Criminal Appeal No.709-DB of 2002 -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH Criminal Appeal No.709-DB of 2002 Date of Decision: 11.11.2011 Ajit Singh and others ...Appellants Versus State of Punjab ..Respondents CORAM: Hon'ble Mr. Justice S.S. Saron Hon'ble Mr. Justice Rameshwar Singh Malik Present: Mr. Ashok Saini, Advocate for the appellants. Mr. S.S.Gill, Addl.Advocate General, Punjab. S.S.Saron, J. This appeal has been filed by the Ajit Singh (appellant No.1) and Balbir Singh (appellant No.2) sons of Lal Singh, as also Mohinder Singh (appellant No.3) and Dalip Singh (appellant No.4) sons of Bachan Singh against the judgment and order dated 17.8.2002 whereby Mohinder Singh (appellant No.3) has been convicted for the offence punishable under Section 302 of the Indian Penal Code (for short -`IPC') for committing the murder of Lakhwinder Singh; besides Dalip Singh (appellant No.4), Ajit Singh (appellant No.1) and Balbir Singh (appellant No.2) have been convicted for the offence under Section 302 read with Section 34 IPC. Balbir Singh (appellant No.2) has also been convicted for the offence under Section 326 IPC for voluntarily causing grievous hurt to Kulwant Singh while Ajit Singh (appellant No.1), Mohinder Singh Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -2- (appellant No.3) and Dalip Singh (appellant No.4) have been convicted for the offence under Section 326 read with Section 34 IPC. Ajit Singh (appellant No.1) has also been convicted for the offence under Section 323 IPC for voluntarily causing hurt to Kulwant Singh (PW-2) while Mohinder Singh (appellant No.3), Dalip Singh (appellant No.4) and Balbir Singh (appellant No.2) have been convicted for the offence punishable under Section 323 read with Section 34 IPC. By a separate order passed on the same date, Mohinder Singh (appellant No.3), has been sentenced to imprisonment for life, besides, pay a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for one year for the offence under Section 302 IPC. The other appellants i.e. Ajit Singh (appellant No.1), Balbir Singh (appellant No.2) and Dalip Singh (appellant No.4) have been sentenced to imprisonment for life, besides, pay a fine of Rs.10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one year for the offence under Section 302 read with Section 34 IPC. Balbir Singh (appellant No.2) has been sentenced to undergo rigorous imprisonment for five years, besides, pay a fine of Rs.5000/- and in default of payment of fine to undergo rigorous imprisonment for one year for the offence under Section 326 IPC. The other appellants i.e. Mohinder Singh (appellant No.3), Ajit Singh (appellant No.1) and Dalip Singh (appellant No.4) have been sentenced to undergo rigorous imprisonment for five years, besides, pay a fine of Rs.5000/- each and in default of payment of fine to further undergo rigorous imprisonment for one year for the offence under Section 326 read with Section 34 IPC. Ajit Singh (appellant Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -3- No.1) has further been sentenced to undergo rigorous imprisonment for one year for the offence under Section 323 IPC. The other appellants i.e. Mohinder Singh (appellant No.3), Dalip Singh (appellant No.4) and Balbir Singh (appellant No.2) have been sentenced to undergo rigorous imprisonment for one year each for the offence under Section 323 read with Section 34 IPC. All the sentences have been ordered to run concurrently. In terms of the said order dated 17.8.2002 whereby the appellants have been convicted and sentenced, the accused Gurdip Singh and Harbhajan Singh sons of Lal Singh have been acquitted. Aggrieved against the order of conviction and sentence, the appellants have filed the present appeal assailing their conviction and sentence. Learned counsel for the State, on instructions from ASI Balwinder Singh, Police Station Batala, District Gurdaspur, at the outset submitted that Ajit Singh (appellant No.1) has died. He has placed on record the message dated 