh and HC Balwinder Singh. Rough site plan Ex.PJ/4 of the place of recovery of the ‘kahi’ (spade) and knife was also prepared. Statements of the witnesses were recorded. On return to the Police Station, the ‘kahi’ (spade) and knife were deposited with the MHC with seals intact. The same were made into a parcel and sealed with the seal 'NS' of Nirmal Jit Singh Inspector (PW-5) at the place of recovery itself. Dr. Gurmanjit Rai, Lecturer, Forensic Medicines, Medical College, Amritsar (PW-1) conducted the post mortem examination on the dead body of Sucha Singh. The cause of death, in his opinion, was Haemorrhage and shock as a result of injury No.5 i.e. an incised stab wound 1 x 0.8 cm on the middle of front of the chest at the level of both nipples. It was obliquely placed. There were six injuries in all. All the injuries were opined to be ante mortem in nature. After completion of investigation, a charge report (challan) in terms of Section 173 of the Code of Criminal Procedure (CrPC – for short) was filed by the Police on 27.03.2002, in the court of the learned Sub Divisional Judicial Magistrate, Baba Bakala. The said learned Magistrate vide order dated 10.04.2002, in view of the case being under Section 302 IPC committed the same to the Court of Session. The learned Sessions Judge, Amritsar vide order dated 13.05.2002 found a prima facie case for the offence under Section 302 IPC to be made out. The appellant was accordingly charged on the allegation that on 31.12.2001 at about 3.30 p.m. in the area of Sathiala, he committed murder by intentionally or knowingly causing the death of Sucha Singh and thereby committed an offence under Section 302 IPC. The appellant pleaded not guilty to the charge and claimed trial. On 04.09.2002 Pardeep Singh was examined as PW1. After his examination Crl. Appeal No. 521-DB of 2005 -5- the other prosecution witnesses who were present, were discharged for the time being because an application in terms of Section 319 CrPC was submitted by the learned Public Prosecutor for summoning Harwinder Kaur (since acquitted) who had been kept in column No.2 of the chargesheet (challan). The learned Sessions Judge in terms of order dated 19.09.2002 summoned Harwinder Kaur. She surrendered in Court on 22.10.2002. The learned Sessions Judge, Amritsar in terms of order dated 22.10.2002 reframed the charges against Avtar Singh (appellant) and his wife Harwinder Kaur (since acquitted). It was alleged against Avtar Singh (appellant) that on 31.12.2001 in the area of village Sathiala in furtherance of the common intention of the co-accused Harwinder Kaur which was to commit murder of Sucha Singh, he (Avtar Singh) did commit murder by causing the death of Sucha Singh and thereby he (Avtar Singh) committed an offence punishable under Section 302 IPC and his co-accused Harwinder Kaur committed an offence punishable under Section 302 read with Section 34 IPC. Both the accused Avtar Singh (appellant) and his wife Harwinder Kaur pleaded not guilty to the charges and claimed trial. The prosecution in order to prove its case examined Dr. Gurmanjit Rai (PW-1) and the affidavit (Ex.PF) of HC Kulwinder Singh was tendered in evidence. Pardeep Singh who was earlier examined as PW-1 was again examined as PW-3. His earlier cross-examination had been deferred and he was cross-examined as well. Besides, the prosecution examined Balwinder Kaur (PW-4) wife of Sucha Singh (deceased), Nirmaljit Singh, Inspector (PW-5), Rishi Ram, Draftsman (PW-6), Constable Surjit Singh (PW-7), Constable Sukhwinder Singh (PW-8) and Lakha Singh (PW-9). PW Baldev Singh was given up as having been won over and Constable Surinder Singh was given up as unnecessary. Wassan Singh, SI (PW-10) was also examined and documents including the Forensic Science Report (Ex.PR) were tendered in evidence. The statement of Avtar Singh (appellant) in terms of Section 313 CrPC was recorded in which it is stated that in fact Sucha Singh Crl. Appeal No. 521-DB of 2005 -6- (deceased) armed with gandasi and Kashmir Singh armed with 'dang' came to his filed. He (Avtar Singh -appellant) was working much away from the ‘khal’ (water course). They (Sucha Singh-deceased and Kashmir Singh) started abusing alleging that he (appellant) had abused them in the village in their absence. He (appellant) replied that the allegations were wrong. They opened assault on him and he (appellant) wielded his ‘kahi’ (spade) in self-defence. His (appellant's) ‘kahi’ (spade) fell down and he took out his pen knife while defending himself. The pen knife accidently hit Sucha Singh. The allegations that he (appellant) demolished any ‘khal’ (water course), it was stated, were wrong and made up. He appeared before the Police and he was taken in illegal custody. The statement of Harwinder Kaur (since acquitted) was also recorded and she stated that she was innocent and had been falsely implicated in the case at the instance of Pardeep Singh (PW-3) and others. In defence, the accused examined Dr. Lakwinder Singh Chahal (DW-1) who had medically examined the appellant (Avtar Singh). Besides, Vinod Kumar, Receipt Clerk, office of District and Sessions Judge, Amritsar (DW-2), Jatinder Kaur, Clerk, DC Office, Amritsar (DW-3), Harbhajan Singh, Senior TOA, CTO, Amritsar (DW-4), Constable Gurjit Singh office of SSP Majitha (DW-5) and Baldev Singh son of Garib Singh of village Jodhe (DW-6) were examined and the defence evidence was closed. The learned trial Court after considering the evidence and material on record has convicted the appellant for the offence under Section 302 IPC and sentenced him to undergo imprisonment for life; besides, to pay a fine of Rs.7,000/- and in default of payment of fine, to undergo rigorous imprisonment for a period of 2 years. Harwinder Kaur wife of the appellant (Avtar Singh) was acquitted. The said order to the extent Avtar Singh, has been convicted and sentenced, is assailed in this appeal. Learned counsel appearing for the appellant has contended that the prosecution story is improbable and the same does not Crl. Appeal No. 521-DB of 2005 -7- establish the guilt of the appellant. A reference has been made to the site plan (Ex.PK) drawn by Rishi Ram, Draftsman (PW-6) to contend that the occurrence is said to have taken place near the ‘khal’ (water course) of the joint ‘khata’ (holdings) whereas the dead body is 25 ‘karams’ (about 137 ft.) away from the ‘khal’ (water course). Therefore, it is submitted that the prosecution story is based merely on conjectures and surmises. It is also stated that the ‘Khal’ (water course) has not been demolished and is shown to be intact. It is further contended that the evidence of Dr. Lakhwinder Singh Chahal (DW-1) shows that Avtar Singh (appellant) had also suffered injuries. Therefore, the defence set up by the appellant is liable to be accepted, which is to the effect that Sucha Singh (deceased) armed with gandasi and Kashmir Singh armed with 'dang' came to his field and he was working much away from the ‘khal’ (water course). They started abusing him and alleged that he (appellant) had abused them in the village in their absence. The appellant stated that this was wrong. They then opened the assault on him and he wielded his ‘kahi’ (spade) in self-defence which fell down and then, he (appellant) took out his pen knife while defending himself and the pen knife accidentally hit Sucha Singh. Therefore, according to the learned counsel, it was a case of a mere accident. In response, learned Additional Advocate General appearing for the State submits that the Prosecution has proved its case in all material aspects and there is no infirmity in the prosecution case. It is submitted that the learned trial Court has recorded a clear finding of guilt of the appellant and there is no infirmity in the judgment and order of the learned trial Court which would warrant any interference by this Court. It is submitted that the body was dragged to a far off corner of the field of Avtar Singh (appellant) so that he can raise a plea of self-defence. The defence, that has been set up, it is submitted, is highly improbable. We have given our thoughtful consideration to the Crl. Appeal No. 521-DB of 2005 -8- contentions of the learned counsel appearing for the parties and with their assistance gone through the records of the case. It may be noticed that Pardeep Singh initially appeared as (PW1) and his statement was recorded in Court on 04.09.2002. He supported the version as was given by him in his statement (Ex PA) before the police on the basis of which FIR (Ex.PA/3) has been registered. It is stated by Pardeep Singh that on 30.12.2001, he, his father Sucha Singh and mother Balwinder Kaur had come to their fields at 2.30 p.m. to clean the ‘khal’ (water course) for