Murder Reference No.7 of 2010 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH 1. Murder Reference No.7 of 2010 DATE OF DECISION: May 6, 2011 STATE OF PUNJAB ...APPELLANT VERSUS SHALINDER SINGH ...RESPONDENT 2. Crl.A. No.1238-DB of 2010 SHALINDER SINGH ...APPELLANT VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE SATISH KUMAR MITTAL. HON'BLE MR. JUSTICE M.JEYAPAUL. 1. Whether reporters of local papers may be allowed to see the judgement? Yes/No 2. To be referred to the reporters or not? Yes/No 3. Whether the judgement should be reported in the digest? Yes/No ---- PRESENT: MR. SURINDER S. DHALIWAL, ADDL.A.G., PUNJAB FOR THE APPELLANT IN MURDER REFERENCE & FOR RESPONDENT IN CRL.APPEAL NO.1238-DB OF 2010. MR. BINDERJIT SINGH, ADVOCATE AND MR. B.R. GUPTA, ADVOCATE FOR THE RESPONDENT IN MURDER REFERENCE & FOR THE APPELLANT IN CRL.APPEAL NO.1238-DB OF 2010. M.JEYAPAUL, J. 1. Accused Shalinder Singh was called upon to face trial for the offence under Section 302, 307 and 498-A of IPC and Section 27 of the Arms Act. Complainant Gurpal Singh having been aggrieved by the charge-sheet laid only as against accused Shalinder Singh by the Murder Reference No.7 of 2010 -2- investigating official laid a separate complaint before the Illaqa Magistrate at Muktsar. Based on the allegations found in the complaint they were summoned and having coming to know that accused Shalinder Singh was already facing trial for the aforesaid offences, he sent up accused Rajwant Singh, based on the said private complaint, to face trial alongwith accused Shalinder Singh for the aforesaid offence. 2. The trial Court having acquitted accused Rajwant Singh convicted accused Shalinder Singh for the offence under Section 302 IPC (4 counts) and awarded him capital punishment of death and also imposed fine of `2000/- on each count and in default of payment of fine to undergo a further period of 1 year R.I. He was also convicted for offence under Section 307 IPC and was sentenced to undergo R.I. for 5 years and to pay a fine of `1000/- and in default to undergo a further period of 6 months R.I. He was convicted for the offence under Section 498-A IPC and was sentenced to undergo 2 years R.I. and to pay a fine of `1000/- and in default of undergo a further period of 3 months R.I. He was also convicted for the offence under Section 27 of the Arms Act and was sentenced to undergo 4 years R.I. and to pay a fine of `1000/- and in default of payment of fine to undergo further period of 3 months R.I. Aggrieved by the conviction recorded and the aforesaid sentence imposed on him, accused Shalinder Singh preferred Crl.A. No.1238-DB of 2010. The trial Court made reference for confirmation of death sentence imposed on accused Shalinder Singh. 3. The brief case of the prosecution is reflected from the statement of Gurpal Singh which culminated in the registration of the First Information Report. The sum and substance of the said statement is as follows. Murder Reference No.7 of 2010 -3- 4. He was the resident of Gandhar located within the jurisdiction of Sadar Muktsar Police Station. He was engaged in agricultural operation. His sister Shaminder Kaur was married to accused Shalinder Singh S/o Rajwant Singh, resident of Baam falling within the jurisdiction of Police Station Sadar Malout. After the marriage, accused Shalinder Singh used to harass his sister. He, in fact, demanded not only dowry, but also a share in the property of the family of Gurpal Singh. The family of Gurpal Singh had already given dowry according to their capacity at the time of marriage. On 13.6.2007, at about 6.00 P.M. accused Shalinder Singh came with his wife Shaminder Kaur and his son Babbar and gave out a threat that he would kill the entire family if the due share of his wife was not given to him. Having warned thus, he left the house. On 14.6.2007, Shalinder Singh came in a Maruti car armed with a .12 bore Double barrel rifle. About that time complainant Gurpal Singh (PW3), his father-in-law Mithu Singh (PW4) were also present in the house alongwith his father Sadhu Singh, his mother Jaswinder Kaur, his wife Surinder Kaur, his daughter Harman and his sister Shaminder Kaur. On seeing accused Shalinder Singh armed with rifle, his wife Shaminder Kaur ran away from the house on account of fear. Shalinder Singh opened fire with his .12 bore double barrel rifle towards complainant's father Sadhu Singh, which straight-away hit on his forehead. His mother came down running towards his father Sadhu Singh. Accused Shalinder Singh again opened fire which straight-away hit on the left side of head of complainant's mother Jaswinder Kaur. Complainant Gurpal Singh's wife Surinder Kaur came running in the courtyard for preventing accused Shalinder Singh, but Shalinder Singh loaded the rifle again and fired upon Surinder Kaur which hit on her mouth. At that point of time, Surinder Kaur Murder Reference No.7 of 2010 -4- carried her daughter Harman in her lap. Some of the pellets also hit on the body of the child. Shalinder Singh also fired indiscriminately towards complainant Gurpal Singh and his father-in-law Mithu Singh, who witnessed the occurrence. The complainant and his father-in-law raised alarm. Accused Shalinder Singh alongwith his son Babbar ran away from the spot in his car taking his .12 bore DBBL rifle. Sadhu Singh, Jaswinder Kaur, Surinder Kaur and Harman died on the spot. 5. Complainant Gurpal Singh lodged the complaint with the Sub Inspector of the Police Rajan Parminder Singh (PW5) at about 9.15 P.M. on 14.6.2007. His statement Ex.PW3/A was recorded. Thereafter, a formal First Information Report was registered by MHC Balbir Singh attached to Sadar Muktsar Police Station. PW5 Rajan Parminder Singh conducted inquest separately on the dead bodies of the aforesaid Sadhu Singh, Jaswinder Kaur, Surinder Kaur and Harman and prepared individual inquest reports. He recovered from the spot 8 empty cartridges, blood stained earth from 4 places, a sample earth, one pair of chappal of Surinder Kaur, a pair of chappal of Harman and one Teddy Bear from the scene of occurrence. 6. PW2 Dr.Deepika Bansal, Medical Officer attached to Civil Hospital, Muktsar conducted post mortem examination on the dead body of Sadhu Singh on 14.6.2007. She found the following injuries on the dead body of Sadhu Singh. “Wounds, bruises position, size nature:- Injury present on body are lacerated wound 8 cm x 4 cm in middle of fore head 60 cm above root of nose. It is more towards right side edges of wound irregular with blackening present. Underlying bones missing in same area surrounding bones in multiple pieces on Murder Reference No.7 of 2010 -5- right side posteriorly on futher dissection covering of brain torn with piecs of brain tissue. Blood clots seen through torn covering. Brain in multiple pieces present on right side. Some pellets recovered from brain tissue on right side. Pellets sealed in glass vial with one seal dissection of wound in brain is backward laterally with slightly upward toward right. Injury No.2: Lacrerated wound 1 cm x 1 cm present 3 cm from injury No.1 (to left side) blackening present at edges. Edges inverted on track of wound is leading into the damaged brain tissue on right side to through covering of brain. P.S. upper part of body and upper clothes soiled with blood.” 7. She conducted post mortem examination on the dead body of Jaswinder Kaur on 14.6.2007 at about 4.00 P.M. and found the following injuries:- “1. A lacerated wound 3 cm x 2 cm present in front of right shoulder, 4 cm from tip and 3 cm from lateral border. Edges of wound inverted and shows blackening with burning also and burning extending into the wound. Track of wound going posteriorly medially and downward through the soft tissue and muscles of shoulder area and going through chest wall and then through pleural cavity contains some bloods. Track is going through the right side long tissue in upper lobe and is torn in way of track. It extends to posterior chest wall into wound No.2. 2. Lacerated wound 3 cm x 2 cm present on the black of chest (Right side) 3 cm from midline and 12 cm below the Murder Reference No.7 of 2010 -6- upper border of shoulder. Edges of wound everted anteriorly it is continuing with injury No.1 underlying rib having multiple fractures. 3. Lacerated wound 2.5 cm x 2.5 cm in midline of neck slightly towards left side, 4 cm from chin. Edges of wound inverted. Burning and blackening present in edges. On dissection wound extending posteriorly going upward and slightly laterally towards right and posteriorly through soft tissues of neck. All the soft tissues, muscles and big vessels destroyed in the track of wound. Bloods clots removed from track of wound. Trace of wound is extending up to wound of injury No.4. 4. Lacerated wound 3 cm x 2 cm on back of neck left side. 3 cm from midline at level of nape of neck. Edges of wound everted (Suspected area on shirt of deceased marked).” 8. She conducted post mortem examination on the dead body of Surinder Kaur on 14.6.2007 at about 5.50 P.M. and found the following injuries:- “1. Lacerated wound 4 cm x 3 cm present on lower lip with adjoining chin area. Edges were inverted showing blackening and burning at edges which are irregular. Lower jaw is shattered into pieces on midline floor of oral cavity and bone of tongue torn into pieces track of wound goes backward towards right soft tissue and vessel coming in the way destroyed. The wound is extending upto injury no.2. 2. Lacerated wound 3 cm x 3 cm present on right side of Murder Reference No.7 of 2010 -7- neck on back, 5 cm from mid line at level of nape of neck it is continued with injury no.1 edges everted. 3. Lacerated wound 3 cm x 2.5 cm present on right shoulder area, 3 cm from side of neck, edges of wound inverted, blackening and burning seen on edges. This wound is extending backward, downward and laterally destroying soft tissue of and vessels coming on way up to injury no.4. 4. Lacerated wound 3 cm x 3 cm present on back of chest, 6 cm from midline 4.5 cm from upper border of shoulder edges are everted and is continued with injury No.3 pellets recovered from wound of injury No.1 and 23 in glass vial. X-ray of deceased vide X-ray No.X2995 dated 14.6.2007 and handed to police.” 9. She conducted post mortem examination on the dead body of Harman on 14.6.2007 at about 6.10 P.M. and found the following injuries:- “1. Lacerated wound 1.25 cm x 1.25 cm present in back of scalp right side 5 cm fro midline and 7 cm above nape of neck. Blackening present on edges and edges inverted. On dissection a hole present on skull of same direction. Covering of brain having hole in same area track of wound extends forward and laterally through the brain tissue crossing midline towards left side and again it runs through the brain covering on left side upto wound No.2. 2. Lacerated wound 1.5 cm on left side of scalp, 7 cm midline and 6 cm from left eye brow. Edges of wound everted. Skull bone shows hole in same area and is continued with Murder Reference No.7 of 2010 -8- injury No.1. 3. Lacerated wound 1 cm x 1 cm on left side of chest, on back 4 cm from midline and 3 cm from upper part of shoulder, blackening present at edges and edges inverted. On dissection wound is extending downward into the chest cavity. 4. Lacerated wound 1.25 cm x 1.25 cm on left side of back of chest, 2 cm from midline at a level 7 cm below lower and of scapula. Blackening present at edges and edges inverted. On dissection wound is extending into chest cavity. 5. Lacerated wound 1 cm x 1 cm on right side of chest on back, at level of lower ribs. Edges inverted and blackening present and extending into chest cavity. 6. Lacerated wound 0.75 cm x 0.75 cm present on the left infra axillary area, 5 cm below axilla. Edges inverted. It does down into chest cavity. 7. Lacerated wound 1 cm x 0.75 cm present on the lefts side neck in front 3.5 cm x 3.5 cm from midline just above clavicles. Edges everted and goes down into chest cavity. 8. Lacerated wound 0.75 cm x 0.75 cm in front of chest on left side, 3 cm medial to axilla near its roof. Edges everted 7 down it continues into chest cavity. No.3,4,5,6,7,8 chest was opened. Pleural covering were having multiple punctures on it. Pleural cavity was full of liquid blood. Lungs were lying collapsed in same area. There was punctured wound uin both lungs and major vessels in chest cavity was injured at many places. There was fracture of ribs present. Murder Reference No.7 of 2010 -9- 9. Diffuse swelling 8 cm x 3 cm on right shoulder area of upper 1/3rd of upper area. On dissection fracture of right humerous present. X-ray examination body of child done. Vide X-ray No.X2997 and report handed to police with to X- ray Film.” 10. The Doctor has opined that all the four persons had died due to gun shot injuries found on their persons, within 12 to 24 hours prior to the post mortem examination. 11. On 15.6.2007, one Harbir Singh produced accused Shalinder Singh before the police party headed by PW5. The Maruti car used by the accused was seized by PW5. On interrogation, accused Shalinder Singh suffered a disclosure statement, based on which a .12 bore DBBL rifle along three cartridges were recovered from a heap of dung cakes near the manger in the tractor room adjoining the house of accused Shalinder Singh. Accused Shalinder Singh was, thereafter, remanded to judicial custody. After completing the investigation, charge-sheet was laid as against accused Shalinder Singh. 12. Responding to the incriminating circumstances spoken to by the witnesses, accused Shalinder Singh would state that he had an extremely strained relationship with his wife and his in-laws on account of his love affair with the sister of his wife who was married. Due to the strained relationship, he stopped going to his in-laws' house. Sadhu Singh had land dispute with Kuldeep Kaur and Mandeep Kaur, due to the execution of a Will by Kishan Singh, father of Sadhu Singh bequeathing his share to Kuldeep Kaur and Mandeep Kaur. Sadhu Singh refused to give possession to Kuldeep Kaur and Mandeep Kaur as per terms of the Will. There had Murder Reference No.7 of 2010 -10- been a litigation also between those parties. Unidentified persons had committed the murders. The witnesses of occurrence were not present at the spot. The occurrence took place at about 9/10.00 P.M. To cover up the delay the time of occurrence itself was ante-timed. 13. The trial Court having thoroughly adverting to the evidence on record, completely relied upon the ocular testimony of PW3 Gurpal Singh and PW4 Mithu Singh, in the background of the recovery effected from the accused and the medical evidence available on record and returned a finding of conviction. The trial Court having found that the present case squarely falls within the ambit of rarest of rare category, imposed the sentence of death as against accused Shalinder Singh. 14. Learned counsel appearing for the appellant Shalinder Singh would submit that PW3 and PW4 were not the eye witnesses to the occurrence. Two witnesses cited in the inquest were not examined by the prosecution. There is a lot of inconsistency in the testimony of the eye witnesses. The site plan would militate against the eye witness account. There would not have been any intention to kill Gurpal Singh and Mithu Singh. The report of the Forensic Science Laboratory discloses the fact that the empty cartridges recovered from the scene of occurrence did not match with .12 bore DBBL rifle allegedly recovered from the accused. Therefore, it is his submission that the trial Court has wrongly placed reliance on the ocular testimonies of PW3 and PW4 and rendered the verdict of conviction as against the innocent accused. 15. Per contra, the learned Addl. Advocate General appearing for the State would vehemently contend that there was no reason to reject the ocular testimony of PW3 and PW4. They have categorically deposed before Murder Reference No.7 of 2010 -11- the Court that it was only accused Shalinder Singh who committed the murder of Sadhu Singh, Jaswinder Kaur, Surinder Kaur and Harman Kaur. The opinion expressed by the expert from the Forensic Science Laboratory pales into insignificance in the face of the ocular testimony available on record and the suggestion made to PW5 on behalf of the accused that he was arrested alongwith .12 bore DBBL rifle on 14.6.2007 itself. Therefore, it is his submission that the prosecution has established beyond reasonable doubt the charges framed against accused Shalinder Singh. 16. PW3 is none other than the son of deceased Sadhu Singh and Jaswinder Kaur, Surinder Kaur was his wife and Harman Kaur was his daughter. There was every reason for him to be present at his house at about 9.00 A.M. on the day of occurrence. Mithu Singh was none other than the father of deceased Surinder Kaur. His village is not located far way from the village of PW3 where the occurrence took place. No wonder, Mithu Singh, PW4 was also present in the matrimonial house of his daughter Surinder Kaur at the time of occurrence. If third parties were introduced by the investigating agency as ocular witnesses to the occurrence which took place in the very house of the deceased, then we can entertain a doubt that the investigating agency has associated chance witnesses to speak about the occurrence. It is quite natural for the family members to be present in the house in the morning hours. Of course, a question may arise as to why PW3 Gurpal Singh had not come to the rescue of his family members when they were mercilessly shot at by accused Shalinder Singh. Shalinder Singh was armed with a lethal weapon. He had started firing indiscriminately and on account of which four members of family had sustained fatal injuries Therefore, there is every reason for Gurpal Singh Murder Reference No.7 of 2010 -12- alongwith his father-in-law Mithu Singh to take shelter in some part of the house. No prudent man would venture to challenge the act of an armed assailant in the above facts and circumstances. Therefore, we do not doubt the presence of PW3 being one of the family members and PW4 being the father of deceased Surinder Kaur and father-in-law of complainant PW3 Gurpal Singh. 17. PW3 and PW4 have categorically deposed before the trial Court that accused Shalinder Singh who harboured ill-will opened fire at Sadhu Singh on his forehead, Jaswinder Kaur on her head and Surinder Kaur at her mouth. Surinder Kaur was in fact carrying her 4 years old daughter Harman Kaur at her lap. The shot fired at Surinder Kaur had sprayed and the pellets emanated therefrom had hit the child Harman Kaur also. 18. PW3 and PW4 also have deposed before the trial Court that Shalinder Singh, in fact, made a serious attempt to kill PW3 and PW4 also who took shelter in a safe place in the house, but fortunately, the pellets did not hit them. PW3 has also deposed before the Court that accused Shalinder Singh continued to torture his sister Shaminder Kaur, demanding her share in the property of the family. The resistance from deceased Sadhu Singh had led to the torture of Shaminder Kaur at the hands of the accused. Shaminder Kaur was examined as PW13 in this case. She has also testified to the effect that her husband Shalinder Singh tortured her demanding share in the property of her family. In fact a quarrel had erupted on 13.6.2007, the previous date of the occurrence between PW13 Shaminder Kaur and her husband Shalinder Singh on account of persistent demand of her share in the family property. PW13 has deposed that she was beaten by the accused Murder Reference No.7 of 2010 -13- Shalinder Singh. Only thereafter, was she alongwith her son Babbar was brought to her parental house. She was also present in the house at the time when the accused came with .12 bore DBBL rifle at about 9.00 A.M. on 14.6.2007. She corroborates the evidence of PW3 Gurpal Singh and PW4 Mithu Singh that PW3 and PW4 were in fact present at the time when the accused who came with .12 bore DBBL rifle was about to open fire. She having been terrified on seeing her husband in a devilish posture ran away from her parents' house, but unfortunately, she could hear only the sounds of the fire which continued for 8-10 minutes. When she came back, she saw accused Shalinder Singh driving away the car taking alongwith him his son Babbar Singh. Evidence of PW13, Shaminder Kaur lends corroboration to with the evidence of PW3 and PW4 on material particulars. There is no reason for the wife to depose against her husband, if at all there was no such occurrence as projected by the prosecution. The evidence of PW3, PW4 and PW13 is found to be quite natural. We find that the trial Court has rightly believed their testimony which could not be materially demolished during the course of cross-examination to justify the conviction. 19. No eye witness was cited in the inquest proceedings recorded by PW5. Two witnesses have been cited as persons who identified the dead bodies. If at all two ocular witnesses were specifically referred to in the inquest proceedings and they were not examined by the prosecution, then there is some substance in the submission that witnesses cited in the inquest proceedings were not examined before the trial Court. But the non- examination of two unimportant witnesses who simply identified the dead bodies during the course of inquest proceedings does not in any way shake the case of the prosecution. Of course, there is a minor inconsistency in the Murder Reference No.7 of 2010 -14- evidence of the ocular witnesses as to the date on which PW4 Mithu Singh arrived at the house of PW3. A cumulative reading of evidence of PW3, PW4 and PW13 would go to establish that PW4 Mithu Singh was in fact present at the time when the occurrence took place. Therefore, the date of arrival of Mithu Singh to the matrimonial house of his daughter does not go to the root of the matter. 20. The site plan does not in fact militate against the ocular testimony available on record. The occurrence had taken place for about 8- 10 minutes. The eye witnesses who had been terrified on account of the indiscriminate firing had to run hither and thither to save their lives. Therefore, the notation of the place from where the witnesses saw the occurrence noted down by the investigating official (PW5) in the site plan does not discredit the evidence of the ocular witnesses. 21. Of course, the expert of the Forensic Science Laboratory has come out with a damaging opinion that 8 empty cartridges recovered from the scene of occurrence did not match with the weapon .12 bore DBBL rifle recovered and sent for examination. It is merely an opinion expressed by the Forensic Science Laboratory. The opinion evidence if found to be untrustworthy can be simply rejected by the Court of law. It is not necessary that the irreconcilable opinion expressed by the expert should be taken as biblical truth by the Court of law. Here is a case where the ocular testimony clinchlingly establishes that the accused used .12 bore DBBL rifle to open fire on the unfortunate victims. The said firearm is found to be a licenced one