3.9.2004 sent by Superintendent Central Jail, Amritsar to the SHO, Police Station Sri Hargobind Pur and information sent to the Senior Superintendent of Police, Batala and Superintendent Central Jail, Gurdaspur intimating that life convict Ajit Singh son of Lal Singh, resident of village Bahadurpur Rajoa, Police Station Sri Hargobind Pur, District Gurdaspur was shifted to TB Hospital for medical treatment on 28.8.2004. He died in the TB, Hospital, Amritsar on 3.9.2004. Intimation be sent to his relatives to collect the dead body from Guru Nanak Dev Hospital, Postmortem Branch, Amritsar. DDR No.10, dated 4.9.2004 in this regard was entered at Police Station Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -4- Majitha Road, Amritsar. Therefore, appeal against Ajit Singh (appellant No.1) stands abated in terms of Section 394 of the Code of Criminal Procedure (for short - `CrPC'). FIR No.22 dated 7.3.2000 (Ex.PA/2) at Police Station Sri Hargobind Pur in the case was registered on the statement (Ex.PA) of Balwinder Singh (PW-1) in respect of the incident that occurred on 7.3.2000 at about 5.00/6.00 p.m. It is alleged by the complainant Balwinder Singh (PW-1) that he is a resident of village Bahadurpur Rajoa and serves in the Army. He had come to his village on leave on 7.3.2000 because of the marriage of his brother Lakhwinder Singh (deceased). Their fields were situated in the 'Baet' (low lying land along a river and usually subject to inundation and erosion). His uncle (father's younger brother) Nand Singh was working in the fields. Dalip Singh (appellant No.4) and his brother Balbir Singh @ Gholi (appellant No.2) of the village were also cutting fodder in the fields. The uncle of the complainant Balwinder Singh (PW-1), namely Nand Singh had a slight quarrel with regard to cutting of fodder from their fields by Balbir Singh (appellant No.2) and Dalip Singh (appellant No.4). The complainant came to know regarding this incident in the village. Kulwant Singh (PW-2) and Lakhwinder Singh (deceased), the brothers of the complainant Balwinder Singh (PW-1), were coming from the fields to the village on their tractor. The complainant Balwinder Singh (PW-1) and his brother Balwant Singh after waiting for them were going to look for them. When the tractor was going along the metalled road outside the village and had reached in front of the house of Joginder Singh, Member Panchayat, at that time, it would be about 5.30/6.00 p.m. Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -5- that Mohinder Singh (appellant No.3) son of Bachan Singh armed with a 'barcha', Gurdip Singh (since acquitted) son of Lal Singh armed with a 'dang', Ajit Singh (appellant No.1) (died during pendency of the appeal) son of Lal Singh armed with a 'dang', Balbir Singh alias Gholi (appellant No.2) son of Lal Singh armed with a 'barcha', Harbhajan Singh (since acquitted) son of Lal Singh armed with a 'chhavi' came there, besides, Dalip Singh (appellant No.4) son of Bachan Singh armed with a 'dang' also came there. Immediately on coming out of the street, Dalip Singh (appellant No.4) raised a 'lalkara' that on the said day i.e. 7.3.2000, their uncle Nand Singh had insulted them immensely in the fields, therefore, a lesson be taught to the complainant side for insulting them. Lakhwinder Singh (deceased), the brother of the complainant Balwinder Singh (PW-1), was just getting down from the tractor when Gurdip Singh (since acquitted) and Ajit Singh (appellant No.1) caught hold of him by his arms, and Mohinder Singh (appellant No.3) inflicted a 'barcha' blow, which hit him (Lakhwinder Singh) on the middle of his chest. Harbhajan Singh (since acquitted) caught hold of Kulwant Singh (PW-2), the brother of the complainant Balwinder Singh (PW-1), from his long hair and Balbir Singh @ Gholi (appellant No.2) inflicted a blow with the 'barcha' that he was carrying, which hit Kulwant Singh (PW-2) on the right side of his chest below the nipple. Ajit Singh alias Ghona (appellant No.1) gave