IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.203-DB of 1999 Date of Decision: 20.11.2009 Surjit Singh and others Appellants Versus State of Punjab Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.Vinod Ghai Advocate for the appellants Mr.H.S.Bhullar, Advocate for the complainant Mr.D.S.Brar, Deputy Advocate General, Punjab …. Jasbir Singh, J. Appellants, who are five in number, have filed this appeal against judgment and order dated 31.3.1999, vide which, they were convicted for commission of offences punishable under Sections 450, 302 read with Section 149 IPC. Following sentence was awarded to them:- Criminal Appeal No.203-DB of 1999 “Dalbir Singh alias Kala Mohinder singh Baljit Singh alias Beeta Jasbir Singh Swinder Singh u/s 450 IPC to undergo rigorous imprisonment for a period of 7 years and to pay a fine of Rs.2000/- each and in default of payment of fine, they shall further undergo rigorous imprisonment for a period of six months each. Dalbir Singh alias Kala u/s 302 IPC to undergo for life imprisonment and to pay a fine of Rs.4000/- each and in default of payment of fine, they shall further undergo rigorous imprisonment for a period of six months each. Jasbir Singh and Swinder Singh 302/14 9 IPC to undergo for life imprisonment and to pay a fine of Rs.4000/- each and in default of payment of fine, they shall further undergo rigorous imprisonment for a period of six months each.” At an earlier point of time, this appeal came up for hearing before this Court on 22.8.2001, it was allowed, judgment passed by the trial Court was set aside and all the appellants were acquitted of the charges framed against them. State of Punjab went to the Hon’ble Supreme Court and vide order dated 27.2.2009, judgment passed by this Court, as mentioned above, 2 Criminal Appeal No.203-DB of 1999 was reversed and the appeal was remitted to this Court, for fresh consideration and disposal. It was allegation against the appellants and two others, namely, Rachhpal Singh alias Pappu and Ranjit Singh @ Rana that they, on 31.10.1995, had committed murder of Joginder Singh and caused injuries to his wife, namely, Paramjit Kaur (PW3) and one Nirmal Singh (PW4). Process of criminal law was set at motion on a statement (Ex.PA) made by father of the deceased, namely, Teja Singh (PW2), on the basis of which, formal FIR (Ex.PA2) was registered in police station Dhariwal at 11.00 pm on 31.10.1995. Special report was received by the concerned magistrate at Gurdaspur on 1.11.1995 at 7.22 am. Case of the prosecution, as noted by the trial Court, in paragraph No.2 of its judgment, reads thus:- “This case was registered on the statement of Teja Singh s/o Acchar Singh on 31.10.1995 stating therein that he is resident of village Chhina Railwala and at about 6.00 P.M. he was present in his haveli alongwith his son Joginder Singh and his daughter-in-law Paramjit Kaur. He further stated in his statement that the house of his brother Fauja Singh ajoins to his house and some construction material was lying in his house belonging to Fauja Singh. Nirmal Singh and his father Fajuja Singh were present there. Accused Kala s/o Swinder Singh armed with knife, Swinder Singh s/o Ujjagar Singh and Mohinder Singh armed with Chhuri Banta Singh armed with dang, Pappu and Killa empty handed came there. Pappu raised a lalkara. Rana caught Joginder Singh from his long hairs and Kala gave a knife blow on Joginder Singh. 3 Criminal Appeal No.203-DB of 1999 Mohinder Singh gave chhuri blow on Joginder Singh. The remaining accused also caused injuries on his person. Accused also caused injuries to Nirmal Singh and Paramjit Kaur. Fajua Singh raised an alaram and thereafter all the accused ran away with their weapons.” The injured were removed to the hospital at Gurdaspur, where Jogidner Singh was declared dead. Paramjit Kaur (PW3) was medico-legally examined by Dr.Daljit Singh Nagpal on 31.10.1995. As per medico-legal report, only one injury, on left shoulder and left sculpla, was found at her person. After x-ray, the injury was declared simple. Similarly, Nirmal Singh (PW4) was medico-legally examined in Kakkar Hospital at Amritsar on 31.10.1995 at 10.30 pm. As per Dr.D.P. Sanan (PW8), the patient was admitted with a stab wound at his abdomen, on the right side. He was operated upon on 1.11.1995, at that time, the following facts were noticed:- “i) there was a tear in the omentum. ii) The interior wall of the colon (hepatic fiexure) was cut open iii) There was about 500 cc of blood present in the peritoneal cavity.” Doctor has declared that the injuries could be dangerous to life. After registration of an FIR, the investigating officer SI Sukhminder Singh (PW9) reached the Civil Hospital Gurdaspur, prepared inquest report of the dead body and sent it for post-mortem examination, which was conducted by a board of doctors on 1.11.1995. As per 4 Criminal Appeal No.203-DB of 1999 deposition made by Dr.Harbhajan Ram, following six injuries were found on body of the deceased:- “1. Punctured wound 3.2 x 2.5 cm, 4cm above and medial to the left nipple. On dissection of injury No.1 clotted blood was present in the Sub contaneous tissue and beneath the muscles. Wound was present in the inter costal space between third and fourth rib. Underlying left pleura lacerated and torn. Left lung lacerated in its middle lob. 2. Incised wound 4.5 x 1.5 cm on the right side of uppen abdomen about 6 cm from imblicus. On dissection of this injury, underlying structures including peritoneum cut, stomach was also cut in its duodenal part and some of its contents were spilled in the peritoneum cavity. 