IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 269-DB of 2001 Dated of Decision:- August 28, 2009 Anup Singh ....APPELLANT VERSUS State of Punjab ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present:- Mrs Baljit Mann, Advocate with Mr. Anmol Partap Singh Mann, Advocate for the appellant. Sh. Satinder Singh Gill, Addl. A.G. Punjab. ------ MEHTAB S.GILL, J. This is an appeal against the judgment dated 5.4.2001 of the Addl. Sessions Judge, Amritsar, whereby he convicted Anup Singh son of Balbir Singh under Section 302 IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs. 2,000/-, in default to further undergo R.I. for six months. Anup Singh was further convicted under Section 27 of the Arms Act and sentenced to undergo three years R.I. Both the sentences were to run concurrently. The learned trial Court in its wisdom acquitted Kashmir Singh son of Iqbal Singh, Kala @ Samitter Singh son of Balbir Singh, Gurmej 2 Criminal Appeal No. 269-DB of 2001 Singh son of Tarlok Singh, Mangal Singh son of Kashmir Singh, Partap Singh son of Joginder Singh and Bhagwan Singh son of Sadha Singh. State has not filed any appeal against their acquittal. The case of the prosecution is unfolded by the statement Ex.PW6/A of Lakhwinder Singh given to Inspector Baldev Singh, SHO, Police Station, Ajnala at Village Othian. Lakhwinder Singh stated, that he is a resident of Village Kot Sidhu. On 16.11.1997 at about 8 O’ Clock in the night, Kashmir Singh his uncle raised a lalkara from his house, which is situated behind the house of Lakhwinder Singh. An electric bulb was on. It was on the roof of the chaubara. Lakhwinder Singh along with his father Nirmal Singh and mother Balbir Kaur went to the chaubara on hearing the shouts of Kashmir Singh. Nirmal Singh also started shouting. Both Kashmir Singh and one Bhagwan Singh son of Sadha Singh kept abusing Nirmal Singh. Anup Singh son of Balbir Singh armed with .12 bore double barrel gun, Kala son of Balbir Singh, Mangal Singh @ Bhaggu son of Kashmir Singh, Partap Singh son of Jogender singh, Gurmej Singh son of Tarlok Singh standing in the street also raised lalkaras and shouted that Kashmir Singh be brave as they have come to his help. Thereafter Anup Singh fired two shots with his .12 bore double barrel gun, which hit Nirmal Singh in front of his abdomen, chest, neck, both the eye brows and temple. Nirmal Singh fell down on the roof of the chaubara. Lakhwinder Singh and his mother raised a hue and cry and asked them not to kill Nirmal Singh. All the above-said persons then ran away. 3 Criminal Appeal No. 269-DB of 2001 On the basis of this statement, FIR Ex.PW6/C was recorded on 16.11.1997 at 11.15 p.m. and the special report reached the S.D.J.M., Ajnala on 17.11.1997 at 5.30 a.m. The prosecution to prove its case brought into the witness box, Dr. Gurmanjit Rai PW1, Ashneel Kumar Licence Clerk PW2, Rishi Ram Draftsman PW3, Mangta Ram HC PW4, ASI Shameer Singh PW5, Lakhwinder Singh PW6, Balbir Kaur PW7, Darbara Singh HC PW8, Nishan Singh Constable PW9, Kanwaljit Singh Constable PW10, Inspector Baldev Singh PW11 and ASI Swinder Singh PW12. Learned counsel for the appellant has argued, that there is an unexplained delay in sending the special report to the S.D.J.M., Ajnala. This delay in fact was being utilized for consultations and confabulations to falsely implicate the appellant. Occurrence had taken place on 16.11.97 at 8.00 p.m. FIR Ex.PW6/C came into existence on the same day i.e. on 16.11.97 at 11.00/11.15 p.m. and the special report reached the S.D.J.M., Ajnala on 17.11.97 at 5.30 a.m. The distance between the place of occurrence and Police Station, Ajnala, being 7 miles only. The police station and the office/residence of the S.D.J.M. are in the same town i.e. Ajnala. As per Site Plans Ex.PD and Ex.PJ, deceased was standing at point A on the chaubara. Both the eye witnesses Lakhwinder Singh PW6 and Balbir Kaur PW7 were standing at point B. The electric bulbs were at points C and D. Appellant Anup Singh was standing at point E. The electric bulbs being at chaubara were at a higher place. If the electric bulbs were at points C and D, appellant Anup