two blows with his 'dang' to Kulwant Singh (PW-2), the brother of the complainant (PW-1), which hit him (PW-2) on his left shoulder and left arm. Both the brothers (Lakhwinder Singh-deceased and Kulwant Singh PW-2) of the complainant Balwinder Singh (PW-1), Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -6- smeared with blood fell on the ground. The complainant (PW-1) and his brother Balwant Singh raised an alarm of `mar dita' `mar dita' and then the assailants fled away from the spot with their respective weapons. The complainant (PW-1) and his brother after arranging a vehicle brought both his brothers (Lakhwinder Singh- deceased and Kulwant Singh PW-2) to the Civil Hospital, Harchowal where the doctor declared Lakhwinder Singh as brought dead and his brother Kulwant Singh (PW-2) being serious was referred to Civil Hospital, Batala. Complainant Balwinder Singh (PW-1) after leaving his brother Balwant Singh near the dead body of Lakhwinder Singh at Civil Hospital, Harchowal for safety of the dead body, took Kulwant Singh (PW-2) to Civil Hospital, Batala where the doctor medically examined him and dressed his wounds. The cause of grudge was that a slight quarrel had occurred regarding the cutting of fodder from the fields due to which the accused with a common intention had caused injuries to his brother Lakhwinder Singh (deceased) and Kulwant Singh (PW-2). Lakhwinder Singh had later died. Complainant Balwinder Singh (PW-1) was at Civil Hospital, Batala with his brother Kulwant Singh (PW-2). The police came there and he got his statement Ex.PA recorded. He was the complainant. Action was requested to be taken. During scuffle, the accused side, it is stated, might have received injuries. The statement (Ex.PA) was signed by Balwinder Singh, complainant (PW-1) in Punjabi, which was attested by Inspector Paramjit Singh, SHO P.S. Sri Hargobind Pur (PW-11). Inspector Paramjit Singh, SHO (PW-11) made his endorsement (Ex.PA/1) regarding the police proceedings on the said Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -7- statement (Ex.PA), which is to the effect that on 7.3.2000 one QST message was received from SI Jasbir Singh, In charge Police Post Harchowal informing about the fact that a fight had taken place at village Bahadurpur Rajoa in which Lakhwinder Singh (deceased) and Kulwant Singh (PW-2) sons of Shangara Singh had suffered injuries and out of them Lakhwinder Singh had died. He had asked for reaching Civil Hospital for taking action. Upon this, Inspector/SHO Paramjit Singh (PW-11) along with ASI Narinder Singh, HC Budh Singh, HC Balkar Singh and Constable Gurpreet Singh on a government Gypsy bearing No.PB-08F 9551, driven by C. Sarbjit Singh reached Civil Hospital, Harchowal where the dead body of Lakhwinder Singh was lying. SI Jasbir Singh was found present there with his force. Kulwant Singh (PW-2) injured being serious had been referred by the doctor to Civil Hospital, Batala. He (Inspector Paramjit Singh PW-11) along with his co-officials reached Civil Hospital, Batala and had sought opinion of the doctor in writing for the purpose of recording statement of injured Kulwant Singh (PW-2). The doctor declared the injured to be not fit for making a statement. Brother of the injured namely Balwinder Singh (PW-1) was found present who got his statement Ex.PA recorded before Inspector Paramjit Singh SHO (PW-11), which after writing was read over and explained to him who after admitting it to be correct signed it in Punjabi. The statement was attested by Inspector Paramjit Singh SHO (PW-11). From the doctor one MLR No.7-AS/2000 dated 7.3.2000 of Kulwant Singh (PW-2) was received in which the doctor had shown total three injuries on the person of Kulwant Singh (PW-2) out of which injury No.1 was Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -8- alleged to have been caused with a sharp edged weapon and injuries No.2 and 3 it was alleged to have been caused with a blunt weapon. Injury No.1 had been kept for x-ray examination. From