IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 607-DB of 2008 DATE OF DECISION : 28.04.2010 Jasbir Singh @ Beera and others .... APPELLANTS Versus State of Punjab ..... RESPONDENT Crl. A. No. 24-DB of 2009 DATE OF DECISION : 28.04.2010 State of Punjab .... APPELLANT Versus Jaswant Singh alias Jassi ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Mr. L.S. Goraya, Advocate, for the appellants (in Crl. A. No. 607-DB of 2008) Ms. Gurveen H. Singh, Addl. A.G., Punjab. Mr. K.S. Dhaliwal, Advocate, for the respondent (in Crl. A. No. 24-DB of 2009). Mr. Mandeep Singh Bedi, Senior Advocate, with Ms. Gauri Bedi, Advocate, for the complainant. * * * Crl. A. No. 607-DB of 2008 -2- SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of two appeals, i.e. Criminal Appeal No. 607-DB of 2008, filed by three accused against their conviction and sentence for committing the murder of Hardial Singh, and Criminal Appeal No. 24-DB of 2009, filed by the State of Punjab, against the acquittal of accused Jaswant Singh alias Jassi. 2. In the present case, four accused, namely Jasbir Singh alias Beera, Sahib Singh alias Pardhan Singh, Balraj Singh and Jaswant Singh alias Jassi (hereinafter referred to as A-1, A-2, A-3 and A-4, respectively) were tried by the court of Additional Sessions Judge, Gurdaspur, for committing the murder of Hardial Singh. A-2, A-3 and A-4 are son, nephew and younger brother of A-1. One more accused, namely Ajmer Singh (son of A-4) whose name came in the supplementary statement of the complainant, was also summoned under Section 319 Cr.P.C., but since he was a juvenile on the day of the occurrence, therefore, his case was referred to the Juvenile Justice Board, which is stated to be still pending. 3. The trial court, vide its judgment and order dated 11.7.2008, convicted and sentenced A-1 to undergo rigorous imprisonment for life and to pay a fine of Rs. 20,000/- under Section 302 IPC. A-2 and A-3 were convicted and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs. 20,000/- each, under Section 302 read with Section 34 IPC. However, A-4 was acquitted of the charge. In the order of sentence, a direction was also issued by the trial court that no period of parole or Crl. A. No. 607-DB of 2008 -3- remission granted to the convicts should be deducted from the sentence awarded and the convicts should not be released without undergoing a minimum period of twenty years rigorous imprisonment. 4. Against the aforesaid judgment and order, these two appeals have been filed, one by the convicts and the other by the State. 5. As per the prosecution version, which is based upon the statement of Davinder Singh (brother of deceased Hardial Singh), both the parties are residents of village Aujla. A criminal case under Section 307 IPC, titled as State versus Jasbir Singh and others, was pending in the court of Additional Sessions Judge, Gurdaspur. In the said case, Hardial Singh (deceased) and his brother Davinder Singh were the complainant and the witness. The said case was fixed for prosecution evidence for 24.5.2004 (the day of occurrence). Davinder Singh was an Advocate. On the day of occurrence, his brother Hardial Singh was going on his bicycle from his village to the court compound, Gurdaspur, through Kahnuwan Road, to attend the hearing of his case. Complainant Davinder Singh and his nephew Harinder Singh were also going to the court compound, Gurdaspur, on their scooter. When at about 9.30 AM, complainant and Harinder Singh reached near Chandan Palace, near `T' Point, then all the four accused, who were riding on two scooters, crossed them at a high speed. When the complainant and his nephew Harinder Singh reached in front of Pandit Mohan Lal S.D. College, they saw that A-4, A-1 and A-2 were holding `Kirpans' in their hands and A-3 was holding `Dang'. After stopping their scooters, they ran Crl. A. No. 607-DB of 2008 -4- towards Hardial Singh to kill him. On seeing them, Hardial Singh, after throwing his bicycle, ran towards the gate of S.D. College, in order to save his life. All the four accused followed him. They entered the College. On this, the complainant and his nephew, after stopping their scooter, also entered the College. They saw that A-4 gave `Kirpan' blow to Hardial Singh, which hit him on his head. A-1 also gave `Kirpan' blow to Hardial Singh, which also hit on his head. Then he fell down on the ground. When he was lying on the ground, A-2 gave three `Kirpan' blows, which hit on his right eye brow and right cheek. Then A-4 and A-1 gave `Kirpan' blows which hit on right hand and left hand of Hardial Singh. Then A-3 gave `Dang' blow, when Hardial Singh was lying on the ground. The complainant and his nephew raised noise `Bachao – Bachao'. Then the aforesaid accused ran towards them. In order to save their lives, the complainant and his nephew ran towards the Canteen in the College. Thereafter, all the aforesaid accused, after coming outside the gate of college, fled away along with their respective weapons. Then the complainant and his nephew saw that Hardial Singh had succumbed to the injuries at the spot, whose dead body was lying in a pool of blood near the office of Principal. The complainant, after leaving his nephew at the spot to guard the dead body, went to Police Station for giving information. 6. The aforesaid statement of Davinder Singh (PW.2) was recorded by Naresh Kumar SI/SHO, Police Station City Gurdaspur, at 10.10 AM on the day of occurrence. On the basis of the said statement, the formal Crl. A. No. 607-DB of 2008 -5- FIR (Ex.PD) was registered against the accused under Sections 302/34 IPC at 11.00 AM in Police Station City Gurdaspur. The special report was received by the Illaqa Magistrate at 11.40 AM. 7. After registering the FIR, on 24.5.1994, the day of occurrence, SI Naresh Kumar (PW.9) along with the police party went to the spot. He prepared the inquest report (Ex.PC) and the injury statement (Ex.DC), wherein he had shown six injuries on the body of the deceased. He also lifted the blood stains from the place of occurrence, put the same in a plastic container, and after duly sealing, took the same into possession vide memo Ex.PW9/A. He also took into possession one cycle vide memo Ex.PW9/B, prepared the rough site plan (Ex.PW.9/C) of the place of occurrence, sent the dead body for post mortem examination, took into possession the clothes of the deceased vide memo Ex.PW9/D, and recorded the statements of the witnesses. 8. On the same day at 4.50 PM, Dr. Sudhir Kumar (PW.1) conducted the autopsy on the body of the deceased. He found the following seven injuries on the body of the deceased : 1. An incised wound 17 x 3 cm on the left side of head, 6 cm above the left pinna. 2. An incised wound of 6 x 2 cm on the back of head. 3. A lacerated wound of 5.5 x 2.5 cm on the forehead just above the right eye brow. On dissection of head, the underlying bone corresponding the injury Crl. A. No. 607-DB of 2008 -6- No.1 was fractured and membranes of brain were lacerated. Right brain was lacerated. Injuries No.2 and 3 were bone deep. 4. An incised wound 12.5 x 2.5 cm on the right face just below the right lobule of ear. On dissection, the underlying muscles, blood vessels and the bone i.e. face bone are fractured. 5. A lacerated wound of 6 x 2.5 cm on the web of thumb and index finger of the right hand. On dissection, no abnormality was detected on the underlying bones. 6. An incised wound 5.5 linear and it was skin deep. On dissection, the wound was skin deep. 7. A lacerated wound of 6.5 x 2.5 cm in the web of left thumb and index finger of left hand. On dissection, the wound was skin deep. All the injuries were ante-mortem in nature and sufficient to cause death in the ordinary course of nature. The probable time that elapsed between injuries and death was immediate and between death and post mortem was within 12 hours. In the opinion of Dr. Sudhir Kumar, injuries No.1, 2, 4 and 6 could be caused by sharp edged weapon, like `Kirpan' and injuries No. 3, 5 and 7 could be the result of blunt weapon, like `Dang'. He has proved the Post Mortem Report Ex.PA. 9. Part of the investigation in the case was conducted by Sukhdev Singh SHO (PW.4). A-2 surrendered before him on 5.6.2004. During Crl. A. No. 607-DB of 2008 -7- interrogation, on 6.6.2004, in pursuance of his disclosure statement (Ex.PW4/A), he got recovered one blood stained `Kirpan', which was kept concealed by him on one side of the bypass in the thick trees. The same was taken into possession vide recovery memo Ex.PW4/C, in the presence of ASI Kuljinder Singh, HC Jasbir Singh and Yusuf Masih, a private witness. 10. Similarly, A-4 surrendered before Sukhdev Singh SHO on 12.6.2004 and during interrogation, on 15.6.2004, in pursuance of his disclosure statement (Ex.PW4/E), he got recovered one `Kirpan', which was kept concealed by him near Sheesham tree on the southern side of `Gande Nale Wali Pulli' constructed on the Kahnuwan Road. The same was taken into possession vide recovery memo Ex.PW4/G, in the presence of HC Mohinder Pal and Jagjit Singh, a private witness. 11. On 26.6.2004, A-3 was arrested. On 28.6.1994, in pursuance of his disclosure statement (Ex.PW4/N), he got recovered one `Dang', which was kept concealed by him on one side of S.D. College, Kahnuwan Road, towards the southern side of `Gande Nale Wali Pulli'. The same was taken into possession vide recovery memo Ex.PW4/P, in the presence of HC Satnam Singh and Harcharan Singh, a private witness. 12. On 28.6.2004, A-1 was arrested. On the same day, in pursuance of his disclosure statement (Ex.PW4/J), he got recovered one blood stained `Kirpan', which was kept concealed by him on one side of the bye pass in the thick trees. The same was taken into possession vide recovery memo Ex.PW4/L, in the presence of HC Satnam Singh and Harcharan Singh, a Crl. A. No. 607-DB of 2008 -8- private witness. 13. After completion of investigation, the challan was filed and all the four accused were charge sheeted under Section 302 read with Section 34 IPC, to which they did not plead guilty and claimed trial. 14. In the initial FIR, name of Ajmer Singh did not figure, but according to the prosecution, the supplementary statement of the complainant was recorded on the same day, in which he stated that after A-3 gave `Dang' blow to Hardial Singh, when he was lying on ground, Ajmer Singh (son of A-4) also arrived at the spot. He exhorted all the four accused to finish the work at the earliest and at least before any body arrives there. He gave kick blows to Hardial Singh, when he was lying on the ground. Then the complainant and his nephew raised alarm `Bachao-Bachao'. However, during investigation, Ajmer Singh was found innocent and no challan was filed against him. Subsequently, on the application filed by the prosecution, he was summoned under Section 319 Cr.P.C., and fresh charges were framed against all the five accused for the offences under Sections 148, 302 read with Section 149 IPC, to which they did not plead guilty and claimed trial. Thereafter, on 23.5.2007, the trial court found that accused Ajmer Singh was a juvenile, at the time of the occurrence, and accordingly, his case was referred to the Juvenile Justice Board, Gurdaspur. 15. In support of its case, the prosecution examined 10 witnesses. PW.1 Dr. Sudhir Kumar conducted the autopsy on the body of the deceased. PW.2 Devinder Singh (complainant) and PW.3 Harinder Singh are the eye Crl. A. No. 607-DB of 2008 -9- witnesses. They have fully supported the prosecution case. PW.4 Inspector Sukhdev Singh, who partly investigated the case, arrested the accused persons and effected the recoveries from them. PW.9 SI Naresh Kumar recorded the statement of the complainant, prepared the inquest report, rough site plan and partly investigated the case. PW.10 Sarwan Singh, Ahlmad, proved the pendency of criminal case, titled as State Versus Jasbir Singh and others. He has stated that as per the zimni order, the said case was fixed for 24.5.2004 for prosecution evidence. On the earlier date i.e. on 18.5.2004, Hardial Singh (deceased), who was complainant in the said case, was examined as a witness. He further stated that as per the zimni order dated 7.5.2004, Hardial Singh and Davinder Singh (complainant in this case) were present in the court and on that day, but they could not be examined. According to him, the said case was finally decided on 15.6.2006. 16. PW.5 MHC Jabarjit Singh, PW.6 C. Ajit Singh and PW.7 Janak Singh Dhanjal, Draftsman, who prepared the scaled site plan Ex.PW7/A of the place of occurrence, and PW.8 Constable Jang Bahadur, are the formal witnesses. 17. The prosecution has also tendered into evidence certain documents. 18. In their statements under Section 313 Cr.P.C., A-1 to A-3 pleaded innocence. They stated that the prosecution case as well as the witnesses are false, and they have been falsely implicated in this blind Crl. A. No. 607-DB of 2008 -10- murder case, as there was long standing intense enmity between their family and the family of the complainant. They did not lead any evidence in defence. 19. A-4, in his statement under Section 313 Cr.P.C., pleaded that he was the Karta of his family. On 24.5.2004 at about 9.30 AM, he was arrested at Saidpur crossings falling in the area of Police Station Kathua (J&K) in an excise case, when he was carrying liquor for a personal party and lateron, he was convicted and sentenced in the said case by the Judicial Magistrate, Kathua. The distance between the place of occurrence at Gurdaspur and Saidpur crossing is more than 70 Kms. Devinder Singh complainant is not a practising lawyer. He had no seat in the court compound at Gurdaspur. A-4 further stated that he was falsely implicated in the case due to intense enmity between them and the complainant party. In support of his defence of alibi, he examined four witnesses. 20. DW.1 HC Kulbhushan Singh of Police Station Kathua brought the original FIR register. He stated that on receipt of the ruqa on 24.5.2004, an FIR No. 141 dated 24.5.2004 under Section 48-A of the Excise Act was registered against A-4 at 1.45 PM in Police Station Kathua. Copy of the FIR was proved on record as Ex.DD. He also proved on record the ruqa Ex.DE, on the basis of which the FIR Ex.DD was registered. He also stated that in the month of May, 2004, working time of the Courts in Kathua was from 7.30 AM to 1.30 PM. He further stated that after completion of investigation, challan in that case was presented within two days i.e. on Crl. A. No. 607-DB of 2008 -11- 26.5.2004. 21. DW.2 Sudarshan Kumar, MHC, Police Station Kathua, brought the DDR register for the year 2004 and proved on record copies of DDRs No. 3 and 5 dated 24.5.2004, 4 and 6 dated 25.5.2004, 3 and 9 dated 26.5.2004, as Ex.DF, Ex.DG, Ex.DH, Ex.DJ, Ex.DK and Ex.DL, respectively. DDR No. 3 dated 24.5.2004 (Ex.DF) shows the departure time of the police party at 8.10 AM. DDR No. 5 dated 24.5.2004 (Ex.DG) shows the arrival of the police party in the Police Station at 10.45 AM. DDR No. 9 dated 26.5.2004 (Ex.DL) shows that the challan was filed after two days i.e. on 26.5.2004. 22. DW.3 Sub Inspector Rajeshwar Singh is the Investigating Officer in the aforesaid excise case against A-4. He stated that on 24.5.2004 at about 8.10 AM, he started for patrolling towards the side of village Saidpur Nakkin and at about 9.30 AM, he intercepted A-4, when he was coming on his scooter bearing registration No. PB-58A-9411. This witness conducted the search of the scooter and found twelve bottles of country made liquor of Punjab Government in the dickie of the scooter. A-4 was arrested by him on the spot and ruqa (Ex.DE) was sent to Police Station Kathua for registration of the case, on the basis of which FIR (Ex.DD) was registered. He further stated that after completing the formalities, he came to the Police Station at 9.45 AM and made entry (Ex.DG) in the DDR. A-4 was locked in the police station and on the next day i.e. on 25.5.2004, he was produced before the Ilaqa Magistrate at Kathua in the morning. On that Crl. A. No. 607-DB of 2008 -12- day, he was taken on police remand for one day and on the next day, he was again produced before the Magistrate and bail was granted to him. On the same day, challan was also presented against him. 23. DW.4 Manzoor Hussain, Record Keeper, Sessions Court, Kathua, produced the judicial file of the case, titled as State Vs. Jaswant Singh, registered under Section 48-A of the Excise Act. He stated that as per the court record, A-4 was produced for the first time in the court on 25.5.2004. The police had taken his remand for one day. Then he was again produced on 26.5.2004, on which day the bail was granted and the challan was also presented in the court. 24. The trial court, after considering the evidence led by the prosecution as well as the defence and other documents and while relying upon the evidence led by the prosecution, held that the prosecution has fully proved beyond reasonable doubt the presence and participation of A-1 to A- 3 in the occurrence and causing of injuries by them to the deceased. The contradictions in the medical evidence and the ocular version regarding the injuries attributed to the accused persons, as pointed out by learned defence counsel, were held to be minor in nature. Accordingly, A-1 was convicted and sentenced under Section 302 IPC, while A-2 and A-3 were convicted and sentenced under Section 302 read with Section 34 IPC, as indicated in the earlier part of this judgment. Regarding A-4, it was found that his presence at the time of the alleged occurrence was doubtful and he has established his plea of alibi, which was held to be probable and reliable. Crl. A. No. 607-DB of 2008 -13- Accordingly, A-4 was acquitted of the charges. Against the said judgment, these two appeals have been filed. 25. We have heard the arguments of learned counsel for both the parties. 26. Shri L.S. Goraya, Advocate, learned counsel for the appellants (A-1 to A-3) in Criminal Appeal No. 607-DB of 2008, argued that the entire prosecution case rests upon the testimonies of PW.2 Devinder Singh and PW.3 Harinder Singh. The presence of both these alleged eye witnesses at the time of the occurrence was doubtful and their testimonies are highly improbable. According to the learned counsel, both the witnesses had not witnessed the occurrence, as at that time they were present in their village, which was 2 Kms., away from the place of occurrence. They were called from the village on telephone, and by taking the benefit of delay in lodging the FIR, they were introduced as witnesses in connivance with the police. Learned counsel, while referring to the statements of both the witnesses made before the police as well as in the court, pointed out certain contradictions with regard to the seats of injuries and attribution of particular injuries to each accused. He argued that these contradictions clearly establish that both the witnesses had not witnessed the occurrence. He further argued that as per the prosecution version, A-4 gave a `Kirpan' blow to Hardial Singh, which hit him on his head. A-1 also gave `Kirpan' blow, which also hit on the head of Hardial Singh. Then he fell down on the ground and A-2 gave him three `Kirpan' blows, which hit on his right eye Crl. A. No. 607-DB of 2008 -14- brow and right cheek. Thereafter, A-4 and A-1 gave `Kirpan' blows which hit on his right hand and left hand and then A-3 gave a `Dang' blow, while Hardial Singh was lying on the ground. But according to the learned counsel, these injuries attributed to all the accused persons do not find corroboration from the medical evidence i.e. the Post Mortem Report. Learned counsel argued that as per the Post Mortem Report (Ex.PA), seven injuries were found on the body of the deceased, out of which only four were incised wounds and the remaining three injuries were lacerated wounds. He argued that except A-3, all the accused were allegedly carrying `Kirpans' and as per the prosecution version, eight injuries (seven by `Kirpans' and one by `Dang') were caused to the deceased, but the medical evidence does not corroborate causing of seven injuries by `Kirpans', because three injuries were found to be lacerated wounds, and as per the opinion of the Doctor, these could have been caused by blunt weapon. Therefore, according to the learned counsel, these facts create serious doubt in the prosecution case as well as regarding the presence of the two eye witnesses at the time of the alleged occurrence. Learned counsel further argued that both the eye witnesses did not receive any injury in the occurrence. They even did not make any attempt to intervene and save the deceased, who was brother of PW.2 Devinder Singh and uncle of PW.3 Harinder Singh. These facts further create doubt about the presence of these two witnesses at the time of the alleged occurrence. Learned counsel contended that the alleged occurrence has taken place in the premises of the Crl. A. No. 607-DB of 2008 -15- college. Many persons had witnessed the alleged occurrence in the college, but the prosecution neither associated any independent witness during the investigation nor produced any one of them in the court. Learned counsel also argued that recovery of the alleged weapons at the instance of the accused is also doubtful, as no independent witness, who was allegedly associated at the time of the disclosure statement and the recovery, was examined by the prosecution. In the last, learned counsel argued that the motive is a double edged weapon and the complainant in the present case, while taking benefit of the pendency of criminal case, has falsely implicated the accused, in order to take revenge. This fact is further established by the fact that after the occurrence, a supplementary statement was recorded, in which even the minor son of A-4 was implicated as an accused. 27. On the other hand, Ms. Gurveen H. Singh, Additional Advocate General, Punjab, and Shri Mandeep Singh Bedi, Senior Advocate, assisted by Ms. Gauri Bedi, Advocate, learned counsel for the complainant, while arguing against the acquittal of A-4, submits that the prosecution has fully proved its case against all the four accused beyond reasonable doubt. The presence of both the eye witnesses at the time of the occurrence was most natural. According to their testimonies, all the four accused, including A-4, had participated in the occurrence and caused injuries to the deceased. She submits that on the basis of the minor contradictions in the oral version and the medical evidence, the prosecution version cannot be discarded. She further argued that the trial court has committed grave illegality while Crl. A. No. 607-DB of 2008 -16- accepting the plea of alibi taken by A-4. While referring to the statement of A-4 under Section 313 Cr.P.C., and the defence evidence led by him, learned counsel argued that the evidence clearly reflects that after participation in the alleged crime, A-4 went to Kathua and got himself implicated in an Excise case and got