Cr. A. No. 151-DB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Cr. A. No. 151-DB of 2002 Date of decision : 07-03-2011 Gaggan Singh @ Sukhjinder Singh and others … Appellants Versus. State of Punjab … Respondent CORAM:- HON’BLE MR. JUSTICE HEMANT GUPTA HON’BLE MR. JUSTICE ARVIND KUMAR Present: Mrs. Baljit K.Mann, Advocate, for the appellants Mr. S.S.Dhaliwal, Addl. AG Punjab Mr. Vikrant Oberoi, Advocate, for the complainant in Crl. Revision No. 904 of 2002 … ARVIND KUMAR, J: This shall dispose of Crl. Appeal No. 151-DB of 2002 preferred by accused-appellants, namely, Gaggan Singh @ Sukhjinder Singh, Jeet Singh @ Ajit Singh and Daljit Singh @ Mithu and Criminal Revision No. 904 of 2002 filed by complainant Gurpreet Singh. The present appeal is directed against judgment and order dated 14.2.2002 passed by the Additional Sessions Judge, Muktsar, whereby in case FIR No. 176 dated 27.9.1999 registered under Sections 302/34 IPC and 27/54/59 of the Arms Act at Police Station Sadar Muktsar whereby the present appellants-accused have been convicted for committing the murder of Gursewak Singh. Accused Gaggan Singh @ Sukhjinder Singh has been convicted under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- and in default of Cr. A. No. 151-DB of 2002 2 payment of fine, to further undergo RI for two years while under Section 27 of the Arms Act, he has been sentenced to undergo rigorous imprisonment for one year; both the sentences were, however, ordered to run concurrently. As regards accused Jeet Singh @ Ajit Singh and Daljit Singh @ Mithu, both of them have been convicted under Section 302/34 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of Rs.5000/- each and in default of payment of fine, to further undergo RI for two years. Criminal Revision No. 904 of 2002 has been preferred by complainant Gurpreet Singh against the afore-stated judgment only to the extent whereby fine of Rs.5000/- each has been imposed upon all the three accused and accordingly, the prayer is for enhancement of fine to Rs.1,00,000/- each. In brief, the case of the prosecution is that on 27.9.1999,upon receipt of ruqa, Exhibit PA, from the Civil Hospital, Muktsar, regarding the death of Gursewak Singh, SI Swaran Singh along with other police officials reached there where complainant Gurpreet Singh got recorded his statement, Exhibit PF, stating that on the said day, when he along with his elder brother Gursewak Singh and his cousin Gainda Singh were going towards the house of Harnek Singh for hiring his combine harvester for harvesting their paddy crop and had reached near the house of Daljit Singh alias Mithu, the accused Gaggan Singh armed with a gun, his father Jeet Singh @ Ajit Singh and Daljit Singh @ Mithu all of a sudden came in front of them. Accused Daljit Singh then exhorted that the complainant and his companions should not be allowed to go scot free as they were spreading the rumours of Gaggan Singh. Upon this, accused Gaggan Singh fired a shot from his gun hitting Gursewak Singh on his left shoulder as a result of which he fell down. Upon an alarm raised by complainant and Gainda Singh, all the accused ran away from the spot along with the gun. Gursewak Singh was then taken to Civil Hospital, Muktsar, where he was declared dead by the doctor. According to the complainant Gurpreet Singh, the motive behind the common intention to kill Gursewak Singh was on account of the rumour in the village that accused Gaggan Singh was having illicit relations with daughter of Shisha Singh for which the accused persons had a suspicion in their mind that the said rumour had been spread by Gursewak Singh. On the basis of the said statement of Gurpreet Singh, Cr. A. No. 151-DB of 2002 3 complainant, the present case came to be registered against the accused persons. An inquest report on the dead body of Satnam Singh was prepared vide Exhibit PV. Post-mortem examination on the dead-body was conducted. Rough site plan was prepared vide Exhibit PW. Blood stained earth as well as simple earth was lifted by the police and converted into parcels and then sealed and taken into possession, besides completing other formalities. Thereafter, on 1.10.1999, accused Gaggan Singh along with his gun surrendered before the Court and was sent to police custody. While in police custody, he made disclosure statement, Exhibit PJ, thereby stating that two empty cartridges had been buried by him in the ground near his tubewell motor and then got the same recovered. On 5.10.1999 accused Daljit Singh @ Mithu was arrested by the police while the third accused namely Jeet Singh @ Ajit Singh surrendered before the Court on 11.10.1999 and he was arrested accordingly. The gun and the cartridges so recovered were sent to the Forensic Science Labouratory. Upon completion of investigation of the case, accused- appellants were challaned. After being produced in Court, accused were charged under Sections 302, 302/34 IPC and 27 of the Arms Act. All these accused pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined PW-1 Dr. Rakesh Goyal, PW-2 Dr. Sukhpal Singh, PW-3 Gurpreet Singh (complainant), PW-4 Gainda Singh, PW-5 Gurcharan Singh, PW-6 ASI Nirmal Singh, PW-7 HC Gurmail Singh, PW-8 HC Ranjit Singh, PW-9 Dr.P.N.Girdhar, PW-10 Nachattar Singh, PW-11 Surjit Singh Draftsman, PW-12 HC Major Singh, PW-13 Constable Sukhmander Singh, PW-14 ASI Basant Singh and PW-15 SI Swaran Singh and after tendering into evidence the report of the Chemical Examiner vide Exhibit PE, closed its evidence. Thereafter, the statement of the accused under Section 313 Cr.P.C. was recorded by putting them incriminating evidence qua them to which they pleaded innocence and false implication. Gaggan Singh took up the plea that the statement, Exhibit PF, of complainant Gurpreet Singh is concocted and fabricated. Neither there was any motive for him to commit the crime nor any such occurrence had taken place. He further pleaded that PW Gainda Singh who resides in Rajasthan and complainant Gurpreet Cr. A. No. 151-DB of 2002 4 Singh are made-up witnesses. He along with the gun surrendered in Court and made request the gun be sealed before being handed over to the police but ASI Basant Singh took the gun without sealing and the gun was fired in police Station City Muktsar regarding which Darshan Singh gave his affidavit before the Court and regarding this episode, the gun was brought back in Court at 4 PM and for this, he had also sent telegram to this Court besides others. Similar was the plea taken by accused Jeet Singh @ Ajit Singh in his statement under Section 313 Cr.P.C. As regards accused Daljit Singh @ Mithu, it was pleaded by him that accused Jeet Singh is not related to him and that no occurrence took place in the street in front of his house as alleged and he has been falsely implicated due to suspicion. In defence evidence, accused examined DW-1 Dr.K.N.Parshad, an Expert in Forensic Science, DW-2 Dalip Singh Draftsman, DW-3 Bikram Singh, DW-4 Parshotam Lal Chawdhri and DW-5 Darshan Singh and closed their evidence. The learned Additional Sessions Judge, Muktsar, upon appreciation of evidence adduced on record, vide the impugned judgment and order dated 14.2.2002 held all the accused persons guilty and accordingly, convicted and sentenced them in the manner indicated above. Hence, the present appeal by them. It may be apt to mention here that during the pendency of the present appeal, i.e. on 15.9.2008, accused-appellant No.2, Jeet Singh @ Ajit Singh has expired. In this regard, the death certificate has been produced which has been taken on record. Consequently, the present appeal qua accused-appellant Jeet Singh @ Ajit Singh stands abated. We have heard learned counsel for the parties. The FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstances in which the crime was committed including the names of the actual culprits and the parts played by them, the weapons, if any, used as also the names of the eye-witnesses, if any. In the present case, the time of occurrence is 7 AM on 27.9.1999. PW-3 Gurpreet Singh (complainant)along with his cousin Gainda Singh (PW-4) had taken his brother Gursewak Singh to Civil Hospital, Muktsar, where he was declared Cr. A. No. 151-DB of 2002 5 brought dead. On sending of a ruqa, the police reached the hospital where his statement was recorded at 9.30 AM and accordingly, a formal FIR was recorded at 9.45 AM and the special report was in the hands of Ilaqa Magistrate at 1 PM on the same day. The FIR is thus, not delayed as alleged but rather prompt and rules out every possibility of consultations and deliberations. The FIR contains the full narrative of the manner in which the occurrence had taken place and the names of the accused- appellants along with the weapons used in the commission of crime. The case of the prosecution mainly rests upon the statements of PW-3 Gurpreet Singh who is none else but the real brother of the deceased and PW-4 Gainda Singh, his cousin. Their statements have been questioned on account of relationship. No doubt, both the witnesses are related inter se and so as with the deceased but this relationship itself cannot be said to be suffice to discard their statements. There is no absolute law that evidence of a relation witness is not entitled to any weight. But this very circumstance would add to the value of their evidence because they would be interested in ensuring that the real culprits responsible for the murder are punished and not the innocent persons. PW-3 Gurpreet Singh has given details of the occurrence that at about 7 AM when he along with his brother Gursewak Singh,since deceased, and his cousin Gainda Singh were going to the house of Harnek Singh for hiring his combine harvester for harvesting their paddy crop when, on the way, near the house of Daljit Singh @ Mithu, accused, all the three accused came in front of them whereafter accused Gaggan Singh fired a shot from his gun he was carrying, which hit Gursewak Singh on his left shoulder due to which he fell down and then breathed his last. The statement of PW-4 Gainda Singh corroborates the statement of PW-3 Gurpreet Singh on material particulars. The presence of the witnesses has been assailed on the ground that they had not intervened and as such, their presence is doubtful. The contention is meritless. Accused-appellant Gaggan Singh @Sukhjinder Singh was armed with a fire-arm and in that situation, it was not expected from the witnesses to intervene as the element of self-preservation is supreme in human being. It has been further contended with reference to the statement of DW-2 Dalip Singh Sachdeva, Draftsman, who prepared the site plan, Exhibit DW-2/A, to urge that if they were to go to the house of Harnek Cr. A. No. 151-DB of 2002 6 Singh, the shorter route was otherwise on which the house of Daljit Singh @ Mithu does not fall and as such, the story of the present occurrence have taken place at the house of Daljit Singh is concocted. There is no force in this contention. It depends upon person to person. It was a morning time. Normally, the villagers while talking to each other prefer a longer route and as such, merely due to the fact that they had taken a longer route, it cannot be said that the occurrence had not taken place opposite the house of Daljit Singh or that the witnesses were not present. The other contention that no independent witness has been examined in this case, is again meritless. No doubt, PW-3 Gurpreet Singh in his statement has stated that neighbourers were there but in our country, there is a general tendency amongst the witnesses to shun giving evidence in the Courts because of the cumbersome and dilatory procedure in our Courts and therefore, nobody wants to be a witness in a murder case or in a serious offence. Similarly, in the present case, as evident from the statement of PW-3 Gurpreet Singh, the villagers had rather closed their doors. It has been much contended that PW-4 Gainda Singh had been residing in Rajasthan for the last 20 years and as such, his presence at the spot was highly doubtful. The said contention is also without any force. No doubt, Gainda Singh resides in Rajasthan for the last 20 years but it is not that his entire family has permanently shifted there; rather his statement syggests that his mother and brother still reside in the village and he very often visits them. He also has a ration-card in Rajasthan and so as in the village and as such, his presence on that day, cannot be doubted as he had not abandoned the village. The statements of both the witnesses, as discussed above, corroborate on material particulars. Both of them were subjected to lengthy cross-examination and they stood firm to their stand. Counsel for the appellants has next contended that as per the case of the prosecution, motive in this case is that there was a rumour in the village about the illicit relationship of Gaggan Singh with the daughter of Shisha Singh and the accused had suspected that the rumour had been spread by Gursewak Singh but to prove the motive, said Shisha Singh has not been examined by the prosecution. The contention is again meritless. No doubt, Shisha Singh has not been examined in this case but there is evidence of PW-5 Gurcharan Singh indicating that he was an ex-member Cr. A. No. 151-DB of 2002 7 Panchayat and about the said rumour, a day prior to the occurrence, he had convened a meeting in his house where 8-10 persons were present including Gursewak Singh wherein Jeet Singh and Daljit Singh @ Mithu complained to Gursewak Singh about spreading of false rumour but Gursewak Singh had denied having spread a false rumour but told the accused that he while going to his fields, had been seeing Gaggan Singh and daughter of Sheesha Singh indulging in objectionable activities and rather told the accused that Charanjit Kaur daughter of Sheesha Singh was pregnant from the loins of Gaggan Singh and on hearing this, Jeet Singh and Daljit Singh threatened Gursewak Singh of elimination. Even otherwise, the variation in human nature being so vast, murders are known to have been actuated by much lesser motive. Where direct evidence regarding commission of crime is worthy of credence and can be believed, , the question of motive becomes more or less academic. So long as the other evidence remains convincing and not open to reasonable doubt, a conviction may well be based on this. PW-2 Dr. Sukhpal Singh had conducted the post-mortem on the dead-body of Gursewak Singh on 27.9.1999 at 1.25 PM. He opined that the probable time between the injury and the death was within few minutes and between the death and post-mortem within 12 hours. Counsel for the appellants with reference to the condition of the Rigor Mortis and while referring to the statement of this doctor in cross-examination where he stated that the death could have occurred at midnight on 26/27.9.1999, has laid stress that the occurrence had not taken place as alleged by the prosecution. This contention is also meritess. One cannot be definite as to the time when Rigor Mortis set in. It is only an expert's opinion which cannot be substituted for the statement of eye-witnesses whose presence and credence has been duly proved. Even otherwise, the said doctor in the same breath has also said that the death could have also occurred in the morning of 27.9.1999 and thus, is in consonance with the case of the prosecution. PW-2 Dr. Sukhpal Singh has found two injuries on the person of the deceased. According to his opinion, there were two shots as there were two entry wounds on the dead body. For this, counsel for the appellants has made reference to the statement of DW-1 Shri K.N.Prasad, Forensic Science Consultantt, to urge that both the injuries could be the result of one shot. Cr. A. No. 151-DB of 2002 8 The defence cannot derive any benefit from the same as he was their own witness who would depose in the manner favourable to them. Otherwise also, it does not benefit the defence in any manner, as has been rightly held by the trial Court, that even if for the sake of arguments it is accepted that both the injuries were as a result of one shot, it does not in any way lessen the credibility of the testimony of Pws Gainda Singh and Gurpreet Singh and even if the version of these Pws about giving of second gun shot is held to be exaggerated, the accused cannot escape the consequences of the gun- shot given by him resulting into the said injuries to Gursewak Singh and ultimately, his death. Appellant Gaggan Singh surrendered in the Court and subsequently, in pursuance of his disclosure statement, also got recovered two empties. For this, an argument has been raised that there is no independent witness to the recovery of the said two empties. This argument is also without any substance. The testimony of the official witnesses should be treated in the same manner as the testimony of any other witness. The presumption that a person acts honestly applies as much in favour of a police personnel as of other persons and it is not a proper judicial approach to distrust and suspect them without good grounds. So far as the case of Daljit Singh @ Mithu is concerned, we are of the considered opinion that his involvement in the commission of offence is not proved beyond reasonable doubt. The perusal of the testimony of PW-3 Gurpreet Singh reveals that he along with other accused, Jeet Singh who happens to be father of Gaggan Singh accused, had only raised Lalkara that Gursewak Singh should not go scot-free. No injury is alleged to have been caused at the hands of Daljit Singh. There is a general tendency in our society to rope in as many members/relatives of accused in such type of cases. The maxim 'falsus in uno falsus in omnibus' cannot come in the way of this Court. It is the duty of the Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. Thus, the involvement of Daljit Singh in the murder Cr. A. No. 151-DB of 2002 9 of Gursewak Singh is not free from doubts and he is entitled to the benefit of doubt. As a sequel to the above discussion, the present appeal is partly allowed. The conviction and sentence of the appellant Gaggan Singh @ Sukhjinder Singh under Section 302 IPC and Section 27 of the Arms Act is maintained and his appeal is dismissed while the instant appeal to the extent of appellant Daljit Singh @ Mithu is allowed, thereby acquitting him of the charges after extending the benefit of doubt. As regards Criminal Revision No. 904 of 2002 preferred by the complainant for enhancement of fine, the same is dismissed being without any merit. ( HEMANT GUPTA ) ( ARVIND KUMAR ) JUDGE JUDGE March 07, 2011.