Crl.A.No.248-DB of 1998 1 IN THE HIGH COURTOF PUNJAB AND HARYANA, CHANDIGARH. Crl.A No. 248-DB of 1998 Date of decision:February , 2008 Darbara Singh and another ....Appellants vs. The State of Punjab. ..Respondent CORAM: HON'BLE MR.JUSTI CE J.S.KHEHAR. HON'BLE MR.JUSTICE SHAM SUNDER. --- Present: Mr.A.S.Khaira, Advocate, for the appellants. Mr.S.S.Bhinder, Addl. Advocate General,Punjab, for the State. -- J.S.KHEHAR,J. The instant appeal has been filed against the order passed by the Additional Sessions Judge, Ferozepur in Sessions Case No.11 of 1996, decided on 7.4.1998. By the impugned judgment, the appellants Darbara Singh and Kashmir Singh alias Malla Singh alias Malli, have been held guilty and convicted for the murder of Mukhtiar Singh, under Section 302 of the Indian Penal Code. By a separate order passed on the same day, both the convicts were sentenced to imprisonment for life and to pay a fine of Rs.5000/- each. In default of payment of fine, they were ordered to undergo further rigorous imprisonment for two years each. The prosecution version of the incident is based on the statement of Amrik Singh PW1 brother of the deceased Mukhtiar Singh. On 28.10.1995, the complanant Amrik Singh PW1 made a statement to SI Crl.A.No.248-DB of 1998 2 Sukhwinder Singh PW9 to the effect that his brother Mukhtiar Singh had constructed a room in front of his house, which is adjoining to the house of complainant Amrik Singh PW1, in which Mukhtiar Singh was carrying on the business of selling country made liquor. On 28.10.1995 at 5 P.M. in the presence of Gurdial Singh PW2 and himself, Hira Singh, and Kashmir Singh came to the liquor vend of Mukhtiar Singh and demanded liquor on credit. On Mukhtiar Singh's refusing to give them liquor on credit, they went away hurling abuses at him. They also threatened that they would see him (Mukhtiar Singh) for not having given them liquor on credit. They also told Mukhtiar Singh that he had insulted them by refusing to give them liquor on credit. After 15-20 minutes of the aforesaid incident the appellant Darbara Singh armed with “"kirpan" along with the appellant Kashmir Singh also armed with “kirpan”, and Hira Singh armed with a “sotta” returned to the liquor vend of Mukhtiar Singh. On reaching the liquor vend, Hira Singh raised a “lalkara” that Mukhtiar Singh should be taught a lesson for refusing to give liquor on credit, and also that, he should not be allowed to escape. After the aforesaid “lalkara”, the appellant Darbara Singh gave a "kirpan" blow to Mukhtiar Singh which hit him on his head, and the appellant Kashmir Singh gave a "kirpan" blow to Mukhtiar Singh which hit him on the left side of his flank. On receipt of the aforesaid injuries, Mukhtiar Singh fell down, whereupon the complainant Amrik Singh PW1 and a by-stander Gurdial Singh PW2, raised an alarm. At this, all the three i.e. Hira Singh, Kashmir Singh and Darbara Singh ran away from the spot along with their respective weapons. After Amrik Singh PW1 and Gurdial Singh PW2 had made arrangements to take Mukhtiar Singh to the hospital, they realized that Mukhtiar Singh had succumbed to his injuries. It is Crl.A.No.248-DB of 1998 3 thereupon that Amrik Singh PW1 proceeded towards the Police Station, Dharamkot, to record a complaint. On his way, he met SI Sukhwinder Singh PW9, and made his complaint to him. On the basis of the complaint made by Amrik Singh PW1 on 28.10.1995, First Information Report bearing No.150 was registered at Police Station Dharamkot on 28.10.1995 itself. After registration of the First Information Report, Sub Inspector Sukhwinder Singh PW9 visited the spot along with the complainant Amrik Singh PW1 and prepared the inquest report of the dead body of Mukhtiar Singh. The dead body of Mukhtiar Singh was then sent for post mortem examination through Head Constable Harbhajan Singh to Civil Hospital, Zira. The post mortem examination on the dead body of Mukhtiar Singh was conducted by Dr.Charanjit Singh, Medical Officer, Civil Hospital, Zira,PW11 on 29.10.1995 at 10.30 A.M. According to the post mortem examination, the following injuries were found on the dead body of deeased Mukhtiar Singh:- “1. An incised wound 3cmx1.5 cm on the left parietal region of head. Obliquely placed 12 cm above left ear of pinna. 1.5cm from the mid line of 6 cm behind the anterior hair line. Clotted blood was present. Underlying bone was intact. 