the statement Ex.PA and MLR, a prima-facie case for commission of offences punishable under Sections 302/324/323/148/149 IPC, besides, Section 25 of the Arms Act were made out. The writing was being sent to the Police Station for registration of a case (FIR) through HC Balkar Singh. After registration of case, its number was asked to be intimated and special reports were asked to be sent to higher officers, besides, informing the control room through wireless message. Inspector Paramjit Singh, SHO (PW-11) along with his co-officials and complainant (PW-1) proceeded for investigation. At the police station on receipt of writing Ex.PA and endorsement Ex.PA/1, a case in respect of the aforesaid offences was registered by Gian Singh, SI, Police Station Sri Hargobind Pur vide report No.31 at 11.00 p.m./report No.32 at 11.55 p.m. dated 7.3.2000. Copy of the FIR along with original writing was sent through HC Balkar Singh to Inspector/SHO Paramjit Singh. Copy of the FIR was sent to higher officers through Constable Jagdish Raj. Control room was informed through wireless message. Inspector Paramjit Singh SHO (PW-11) prepared inquest report (Ex.PE) of the dead body at Civil Hospital, Harchowal. The dead body was handed over to HC Harbans Singh along with an application (Ex.PD) for getting post mortem examination conducted. It was quite late in the night, therefore, Inspector Paramjit Singh SHO (PW-11) stayed at Harchowal. On the next day (8.3.2000), he (PW-11) went to the spot and prepared site plan (Ex.PQ), Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -9- besides, blood stained earth was lifted from the spot, which was made into parcel and sealed with seal 'PS' vide memo Ex.PR. Dalip Singh (appellant No.4) and Balbir Singh (appellant No.2), two of the accused were arrested on that day. On 10.3.2000 on interrogation, accused Dalip Singh (appellant No.4) made a disclosure statement (Ex.PS) that he had kept concealed a 'dang'. Balbir Singh (appellant No.2) made a disclosure statement (Ex.PT) that he had kept concealed one spear ('barcha'). Both the said accused got recovered the `dang' and `barcha' respectively, which were taken in possession by the police vide memos. (Ex.PS/1) and (Ex.PT/1). Rough sketch (Ex.PT/2) of the blade of spear was prepared. The blade of the spear was sealed. Inspector Paramjit Singh SHO (PW-11) on the way received secret information that the remaining four accused were present at 'Adda' Marhi Panwan. Paramjit Singh (PW-11) went there and arrested Mohinder Singh (appellant No.3), Gurdip Singh (since acquitted), Ajit Singh (appellant No.1) and Harbhajan Singh (since acquitted). On interrogation, Mohinder Singh (appellant No.3) disclosed that he had kept concealed a 'barcha' which he could get recovered. His disclosure statement (Ex.PU) was recorded and on recovery, memo (Ex.PU/1) was prepared. Sketch of the 'barcha' (Ex.PU/2) was also prepared. Two 'dangs' were recovered in pursuance of disclosure statements (Ex.PV) and (Ex.PX) made by Gurdip Singh (since acquitted) and Ajit Singh (appellant No.1), which were taken in possession by the police vide memos. (Ex.PV/1 and Ex.PX/1). A 'chhavi' (Ex.P3) was recovered in pursuance of the disclosure statement (Ex.PY) made by Harbhajan Singh (since acquitted) which was taken in police Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -10- possession vide memo (Ex.PY/1) after preparing rough sketch (Ex.PY/2). Site plans Ex.PT/3, Ex.PU/3, Ex.PV/2, Ex.PX/2 and Ex.PY/3 regarding the recoveries were prepared. Inspector Paramjit Singh SHO (PW-11) on return to the police station deposited the case property with the MHC. The statements of the witnesses were recorded. On completion of investigation, the police report ('challan') was filed against the accused in the Court of the learned Judicial Magistrate Ist Class (JMIC), Batala. The learned JMIC Batala from a perusal of the facts and circumstances observed that prima facie offences punishable under Sections 302/ 307/ 323/ 324/ 148/ 149 IPC were committed. The offences punishable under Sections 302 and 307 IPC, it was observed, were exclusively triable by the Court of Session. Therefore, vide order dated 3.6.2000 the case was committed to the learned Sessions Judge, Gurdaspur for trial. The learned Additional Sessions Judge, Gurdaspur to whom the case was assigned, initially on 5.8.2000 framed charges against all the accused. However, it appears that the charges were wrongly framed inasmuch as Balbir Singh (appellant No.2) was charged for the offence under Section 302 IPC while the other accused namely Mohinder Singh (appellant No.3), Gurdip Singh (since acquitted), Ajit Singh (appellant no.1) and Harbhajan Singh (since acquitted) were charged for the offence under Section 302/149 IPC and Mohinder Singh (appellant No.3) was charged for the offence under Section 307 IPC while other accused namely Dalip Singh (appellant No.4), Gurdip Singh (since acquitted), Ajit Singh (appellant No.1), Balbir Singh (appellant No.2) and Harbhajan Singh (since acquitted) were charged for the offence under Section Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -11- 307/149 IPC. In fact Mohinder Singh (appellant No.3) was to be charged for the offence under Section 302 IPC and the other accused for the offence under Section 302/149 IPC; besides, Balbir Singh (appellant No.2) was to be charged for the offence under Section 307 IPC while the other accused for the offence under Section 307/149 IPC. Thereafter, amended charges were framed on 9.10.2000 against six accused. It was alleged that all the appellants as also Gurdip Singh and Harbhajan Singh (since acquitted) on 7.3.2000 at about 5.30/6.00 p.m. in the area of Bahadurpur Rajoa were members of an unlawful assembly and in prosecution of the common object of that assembly committed an offence of rioting and at that time, they were armed with deadly weapons like spear and 'dangs' and thereby committed an offence punishable under Section 148 IPC. Secondly, on the same date, time and place, Mohinder Singh (appellant No.3) in prosecution of the common object of the above said assembly committed murder by intentionally causing the death of Lakhwinder Singh and thereby committed an offence punishable under Section 302 IPC while the other accused namely Dalip Singh (appellant No.4), Gurdip Singh (since acquitted), Ajit Singh (appellant No.1), Balbir Singh (appellant No.2) and Harbhajan Singh (since acquitted) committed an offence punishable under Section 302/149 IPC. Thirdly, on the same date, time and place, Balbir Singh (appellant No.2) in prosecution of the common object of the above said unlawful assembly did an act of causing injuries with spear on the person of Kulwant Singh (PW-2) with such intention or knowledge and under Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -12- the circumstances that if by that act he (Balbir Singh) had caused the death of Kulwant Singh (PW-2), he would have been guilty of murder and thereby, he committed an offence punishable under Section 307 IPC while the other accused namely Mohinder Singh (appellant No.3), Dalip Singh (appellant No.4), Gurdip Singh (since acquitted), Ajit Singh (appellant No.1) and Harbhajan Singh (since acquitted) committed an offence punishable under Section 307/149 IPC. Fourthly, on the same date, time and place Ajit Singh (appellant No.1) in prosecution of the common object of the unlawful assembly voluntarily caused hurt to Kulwant Singh (PW-2) and thereby committed an offence punishable under Section 323 IPC while the other accused namely Mohinder Singh (appellant No.3), Dalip Singh (appellant No.4), Gurdip Singh (since acquitted), Balbir Singh (appellant No.2) and Harbhajan Singh (since acquitted) committed an offence punishable under Section 323/149 IPC. The accused were directed to be tried by the Court of learned Additional Sessions Judge, Gurdaspur. The contents of the charge were read over and explained to the accused in simple Punjabi. The prosecution in order to establish its case, examined as many as 11 witnesses, besides, tendered documents in evidence. Statements of the accused in terms of Section 313 Cr.P.C. were recorded and the substance of the incriminating evidence appearing against each of them was put to them. Balbir Singh (appellant No.2) in his defence stated that in fact when he and his cousin brother Dalip Singh (appellant No.4) came out from his (Balbir Singh-appellant No.2's) house and had just reached in front of the small (sic. narrow) street i.e. near the house of Joginder Singh, Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -13- Member Panchayat; at that time complainant Balwinder Singh (PW-1) son of Shangara Singh armed with 'gandasi', Hardip Singh son of Balwinder Singh armed with 'barchi', Kulwant Singh son of Shangara Singh armed with 'sua', Balwant Singh son of Shangara Singh armed with 'gandasi' came there. Harjit Singh raised 'lalkara' that they (i.e. the accused side in the present case) should not go alive and be taught a lesson. Then Balwinder Singh gave a 'gandasi' blow which hit him (Balbir Singh-appellant No.2) on his head. Kulwant Singh (PW-2) gave a 'sua' blow 'on the pattern of giving a 'dang' blow' which hit him (Balbir Singh-appellant No.2) on the right side of his waist ('chulla'). Balwant Singh gave a 'gandasi' blow to Dalip Singh (appellant No.4), which hit his head and Kulwant Singh (PW-2) gave a 'sua' blow 'on the pattern of giving a 'dang' blow' which hit Dalip Singh (appellant No.4) on his right shoulder. They raised an alarm of 'mar ditta - mar ditta'. The accused side of the present case were removed to the hospital by the police. The police did not allow them to get treatment from the Medical Officer at Bham and detained them in the police lock up in a false case. He (Balbir Singh-appellant No.2) was innocent. Dalip Singh (appellant No.4) stated on the same lines as Balbir Singh (appellant No.2). The other accused namely Ajit Singh (appellant No.1), Harbhajan Singh and Gurdip Singh (since acquitted), besides, Mohinder Singh (appellant No.3) stated that they had been falsely implicated in the case and they were innocent. In defence, the accused examined Dr. Kashmir Singh (DW-1) who stated that he medically examined Dalbir (sic. Balbir Singh-appellant No.2) son of Lal Singh of village Bahadurpur Rajoa Amit Kaundal 2014.07.01 14:53 I attest to the accuracy and integrity of this document Chandigarh Criminal Appeal No.709-DB of 2002 -14- on 7.3.2000 at 11.00 a.m. and he found an incised wound 8 cm x 0.5 cm on left parietal bone placed obliquely, fresh bleeding and tenderness was present. Besides there was complain of pain on the right gluteal region, however, no external injury was seen. The injuries, it is stated, were simple. Weapon used for injury No.1 was sharp and blunt for injury No.2. Injuries were fresh. On the same day Dr. Kashmir Chand (DW-1) also examined Dalip Singh (appellant No.4) son of Bachan Singh of village Bahadurpur Rajoa and found two injuries on his person i.e. lacerated wound 5 cm x 0.5 cm on right parietal bone placed sagitally on right parietal region; fresh bleeding and tenderness was present and there was complain of pain on the right shoulder, however, no external injury was seen. The injuries were opined to be simple. The kind of weapon used was blunt. Injuries were fresh. The said injured namely Balbir Singh (appellant No.2) and Dalip Singh (appellant No.4) were not admitted in the Hospital. In cross-examination it is submitted that injuries on the both the injured (Balbir Singh and Dalip Singh appellants No.2 and 4) were superficial and the possibility that the injuries could be within two hours from the time of the examination of both the injured could not be ruled out. Balbir Singh (appellant No.2) examined himself as DW-2 and he stated that on 7.3.2000 at 5.00 p.m., he and Dalip Singh (appellant No.4) were present near their 'Haveli'; Harjit Singh with 'barchha', Balwinder Singh (PW-1) with 'gandasi', Balwant