IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 99-DB of 2004 Date of Decision: January 25 , 2008 Jaspal Singh and another. … Appellants Versus State of Punjab … Respondent CORAM : HON’BLE MR. JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE S.D. ANAND. Present : Mr. R.S. Cheema, Senior Advocate with Mr. Jasdev Singh, Advocate, for the appellants. Mr. Rajesh Bhardwaj, Deputy Advocate General, Punjab assisted by Mr. P.S. Hundal, Advocate, for the respondent. S.D. ANAND, J. Initially, the two appellants (Jaspal Singh and Kuldip Singh sons of Darbara Singh, residents of Village Bagrhian), along with their brother Jagjit Singh son of Darbara Singh and mother Jasbir Kaur @ Biro wife of Darbara Singh, were tried for offences under Sections 302 of the Indian Penal Code, 302/34 of the Indian Penal Code, 302 read with Section 120-B of the Indian Penal Code and under Sections 27 and 29 of the Arms Act. The prosecution in that behalf had been launched by the police of Sadar Tarn Taran. The prosecution allegations, with required brevity, were as under:- Crl. Appeal No.99-DB of 2004 On 21.06.2001, a meeting held at the Village Gurdwara, was attended by Sukhwinder Pal Singh @ Raju Sarpanch of the Village, his father Kartar Singh and also Sukhchain Singh and Gurmukh Singh sons of Pooran Singh. On way to their house, they reached near the Chari field of Baldev Singh son of Joginder Singh, at about 7 P.M. They were waylaid by the appellant – Jaspal Singh (who was carrying a 12 bore DBBL gun), Kuldip Singh and Jagjit Singh after they suddenly came out of the chari crop in which they were concealing themselves. It was at that point of time that the appellants – Kuldip Singh (and the acquitted accused Jagjit Singh) exhorted their brother i.e. appellant – Jaspal Singh to teach a lesson to Sukhwinder Pal Singh @ Raju Sarpanch for having got their brother Mukhtiar Singh murdered. They further announced that Raju Sarpanch should not be allowed to stay alive. On hearing the exhortation, appellant – Jaspal Singh fired shots hitting the left side and chest respectively of Raju Sarpanch who, on receipt of the shots, fell upon the ground, with his face downwards. Then, Kuldip Singh took the gun from Jaspal Singh, loaded two cartridges into it and fired shots on the back and other parts of the body of Raju. On a raula raised by Kartar Singh, the appellants fled the spot. Raju @ Sukhwinder Pal Singh succumbed to the injuries at the spot itself. The backdrop of the relations between the parties was as under:- Mukhtiar Singh, a brother of the appellants, was murdered in the year 1999. A prosecution in the context was pending at that point of time against one Kulwinder Singh son of Dara Singh on a charge of having murdered Mukhtiar Singh. The appellants and their (acquitted accused) mother Biro had a suspicion that Raju @ Sukhwinder Pal Singh had a hand 2 Crl. Appeal No.99-DB of 2004 in the murder of Mukhtiar Singh. They had also preferred a complaint against deceased Raju and his brother Amarjit Singh in that context. Few days before the impugned occurrence, Kartar Singh was irrigating his fields when the acquitted accused (Mst. Biro) had taunted him that she would avenge the murder of Mukhtiar Singh which had been got done by `them’. Kartar Singh brought that conversation to the notice of his son Amarjit Singh but the episode was not taken seriously by the latter. At the trial, the prosecution examined PW3 – Kartar Singh, PW5 – Gurmukh Singh and PW11 – Karnail Singh to prove the ocular version. PW1 – Dr. Inder Mohan Gupta had conducted the post mortem examination on the dead body of Sukhwinder Singh and had found the following injuries on his person:- “1. A lacerated punctured wound with blanckened margins of the size of 1-1/2 x 1-1/2cm present on the front of the neck in the mid line at the level of hyoid bone. The wound was traversing through the floor of the oral cavity and soft pellet base of the skull brain and left parietal, left temporal and left occipital bones of the skull with the brain matter line outside the skull. On dissection of the wound and the track, the muscles of the floor of the mouth were lacerated and clotted blood was present. The soft pellet was lacerated. The base of the skull was fractured. The dura matter and brain matter was lacerated with the brain matter lying outside the skull which was brust open (exist wound). Left temporal bone, left parietal bone and the left occipital bones being fractured. A part of the fire arm found in the brain matter was recovered, sealed and handed 3 Crl. Appeal No.99-DB of 2004 over to the police (Two metallic bodies). 2. A lacerated wound of the size of 2-1/2 x 2.0cm ovel in shape was present on the lateral side of the chest in the mid axilliary line at the fifth inter-costal space. On dissection of the wound, the wound was travesing in the chest, fracturing the fifth rib on the left side. The pleura of the left lung and left lung was lacerated and the left ventricle of the heart was punctured. The soft tissue in front of the heart was lacerated with the left part of the sternum was lacerated and fractured with everted margins and the skin around was laceted (Exist wound). A part of the fire arm (one metallic body) present in the pleural cavity taken out, sealed and handed over to the police. The diameter of the exist wound was 5 x 4 cm. 3. There was a lacerated wound of the size of 2.0 x 1.5 cm on the medial aspect of the left upper arm in its middle ovel in shape. On dissection of the wound, the skin, underlying fascia and the underlying muscles of the left upper arm were lacerated. The left humerds bone was fractured in its middle and a cardboard and a bullet like piece recovered, sealed and handed over to the police. 4. There was an incised wound of the size of 6.0 & 1.0 cm vertically present on the centre of the fore-head and going downward along with bridge of the nose. The wound was superficial on dissection. 5. There was a lacerated wound of the size of 3-1/2 x 3 cm ovel in 4 Crl. Appeal No.99-DB of 2004 shape present on the back 5.0 cm from the mid line and at the level of D-10 vertibra on the right side of the back. On dissection the wound was superficial. 6. There were three circular contusion present on the dorsem of the right fore-arm. First contusion was 3.0 cm from the right elbow, second contusion was 5.0 cm from the first contusion and third contusion 6.0 cm from the second contusion.” Dr. Inder Mohan Gupta opined that the death of the deceased had occurred due to shock and haemorrhage on account of injury No.1 or Injury No.2 individually or collectively or due to injuries Nos. 1, 2 and 3 collectively which was sufficient to cause death in the ordinary course of nature. PW13 – SI Sucha Singh is the Investigating Officer of the case. Others examined gave testimony which is formal in character. Ex.PY and PZ are the FSL reports. The appellants offered a plain and simple denial of the prosecution allegations. DW/1 - H.C. Babu Singh posted at Sadar Tarn Taran and DW2 – Joginder Singh (a Sewadar at Gurdwara Nader Sahib) were examined in defence evidence. On appraisal of the presentation made by both the parties, the learned Trial Judge exonerated Mst. Biro and Jagjit Singh by giving them benefit of doubt. The appellants were convicted for offences under Section 302 of the Indian Penal Code and under Section 27 of the Indian Arms Act. For the former offence, they were awarded life imprisonment and to pay fine of Rs. 5,000/-. For the latter offence, they were awarded six months rigorous imprisonment and were directed to pay fine of Rs.500/-. In default of the payment of fine under the former count, they were to undergo further 5 Crl. Appeal No.99-DB of 2004 rigorous imprisonment for a period of six months; while in the case of a default in the payment of fine under the latter count, they were directed to undergo further rigorous imprisonment for a period of one month. Both (substantive) sentences were directed to run concurrently. Fidelity to the debate at the bar, requires us to indicate the item- wise criticism which was directed at the impugned finding by Mr. R.S. Cheema, the learned senior counsel appearing on behalf of the appellants. i) The prosecution presentation about the appellant – Kuldip Singh having taken the gun from the appellant – Jaspal Singh and having fired two shots from it on the deceased, who was by that time lying on the ground, is unnatural inasmuch as the two shots fired by appellant-Jaspal Singh had already felled the deceased upon the ground. In the context, the learned counsel invited our attention to the variation in the inter-se testimony of PW3 – Kartar Singh and PW5 – Gurmukh Singh. All that the former had stated was that Kuldip Singh had taken the gun from Jaspal Singh and fired two shots. He did not attribute any further utterance to Kuldip Singh. However, the latter had attributed an utterance to Kuldip Singh, in the course whereof he announced to Jaspal Singh that “Sukhwinder Pal Singh is still alive”. It was that observation by Kuldip Singh which is alleged to have actuated him to have the gun from Jaspal Singh and fire two shots on the deceased. The utterance attributed to Kuldip Singh by PW5-Gurmukh Singh does not find mention even in the FIR which had been lodged by PW3 – Kartar Singh. ii) The prosecution presentation does not inspire confidence and it 6 Crl. Appeal No.99-DB of 2004 stands proved that an endeavour has been made in rope in innocent members of the family. Reference, in the context, was to the acquittal of Biro and Jagjit Singh by the Trial Court which (Court) discarded the conspiracy theory. iii) There is inordinate and unexplained delay in delivery of the special report to the Illaqa Magistrate which (delay) is proof adequate enough of the fact that the FIR had been ante timed by the police and that is what led to the delay in the delivery of the special report. iv) All the witnesses examined are related to the deceased and there is no independent evidence to corroborate their version. None from the nearby fields or houses had been examined. On perusal of the material obtaining on the file, it is apparent that the relations between the parties (complainant and also the appellants) were far from cordial. At the same time, it requires notice that motive is a double-edged weapon which (aspect pertaining to the motive) has to be appreciated in the peculiar facts and circumstances of each case. Insofar as the criticism detailed at Item No. (i) is concerned, it may be noticed that there was nothing particularly significant in the act of appellant – Kuldip Singh in obtaining the gun from appellant – Jaspal Singh and firing two shots upon Sukhwinder Pal Singh, after having taken out two cartridges from his pocket and loading the same in the gun. In