2. An incised penetrating elliptical shape 6cmx1.5 cm was present on the front aspect of left side of chest 5cm.below the nipple and 5cm. from the mid line. Clotted blood was present.” Crl.A.No.248-DB of 1998 4 All the injuries were found to be antimortem in nature. In the opinion of Dr.Charanjit Singh, the death of Mukhtiar Singh was on account of shock and haemorrhage as a result of an injury to his vital organs i.e. lung and heart. It was also concluded in the report that the injuries on the vital organs of Mukhtiar Singh were sufficient in the ordinary course of nature to cause death. On completion of investigation challan was presented in the Court of Sub Divisional Judicial Magistrate, Zira. By an order dated 19.2.1996, the Sub Divisional Judicial Magistrate, Zira, concluded that a prima facie case under Section 302 read with Section 34 of the Indian Penal Code was made out against the accused Darbara Singh, Kashmir Singh and Hira Singh. Since the offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session, the Sub Divisional Judicial Magistrate by his order dated 19.2.1996 committed the case to the Court of Session. On 19.3.1996, the Additional Sessions Judge, Ferozepur, charged the accused Darbara Singh and Kashmir Singh for having committed the murder of Mukhtiar Singh under Section 302 of the Indian Penal Code. Hira Singh was charged for having committed the offence under Section 302 read with Section 34 of the Indian Penal Code. The accused were then confronted with the charges levelled against them.They pleaded not guilty and claimed trial. During the course of trial, the prosecution examined a number of witnesses. The brief description of the deposition of the witnesses produced by the prosecution is being summarized hereunder.The complainant Amrik Singh was examined as PW1. He reiterated the factual Crl.A.No.248-DB of 1998 5 position recorded by him on the basis of which the First Information Report was registered on 28.10.1995. Gurdial Singh, a by stander at the place of occurrence and an eye witness to the occurrence was examined as PW2. Gurdial Singh PW2 reiterated the factual position narrated by Amrik Singh PW1. M.L.Garg, Draftsman, Zira, was produced as PW3. He prepared the scaled plan as well as the marginal notes of the place of occurrence. MHC Karanjit Singh appeared as PW4 and tendered in evidence his sworn affidavit dated 13.6.1997 ( Exhibit P4). HC Harbhajan Singh appeared as PW5. He tendered in evidence his affidavit dated 14.6.1997 (Exhibit P5) depicting that he had taken the dead body of Mukhtiar Singh for the post mortem examination, to Civil Hospital, Zira. Constable Rajinder Singh appeared as PW6. He tendered in evidence his affidavit dated 13.6.1997 (Exhibit P6) depicting that the special report of the case under reference was delivered by him to the Ilaqa Magistrate,Zira, on 28.10.1995. Constable Joginder Singh was produced as PW7. He tendered in evidence his affidavit dated 14.6.1997 (Exhibit P7) depicting that he had deposited two parcels containing blood stained "kirpans" in the office of Director, Forensic Science Laboratory, Chandigarh. Two other samples handed over to him could not be deposited at the Forensic Science Laboratory on account of the fact that the seals on the same were not intact. On 23.11.1995 certain other samples were again taken by Constable Joginder Singh PW7 to the Forensic Science Laboratory, Chandigarh. Constable Raj Kumar appeared as PW8. He tendered in evidene affidavit (Exhibit P8) depicting that he along with Harbhajan Singh PW5 had gone to the Civil Hospital, Zira, for getting the post mortem examination on the dead body of Mukhtiar Singh conducted. S.I.Sukhwinder Singh appeared as PW9. He Crl.A.No.248-DB of 1998 6 was the Investigating Officer of the case in hand. During the course of his deposition he affirmed having recorded the statement of complainant Amrik Singh PW1 on 28.10.1995 and having sent the complaint to the police station for registration of a case. He also affirmed having prepared the inquest report on the dead of deceased Mukhtiar Singh (Exhibit P9) and having sent the dead body of Mukhtiar Singh for post mortem examination to Civil Hospital, Zira. He had also prepared the rough site plan of the place of occurrence on 28.10.1995 with marginal notes. He also affirmed having recorded the statements of a number of witnesses during the course of investigation of the case. SI Sukhwinder Singh PW9 also deposed that he had made raids at the houses of the accused but they could not be arrested. He also affirmed that after initial investigation had been conducted by him, investigation was handed over to SI Devinder Singh PW10. SI Devinder Singh who also partly investigated the case appeared as PW10. He affirmed that Mehal Singh Sarpanch had produced the accused Darbara Singh,Hira Singh and Kashmir Singh, at Police Post Kot Ise Khan. He also affirmed having interrogated Darbara Singh in the presence of Gurcharan Singh and Ranjit Singh when he made the disclosure statement (Exhibit P13) about having concealed the "kirpan" used by him in the occurrence under reference, on the roof of his residential house. Likewise Kashmir Singh also made a disclosure statement Exhibit P14 to S.I.Devinder Singh PW10 asserting that he had kept concealed a "kirpan" in the “ruri” which is lying in front of his house. Even Hira Singh had made a disclosure statement Exhibit P15 to S.I. Devinder Singh PW10 that he had concealed one bamboo “sotta”, which was in his possession at the time of the murder of the deceased Mukhtiar Singh, on the roof of the bath room of his house. Crl.A.No.248-DB of 1998 7 On the basis of the disclosure statement of accused Darbara Singh Exhibit P13, a blood stained unseathed "kirpan" kept concealed on the roof of his house was recovered, whereupon, recovery memo Exhibit P13/B was prepared. Another unseathed "kirpan" stained with blood which had been concealed in a heap of manure lying outside the house of Kashmir Singh was also recovered on the basis of disclosure statement Exhibit P14, whereupon, recovery memo Exhibit P14/B was prepared, and the bamboo “sotta” held by accused Hira Singh at the time of the murder of Mukhtiar Singh was recovered from the roof of the bath room of the house of Hira Singh on the basis of the disclosure statement Exhibit P15, whereupon recovery memo Exhibit P15/A was prepared. SI Devinder Singh PW10 further stated that on completion of investigation and other official formalities, he had presented the challan before the Ilaqa Magistrate. The statement of Dr.Charanjit Singh, Medical Officer, Civil Hospital Zira, who had conducted the post mortem examination on the dead body of Mukhtiar Singh on 28.10.1995 was recorded as PW11 wherein he affirmed having conducted the post mortem examination on the dead body of Mukhtiar Singh. The prosecution evidence was closed 9.8.1997. The statements of the accused Darbara Singh, Kashmir Singh and Hira Singh, under Section 313 of the Code of Criminal Procedure, were recorded on 13.9.1997. In his statement Darbara Singh having denied the incriminating evidence put to him also denied any involvement in the occurrence under reference. He inter alia asserted as under:- “ It is a false case. I am innocent. The complainant party were the aggressors and had caused injuries to Kashmir Singh, Bohar Singh, Paramjit Singh. I had seen the occurrence and tried to Crl.A.No.248-DB of 1998 8 disuade them from fighting. After the murder complainant party asked me to give evidence in their favour through which I refused point blank. Rather I said that when police would ask me I will tell the truth which may go against you. Thereafter they planned to involve me falsely. I was empty handed and had not caused any injury to anybody. PWs are telling lie. Kashmir Kaur father's sister daughter of Buta Singh ( father of co-accused) was raped by my brother Balkar Singh. Buta Singh son of Lakha Singh was a witness in that case. It had happened 19/20 years back and since then our family and Buta Singh's family are not on speaking terms with each other and there was no question for me to join with Hira and Malla co-accused”. Kashmir Singh also having denied the veracity of the incriminating evidence put to him also denied any involvement in the occurrence under reference. He inter alia stated as under:- “ It is a false case. I am innocent. The complainant party is aggressor. Myself, Bohar Singh and Paramjit Singh were passing from the Chowk where liquor vend is there. Bohar Singh asked Mukhtiar Singh as uncle to which he objected and felt annoyed and said that I am not old and why are you saying me uncle, upon which there was altercation and Mukhtiar Singh took out takua from the liquor vend and started causing injuries to Bohar Singh and on our intervention Mukhtiar Singh caused injuries to me and Paramjit Singh and to save us and himself, Bohar Singh caused injuries to Mukhtiar Singh. The Crl.A.No.248-DB of 1998 9 complainant party in connivance with the police got this case foisted against us”. Hira Singh having denied the veracity of the incriminating evidence put to him, asserted his innocence and alleged that he had been involved in the case falsely because he was the brother of the accused Kashmir Singh. In their defence, the accused examined AC Resham Singh as DW1, who produced the summoned FIR register. The accused also produced Dr.Rashpal Singh Rathore, SPMO, Primary Health Centre,Bhunga, District Hoshiarpur as DW2. He deposed that he had examined Bohar Singh ,Paramjit Singh and Kashmir Singh. The injuries on them were declared as simple. Dr.Rashpal Singh Rathore DW2 also asserted that some of the injuries on the person of Bohar Singh could be by friendly hand and both the injuries on the person of Paramjit Singh could have been caused by fall on a hard surface, and further, that the injury on the person of Kashmir Singh could be possible if the person had fallen by striking his head against some blunt object or hard surface. The defence evidence was closed by the accused on 6.4.1998. The Additional Sessions Judge, Ferozepur delivered the judgment in Sessions Case No.11 of 1996 on 7.4.1998. Darbara Singh and Kashmir Singh were held guilty of having committed the murder of Mukhtiar Singh under Section 302 of the Indian Penal Code. The Additional Sessions Judge, Ferozepur however, concluded that the prosecution had not been able to bring home the allegations levelled against Hira Singh. The accused Hira Singh was accordingly acquitted. On the same day i.e. 7.4.1998 after having heard the convicts Darbara Singh and Kashmir Singh, on the question of sentence, they were sentenced to Crl.A.No.248-DB of 1998 10 undergo imprisonment for life and to pay a fine of Rs.5000/- each under Section 302 of the Indian Penal Code. In default of payment of fine it was ordered that they would undergo further rigorous imprisonment for a period of two years. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgment rendered by the Additional Sessions Judge, Ferozepur, reveal that while convicting the appellants Darbara Singh and Kashmir Singh, reliance was placed on ocular as well as expert evidence besides the disclosure statements made by the accused on the basis whereof recoveries of the weapons used in the crime were recovered. So far as the ocular evidence is concerned, there were two star witnesses namely Amrik Singh PW1 and Gurdial Singh PW2. They and the deceased Mukhtiar Singh were brothers. Amrik Singh PW1 was also running a shop close to the liquor vend of the deceased Mukhtiar Singh. During the course of his deposition, Amrik Singh PW1 asserted that accused Kashmir Singh and Hira Singh were real brothers. They came to the liquor vend of Mukhtiar Singh and demanded liquor on credit. On the denial to give them liquor on credit they felt insulted at the hands of Mukhtiar Singh and went away by giving a threat that they would teach him a lesson. After about 15- 20 minutes of the aforesaid incident, both Kashmir Singh and Hira Singh accused came back along with Darbara Singh accused. Whilst Kashmir Singh and Darbara Singh were having "kirpans", accused Hira Singh had a “sotta” in his hand. Hira Singh allegedly raised a “lalkara” whereupon accused Darbara Singh dealt a "kirpan" blow on the head of Mukhtiar Singh. And while Mukhtiar Singh was running away, Kashmir Singh accused gave a thrust of the "kirpan" on the left flank of Mukhtiar Singh. Crl.A.No.248-DB of 1998 11 On seeing all this Amrik Singh PW1 and another by-stander Gurdial Singh PW2 raised an alarm and the three accused ran away with their respective weapons. The aforesaid narration at the hands of Amrik Singh PW1, was reiterated by another eye witness Gurdial Singh PW2. The statements of the aforesaid two eye witnesses could not be discredited despite extensive cross examination. The instant ocular evidence went a long way in the determination of the guilt of the accused Darbara Singh and Kashmir Singh by the trial Court. Insofar as the expert evidence is concerned, the trial Court arrived at the conclusion that the post mortem report and the testimony of Dr.Charanjit Singh PW11 who had conducted the post mortem examination on the dead body of the deceased Mukhtiar Singh fully supported the ocular evidence produced by the two eye witnesses. Besides the aforestated evidence, the trial Court also relied upon the disclosure statements at the hands of the three accused Darbara Singh, Kashmir Singh and Hira Singh (Exhibits P13,P14 and P15) as also the recovery of two "kirpans" and one “sotta” (vide recovery memo Exhibits P13/B,P14/B and P15/A). The trial Court arrived at the conclusion that injury No.1 depicted in the post mortem report had been inflicted by the accused Darbara Singh whereas injury No.2, which had resulted in the death of Mukhtiar Singh had been caused by the accused Kashmir Singh. They were, therefore, held guilty of having murdered Mukhtiar Singh and were accordingly convicted under Section 302 of the Indian Penal Code. Since only a “lalkara” was attributed to accused Hira Singh and there was no other independent evidence produced against for having given a blow to the deceased Mukhtiar, or connecting him with the crime, the trial Court found Crl.A.No.248-DB of 1998 12 the charges levelled against the accused Hira Singh as having not been proved and, therefore, acquitted him. Shri A.S.Khaira, learned counsel appearing for the accused/appellant Darbara Singh and Kashmir Singh forcefully and vehemently contended that Darbara Singh had unnecessarily been roped into the controversy although he was not involved therewith in any manner whatsoever. In this behalf, it is submitted that according to the prosecution version accused Kashmir Singh and his brother accused Hira Singh had gone to the liquor vend of deceased Mukhtiar Singh at 5 P.M. on 28.10.2005 and asked for liquor on credit. On the denial of the same by the deceased Mukhtiar Singh they had felt insulted and went away by giving a threat that they would teach Mukhtiar Singh a lesson. They are stated to have returned after 15-20 minutes along with Darbara Singh. It is the contention of the learned counsel for the appellants that Darbara Singh had no motive for having joined hands with accused Kashmir Singh and Hira Singh. If the denial of liquor had hurt Kashmir Singh and Hira Singh they would have ordinarily on their own taken revenge from the deceased Mukhtiar Singh. The involvement of the accused/appellant Darbara Singh in the crime under reference is, therefore, a totally concocted story. Additionally it is submitted that the alleged motive is clearly inapplicable to the accused Darbara Singh. It is not possible for us to accept the instant contention of the learned counsel for the appellants, as it has come in the statement of Amrik Singh PW1 that the accused Darbara Singh is a friend of the two accused Kashmir Singh and Hira Singh. It is well known that friends join hands to salvage the pride of their close associate(s). The aforesaid stance adopted by the accused when their statements were Crl.A.No.248-DB of 1998 13 recorded under Section 313 of the Code of Criminal Procedure, depict a totally different story/version. Had the accused led some evidence in their defence in terms of their statements (recorded under section 313 of the Code of Criminal Procedure) and had they thereby shaken the credibility of the ocular evidence of Amrik Singh PW1 and Gurdial Singh PW2 some thought could have been given to the instant submission of the learned counsel for the appellants. In the background of the evidence produced before the trial Court there is certainly no room for the instant submission. We, therefore, find no merit in the first contention of the learned counsel for the appellants. In order to substantiate his second contention, learned counsel for the appellants has invited our attention to the post mortem examination of the dead body of deceased Mukhtiar Singh (the injuries inflicted on the dead body of deceased Mukhtiar Singh, as depicted in the post mortem report, have been extracted above). It is the submission of the learned counsel for the appellants that the accused/appellant Darbara Singh allegedly caused the first injury depicted in post mortem report whereas the accused/appellant Kashmir Singh is alleged to have inflicted the second injury. It is the submission of the learned counsel for the appellants that the first injury is merely a simple injury and as such it is apparent that Darbara Singh accused had no intention whatsoever of committing the murder of the deceased Mukhtiar Singh. It is also the submission of learned counsel for the appellants that the statement of Dr.Charanjit Singh PW11 clearly establishes that there was a scuffle between the parties before the blows were allegedly inflicted by the accused on the person of Mukhtiar Singh. This submission has been made on the basis of the factual deposition of Crl.A.No.248-DB of 1998 14 Dr.Charanjit Singh PW11 to the effect that the shirt worn by the deceased Mukhtiar Singh was torn at many places suggesting that there was a scuffle between the rival parties. It is, therefore, the contention of the learned counsel for the appellants, that the ocular evidence produced by the prosecution should be rejected on account of the fact that it does not disclose the fact that any scuffle had taken place between the rival parties. It is also the contention of the learned counsel for the appellants based on the testimony of Dr.Charanjit Singh PW11 that injury No.1 depicted in the post mortem report, was not possible if the deceased was running and the assailant was chasing him. In order to substantiate that the deceased Mukhtiar Singh had started to run when the accused Hira Singh allegedly raised a “lalkara”, reference has been made to the statement of Amrik Singh PW1. It is the submission of the learned counsel for the appellants that when the injuries were given, Mukhtiar Singh must be accepted to be running away from the liquor vend and therefore, as per the statement of Dr.Charanjit Singh PW11 the injury on the body of the deceased Mukhtiar Singh attributed to Darbara Singh could not have been inflicted on him. Although the submissions, noticed hereinabove, are attractive on first blush, we find no merit therein. It is difficult to understand how Dr.Charanjit Singh PW11 arrived at the conclusion that injury No.1 could not have have been inflicted if the deceased Mukhtiar Singh had been running and was being chased by the accused Darbara Singh. No justification for the said statement was