Criminal Appeal No. 471-DB of 1999 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Criminal Appeal No. 471-DB of 1999 Date of decision : 8.7.2008 Joginder Singh .....Appellant Versus State of Punjab ...Respondent **** 2. Criminal Appeal No.473 -DB of 1999 Joginder Singh .....Appellant Versus State of Punjab ...Respondent 3. Criminal Revision No.1536 of 1999 Paul Kaur .....Petitioner Versus State of Punjab ...Respondent **** CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE S. D. ANAND **** Present: Mr. K.S. Sidhu, Senior Advocate with Mr. G.S. Sidhu, Advocate for the appellant. Mr. Rajesh Bhardwaj, Deputy Advocate General, Punjab. Mr. Gurvinder Singh, Advocate for the complainant in Criminal Revision No. 1536 of 1999. S. D. ANAND, J. Appellant Joginder Singh was convicted by the learned Criminal Appeal No. 471-DB of 1999 -2- Trial Judge on a charge of having murdered Gurdev Singh son of Kehar Singh. He had an apprehension that the deceased was furnishing secret information against him to the police. The appellant was otherwise a person of criminal antecedents. One person who was also tried along with appellant, got away on a finding of benefit of doubt. Paul Kaur PW-5/first informant has filed Criminal Revision No. 1536 of 1999 for grant of compensation. On the night intervening 16/17-7-1997, at about 1.00 A.M., first informant Paul Kaur PW-5 was asleep on the roof of the house, along with her husband Gurjant Singh PW-6 and children. Her father-in-law Gurdev Singh was asleep in the courtyard of Chaubara. Her sleep was interrupted by the movement of some one moving around. She also woke up her husband. Both of them spotted appellant ( and an associate of his who was, later on, identified as Mithu Singh and earned a verdict of acquittal) standing near the place where Gurdev Singh was asleep. They witnessed the appellant fire a shot which hit the left temporal region of Gurdev Singh, who died instantaneously at the spot. Appellant held out a threat that Paul Kaur and Gurjant Singh would be done to death, if they raised an alarm. He further held out a threat that their children will be liquidated if they notified the offence to the police. Thereafter, the appellant jumped into the lane, after passing over the Kotha of Roop Singh. First Informant Paul Kaur and her husband and children stayed mute throughout the night on account of the fear generated by the threats held out by the appellant. In the morning, they raised an alarm which attracted Ajmer Singh, brother of deceased Gurdev Singh and former's son Paramjit Singh. Criminal Appeal No. 471-DB of 1999 -3- Gurbachan Singh son of Mehna Singh and Panch Bhagwan Singh were amongst few others who came to the spot. Paul Kaur narrated the occurrence to them. After leaving Paramjit Singh and Gurbachan Singh aforementioned to guard the dead body of Gurdev Singh, Paul Kaur and Ajmer Singh were on way to the Police Station, when they came across Inspector Parminder Singh (who died thereafter before he could be examined at the trial) and other members of the party headed by him enroute. It is there that Paul Kaur made statement (Ex. PF) before Inspector Parminder Singh which he forwarded to the police station, along with his endorsement (Ex. PF/1). The formal FIR (Ex. PF/2) came to be recorded on the basis thereof. The prosecution allegations were testified at the trial by as many as 11 witnesses. PW-1 Dr. Kashmir Singh, Medical Officer, PHC, Budhlada had conducted the post-mortem examination on the dead body of Gurdev Singh and found the following injuries on it:- “1. A lacerated wound 5 cm x 4 cm on left side of scalp 3 cm away from left mastoid process, oval in shape, edges were invented to tooing and blackening was present more on anterior side, scalp hair were signed upper 2/3rd portion of left ear was missing brain matter was visible through the wound clotted blood was present. This was the wound of entry. 2. A lacerated wound 1.5 cm x 1.0 cms on right side of occipital region, 7 cm away from mastoid process, edges were everted clotted blood was present. Criminal Appeal No. 471-DB of 1999 -4- Black body was visible through the wound brain matter was coming out. This was the wound of exist. On dissection. On dissection of injury No. 1 skin, subcutaneous tissue, underlying muscles were lacerated. There was hole in the underlying bones 5 cm X 4 cm. On opening skull left cerebral hemisphere injured, hole was present directing posteriorly downward and towards right side. Awed was present in the cerebral hemisphere. On further exploration brain stain was injured posterior cranial fossa was filled with blood, blood vessels were injured. Two wads were present in the posterior cranial fossa which were collected in the jaw. On further dissection a rubber wad removed from the occipital bone which was embeded in it and visible through injury number two. Occipital bone was fractured.” PW-2 ASI Gurjant Singh, PW-3 Constable Kulwant Singh, PW-7 Constable Girdawar Singh and PW-8 Constable Jaswant Singh tendered their affidavits Ex. PD, Ex. PE, Ex. PG and Ex. PH respectively into evidence. PW-4 Gurdev Singh testified that he had overheard the appellant and the acquitted accused announcing inter-se that Gurdev Singh Sarpanch was to be murdered by them as he was in the habit of getting the appellant arrested by the police. The ocular version was deposed on oath by PW-5 Paul Kaur and her husband PW-6 Gurjant Singh. Criminal Appeal No. 471-DB of 1999 -5- PW-9 HC Balwant Singh had attested the disclosure statement (Ex. PJ) made by the appellant and also the recovery memo Ex. PL, concerned vide which the pistol and cartridges got recovered by the appellant in pursuance of his aforementioned disclosure statement were taken into possession. PW-10 SI Balbir Singh is the Investigating Officer of this case. PW-11 Parshotam Dass, Reader to the District Magistrate concerned proved the sanction order (Ex. PU) authorising the prosecution of the appellant under the Arms Act. The appellant took up the following plea, in the course of statement under Section 313 Cr.P.C. “I am innocent. The police of PS Bareta planted this alleged case against me because Police of Bareta is inimical with me. There was one false case under S. 307 IPC planted against me by the police of Police Station, Bareta in which I was acquitted.” DW-1 HC Malkiat Singh of Police Station, Boha was examined to prove that SI Sangram Singh of Police Station, Boha left the police station on 17.7.1997 at 8.20 A.M. for patrolling the area of police station Boha and Bareta. DW-2 Rajesh Kumar Goyal had prepared scaled site plan Ex. D3 of the spot. Learned Trial Judge accepted the prosecution presentation as valid, discarded appellant's plea of false implication and proceeded to record a finding of conviction. Learned counsel for the appellant has following Criminal Appeal No. 471-DB of 1999 -6- counts of criticism to direct against the impugned finding:- i) There is no enough evidence on the file to prove that deceased had any motive which could have actuated him to eliminate Gurdev Singh deceased. ii) The prosecution presentation is false on the face of it in view of the fact that it seems unnatural that Paul Kaur, a female, opted to go to the police to lodge an FIR inspite of the fact that the impugned occurrence had been witnessed by her husband Gurjant Singh PW-6 too. iii) It was a case of blind murder which had taken place during the days terrorism was at its peak in the State of Punjab and the police conspired to frame the appellant in this case. Reliance, in support of the plea, is placed upon the fact that the police of adjacent two police stations also converged at the place of occurrence, though they had no jurisdiction over the place and had nothing to do with the impugned crime as such. The suggestion thereby is that police of three police stations got together to confabulate and dish out a plan to falsely implicate the appellant. Insofar as the want of motive is concerned, the plea raised is oblivious of the precise evidence available on the file to the effect that the appellant suspected the deceased to be a secret informer of the police and also responsible for the arrest of the latter in a number of cases. In that view of things, we find no merit in the Criminal Appeal No. 471-DB of 1999 -7- advocated plea. Insofar as the grievance with regard to the lodging of the FIR by Mst. Paul Kaur is concerned, it too is altogether without force. We may notice here that deceased was adopting father of PW-6 Gurjant Kaur, husband of Paul Kaur PW-5. Though Gurjant Singh had been born in the family of Mukhtiar Singh, he had been adopted and brought up by Gurdev Singh only. There was, thus, nothing unnatural in Gurjant Singh having stayed over near the dead body and having allowed Paul Kaur to proceed in the company of none else or other than a brother of her father-in-law. The plea shall stand negatived accordingly. Insofar as the criticism with regard to the converging of police officials of two other police stations is concerned, there also we do not find any thing sinister inasmuch as, on the own showing of appellant- as argued before this Court- those were days of terrorism. When a crime would take place, it would attributed attention of larger segment of the police force. It would have taken the force at least some time to find out whether it was a terrorist crime or the result of personal feud. We do not find any force in the plea. Learned counsel for the appellant, then, argues that testimony of PW-4 Gurdev Singh does not inspire confidence. We find ourselves in agreement with the advocated plea. He does not belong to that village. His younger sister is married over there and he had been visiting that village in that context. However, his credibility stands eroded by the following facts which speak for themselves in the circumstances of the case. He told the Court that he went out near the Phirni at 12.40 Criminal Appeal No. 471-DB of 1999 -8- A.M. to answer the call of nature as he had earlier felt pain in his stomach. It was there that he overheard the present appellant and the acquitted associate of his declaring that Gurdev Singh Sarpanch was to be murdered. It would be unnatural to expect that the appellant would have told his acquitted associate at that point of time that the latter had turned up on a message sent by the former to commit the murder of Gurdev Singh Sarpanch. There would be hardly an occasion for two people to talk like that and at that point of time. This witness did not furnish the information to his sister even after he came home after relieving himself. Even when he got up in the morning, he did not bring these facts to notice to his sister and brother-in-law. The conduct on the part of the witness would appear to be unnatural. The erosion of credibility of PW-4 Gurdev Singh notwithstanding, there is evidence of affirmative character in the statements of PW-5 Paul Kaur and PW-6 Gurjant Singh to prove the charge against the appellant. It would be pertinent to notice here that the appellant made a disclosure statement before the police and got the recovery of the weapon of offence effected in pursuance thereof. Further thereafter, the pistol was forwarded to the FSL which confirmed vide (Ex. PX) that it answered that description of a fire arm and that the empty (forwarded alongwith the pistol) had been fired by that pistol only. Learned counsel for the appellant, for elaborating the plea of blind murder, argues that the deceased had been responsible for the implication of large number of people and the possibility of any one of those having murdered Gurdev Singh cannot be ruled out. Criminal Appeal No. 471-DB of 1999 -9- We do not buy the argument. In the course of cross examination, PW-5 Paul Kaur denied that Lal Singh filed any complaint or got any case registered against her father-in-law Gurdev Singh. She also denied that any case under the NDPS was got registered against one Sita Ram at the instance of Gurdev Singh or that her father-in-law Gurdev Singh was a prosecution witness in that case. The above statements made by PW-5 Paul Kaur were relatable to her post marriage period. Likewise, PW-6 Gurjant Singh (son of Gurdev Singh deceased) testified that he is not familiar with any person by the name of Beant Singh son of Jawala Singh. He also had no idea whether gun of of his father was snatched by any person of that name. He also did not know whether any case against Joginder Singh for teasing a girl or whether a complaint in that behalf had been made by his father. He also did not know whether Mukhtiar Kaur wife of Lila Singh had filed any criminal complaint under Section 376 IPC against his father or not. He also did not know whether there was any fight between Lal Singh, Majhbahi Sikh, and his father launched prosecution against Lal Singh or that Lal Singh aforementioned got acquitted in that case. In the face of denial or want of knowledge on the part of PW-5 Paul Kaur and PW-6 Gurjant Singh in the context of facts put to them, it was incumbent upon the defence to pursue those suggestions further and to bring on file documentary evidence to prove those facts and to thereby falsify the denials or want of knowledge offered by PW-5 Paul Kaur and PW-6 Gurjant Singth. Nothing of the type was, however, done by the appellant in this case. Criminal Appeal No. 471-DB of 1999 -10- The present is, thus, a case in which the ocular presentation is completely in accord with the medical segment and the FSL report. The weapon of offence got recovered by the appllant in pursuance of disclosure statement is indeed that very fire arm which had been used in the impugned occurrence. We have, accordingly, no hesitation in holding that appeal deserves to be dismissed and it so ordered accordingly. ( S. D. ANAND ) JUDGE July 08, 2008 (ADARSH KUMAR GOEL) Pka JUDGE