Criminal Appeal No.246-DB of 2000 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Raghbir Singh APPELLANT VERSUS State of Haryana RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE JUSTICE (MRS.) DAYA CHAUDHARY Present:- Mrs.Baljit Mann, Advocate for the appellants (in Cr.A.Nos.246-DB and 266-DB of 2000) and for Raghbir Singh,Nanak and Ninder alias Narinder respondents No.1,3 and 4 (in Cr.A.186-DBA/2001 and Cr.Rev.1406/2001). Shri Kulvir Narwal, Additional A.G. Haryana. Shri A.S.Virk, Advocate for Gurmit Kaur – complainant (in Cr.Rev. 1406 of 2001). Shri A.P.Bhandari, Advocate for Gurbachan Singh(respondent in Cr.A.186-DBA/01). MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.246-DB of 2000, Criminal Appeal No.266-DB of 2000, Criminal Appeal No.186-DBA of 2001 and Criminal Criminal Appeal No.246-DB of 2000 -2- Revision No.1406 of 2000 by this common judgment, as they arise out of the same judgment/order dated 15.5.2000/20.5.2000 of the learned Additional Sessions Judge, Kaithal whereby he convicted Raghbir Singh son of Baga under Section 302 I.P.C. and sentenced him to undergo RI for life and also to pay a fine of Rs.2000/- or in default, to further undergo RI for one year. Raghbir Singh was also convicted under Section 27 of the Arms Act and sentenced to undergo RI for three years and to pay a fine of Rs.1000/-, or in default, to further undergo RI for six months. Nanak son of Ram Karan, Gurbachan Singh son of Arjun Singh along with Raghbir Singh son of Baga, Ninder alias Narinder were convicted under Section 447 I.P.C. and sentenced to undergo RI for one month and to pay a fine of Rs.200/- each, or in default, to further undergo RI for 15 days. Gurbachan Singh and Ninder Singh alias Narinder were convicted under Section 323 I.P.C. and sentenced to undergo RI for six months and to pay a fine of Rs.500/-, or in default, to further undergo RI for two months. The case of the prosecution is unfolded by the statement of Harbhajan Singh son of Balvinder Singh Ex.PA, given to ASI Hari Kailash. Harbhajan Singh stated that he is a resident of Village Nagal and he is the only son of his father. About 7 years back, he built a house on his Dera, near his uncle's house namely Karam Singh and started residing there. His uncle Karam Singh had one son Surinder Singh. On 28.6.1997 at about 4 p.m. he and his cousin brother Surinder were preparing the Dol of their fields. Surinder Singh's wife was alone in the Dera. Karam Singh was standing outside the Dera and was talking with Kulvinder Singh son of Ishar Singh resident of Village Nagal. In the meanwhile, Raghbir Singh son of Baga with his licenced rifle in his hand, Gurbachan Singh son of Arjun armed with a Lathi, Nanak armed with a Lathi, Ninder armed with a Danda entered the Dera. Complainant party heard a hue and Criminal Appeal No.246-DB of 2000 -3- cry and shouts of help of Gurmeet Kaur wife of Surinder Singh. Harbhajan Singh along with Surinder Singh ran towards the Dera from the fields. His uncle Kulvinder Singh also came from another side in of Dera. All the four accused came out of the Dera and Gurmeet Kaur was crying and abusing them. Surinder asked her as to what had happened and when they were enquiring meanwhile, Gurbachan Singh caught hold of Surinder. Nanak gave a Lathi blow and Ninder gave a Danda blow to Surinder. Raghbir started abusing and fired a shot from his rifle, which hit Surinder on the right side of his chest. Kulvinder Singh and Harbhajan Singh's uncle Karam Singh raised a hue and cry and all the accused ran away towards the canal bank. While running, they left behind one shoe. Surinder on receiving the rifle shot injury, died at the spot. Gurmeet Kaur was injured on the back side of her head and on the back side of her right arm. She became unconscious. After arranging for a vehicle, they took her to Civil Hospital, Kaithal, for treatment. Many persons from the village came to the Dera. Police was informed by telephone. On the basis of this statement F.I.R. Ex.PA/2 was recorded on 28.6.1997 at 6.15 p.m. and the special report reached the C.J.M., Kaithal on the same day at 9.50 p.m. The prosecution to prove its case, brought into the witness-box Bhajan Singh PW-1, Gurmeet Kaur PW-2, Mukhtiar Singh PW-3, Dr.Sanjeev Khurana PW-4, Dr.R.K.Kaushal PW-5, MHC Satyavan PW-6, Subhash Chand PW-7, Shamsher Singh PW-8, Dr.Preeti Mehta PW-9 and SI Hari Kailash PW-10. Hans Raj DW-1 and Darshan Singh DW-2 were examined in defence. Learned counsel for the appellants has argued that F.I.R. Ex.PA/2 is very prompt. That itself creates a doubt of manipulation. The motive for the commission of the offence as per the prosecution evidence is that accused went to the house of deceased Surinder Singh to commit Criminal Appeal No.246-DB of 2000 -4- rape on the person of Gurmit Kaur PW-2. Learned counsel has further argued that at the time of occurrence, appellant Ninder alias Narinder was 72 years of age and appellant Raghbir Singh was 64 years of age. The question of committing rape in such an old age did not arise. Accused Nanak and Gurbachan Singh were also more than 60 years of age at the time of the commission of the offence. The prosecution has falsely implicated these old men by stating that they wanted to commit rape on Gurmeet Kaur PW-2. Surinder Singh deceased and Bhajan Singh PW-1 his cousin brother, were working only one acre away from the Dera. As per site plan Ex.PT/2, there is no crop in between the Dera and where deceased Surinder Singh and Bhajan Singh PW-1 were working. They could have easily seen as to who was going inside the Dera. The occurrence had taken place at 4 p.m. Allegedly the appellants were armed with rifle and Lathis. The complainant party would have stopped them from entering the Dera specially after seeing them armed. As per the prosecution version, appellants came from the side of Baba Nau Gaj Peer. Surinder Singh and Karam Singh, the prosecution witnesses who were not produced before the Court, were working just one acre away from the Dera towards Baba Nau Gaj Peer. If the appellants had passed that way, they would have been noticed by Kulwinder Singh and Karam Singh, who would also have come to the Dera where the occurrence had taken place, easily. The medical evidence does not corroborate the ocular account. Dr.Preeti Mehta PW-9 examined Gurmeet Kaur PW-2 and found the injuries on her being on the scalp, parietal region, right fore arm and right scapular region. There were no abrasions found on the person of Gurmeet Kaur PW-2, though as per the prosecution witnesses, she was molested, her clothes were torn. These injuries clearly show that she was assaulted with a Lathi, but no one had tried to Criminal Appeal No.246-DB of 2000 -5- outrage her modesty. There should have been injuries on the private parts of Gurmeet Kaur, if she had been molested or she had been attempted to be raped. There are no injuries on her private parts. From the way the occurrence has been spelt out by Bhajan Singh PW-1 and Gurmeet Kaur PW-2 and the medical evidence as propounded by Dr.Preeti Mehta PW-9, which does not get corroboration from the medical evidence. It is clear that the genesis of the occurrence is being suppressed by the prosecution. The recoveries which have been made of two shoes one black in colour and the other brown Exs.PC and PD, is not worth any credence. It is not believable that while running from the place of occurrence, appellants dropped one shoe each and then hid the other shoe so that it could be recovered later on. The actual version has been put forward by appellant Raghbir Singh in his statement under Section 313 Cr.P.C. where he has stated that deceased Surinder Singh had a quarrel with some persons of Village Andhali regarding the irrigation of his fields by canal water on the day of occurrence. Some persons from Village Andhali who had come to stop deceased Surinder Singh from irrigating his field from the canal water, fired at him. Learned counsel for the State has argued that no one from Village Andhali came to stop deceased Surinder Singh from irrigating his fields, as appellant Surinder Singh was preparing the water course for irrigation from his own tubewell. This has been so stated both by Bhajan Singh PW-1 and Gurmeet Kaur PW-2. The question of irrigation by canal water did not arise. F.I.R. Ex.PA/2 is prompt. The occurrence took place on 28.6.1997 at 4 p.m. The F.I.R. was registered on the same day at 6.15 p.m. and the special report reached the C.J.M., Kaithal on the same day at 9.50 p.m. Names of the accused are given, the weapon of offence and the occurrence has been spelt out in Criminal Appeal No.246-DB of 2000 -6- detail. It has come in the evidence that appellants entered the Dera for only two minutes. After molesting Gurmeet Kaur they went away. It is when Gurmeet Kaur PW-2 came out shouting, that Surinder Kaur and Bhajan Singh PW-1 came to her rescue and appellant Raghbir Singh fired at him with his rifle Ex.P6. Appellant Ninder alias Narinder and accused Nanak, and Gurbachan Singh inflicted injuries on Gurmeet Kaur PW-2 and deceased Surinder Singh. The medical evidence corroborates the ocular account. Accused were under the influence of liquor. Gurmeet Kaur PW-2 did not suspect the intentions of the accused as it has come in her statement that the accused used to come to the Dera often to have tea. We have heard the learned counsel for the parties and perused the record with their assistance. The two eye-witnesses to the occurrence Bhajan Singh PW-1 and Gurmeet Kaur PW-2 have not spelt out the truth entirely. Gurmeet Kaur PW-2 is an injured witness. She in her statement has stated that when the accused came into the Dera, appellant Raghbir Singh molested her. Going through the evidence of Dr.Preeti Mehta PW-9, the following injuries were found on her person :- (1) There was swelling 4 cm on occipital region of scalp. Lacerated wound 3 cm x 1 cm bone deep on the swelling mentioned above was present. X-Ray of skull was advised. (2) There was swelling 4 cm. on left parietal region of the scalp. Lacerated wound 3 x 1-1/2 cm bone deep was present on the swelling mentioned above. X-Ray of skull advised. (3) There was swelling, deformity and unnatural mobility at the junction of upper and lower half of right fore arm. X-Ray of right fore arm and opinion of the Ortho Surgeon was advised. (4) There was complaint of pain on the right scapular region. No Criminal Appeal No.246-DB of 2000 -7- external injury was seen. X-ray was advised. From the above injuries, it comes out that there are no abrasions or any such type of injuries on the body of Gurmeet Kaur PW-2 which could be caused by molestation or by committing of rape. The injuries on her person are caused with Dang. They were inflicted by appellants Ninder alias Narinder Singh and his co-accused. Bhajan Singh PW-1 and Gurmeet Kaur PW-2 have stated in their testimony before the Court that deceased Surinder Singh and Bhajan Singh PW-1 were preparing a water course (Dol) only one acre away from the Dera. Strangely three persons armed with Lathis and one with a rifle entered the Dera in front of them. Both Surinder Singh and Bhajan Singh PW-1 who were working very close bye, did not stop appellants from entering the Dera, fully knowing that Gurmeet Kaur PW-2 was all alone in the Dera. They would have challenged the appellants straightway on seeing them if they had been preparing the water course. As discussed above, the medical evidence of Gurmeet Kaur PW-2 does not corroborate her ocular account. We are of the considered opinion that the prosecution is trying to suppress the genesis of the occurrence. Though we are convinced that it is appellant Raghbir Singh and Ninder alias Narinder Singh along with accused Nanak and Gurbachan Singh who inflicted injuries on the person of Gurmeet Kaur PW-2 and deceased Surinder Singh. Some sort of sudden fight ensued between the complainant and appellants inside the Dera. It has come in the evidence of Gurmeet Kaur PW-2 that the accused used to come to their house to have tea. It seems that the appellants and deceased were in the house drinking liquor, sitting together. Something happened there between the appellants and Gurmeet Kaur PW-2 and Surinder Singh and it is thereafter that injuries were inflicted on the person of Gurmeet KaurPW-2 and Surinder Singh was shot at, just Criminal Appeal No.246-DB of 2000 -8- outside the Dera door. The version brought forward by Bhajan Singh PW-1 and Gurmeet Kaur PW-2 that they were repairing the water course is not the correct version. For repetition sake, it seems that the accused and complainant party were sitting in the house where some sort of a sudden fight ensued over some matter. Appellant Ninder alias Narinder Singh was 72 years of age at the time of occurrence and appellant Raghbir Singh was 64 years of age. In fact, all the accused were more than 60 years of age at the time of occurrence. The motive for committing rape on Gurmeet Kaur PW-2 in broad day light was definitely not the motive. It has come in the evidence of Gurmeet Kaur PW-2 that appellants stayed inside the Dera for only two minutes. If they had gone to commit rape, they would have locked the door and stayed inside much more than two minutes. Appellants who were aged more than 60 years at the time of occurrence could not have committed rape. The medical evidence does not show any molestation also taking place. We are in consonance with the learned counsel for the appellants that the recovery of shoes Exs.PC and PD is only for the purpose of adding to the evidence. The accused would not have firstly left one shoe there and then got the other shoe recovered by giving disclosure statement. As discussed above already, some sort of a sudden fight ensued between the complainant and accused party. Both the parties were known to each other before. Gurmeet Kaur PW-2 has stated that appellants used to come to their house. It was during this fight that Gurmeet Kaur PW-2 received injuries, probably trying to save her husband but unfortunately he (Surinder Singh) got shot by appellant Raghbir Singh. It has also come in the evidence of Gurmeet Kaur PW-2 Criminal Appeal No.246-DB of 2000 -9- that appellants Raghbir Singh and Ninder alias Narinder Singh and accused Nanak and Gurbachan Singh were drunk. Prosecution witnesses have failed to prove as to what was the motive on the part of the appellants to commit the murder of Surinder Singh and the motive spelt out by the prosecution of rape, is not made out, as already discussed above. Appellant Raghbir Singh son of Baga is convicted under Section 304 Part-I I.P.C. and sentenced to undergo RI for 5 years. Fine shall remain intact. Under Section 25 of the Arms Act appellant Raghbir Singh is sentenced to undergo 1 year RI. Both sentences shall run concurrently. Conviction and sentence of Ninder alias Narinder Singh shall remain intact as already awarded by the learned trial Court. With the above modification in conviction and sentence of appellant Raghbir Singh, Criminal Appeals No.246-DB of 2000 and No.266-DB of 2000 are dismissed. Criminal Appeal No.186-DBA of 2001 filed by the State of Haryana is dismissed. Criminal Revision No.1406 of 2000 filed by Gurmeet Kaur is also dismissed. ( MEHTAB S.GILL ) JUDGE ( DAYA CHAUDHARY ) May 5, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO