Criminal Appeal No.-283-DB of 1998 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Sube Singh and another APPELLANTS VERSUS State of Haryana RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE JORA SINGH Present:- Shri Surinder Singh Walia, Advocate for the appellants. Shri S.S.Randhawa, Additional A.G. Haryana assisted by Shri Kulwant Singh Dhanora, Advocate. MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.283-DB of 1998 and Criminal Revision No.979 of 1998 by this common judgment, as they arise out of the same judgment/order dated 30.4.1998/5.5.1998 of the learned Additional Sessions Judge, Hissar, by which he convicted Sube Singh son of Dungar Ram and Sanjay Kumar son of Sube Singh under Sections 302/34 I.P.C. and sentenced them to undergo imprisonment for life. Both the appellants were directed to pay a Criminal Appeal No.-283-DB of 1998 -2- fine of Rs.5000/-, in default of payment of fine to further undergo RI for six months. Further, the learned Additional Sessions Judge convicted both the appellants under Section 307 I.P.C. and sentenced them to undergo RI for 10 years and to pay a fine of Rs.1000/-, in default, to further undergo RI for three months. All the substantive sentences were ordered to run concurrently. The case of the prosecution is unfolded by the statement of Bhim Singh, Ex.PM, made to SI Mange Ram. Bhim Singh stated that he does labour work. He has five brothers. He and his younger brother Ram Sarup live together. The other brothers and his parents live separately in their own house. From the house of Bhim Singh, on the way to Village Matter Sham, there is a dirty drain which flows. Near the drain there is vacant land of the Canal Department. On this vacant land, Bhim Singh had put fire wood for the last many days. On 1.10.1995 in the evening Sube Singh son of Dunger, of his own village, put fire wood nearby. Bhim Singh's brother Ram Sarup removed it. On 2.10.1995 at 7.15 a.m. Sube Singh set wood on fire, on which Bhim Singh and his brother Ram Sarup went to see what was happening. Sube Singh was standing there with his licensed DBBL gun. His son Sanjay Kumar armed with unlicensed country-made pistol was also standing there. When they reached near them, Sube Singh fired two shots from his gun which hit on the chest, right hand and right thigh of his brother Ram Sarup. Ram Sarup fell down on the ground. Thereafter Sanjay Kumar fired from his unlicensed countrymade pistol, the pellets of which hit Bhim Singh on his abdomen on the left side of naval point. As a result Bhim Singh also fell down. In the meantime, his brothers Dharambir and Balwant Singh reached the spot. On seeing them, both Sube Singh and Sanjay Kumar ran away. While running away, Criminal Appeal No.-283-DB of 1998 -3- they fired in the air. A pitar rehra was arranged and both Bhim Singh and his brother Ram Sarup were taken to the General Hospital, Hissar. On the way Ram Sarup succumbed to his injures. The motive for the commission of the offence was that the land on which the wood of Bhim Singh was lying, appellant wanted to take possession of that. The prosecution to prove its case, brought into the witness-box Raj Singh PW-1, Mohinder Singh PW-2, Rajender Parsad PW-3, Sunder Lal PW-4, Dharampal PW-5, Dr.Arun Kumar Gupta PW-6, Dr.R.S.Dalal PW-7, Dr.Partap Singh PW-8, Jai Parkash PW-9, Karan Pal PW-10, Bhim Singh PW-11, Dharambir PW-12, Mange Ram PW-13 and D.P.Yadav PW-14. Learned counsel for the appellants has argued, that the medical evidence does not corroborate the ocular account. The injury on the person of Bhim Singh PW-11 is a superficial injury. It has been declared simple by Dr.R.S.Dalal PW-7 who examined Bhim Singh PW-11. The possibility of this injury being caused by appellant Sube Singh cannot be ruled out. Sube Singh was fired from his DBBL licensed gun, Ex.PA. The spread of pellets from a distance of 20 to 25 feet, coupled with the size of injury being only 1 cm. in diameter, shows that it was a pellet which struck, Bhim Singh PW-11. Appellant Sanjay Kumar was carrying a countrymade pistol. This was never recovered. If it was a . 