Singh, who is at point E, could not have seen deceased Nirmal Singh standing at point A, as the electric lights 4 Criminal Appeal No. 269-DB of 2001 would have blinded his eyes and would it have been difficult for him to shoot at Nirmal Singh. The distance between points E and A as per Site Plan Ex.PD is 25 yards. It is clear from the site plan, that appellant could not have injured the deceased. Two empties were recovered. Site Plans Ex.PJ and Ex.PD do not show from which place these empties were picked up. The case properties as per statement of Darbara Singh HC PW8 were sent after one week of the gun being deposited in the malkhana. The DBBL gun Ex.P9, was deposited with MHC Darbara Singh PW8, on 23.11.1997 and sent to the Laboratory on 7.12.1997. The empties were sent to the Forensic Science Laboratory on 25.11.1997. Pillow covers and the brick was sent to the Laboratory on 3.12.1997. It was the duty of the Investigating Officer to send the gun and empties at an earlier date. Dr. Gurmanjit Rai PW1, who prepared the postmortem report Ex.PA has stated in his testimony, that the pellets recovered from the body of the deceased could be with one shot i.e. a single shot and this shot could be from one shot. If we go by the statement of Dr. Gurmanjit Rai PW1, two shots have been fabricated. Learned counsel has further argued, that at the most, if we believe the prosecution version, the case of the appellant would fall within the ambits of Section 304 IPC. It was a sudden quarrel between the cousin brothers and appellant Anup Singh has nothing to do with it, nor did he have any motive to commit the murder. At the most, it could be said that a shot was fired from a distance of 75 feet, only to scare complainant party, who were also hurling abuses. Inadvertently the shot hit the deceased. 5 Criminal Appeal No. 269-DB of 2001 Evidence of Lakhwinder Singh PW6 and PW7 is inconsistent and is not corroborated by FIR Ex.PW6/C. The medical evidence also does not corroborate the ocular account. Learned counsel for the State has argued, that FIR is prompt and this itself goes a long way in proving the case of the prosecution. Occurrence had taken place on 16.11.97 at 8.00 p.m. in front of the house of Sukhjinder Singh. FIR Ex.PW6/C came into existence on the same day i.e. on 16.11.97 at 11.15 p.m. and the special report reached the S.D.J.M., Ajnala on 17.11.97 at 5.30 a.m. The argument of the learned counsel for the appellant, that FIR was recorded at 3.00/4.00 a.m. is not corroborated by the medical evidence or by the ocular account. Dr. Gurmanjit Rai PW1 has stated, that rigor mortis was present all over the body. The body was brought on 17.11.97 at 10.00 a.m. i.e. after about 16/17 hours of the occurrence. It was the month of November and rigor mortis sets in the whole body after about 12 hours and start leaving the body after about 24 hours. This is the reason that the rigor mortis was present. Occurrence in fact had taken place on 16.11.97 at 8.00 p.m. FIR Ex.PW6/C was recorded on the same day at 11.15 p.m. and the special report reached in the safe hands of the S.D.J.M., Ajnala in the early morning on 17.11.97 at 5.30 a.m. There is no delay in lodging of the FIR. The accused party has already got the benefit of the delay, as Kashmir Singh son of Iqbal Singh, Kala @ Samitter Singh son of Balbir Singh, Gurmej Singh son of Tarlok Singh, Mangal Singh son of Kashmir Singh, Partap Singh son of Joginder Singh and Bhagwan Singh son of Sadha Singh have been acquitted. 6 Criminal Appeal No. 269-DB of 2001 We have heard the learned counsel for the parties and perused the record with their assistance. Coming to Site Plan Ex.PD, we see that the house of Kashmir Singh and the deceased are very close and in the same big compound. The distance between the chaubara and the room where appellant was standing is not at a much distance. The brick tile was picked up from point A i.e. from the chaubara. This is the place where the deceased was also injured. Points C and D are the points where the electric bulbs were on and point B which at lower place than the chaubara, where the two eye witnesses Lakhwinder Singh PW6 