Crl.A.No.49-DB of 1998 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. Crl.A.No.49-DB of 1998 Date of decision: May 16, 2008 Kuldeep Singh ....Appellant vs. State of Haryana ..Respondent CORAM: HON'BLE MR.JUSTI CE J.S.KHEHAR. HON'BLE MR.JUSTICE JORA SINGH. --- Present: Mr.R.K.Gupta, Advocate, for the appellant. Mr.Ravi Dutt Sharma, Deputy Advocate General Haryana, for the respondent. -- J.S.KHEHAR,J. Through the instant appeal the accused/appellant Kuldeep Singh has impugned the judgment rendered by the Additional Sessions Judge(1), Kaithal, in Sessions Case No.13 of 1996, decided on 22.11.1997. By the impugned judgment the accused/appellant Kuldeep Singh, has been convicted of the offence under sections 302 and 307 of the Indian Penal Code on account of having committed the murder Surender alias Shalinder, and also, because he had fired at Dalbir Singh PW2, Randhir Singh PW3 and Kashmir Singh with the intention and knowledge, that if he had caused the death of the persons fired at, he would have been guilty of murder. By a separate order passed on 24.11.1997, the accused/appellant Kuldeep Singh was sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/- under Section 302 of the Indian Penal Code. In case of default in payment of fine, the accused/appellant was ordered to undergo further Crl.A.No.49-DB of 1998 2 rigorous imprisonment for six months. The accused/appellant Kuldeep Singh was also sentenced to undergo rigorous imprisonment for ten years and to pay a fine of Rs.2000/- under section 307 of the Indian Penal Code. In case of default in payment of fine, he was ordered to undergo further rigorous imprisonment for a period of six months. It was also directed that the substantive sentences awarded to the accused/appellant shall run concurrently. The prosecution version of the incident is based on the complaint made by Dalbir Singh PW2 to SI Raj Singh PW15 on 18.1.1996. A perusal of the aforesaid complaint would reveal that the complainant Dalbir Singh PW2 asserted that he was a resident of village Dumara under police station Kalayat. He also stated that he had three other brothers. His eldest brother's name is Randhir Singh PW3. Thereafter was his brother Surender alias Shalinder (the deceased in the present case). Next to Surinder alias Shalinder was the complainant Dalbir Singh himself. The youngest brother being Kashmir Singh. According to the statement of Dalbir Singh PW2 at about 12.30 P.M. on 18.1.1996, the complainant and all his brothers, left for their house from the fields, in a bullock-cart loaded with fodder. According to Dalbir Singh PW2 the bullock-cart was being driven by his youngest brother Kashmir Singh and the complainant Dalbir Singh PW2 was sitting behind Kashmir Singh. His brother Randhir Singh PW3 was occupying a position behind the complainant Dalbir Singh PW2, whereas, Surender alias Shalinder was sitting towards the right of his elder brother Randhir Singh PW3. When the bullock-cart reached near the house of Lipti it was noticed that the bullock-cart of Lipti was parked in the middle of the street in front of the gate of his (Lipti's) house. By this time it was 12.45 P.M. in the afternoon. Crl.A.No.49-DB of 1998 3 The accused/appellant Kuldip Singh son of Lipti was standing next to the bullock-cart in front of the house of Lipti. According to the complainant Dalbir Singh PW2, he asked the accused/appellant Kuldeep Singh to move the bullock-cart aside, to which the accused/appellant Kuldeep Singh replied that he would not remove the bullock-cart from the place where it was parked. The aforesaid response of the accused/appellant Kuldeep Singh resulted in an altercation between the complainant party and the accused/appellant Kuldeep Singh. According to Dalbir Singh PW2, in the first instance the accused/appellant Kuldeep Singh ran into his house, and thereafter returned with the licensed DBBL gun of his father. The father of the accused/appellant Kuldeep Singh i.e. Lipti also followed him to the place. At that juncture the bullock-cart of the complainant party had gone 10-15 yards ahead. On coming out of the house, Lipti asked the accused/appellant Kuldeep Singh to shoot at the complainant party so as to teach them a lesson, as the complainant party had taken half a killa of land of the accused party. It is,therefore, that the accused/appellant Kuldeep Singh fired shots with his gun at the complainant party. The first shot fired by the accused/appellant Kuldeep Singh hit Surender alias Shalinder on his right flank and right arm as a result of which he fell down from the bullock cart. The second shot fired by the accused/appellant Kuldeep Singh hit Randhir Singh PW3 on his back, as a result of which he fell down on the ground. The third shot fired by the accused/appellant Kuldeep Singh caused pellet injuries to the complainant Dalbir Singh PW2. When the accused/appellant Kuldeep Singh was firing shots from his gun, the complainant's younger brother Kashmir Singh ran away towards the house. At that time his “tau” (father's elder brother) Babu Ram and Parmal also came to the spot, who also witnessed the occurrence, Crl.A.No.49-DB of 1998 4 with their own eyes. According to the complainant Dalbir Singh PW2 the reason for the accused party to have taken the aforesaid step is, that about three years ago his “chacha” ( father's younger brother) Lipti had sold three killas of agricultural land to Dhupa son of Sishu of which half killa of land belonged to the share of the complainant's father Bishen Singh. It was pointed out that the complainant party had been cultivating the aforesaid half killa of land from the very beginning. At the time of execution of the sale deed in favour of Dhupa possession of two killas of land had been handed over to him. About a year before the occurrence, Dhupa had approached the accused party for possession of the remaining one killa of land. It was at this juncture that the complainant party came to know that Lipti had got the sale deed registered in favour of Dhupa in respect of half killa of land under the cultivation of the complainant party. It was then that a Panchayat was convened, in which it was decided that Lipti would give Rs.1500/- i.e. the contract money for the two crops of one year to the brother of the complainant, Randhir Singh, and after one year, Lipti would give half killa of land out of his own share to the complainant party in lieu of the half killa of land sold by Lipti to Dhupa. On the expiry of the aforesaid time period when the complainant party asked Lipti to give half killa of land he refused. When the complainant party tried to cultivate half killa of land in possession of Lipti, a report was lodged by Lipti against the complainant party at the police station. The SHO of the police station, Surjit Singh, summoned both the parties and the matter was settled by a compromise between the complainant party and the accused party by recording that Lipti would give half killa of land to the family of Bishan Singh. Consequent upon the aforesaid settlement, when the complainant party was about to sow the said Crl.A.No.49-DB of 1998 5 half killa of land given to them by Lipti, he tried to stop the complainant party. Despite the aforesaid , according to the statement of Dalbir Singh PW2, the complainant party sowed wheat in half killa of land of Lipti. On the date of occurrence i.e. 18.1.1996 the complainant party after spreading manure in the wheat crop sown in half killa of land (which had been taken from Lipti, in furtherance of the settlement referred to above), were returning to the village on their bullock-cart when the occurrence took place. It was also asserted by the complainant PW2, that consequent upon the shots fired by the accused/appellant Kuldeep Singh many people of the village came to the spot, whereupon, Lipti and his son i.e. the accused/appellant Kuldeep Singh, ran away from the place of occurrence, along with their gun. All the three injured in the occurrence namely, the complainant Dalbir Singh PW2, the brother of the complainant Surender alias Shalinder, and elder brother of the complainant i.e. Randhir Singh PW3 were put in a tractor trolly belonging to Hansa and were taken to Civil Hospital,Kaithal, for treatment. In the complaint it was also asserted, that the complainant's brother Surender alias Shalinder expired on the way to the hospital. The complainant Dalbir Singh PW2 and his borther Randhir Singh PW3 were subjected to medico legal examination and given treatment at the Civil Hospital,Kaithal. On the arrival of the complainant Dalbir Singh PW2 and Randhir Singh PW3 at the Civil Hospital, as well as, on receipt of the dead body of Surender alias Shalinder information was communicated to the police, by Dr.Daizy Sood PW10, whereupon, a VT message was sent from the Police Station, City Kaithal, to SI Raj Singh PW15. On receipt of the information about the arrival of a dead body, and injured persons to the Civil Hospital,Kaithal, SI Raj Singh PW15 reached the Civil Hospital, Kaithal, Crl.A.No.49-DB of 1998 6 where the attending doctors declared both Dalbir Singh PW2 and Randhir Singh PW3 fit to make a statement. Accordingly the statement of the complainant Dalbir Singh PW2 was recorded by SI Raj Singh PW15, details of the statement of the complainant Dalbir Singh PW2 have already been narrated in the foregoing paragraph. On the basis of the aforesaid statement, a First Information Report bearing No.5 was registered at Police Station City Kaithal on 18.1.1996 at 6:30 PM. The special report in connection with the aforesaid FIR was signed by the Ilaqa Magistrate at 4:00 P.M. on the following day i.e. on 19.1.1996. After recording the statement Dalbir Singh PW2, SI Raj Singh PW15 prepared the inquest report Exhibit PC. He sent the dead body of Surender alias Shalinder for post mortem examination through HC Balwan Singh PW6. SI Raj Singh PW15 then recorded the statements Randhir Singh PW3, as well as, the statement of Babu Ram and Parmal under section 161 of the Code of Criminal Procedure. SI Raj Singh PW15 then went to village Dumra where he deputed Baldev Singh to keep a guard on the place of occurrence. SI Raj Singh PW15 remained at the place of occurrence during the night. On the pointing out of Kashmir Singh i.e. the younger brother of the complainant Dalbir Singh PW2, he prepared the rough site plan Exhibit PT. He also recorded the statement of Kashmir Singh under section 161 of the Code of Criminal Procedure. After the dead body of Surender alias Shalinder had been subjected to post mortem examination, HC Balwan Singh PW6 produced before SI Raj Singh PW15, two sealed packets, one containing clothes and the other containing pellets. The aforesaid case property was taken into possession vide recovery memo Exhibit PU. SI Raj Crl.A.No.49-DB of 1998 7 Singh PW15 took into possession blood stained earth from the street near the house of the Lambardar, and took into possession four pellets from near the spot vide recovery memo Exhibit-PR. The instant case property was then put into sealed parcels. SI Raj Singh PW15 arrested the accused/appellant Kuldeep Singh on 26.1.1996. He was interrogated on the date of his arrest but he did not disclose anything relevant. The accused/appellant Kuldeep Singh was again interrogated on 29.1.1996 by SI Raj Singh PW15. At this juncture he disclosed that he had kept concealed a gun and three empty cartridges in his house near the wheat container, and that, he could lead the police party to the place of concealment. The aforesaid disclosure statement made by the accused/appellant Kuldeep Singh was recorded as Exhibit PV. Thereafter, he led the police party to the spot depicted in the disclosure statement, and got recovered a gun with three empties. The aforesaid case property was put into two sealed parcels and taken into possession vide recovery memo Exhibit- PW. The case property was then deposited with the MHC at the police station. After the completion of the investigation, and other police formalities, a challan was presented in the Court of Chief Judicial Magistrate,Kaithal on 20.3.1996. On the basis of the investigation carried out, the Chief Judicial Magistrate arrived at the prima facie conclusion that the accused Lipti, as well as, the accused/appellant Kuldeep Singh had committed offences punishable under Sections 302 and 307 read with section 34 of the Indian Penal Code, as well as, under section 25 of the Indian Arms Act, 1959. Since the offence under section 302 of the Indian Penal Code, is exclusively triable by the Court of Session, the Chief Judicial Magistrate, Kaithal, by his order dated 8.4.1996, committed the case for trial to the Court of Session. Crl.A.No.49-DB of 1998 8 The Additional Sessions Judge (1) Kaithal, framed two charges against Lipti and the accused/appellant Kuldeep Singh. Firstly, the accused/appellant Lipti and Kuldeep Singh were charged under section 302 read with section 34 of the Indian Penal Code on account of having committed the murder of Surender alias Shalinder in further of their common intention. Secondly, the accused/appellant Lipti and the accused/appellant Kuldeep Singh were charged under section 307 read with section 34 of the Indian Penal Code for having fired at Dalbir Singh PW2, Randhir Singh PW3 and Kashmir Singh with a gun with the intention or knowledge that if by that act, had caused the death of the persons fired upon, they would have been guilty of murder. The accused Lipti and the accused/appellant Kuldeep Singh were then confronted with the charges framed against them. They pleaded not guilty, and claimed trial. During the course of the trial, the prosecution examined a large number of witnesses. A brief description of the statements of the witnesses produced by the prosecution is being summarised hereunder. The prosecution first of all produced Dr.R.K.Gupta,, Medical Officer, General Hospital,Kaithal, as PW1. Dr.R.K.Gupta, PW1 had conducted the post mortem examination on the dead body of Surender alias Shalinder, and had, found the following injuries on his person:- “.....There were about 35 rounded to eliptical black coloured mark measuring 0.2 to 0.4cm in diamensions on the right side of the chest and abdomen, scattered irregularly, extending from the right nipple of the hest in mid axillary line upwards upto the sight iliac crest below in mid axillary line laterally upto the line of umbilicus medially. On exploration, there was haematoma in Crl.A.No.49-DB of 1998 9 the subcutaneous soft tissue in the corresponding area. On opening the abdominal and chest cavity, the peritoneum and pleura were lacerated at places on right side and there was massive haemopertoneum (About 600 CC) and and haemoppheumotherax about 300 CC in the peritoneal and pleursal cavity respectively. The intestines were also lacerated at three places. There were also two lacurations on anterior surface if the right lobe of the liver. Two small metalic structures measuring about 0.2 to 03cm recovered from the lobe of the liver. The right pleura was lacerated at places and there were two lacerated wounds on the anterior surface of right lung. Two mattalic objects about 0.2cm x0.3cm were recovered from the right pleural cavity. 2. (ii) There were about 12 round x to elipical black areas measuring approximately 0.2 to 0.4cm on the right arm in the middle 1/3rd area on the outerside and front of the arm, scatted irregularly. On exploration, there was haematoma in the corresponding soft tissues and muscles. A mettalic piece measuring 0.3x0.5 cm irregular in diamension was recovered from the soft tissues. 3. Two metalic structures of 0.2 to 0.3cm diameter were also recovered from the soft tissues of the abdominal wall”. All the metalic structures recovered from, the dead body of Surender alias Shalinder were put in a sealed plastic container and handed over to the police. In the opinion of Dr.R.K.Gupta,PW1 the cause of death of Surender alias Shalinder was due to shock and haemorrhage caused by the injuries described in the post mortem report, especially injury No.1. He also opined that injury No.1 was sufficient to cause death in the ordinary course of nature. It was also opined by Dr. R.K.Gupta PW1, that all the injuries were ante mortem in nature. The statement of the complainant Dalbir Singh was recorded as PW2. While recording his statement before the trial Court Crl.A.No.49-DB of 1998 10 Dalbir Singh PW2 reiterated the factual position, as was recorded by him while making his complaint to SI Raj Singh PW15 on 18.1.1996. The statement of Randhir Singh was recorded as PW3. It would be pertinent to mention that Randhir Singh PW3 was also an injured witness, inasmuch as, he had sustained injuries in the occurrence under reference. While deposing before the trial Court he corroborated the testimony of the complainant Dalbir Singh PW2 on all material particulars. The statement of constable Kali Ram was recorded as PW4. He stated that he had taken the special report in respect of the FIR of the present case to Kaithal and had delivered the same to the Ilaqa Magistrate. He stated that on 18.1.1996 he received the ruqqa Exhibit PD/1, and thereafter, he recorded the FIR in the case. The statement of HC Balwan Singh was recorded as PW6. HC Balwan Singh PW6 asserted that he was handed over the dead body of Surender alias Shalinder in order to get the post mortem examination conducted. He stated that he had taken the dead body to the Civil Hospital, Kaithal, for the aforesaid purpose. The statement of HC Rajender Singh was recorded as PW7. HC Rajender Singh PW7 asserted that he produced before the trial Court the license Exhibit -PH of the gun recovered at the instance of the accused/appellant Kuldeep Singh. In his testimony he stated that the license was valid upto 8.3.1997. The statement of Constable Richi Pal was recorded as PW8. He visited the spot and prepared the scaled site plan Exhibit PJ. Satpal Verma, Licensing Clerk from office of the S.D.M.Kaithal was produced as PW9. He stated that the license of the gun was originally issued by the S.D.M.Narwana as previously village Dumra was attached to the S.D.M.Narwana, for administrative purposes. However, the same was renewed by S.D.M.Kaithal, since subsequently village Dumar came to be Crl.A.No.49-DB of 1998 11 attached with Sub Division, Kaithal. The statement of Dr.Daizy Sood was recorded as PW10. Dr.Daizy Sood, Medical Officer, General Hospital, Kaithal was recorded as PW10. She stated that she had conducted the medico legal examination of the complainant Dalbir Singh PW2 on 18.1.1996, and had found the following injuries on his person:- “1. A lacerated wound .2cm over middle interphalangeal joint of left index finger, surrounding area was swollen and tender. Fresh bleeding was present. 2. Two lacerated wounds .2cm over left hand over proximal interphalangeal joint of left index finger, surrounding tissue was swollen and tender. 3. A lacerated wound .8cm in diameter over distal phalaynx of left middle finger. Fresh bleeding was present. 4. A lacerated wound .5cm in diameter over distal phalynx of left middle finger. Fresh bleeding was present, swelling and tenderness was present, blackening was present between the wound injuries No. 3 and 4. 5. Three lacerated wounds of .1cm over side of distal phalynx of left finger. Fresh bleeding was present. Tenderness was present. 6. A lacerated wound of .4cm over tip of left ring finger. 7. Fresh bleeding from tip of nail of left ring finger. Discolouration of distal half of nail. 8. A lacerated wound .2cm over middle phalynx of left little finger in dorsum aspect. 9. A lacerated wound .2cm over parimer aspect of left hand proximal to base of middle finger, swelling and tenderness was present”. She also opined that all the injuries on the person of Dalbir Singh PW2 were fresh and had been caused by a fire arm. She also stated that she had conducted the medico legal examination of Randhir Singh on 18.1.1996 and Crl.A.No.49-DB of 1998 12 had found the following injuries on his person:- “1. Whole of left upper arm was swollen in its anterior medial and posterior aspect. Superficial lacerated wounds seven in number of variable size of 0.2cm 0.8cm in diameter over swollen area. Fresh bleeding was present from all the wounds. Tenderness was present. 2. A swelling of 20cmx10cm over anterior and medial aspect of left fore-arm. Superficial lacerated wounds 6 in number of different size 0.2cm x 0.5cm in diameter were present over swelling. Fresh bleeding was present from all the wounds. Tenderness was present. 3. A swelling 19cmx 5cm over anterior and medial aspect of left fore-arm in its lower 1/3rd. Superficial lacerated wounds 2 in number of 0,5cm diameter were present. Fresh bleeding and tenderness was present. 4. A lacerated wound 0.5cm over left side of back. Fresh bleeding was present. Surrounding area was swellen and tender. 5. A superficial lacerated wounds below and lateral to injury No.4, 0.5cm surrounding tissue was swollen and tender. 6. Two superficial lacerated wound one above the another 0.4cm over left side of back. Swelling around and tenderness present. 7. A lacerated wound .5cm over lateral side of back.Swelling and tenderness present. 8. Two superficial lacerated wounds 0.2cm on left lumber region, swelling around and tenderness was present. 9. Superficial lacerated wound .2cm over right side of back. 10. Superficial lacerated wound 2cm x 0.5cm on the left buttack. 11. A superficial lacerated wound .2cm medial in injury No.10. Fresh bleeding and tenderness was present. 12. A superficial lacerated wound .5cm over left buttack lateral to midline. 13. An abrasion 2.5cm into 1cm over right knee. Superficial lacerated wound 2 in number .5cm in size. Crl.A.No.49-DB of 1998 13 14. Over right side of back, above the right buttack. Swelling around and tenderness present. 15. Superficial lacerated wound .4cm above the right buttack.” Dr.Daizy Sood PW10 asserted that all the injuries on the person of Randhir Singh PW3 were fresh and had been caused by a fire arm. During her examination, she also stated that after the arrival of the two injured persons i.e. Dalbir Singh PW2 and Randhir Singh PW3, at the General Hospital,Kaithal, she had sent a letter Exhibit-PO to the police station City Kaithal in which she had also given information about the fact that Surender alias Shalinder had been brought dead to the hospital. The statement of ASI Sat Pal was recorded as PW11. ASI Sat Pal PW11 stated that he had accompanied SI Raj Singh PW15 to the place of the occurrence, from where, blood stained earth was taken into possession. He also stated that four pellets and two wards were taken into possession from the place of occurrence, and put into two separate sealed parcels. The aforesaid case property was taken into possession vide recovery memo Exhibit PR, which he had attested. During the course of his cross-examination, he asserted that the people present at the place of occurrence were saying that the gun shots were fired in the street. Roop Chand Clerk, in the office of the Registration Officer,Narwana appeared as PW12 and produced the registry Exhibit PS dated 19.4.1989. The statement of Om Parkash was recorded as PW13. He stated that on the receipt of a letter in January 1996 he had moved an application Exhibit PQ to obtain a report whether Dalbir Singh PW2 and Randhir Singh PW3 were fit to make a statement. He further stated that Dr.Daizy Sood PW10 declared both Dalbir Singh PW2 and Randhir Singh PW3 fit to make a statement. He stated that thereafter the statement Dalbir Crl.A.No.49-DB of 1998 14 Singh PW2 was recorded by SI Raj Singh PW15. The statement of Dr.Satbir Chaudhary, Senior Medical Officer, CHC,Pehowa, was recorded as PW15. He stated that he had conducted the radiological examination of Dalbir Singh PW2 on 19.1.1996, wherein he had recorded the following conclusions:- “... I found that there was fracture of head of first phalynx of index finger. Three radio opaque shadows were also seen in metacarpo phalyngial joint of index, proximal inter phalyngial joint of index finger and