12 bore country made pistol, the pellets could not have reached Bhim Singh PW- 11 from a distance of 20 to 25 feet and if it was a countrymade pistol with grooves inside and having a bullet, then the size of the injury on the person of Bhim Singh PW-11, would have been larger than 1 cm. Though both the appellants were standing on the same side, Criminal Appeal No.-283-DB of 1998 -4- Dr.Partap Singh PW-8 who prepared the post-mortem report Ex.PJ, has stated that injury on the person of deceased Ram Sarup was on the right hand, while Dr.R.S.Dalal PW-7 has stated that injury on the person of Bhim Singh PW-11 was on the left side. It clearly shows that both deceased Ram Sarup and Bhim Singh PW-11 were standing close to each other. The pellets which came out of the DBBL gun Ex.PA of appellant Sube Singh hit Bhim Singh PW-11 on the left side and deceased Ram Sarup on his right hand. Strangely the shirt of Bhim Singh PW-11 was not taken into possession by the Investigating Officer. This showed that it did not have any hole in the shirt matching to the injury on the person of Bhim Singh PW-11. If the pellets had been fired from the countrymade pistol of Sanjay Kumar and had it hit Bhim Singh PW-11, the shirt would have had a corresponding hole. The injury being of a minor nature, one stray pellet pierced the left side of Bhim Singh PW-11. Dr.Partap Singh PW-8 in his post-mortem report Ex.PJ, has stated that deceased had taken his meals 3 hours prior to his death. As per the prosecution, the occurrence had taken place at 7.30 a.m. On 2.10.1995. As per the report, deceased Ram Sarup must have taken his meals at about 4.30 p.m. This shows that the F.I.R. is ante-timed. The occurrence took place some time in the night at about 12 to 2 O'clock on 2.10.1995, after deceased Ram Sarup had taken his meals. It was the month of October. Ram Sarup must have taken his meals any time between 8 to 10 p.m. On 1.10.1995. It is a case of blind murder and the appellants have been roped in on mere suspicion. The motive for the commission of the offence does not appeal to the mind. For such a small dispute of putting wood on the land which belonged not to Criminal Appeal No.-283-DB of 1998 -5- the complainant party, but to the Canal Department, appellants would have shot dead Ram Sarup. Learned counsel for the State has argued, that the argument put forward by the learned counsel for the appellants that it was the DBBL gun from which the shot was fired and it hit both deceased Ram Sarup and Bhim Singh PW-11, is not possible. Both deceased Ram Sarup and Bhim Singh PW-11 reached the place of occurrence when they saw their wood had been put on fire. The size and nature of the injury on the person of Bhim Singh PW-11 is 1 cm. in diameter, while the dimension of injury No.1 on the person of deceased Ram Sarup as per the post-mortem report Ex.PJ is ½ cm. x ½ cm. It clearly shows that two weapons were used, i.e. the DBBL gun Ex.PA by appellant Sube Singh and the coutnrymade pistol by appellant Sanjay Kumar. F.I.R. Ex.PM/2 is not ante- timed. The report of Dr.Partap Singh PW-8 is only his opinion. He has not stated anything about the faecal matter being present. It was the month of October. The deceased was a labourer and in villages by 6 O'clock the labourers are in their fields on their work place to do their work. It was natural for the deceased to have eaten something early in the morning, because he had to go to his work place, not knowing that he would be murdered by the appellants at 7.30 a.m. The motive for the commission of the offence, was that though the piece of land belonged to the Canal Department, appellants wanted to take possession of the land firstly by putting wood there and then they would have ousted the complainant party. We have heard the learned counsel for the parties and perused the record with their assistance. Criminal Appeal No.-283-DB of 1998 -6- The argument put forward by the learned counsel for the appellants that F.I.R. Ex.PM/2 is ante-timed, is not according to the facts of the case. The occurrence had taken place on 2.10.1995 at 7.30 a.m. The F.I.R. was recorded at 11.20 a.m. on 2.10.1995 and the special report reached the Illaqa Magistrate at 1.30 p.m. on the same day. In fact the recording of the F.I.R. is very prompt and the special report reaching the Illaqa Magistrate is also very prompt. Deceased Ram Sarup was a labourer. In the villages labourers go to work as the Sun rises. It was ending September and beginning October. The Sun at that time rises around 6/6.30 a.m. Since deceased Ram Sarup had to go to his place of work, he must have had something to eat at about 4.35 a.m. Little did he know that at 7.30 a.m. he would loose his life. The motive for the commission of the offence was that appellant Sube Singh wanted to take possession of the small piece of land of the Canal Department. He put some wood on that piece of land, only to see whether the complainant party would protest or not. These type of encroachments keep taking place on government land, where it can be done so. The argument of the learned counsel for the appellants that Sanjay Kumar was not present, seems to be correct. As per Dr.R.S.Dalal PW-7, who examined Bhim Singh PW-11, he found a rounded superficial lacerated wound of the size of about 1 cm. diameter in the left illiac foosa equidispent from unbilias and left anterior superior illiac spine. Margins were inverted. There was no blackening or tattooing of the skin. There was oozing of serum from the wound. He prepared the medico-legal report Ex.PG. He further stated that Serum is a constituent of the blood. No blood was oozing from the injury. Dr.Arun Kumar Criminal Appeal No.-283-DB of 1998 -7- Gupta PW-6 radiologically examined Bhim Singh PW-11. In his statement, he has stated that there was a radio opaque shadow of metallic density on the left side. His X-Ray report being Ex.P2. As per the prosecution, the injury on the person of Bhim Singh PW-11 was given by firing from the countrymade pistol, by appellant Sanjay Kumar. Strangely one pellet hit him and that pellet did not cause any bleeding. The diameter of the injury being 1 cm., while in the case of Ram Sarup who was examined by Dr.Partap Singh PW-8, the diameter of injury was ½ x ½ cm. One thing is clear that injury on the person of Bhim Singh PW-11 was due to a pellet fired from .12 bore gun. If appellant Sanjay Kumar had aimed at Bhim Singh PW-11 and fired, there would have been more injuries on his person, but this one pellet minor injury seems to be due to the pellet which was fired by appellant Sube Singh from his DBBL gun and that hit Bhim Singh PW-11. No recovery of pistol has been made from appellant Sanjay Kumar. Appellant Sanjay Kumar has been falsely implicated. As per Dr.Partap Singh PW-8, the possibility of gun shot being fired from a distance of 25 to 30 feet could not be ruled out. It is clear from the medical evidence, that most of the pellets hit Ram Sarup deceased and one stray pellet hit Bhim Singh PW-11, which the complainant party showed to be that of appellant Sanjay Kumar, so that he could be falsely implicated. With the above discussion and observations, we are of the considered opinion, that it was Sube Singh son of Dungar Ram alone who committed the murder of Ram Sarup. The one pellet injury on the person of Bhim Singh PW-11 was also caused by the gun shot fired by appellant Sube Singh. Sanjay Kumar has been roped in. Criminal Appeal No.-283-DB of 1998 -8- The conviction and sentence of appellant Sube Singh is maintained. Appeal qua him is dismissed. His conviction and sentence is upheld. Sanjay Kumar son of Sube Singh has been unnecessarily roped in. Appeal qua Sanjay Kumar is allowed. His conviction and sentence is set aside. He is acquitted of the charge framed against him. If in custody, he be set free forthwith. Criminal Revision No.979 of 1998 is also dismissed. ( MEHTAB S.GILL ) JUDGE ( JORA SINGH ) August 7, 2008 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO