Criminal Appeal No.350 of 2005 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A.No.350 DB of 2005 Date of decision: 11.3.2008 Sukhwinder Singh and others …..Appellants v. The State of Punjab …..Respondent Criminal Appeal No.373 DB of 2005 Manjit Singh ....Appellant vs. The State of Punjab ....Respondent Criminal Appeal No.401 DB of 2005 Narain Datt and another ...Appellants vs. The State of Punjab ...Respondent. Civil Writ Petition No.2147 of 2008 Rajinder Pal Singh ...Petitioner vs. The State of Punjab ....Respondent Criminal Appeal No.350 of 2005 2 CORAM: HON’BLE MR. JUSTICE ADARSH KUMAR GOEL HON’BLE MR. JUSTICE S.D.ANAND Present: Mr. TS Sangha, Sr. Advocate with Mr. Nitin Grover, Advocate for appellants Bakhtaur Singh and Labh Singh. in Crl.A.No.350 DB of 2005. Mr. Vinod Ghai, Advocate for appellants Narain Datt, Prem Kumar, Avtar Singh and Sukhwinder Singh. in Crl.A.No.350 DB of 2005 and Criminal Appeal No.401 DB of 2005. Ms. Baljit K.Mann, Advocate for appellant Manjit Singh in Crl.A.No.373 DB of 2005. Mr. Rakesh Gupta & Mr. Harit Sharma, Advocates for private respondents in the writ petition. Mr. Rajesh Bhardwaj, DAG, Pb. for the State in appeals. Mr. Raj Kumar Gupta, Advocate for the complainant/writ petitioner. Mr. D.S. Brar, DAG, Punjab for the State in the writ petition. JUDGMENT: 1. This order will dispose of Criminal Appeal No.350 DB of 2005, filed by Sukhwinder Singh, Labh Singh, Avtar Singh and Bakhtaur Singh; Criminal Appeal No.373 DB of 2005 filed by Manjit Singh; Criminal Appeal No.401 DB of 2005 filed by Narain Datt and Prem Kumar, accused, who stand convicted under sections 302, 302/149, 148, 323, 324, 326 IPC and sentenced to life imprisonment, apart from other lesser sentences. This order will also dispose of Civil Writ petition No.2147 of 2008 filed by Criminal Appeal No.350 of 2005 3 Rajinder Pal Singh, complainant, seeking quashing of grant of pardon to accused Narain Datt, Prem Kumar and Manjit Singh under Article 161 of the Constitution vide orders dated 28.7.2007, 20.7.2007 and 24.7.2007 of the Governor of Punjab, during pendency of their appeals against conviction. 2. Case of the prosecution is that on 3.3.2001, Dalip Singh deceased, Gurnam Singh PW6, Beant Singh and Rajinder Pal Singh PW5, all residents of Village Mehal Kalan had gone to the Court Complex of Barnala in connection with the hearing in Criminal Case FIR No.67 of 1997 pertaining to Police Station Mehal Kalan. The case was adjourned to 5.4.2004. Manjit Singh, Prem Kumar, Narain Datt, Sukhwinder Singh, Labh Singh, Avtar Singh and Bakhtaur Singh had also come to the Court Complex to attend proceedings in a complaint case of Manjit Singh, which was also adjourned. At about 11.15 A.M., Dalip Singh, Gurnam Singh, Beant Singh and Rajinder Pal Singh had hardly reached near the cabin of typists, with a view to board their own car, that Sukhwinder Singh, Labh Singh, Avtar Singh armed with kirpans, Bakhtaur Singh armed with 'Ghop', Manjit Singh armed with 'kirch', Prem Kumar and Narain Dutt empty handed who were standing behind the cabins, attacked them. Manjit Singh gave 'lalkara' asking the co-accused to take revenge for Kiranjit Kaur and not to allow them (the complainant party) to escape. Labh Criminal Appeal No.350 of 2005 4 Singh gave kirpan blow aiming at the head of Beant Singh, who raised his hands and the blow hit his right hand. Sukhwinder Singh gave 'kirpan’ blow aiming at the head of Dalip Singh but since he raised his hands, the blow hit his right hand. Bakhtaur Singh gave blow of his 'ghop' to Dalip Singh hitting on his head. Prem Kumar and Narain Datt caught hold of arms of Dalip Singh and Bakhtaur Singh gave another 'ghop' blow on the head of Dalip Singh. Bakhtaur Singh gave blow of his kirpan on the left leg of Gurnam Singh. Bakhtaur Singh gave three consecutive blows of 'ghop' on the left cheek, back of the chest and left thigh of Gurnam Singh. Manjit Singh gave blow of his 'kirch' hitting Rajinder Pal Singh on the right hand. He gave another blow of 'kirch' hitting Rajinder Pal Singh on the left hand thumb. Sukhwinder Singh hit Gurnam Singh on the back by the handle of his kirpan. The injured raised alarm , which attracted Amarjit Singh, Balbir Singh and Jit Singh. Gurdeep Singh also came to the spot. The injured were taken to the hospital. On receiving a message from the hospital, Surinder Pal Singh, SHO PS Kotwali PW9 went to the hospital and sought opinion of the doctor about fitness of the injured to make statement. Beant Singh was declared fit to make statement and his statement Ex.PU was recorded at 2.30 P.M., which led to registration of FIR. A copy of special report reached the Magistrate at 4.55 P.M. on the same day. Statements of Rajinder Pal Singh Criminal Appeal No.350 of 2005 5 and Gurnam Singh were also recorded. However, Dalip Singh was not declared to be fit to make statement and was referred to Rajindra Hospital, Patiala. He was shifted to Dayanand College and Hospital, Ludhiana. PW 9 visited the place of occurrence, recovered blood stained earth, prepared rough site plan and took other steps. ASI Gulab Singh PW11 visited the hospital at Ludhiana and sought opinion of the doctor about fitness of Dalip Singh to make statement and the same process was repeated every day from 5.3.2001 to 12.3.2001 but on each occasion, he was declared unfit to make statement. Dalip Singh died on 12.3.2001 at 4.30 PM. On 8.3.2001, accused Bakhtaur Singh, Labh Singh and Avtar Singh were arrested. In pursuance of disclosure statement of Bakhtaur Singh, 'ghop' was recovered. On disclosure statement of Labh Singh, kirpan was recovered. On disclosure statement of Avtar Singh, kirpan was recovered. On 14.3.2001, Sukhwinder Singh was arrested and in pursuance of his disclosure statement, kirpan was recovered. Vide report Ex.PRR to the FSL, the 'ghop', three kirpans and soil recovered from the place of occurrence, were found to be stained with human blood. Post mortem of Dalip Singh was got conducted on 13.3.2001 at Civil Hospital, Ludhiana. Manjit Singh, Prem Kumar and Narain Datt were kept in column No.2 by the I.O. They were, however, summoned under section 319 Cr.PC., vide order dated 19.9.2001. The prosecution Criminal Appeal No.350 of 2005 6 sought to withdraw the case against Manjit Singh, Narain Datt and Prem Kumar under section 321 Cr.PC which was disallowed by the trial Court vide order dated 7.11.2002 against which Criminal Revision Nos.2248 and 2413 of 2002 were dismissed by this Court vide order dated 14.10.2003. 3. PW1 Dr. Subhash Singla medically examined Dalip Singh on 3.3.2001 at 11.45 AM and found the following injuries:- “1. Lacerated wound 8 cm. x 0.5 cm. present on the left side of the scalp, 8 cms. above the left pinna, 1 cm. posterior to anterior hair line. Wound was placed anterio-posteriorily and oblique and was bone deep. Fresh bleeding was present. Advised x-ray, was kept under observation and for surgical opinion. 2. Lacerated wound 4.5 cm. x 0.5 cm. present on the left side of head, 8.5 cm. posterior and above the left pinna, 2 cm. posterior to injury No.1, placed horizontally and obliquely bone deep. Fresh bleeding was present. X-ray was advised and was kept under observation and surgical specialist opinion. 3. Incised wound 1 cm. x 0.5 cm. present on right dorsel on medial side, below little finger. Fresh bleeding was present. Part was swollen and tender. Advised x-ray. 4. Reddish abrasion, 10 cm. x 0.5 cm. present on the right side of chest, above scapula and scapular region.” Criminal Appeal No.350 of 2005 7 According to the doctor, injury Nos. 1 , 2 and 4 could be by blunt weapon and injury No.3 could be by sharp-edged weapon. 4. He also medically examined Beant Singh at 12 noon on the same day and found following injuries: - 1. Incised wound, 5 cm x 0.5 cm. vertically placed on the aplmer surface of right hand, extending to the web splace, between little and ring finger shoft tissue deep and was advised x-ray. 2. Incised wound, present on the dorsel surface of distel phalynx close to shoft tissue of the nail, towards the little finger, one cm. x 0.5 cm. in size, Fresh Bleeding was present and was advised x- ray.” The above injuries were declared to be simple. 5. PW1 Dr. Subhash Singla then medically examined Gurnam Singh at 12.15 PM on the same day and found following injuries:- 1. Incised wound, 9 cm. x 2.5 cm. was present on the left surface of left leg, in its upper part, just below the left knee joint and was bone deep. Fresh bleeding was present. Wound was horizontally placed. Injury was kept for x-ray and surgical specialist's opinion. 2. Abraded contusion 4 cm. x 4 cm. on the back of right chest in scapular region and upper part of chest, was reddish in colour and was kept for x- Criminal Appeal No.350 of 2005 8 ray. 3. Reddish abrasion, 2 cm. x 0.5 cm. was present on the left cheek. 4. Reddish abraded contusion 6 cm. x 0.5 cm. was present on the middle of left thigh on anterio- lateral surface, 22 cm. above the knee joint, was kept for x-ray exam.” Injury No.1 was declared grievous and Injury Nos. 2, 3 and 4 were declared simple. 6. At 12.30 PM, on the same day, PW1 Dr. Subhash Singla also examined Rajinder Pal Singh and found following injuries:- 1. Incised bleeding wound, 2 cm. x 0.5 cm. on the palmer surface and on the base of left thumb, and was kept for x-ray. 2. Incised bleeding wound, 2.5 cm. x 0.4 cm. was present on the palmer and medial aspect of right fore-arm in its lower part and was kept for x-ray. 3. Reddish contusion, 3 cm. x 2 cm. on the right lower part of the chest, on the back, swelling was present. X-ray was advised.” All the injuries were declared simple. 7. In cross examination, certain observations which have been referred by the learned counsel for the parties in the evidence of this witness are:- (i) Pointed weapon always produces a Criminal Appeal No.350 of 2005 9 penetrating wound but no penetrating wound was found on the person of Dalip Singh. (ii) Ex.P1 'ghop' was a pointed weapon; (iii) No injury on the person of Dalip Singh was declared grievous or dangerous to life. (iv) No injury on the person of Gurnam Singh was penetrating wound. (v) Injury No.3 on the person of Rajinder Pal Singh could be due to fall on the ground. 8. PW7 Dr. Jasbir Singh conducted post mortem on the dead body of Dalip Singh and he made the following observations:- “1. Stitched wound 6 cms. long over the left perietal region, 12 cms. above the left ear just obliquely placed near the mid line. 2. Stitched wound 5 cms. on the left perieto-occipital region transversely placed 3 cms. behind the injury No.1. 3. C shaped curved stitched wound, 12 cms. long along the periseto – temporal region. 4. Stitched wound 1 cm. medial and behind to injury No.3. 5. Scabbed abrasion 6 cms. x 1 cm. over the top of the right shoulder. 6. An infected wound 1 cm. x 1/2 cm. on the dorsem Criminal Appeal No.350 of 2005 10 of right hand. 7. Scabbed abrasion 10 cms. x 1/2 cm. over the right scapular region. 8. There was bluish discolouration with diffuse swelling below the left ear. On exploration of the skull, there was big haematoma below the scalp. On clearing the haematoma there was fracture of left frong operietal and occipital region in its middle. A part of bone measuring 6 cms. x 4 cms. on the right parietal area was missing. Brain matter and memberane was exposed. Cranial cavity contained blood. On examination of the thorax the lungs were congested. One examination of abdomen, liver and spleen were pale looking Rest organs were healthy. The cause of death in this case, in our opinion was due to haemorrhage and shock as a result of head injury which was sufficient to cause death in the ordinary course of nature. All the injuries were ante mortem in nature. xx xx xxx xxx The cause of death in this case was haemorrhage and shock due to head injury. The haemorrhage is of two types, i.e. Primary and secondary. Injuries No.1 to 4 were all on the head. Injuries No.7 and 8 are not on the head. Injury Nos. 1 to 4 were operational injuries. I cannot say as to whether these were operational incised wounds. If the operation is performed and injuries are caused Criminal Appeal No.350 of 2005 11 then the operational injuries are always incised wound. I did not find any other injury on the head except injuries No.1 to 4. the haemorrhage can occur at the time of operation. In relation to injury No.6 in this case, infection had cropped up. Injury No.7 was in the healing process. Same is my reply in relation to injury No.5. Injury No.5 was not likely to cause death in this case.Same is my reply in respect of injuries No.6, 7 and 8.” 9. PW5 Rajinder Pal Singh and PW6 Gurnam Singh are injured eye witnesses, who have furnished the ocular account. Beant Singh injured, who was author of the FIR, died during pendency of the trial on 9.3.2002. He was examined-in-chief as PW-1 on 11.9.2001, but his evidence had not been completed. 10. The accused denied the prosecution allegations. Manjit Singh accused took the plea that he was found innocent during investigation. He was an eye witness to the murder and rape of co- villager Kiranjit Kaur on account of which the complainant party was annoyed with him and with Prem Kumar and Narain Datt. They had pursued the case of Kiranjit Kaur. He examined DW1 Dr. AK Singla, Handwriting Expert, DW2 HC Jaswinder Singh, DW3 HC Jora Singh, DW4 Gurcharan Singh Dhaliwal, DW5 Lakhwinder Singh, DW6 C.Amarjit Singh, DW7 HC Gurcharan Singh, DW8 JN Sharma, Advocate, DW9 Kulwant Singh, Member Criminal Appeal No.350 of 2005 12 Panchayat, DW10 Manjit Singh, teacher working in Govt. High School, Wazidke Khurd, DW11 Rajinder Kumar, ALM, PSEB, DW12 HC Darshan Kumar, Head Warden, Sub Jail, Barnala and DW13 Santokh Singh, Math Master, Shaheed Rehmat Ali Memorial Govt. high School Qazidke Khurd, inter-alia, to prove that accused Manjit Singh, Prem Kumar and Narain Datt were not present at the time of occurrence. 11. The trial court accepted the prosecution version mainly by holding that version given by Gurnam Singh PW6 and Rajinder Pal Singh PW5 who were injured witnesses, was reliable and truthful. Evidence of Beant Singh who died on 9.3.2002 and who had been examined in chief as PW1 before his death, was also read under section 299 Cr.PC read with section 33 of the evidence Act. Plea of alibi raised by the accused was rejected, inter-alia, on the ground that the said plea was not taken under section 313 Cr.PC and the defence evidence was not acceptable to substantiate the plea of alibi. 12. We have heard learned counsel for the parties and perused the record. 13. Contention raised on behalf of Bakhtaur Singh accused who is attributed fatal injuries to the deceased, is that since the death took place after nine days, intention to cause death could not be inferred and at best, knowledge to cause death could be Criminal Appeal No.350 of 2005 13 inferred. He also submitted that injuries could not be by 'ghop', which was a pointed weapon. There was nothing to show that the injuries were sufficient to cause death in the ordinary course of nature. Death may be on account of intervening circumstances – unnecessary medical interference or medical negligence. Record of surgery was not produced. The injuries could be surgical injuries. Case will not fall under section 302 IPC. He relied upon judgment of the Hon'ble Surpeme Court in Harish Kumar v. State (Delhi Administration), 1993 Crl.L.J.411. 14. Learned counsel for Sukhwidner Singh accused (who attempted to cause injury on the head of the deceased but on account of deceased raising his hand), the injury was received on the hand, submitted that the injury attributed to Sukhwinder Singh could have been received by him in the course of injuries caused by Bakhtaur Singh. Injury was on the little finger and was a simple injury. In the alternative, there being no pre-meditation and there being no common unlawful object, Sukhwinder Singh could not be convicted under sections 302/149 IPC but he may be responsible for his individual act. 15. Learned counsel for Labh Singh and Avtar Singh accused submitted that they had been attributed injuries to Beant Singh and Gurnam Singh respectively and had not touched the deceased and they could not, thus, be vicariously held liable for the Criminal Appeal No.350 of 2005 14 acts of Bakhtaur Singh and Suikhwinder Singh. 16. Learned counsel for Manjit Singh, accused, apart from submitting that since he was attributed injury only to Rajinder Pal Singh and not the deceased, he could not be held guilty for murder, submitted that his plea of alibi stood proved. It was also submitted that weapon of offence was not recovered from him. 17. Learned counsel for Narain Datt and Prem Kumar submitted that they were empty handed and only role attributed to them was of catching hold of hands of the deceased, which was not probable. The deceased being 80 years of age, was not likely to run away and once he was given head injury, there was no reason to catch hold of him. The role of catching hold of the deceased was not substantiated by any tangible evidence. 18. Learned counsel for Manjit Singh, Narain Datt and Prem Kumar accused also submitted that they were exonerated during investigation and on their representation, the State sought to withdraw from the prosecution against them, which was not allowed by the trial court as well as by this court. During pendency of this appeal, they were granted pardon by the Governor of Punjab under Article 161 of the Constitution, which was fully justified. 19. Learned counsel for the complainant submitted that grant of pardon to Manjit Singh, Narain Datt and Prem Kumar was clear abuse of power which interfered with the hearing of the Criminal Appeal No.350 of 2005 15 appeal. The order of pardon was vague and only mentioned that “taking into reckoning peculiar and exceptional features of the case”, prayer for pardon was granted. The judgment of the trial court convicting the said accused was in operation and could not be reversed by the executive order of pardon. 20. Learned counsel for the State submitted that power of pardon was exercised on account of widespread public belief of false implication of Narain Datt, Prem Kumar and Manjit Singh, who were leaders of the Action Committee for Justice for securing justice for late Kiranjit Kaur. Learned counsel for the State relied upon judgment of the Hon'ble Supreme Court in Kehar Singh and another v. Union of India and another, AIR 1989 SC 653, to submit that grant of pardon does not amount to modifying or amending the judicial record and the governor could come to a different conclusion from the conclusion reached by the court. Power of grant of pardon was different from the judicial power. The order of Governor was not justiciable on merits and could not be subjected to judicial review. He also relied on judgements of the Hon'ble Supreme Court in Epuru Sudhakar and another v. Govt. of AP and aothers, 2006(4) RCR(Criminal) 616, judgment of Madras High Court in Maddela Yerra Chennugadu and others, In Re:, 1955 The Indian law Reports 92, to submit that the power could be exercised even after conviction which did not Criminal Appeal No.350 of 2005 16 affect power of the High Court to examine the validity of conviction and sentence. He also relied upon judgements of the Hon'ble Supreme Court in Maru Ram Bhiwana Ram etc. v. Union of India and others, AIR 1980 SC 2147, KM Nanavati v. The State of Bombay, AIR 1961 SC 112, Bikas Chatterjee v. Union of India and others, (2004) 7 SCC 634,judgement of this Court in Hukam Singh v. The State of Punjab and others, AIR 1975 Punjab and Haryana 148 (FB), and FB judgment of Bombay High Court in State v. Kawas Manekshaw Nanavati, AIR 1960 Bombay 502 about the scope of power of pardon. 21. On merits, learned counsel for the State and the complainant submitted that, subject to decision on the issue of pardon, case of the prosecution was fully proved against all the accused by evidence on record. 22. The questions for consideration are:- (i) Whether case of the prosecution is proved against all the appellants by evidence on record? (ii) Whether order of pardon is sustainable in law? Re:Q.(i) 23. We are of the view that case of the prosecution stands fully established against Sukhwinder Singh, Labh Singh, Bakhtaur Criminal Appeal No.350 of 2005 17 Singh, Avtar Singh and Manjit Singh, while Narain Datt and Prem Kumar are entitled to benefit of doubt. 24. PW5 Rajinder Pal Singh has fully supported the version given in the statement of Beant Singh on the basis of which, FIR was recorded. He has confirmed the role of all the accused. Occurrence took place in the broad day light. Identity of the accused was known to the witnesses. Rajinder Pal Singh is nephew of the deceased Dalip Singh. FIR was prompt. There is no improbability in the accused assaulting the deceased and the witnesses in the manner alleged. There is no serious infirmity in the evidence of PW5 Rajinder Pal Singh. His version is consistent and reliable. The assault was clearly pre-meditated as five of the accused came with weapons. His version is fully supported by PW6 Gurnam Singh. Though, cross-examined at length, their testimony remained unshaken. The version of the said witnesses is duly corroborated by medical evidence. We are not in agreement with the observation of the trial Court that evidence of Beant Singh could be relied upon. Excluding evidence of Beant Singh, who died before cross-examination, does not in any way affect the case of the prosecution. 25. Reference to the statement of PW5 Rajinder Pal Singh shows that Manjit Singh raised an exhortation to the co-accused to take revenge. He was armed with a 'kirch'. Mere non-recovery of Criminal Appeal No.350 of 2005 18 'kirch' is not by itself of any consequence once his participation in giving exhortation and causing assault is established. At best, it may be a discrepancy in the investigation, which cannot by itself be a ground to reject the prosecution case. Moreover, the investigating agency had not challaned him and had declared him innocent, which explains the reason for not effecting recovery of weapon. His role is established by medical evidence of examination of Rajinder Pal Singh PW5, who had two injuries with a sharp-edged weapon. Manjit Singh not only gave one blow but also repeated the blow to Rajinder Pal Singh. PW-5 Rajinder Pal Singh could not have made any mistake in implicating Manjit Singh. Contention that Manjit Singh was implicated on account of enmity, cannot be accepted. It is well known that enmity is a doubled edged weapon and the same reason could have provided motive to Manjit Singh. His role is specific and is duly corroborated. He was the first to initiate the assault. 26. Evidence of Gurnam Singh and Rajinder Pal Singh which corroborates the earliest version given by Beant Singh, has to be preferred over the defence witnesses. Manjit Singh did not raise the plea of alibi in his statement under section 313 Cr.PC. Evidence of DW3 HC Jora Singh, DW4 Gurcharan Singh Dahliwal and DW6 C.Amarjit Singh cannot be held to be reliable. Evidence of DW5 Sakhvinder Singh is merely an opinion. So is the evidence Criminal