irrigating their field. While they were cleaning the ‘khal’ (water course), the appellant (Avtar Singh) and his wife Harwinder Kaur started demolishing that ‘khal’ (water course) from the portion which was coming from their filed. His father Sucha Singh went to the field of the accused (appellant) to request him not to demolish the ‘khal’ (water course). Pardeep Singh followed his father. Harwinder Kaur wife of the accused raised a lalkara saying that who were they to stop him and on that lalkara Avtar Singh (appellant) gave a blow with his ‘kahi’ (spade) which hit on the forehead of Sucha Singh and he (Sucha Singh) fell down. Avtar Singh (appellant) then sat on the chest of his father while he was lying on the ground and caused injuries on the chest and lips of his father with some instrument which he took out from his pant pocket and it resembled a knife. Hue and cry was raised by the complainant Pardeep Singh (PW-3) and his mother (Balwinder Kaur). Thereafter, Avtar Singh and his wife Harwinder Kaur fled away and he took away the weapons used by him in the crime. His (complainant's) father died there and then. On the said statement of Pardeep Singh (PW-1), the learned Public Prosecutor moved an application for summoning Harwinder Kaur (wife of the appellant) who had been kept in Column No.2 of the Charge Report (challan) filed by the Police in terms of Section 173 CrPC. The cross-examination of the witness was deferred. Thereafter, Pardeep Singh appeared as PW-3 and his statement was recorded on 30.1.2003 in which he reiterated the version as was earlier given by him on 04.09.2002 Crl. Appeal No. 521-DB of 2005 -9- and also in the FIR (Ex.PA/3). It was stated by Pardeep Singh (PW3) that on 30.12.2001 he along with his father Sucha Singh (deceased) and his mother Balwinder Kaur (PW4) had gone to their fields at about 2.30 p.m. to clear the ‘khal’ (water course) for irrigating their land. While they were cleaning the ‘Khal’ (water course), the accused Avtar Singh (appellant) and Harwinder Kaur started demolishing the ‘khal’ (water course) in their fields. The father of the complainant Pardeep Singh (PW3) went to the place in the field where the accused had started demolishing the ‘khal’ (water course). The said place was at a distance of just 1/2 or 3/4 ‘killas’ (measurement in acres). The father of the complainant Pardeep Singh (PW3) requested the accused not to demolish the ‘khal’ (water course) because it was a common one. Harwinder Kaur accused raised a lalkara saying to catch them and who were they to stop them. On raising the lalkara, Avtar Singh (appellant) gave a ‘kahi’ (spade) blow on the forehead of Sucha Singh-father of the complainant Pardeep Singh (PW3). Sucha Singh fell down. While Sucha Singh, father of the complainant Pardeep Singh (PW3) lay on the ground, Avtar Singh (appellant) sat on his chest and after taking out a knife from his pocket gave two blows one on the lips and other on the chest of Sucha Singh. A hue and cry was raised by Pardeep Singh (PW3) and his mother (Balwinder Kaur). Both the accused then fled away from the spot along with the knife and kahi (spade). Sucha Singh - the father of the complainant died at the spot. The complainant after leaving his mother to guard the dead body of his father, went to the Police Station where his statement (Ex.PG) and also exhibited as Ex.PA was recorded. The Police then accompanied Pardeep Singh (PW3) to the place of occurrence. Inquest proceedings regarding the dead body of Sucha Singh, father of the complainant Pardeep Singh (PW3), was prepared there. Blood-stained earth was taken from the spot. Pardeep Singh (PW3) was cross-examined by the defence. In his cross-examination, it is stated by the complainant (PW3) that his father had died at the place where the Crl. Appeal No. 521-DB of 2005 -10- injury on the forehead with ‘Kahi’ (spade) was allegedly given. It is stated by the complainant (PW3) that his father had fallen just near the ‘khal’ (water course) and the blood was lifted from that very place by the Police. His father had not taken the ‘Kahi’ (spade) with him when he had gone inside the fields of the accused from there. The accused had started demolishing the ‘khal’ (water course). He denied the suggestion that actually his (complainant's) father armed with ‘gandasi’ and Kashmir Singh armed with 'dang' went to the fields of Avtar Singh-appellant where he was working on the 'watt' (a small raised hump boundary between the fields) and much away from the ‘khal’ (water course). He denied the suggestion that his father and Kashmir Singh started saying that Avtar Singh (appellant) had abused them in the village in their absence and that he replied that he never did so. He also denied the suggestion that his father and Kashmir Singh opened the assault on Avtar Singh in self-defence. He also denied the suggestion that ‘Kahi’ (spade) of Avtar Singh fell down and to avoid further assault he used his pen knife in his self-defence and in that process accidentally injury was caused on his father. It was stated as incorrect to suggest that he had not seen the occurrence; besides, the accused persons had never demolished any ‘khal’ (water course) as alleged by him. Balwinder Kaur (PW-4) wife of Sucha Singh (deceased) also deposed in Court on the same lines as stated by Pardeep Singh (PW- 3). She was cross-examined. Dr Gurmanjit Rai, Lecturer,Forensic Medicines, Medical College, Amritsar (PW-1) conducted the post mortem on the dead body of Sucha Singh. He found the following injuries on the person of Sucha Singh :- 1. Vertically placed reddish brown abrasion was present on the right side of the forehead. 4.5 x 0.5 cms incised and 0.5 cms above middle of the eye brow. Injury No.2 Crl. Appeal No. 521-DB of 2005 -11- 2. Lacerated wound 1 x 0.5 cms obliquely placed on middle of the right eye brow, clotted blood was present. 3. Lacerated wound 2.5 x 1 cms on right side of the upper lip and wound was present through in through of the lip and was obliquely placed. 4. 0.5 x 0.75 cms reddish brown abrasion on the right side of the lower lip. On dissection of the injury Numbers 1 and 2, both the injuries were scalp deep, brain and its membranes and skull were normal. Injury No.5 is as follows:- 5. Incised stab wound 1 x 0.8 cms was present on the middle of front of the chest at the level of both nipple. It was obliquely placed. On dissection of the injury No.5, sternum was found cut fractured in its middle. Pericarbial sac was found full of fluid blood and was having stab injury and right ventrical of heart was found having stab injury. About 21 hundred CC of fluid blood was present on the throscic cavity. 6. Reddish brown abrasion 3 x 1 cms was present on the frontal of the neck in its middle. On dissection of chest and abdomen, both lungs, liver, spleen and kidneys were found pale on cut sections and stomach was Crl. Appeal No. 521-DB of 2005 -12- having about 80 CC of fluid. Rest of the organs were found normal. All these injuries were ante mortem in nature. The cause of death in this case in my opinion was haemorrhage and shock, as a result of injury No.5 to heart (vital organ), which was sufficient to cause death in the ordinary course of nature.” In cross-examination, it is stated that except for injury No.5 all other injuries were simple in nature. Besides, possibility of this injury being caused by a fall could not be ruled out. The investigation of the case was conducted by Inspector Nirmaljit Singh (PW-5) who had taken over the investigation of the case as per the orders of the SSP, Majitha. He had found Harwinder Kaur (wife of the accused) to be innocent. On the basis of interrogation conducted by him, Avtar Singh made a disclosure statement and got recovered the ‘Kahi’ (spade) and knife, the sketches of which Ex.PJ and Ex.PJ/2 respectively were prepared. Memo of recovery of ‘kahi’ (spade) and knife (Ex.PJ/3) was prepared, which was attested by Surat Singh and HC Balwinder Singh. Rough site plan (Ex.PJ/4) of the place of recovery of knife and ‘Kahi’ (spade) was also prepared. Statements of the witnesses were recorded. ‘Kahi’ (spade) and Knife were deposited with the MHC with seals intact. Investigation in the case was also conducted by Gurmej Singh, DSP. In the cross-examination it is stated that during investigation, it was also revealed that Avtar Singh (appellant) had sustained some injuries at the time of occurrence. He (appellant) was got medically examined. He (Nirmaljit Singh, Inspector PW-5) denied the suggestion that Avtar Singh was in the illegal custody of the Police since 30.12.2001. He did not know if any telegrams were sent by the father of Avtar Singh to the higher authorities to the effect that the Police was not recording the version of Crl. Appeal No.