and Balbir Kaur PW7 were present. The argument of the learned counsel for the appellant, that the electric lights would have fallen in the eyes of appellant Anup Singh and he would not have in a position to see the deceased, does not cut much ice. Deceased, when he reached the chaubara and thereafter started abusing the appellant, was in fact had become a clear target. The frame of his body could have been easily seen by the appellant from point E, as the lights at points C and D were glowing from behind the deceased. To his misfortune, if he had been hiding behind the small wall of the chaubara, he would have saved himself, but instead he stood up. Appellant fired from point E, the pellets hit him hitting him above his abdomen. Lakhwinder Singh PW6 and Balbir Kaur PW7, who were standing at point B i.e. the roof, clearly could see the appellant at point E. Both the eye witnesses Lakhwinder Singh PW6 and Balbir Kaur PW7 are natural witnesses; Lakhwinder Singh PW6 being the son of the deceased and Balbir Kaur PW7 being the wife of the deceased. Occurrence had taken place at 8.00 p.m. in the night. There was no reason 7 Criminal Appeal No. 269-DB of 2001 for Lakhwinder Singh PW6 and Balbir Kaur PW7 to be outside their house in the night. In the month of mid November, it becomes cold and by 8.00 p.m. everybody and especially in the villages are in their houses. Two empties were taken into possession vide memo Ex.PW7/A. Empty cartridges being Ex.P3 and P4 were also taken into possession vide memo Ex.PW7/C. Brick Ex.P1 and Pillow Ex.P2 were also taken into possession. Darbara Singh HC PW8 has stated in his testimony that on 16.11.1997 he was posted as MHC, in Police Station Ajnala. On 17.11.1997 Baldev Singh Inspector PW11 deposited five parcels, sealed with the seal ‘BS’. One parcel contained empties, which was sent to the Forensic Science Laboratory on 25.11.1997. He has further stated, that without any tampering the recovered articles i.e. blood stained brick Ex.P1 and pillow covers Ex.P2 were sent to the Laboratory on 3.12.1997. The parcel of the gun duly sealed with ‘SS’ was also deposited with him on 23.11.1997. It was sent to the Laboratory on 7.12.1997. This witness on oath has stated, that no article recovered was tampered with. In FSL report Ex.PK, it comes out that two empty cartridges C1 and C2 were fired from the DBBL gun Ex.9, which was recovered from the appellant. The medical evidence as propounded by Dr. Gurmanjit Rai PW1 corroborates the ocular account. All the injuries on the person of the deceased are on the upper part of the abdomen. Deceased did not sustain any injury below the abdomen, as there must have been a small wall, on the chaubara protecting the deceased as usually is in villages. Injuries being on the head, face, arms and chest. 8 Criminal Appeal No. 269-DB of 2001 Lakhwinder Singh PW6 in his testimony before the Court has stated, that father of Kashmir Singh (Acquitted accused), Mangal Singh and Balbir Singh (Father of the appellant) were accused in a murder case. Kashmir Singh and Anup Singh appellant belong to the same village and are from different party factions. Not only they were from different party factions, but there is a land partition dispute between Kashmir Singh and appellant Anup Singh also. Appellant being close to Kashmir Singh wanted to help out Kashmir Singh. The case of the appellant does not fall within the ambits of the exceptions of Section 300 IPC i.e. culpable homicide not amounting to murder. There was enmity between Kashmir Singh (Acquitted accused) and the deceased. Appellant was helping out Kashmir Singh. If Kashmir Singh and Anup Singh were abusing each other, there was no need for the appellant to come with his DBBL gun and fire at the deceased. He could have fired in the air to scare the complainant party, but instead gave gun shot injuries to the deceased. With the above discussion and observations, we do not find any infirmity in the judgment of the learned trial Court. Appeal is dismissed. (MEHTAB S.GILL) JUDGE (JITENDRA CHAUHAN) August 28, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO 9 Criminal Appeal No. 269-DB of 2001