fact, it is a matter of common observation that different people would react differently to a similar situation. There could well be an assailant who would fire the shot and flee the spot immediately thereafter, without caring to find out whether the `job' had been accomplished or not. At the same time, there 7 Crl. Appeal No.99-DB of 2004 could well be an individual, with heart full of vengeance, who would like to ensure that the job is accomplished, even if additional/surplus shots (other than those already fired by a co-assailant) have to be fired. The present would appear to be a case falling in the latter category. It requires pertinent notice that there is plethora of evidence on the file to prove that Mukhtiar Singh, a real brother of the appellants, had been murdered by Kulwinder Singh, a cousin of the appellants who (appellants) suspected that the Sukhwinder Pal Singh was also responsible for that murder. The extent of animosity in the hearts of both the parties can safely be gauged from the fact that the complainant party roped in all living members of the family of the appellants. That those persons, other than the appellants, came to be exonerated by the learned Trial Judge is an altogether different story. The animosity in the heart of the appellant (party) can equally be well gauzed by the conduct of appellant – Kuldip Singh who did not want to leave anything to chance and wanted to ensure that Sukhwinder Pal Singh is dead. As in the case of love, it appears to be a case of deep mutual hatred. The inferential observation recorded by us, qua the number of shots fired at the deceased, is buttressed by the findings of the medical evidence. The grievance described as item No.(ii) also is devoid of force. It can not be accepted, as a general proposition of law, that the falsity of a part of the prosecution plea must, ipso-facto, invalidate the plea in entirety. It is the onerous duty of the Court to separate the grain from the chaff. This is precisely what was done by the learned Trial Court in this case. We are not persuaded to invalidate the prosecution presentation against the present appellants just on account of the finding of exoneration recorded by the learned Trial Court qua Biro and Jagjit Singh, particularly when no blow or 8 Crl. Appeal No.99-DB of 2004 shot was attributed to them and liability was sought to be fastened upon them only on the basis of their being a party to the conspiracy. Insofar as the delayed delivery of the special report is concerned, we do not find force in the criticism in the context. As fairly averred by the learned counsel for the appellants before us, there is no noticeable delay in lodging of the First Information Report with the police. The delivery of the special report would indeed appear to have been delayed but that cannot, per se, befall the prosecution plea. Even otherwise, it is established law that even mere delay in lodging of the First Information Report would not prove fatal to an otherwise validly prove prosecution version. That delay is obviously attributable to the investigating agency whose remiss attitude cannot adversely affect the acceptable testimony of the PWs. That the witnesses examined are related to the deceased is apparent from the record. There is, however, no force in the criticism that their testimony cannot be relied upon in the absence of corroboration by any independent witness. In the countryside, the society is plagued by party faction and feuding groups. In that view of things, the “unattached” individuals would refrain from getting associated with the brawl between the rival parties. It follows therefrom that only the relation witnesses would be inclined to depose to prove what had transpired in their presence. Of course, it goes without saying that the non-corroboration of the testimony of relation witnesses would put the Court on guard in carefully scrutinizing the deposition of the relation witnesses. Examined on that touch stone, we find that the categorical, clinching and unambiguous testimony on oath of PWs cannot be faulted on any valid score. 9 Crl. Appeal No.99-DB of 2004 We owe it to the learned counsel for the appellants to record that a number of judicial pronouncements were cited at the bar in the context of the effect of delay in the lodging of the First Information Report, motive and the value to be attached to the testimony of relation-witnesses. However, in view of the settled position of law on those points, we are of the opinion that the quotation of those rulings would have merely added to the volume and not the weight of the expounded propositions. That explains the refrain on our part in the context. On that premise, we are in complete agreement with the manner of appreciation of evidence by the learned Trial Court. The position that can safely be culled out from the above discussion is as under:- 1. There was no inordinate delay in lodging of the First Information Report. 2. The appellants had a strong motive to do away with the deceased as they suspected the latter to have been responsible for the death of their brother Mukhtiar Singh. 3. The medical evidence is completely in accord with the ocular evidence. For the foregoing reasons, we find no merit in the appeal which is ordered to be dismissed. ( S.D. ANAND ) JUDGE January 25, 2008 ( ADARSH KUMAR GOEL ) vkd JUDGE Note : Whether to be referred to reporter : Yes/No 10