3. Incised wound 3 x 1cm the back near the lumber region. On dissection underlying structures including muscle, peritoneum as cut and ascending colon also showed cut. 4. Abrasion 1x0.5 cm on the left buttock. On dissection injury was superficial. 5. Abrasion 1.5 x 1 cm on the back of right wrist. On dissection injury was superficial. 6. Abrasion 1 x 1cm on the back of left elbow joint. On dissection injury was superficial.” No opinion was expressed regarding cause of death and it was deferred till receipt of the chemical examiner’s opinion. After getting that report, it was stated that the death was the result of hemorrhage and shock, due to injuries, mentioned above. 5 Criminal Appeal No.203-DB of 1999 The investigating officer went to the spot, prepared a rough site plan of the place of occurrence, with correct marginal notes. He also removed blood stained earth from the spot, which was taken in possession against a recovery memo. Statement of Nirmal Singh (PW4) was recorded on 7.11.1995 in Kakkar Hospital at Amritsar. Except Baljit Singh @ Beeta, all other accused were arrested by the investigating officer on 10.11.1995. Baljit Singh was arrested by SI Sowaran Singh (PW5) on 17.11.1995. On disclosure statement made, one dagger was recovered from Sawinder Singh- A2 and it was taken in possession against recovery memo. One knife was recovered, on a disclosure statement made by Dalbir Singh @ Kala, which was also taken in possession by the investigating officer. One Churi (small knife) was recovered, on a disclosure statement made by Mohinder Singh- A1. On completion of investigation, final report was put in Court for trial. All the seven accused were charge sheeted, to which, they pleaded not guilty and claimed trial. The prosecution produced ten witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record, was put to them, which they denied, claimed innocence and false implication. Mohinder Singh put up a defence of alibi. Baljit Singh @ Beeta stated that he along with, his aunt Kuljit Kaur and daughter Bhola, was going in the street and when they reached near Haveli of the deceased, he saw all the family members of the deceased were standing there with arms. They abused and attacked them, causing injuries to him and Kuljit Kaur. Dalbir Singh @ Kala rushed to their rescue and in self defence, has caused injuries to Joginder Singh etc. Similar plea was also 6 Criminal Appeal No.203-DB of 1999 taken by Dalbir Singh @ Kala. Ranjit Singh, Swinder Singh, Jasbir Singh and Rachpal Singh took up the plea of alibi. They also led elaborate evidence in defence. The trial Court on appraisal of evidence, found the appellants guilty and they were convicted and sentenced as mentioned in earlier part of this order. However, their co-accused, namely, Rachpal Singh @ Pappu and Ranjit Singh @ Rana were ordered to be acquitted. Mr.Ghai, counsel for the appellants has vehemently contended that the prosecution has failed to pin-point guilt of the appellants-accused. They have wrongly been convicted by the trial Court. He further stated that the prosecution has miserably failed to explain delay in recording the FIR and further that no motive with the appellants is proved on record, to cause injuries to the deceased and others. He has further argued with vehemence that FIR was ante-timed. Intervening period was used to concoct a false story. True genesis of the occurrence was suppressed by the prosecution. To say so, he has made reference to the injuries at the person of the Kuljit Kaur and Baljit Singh @ Beeta, which were shown to have been caused at the same time, when injuries allegedly were caused by the appellants to the deceased and others. He further argued that investigation was tainted. Despite receipt of medico-legal reports of Kuljit Kaur and Baljit Singh @ Beeta, the investigating officer did not register a case against the complainant party. He also stated that defence version was more probable than the prosecution story. He prayed that appeal be allowed, judgment, under challenge be set aside and the appellants be acquitted of the charges framed against them. Prayer made has vehemently been opposed by the State counsel, who, by making reference to the statements made by PW2 to PW4 7 Criminal Appeal No.203-DB of 1999 and the investigating officer, argued that case against the appellants was fully proved on record. He also argued that depositions made by the injured witnesses inspire confidence. Injuries at the person of Nirmal Singh were grievous in nature and were not self suffered. There is no delay in recording the FIR. Primary concern of the family members was to save the injured and not to rush to the police. There was a motive with the appellants to cause injuries to the decease and further that the investigation was very fair. Once it has come on record that injuries at the person of the accused party were superficial in nature, it was not necessary for the prosecution, to explain those injuries. In the alternative, he argued that injuries to Kuljit Kaur and Baljit Singh @ Beeta have been explained by the prosecution witnesses in their statements. He prayed that appeal, having no substance, be dismissed. To the same effect is the argument, raised by Sh.H.S.Bhullar, Advocate, who has put in appearance on behalf of the complainant. After hearing counsel for the parties, this Court feels that the prosecution has miserably failed to explain delay in sending the special report to the concerned magistrate. Under normal circumstances, such like delay may not be material for the prosecution, however, position is to the contrary in this case. As per case of the prosecution, occurrence had taken place at 6.00 p.m. on 31.10.1995. Joginder Singh deceased was taken to civil hospital at Gurdaspur, where he was declared dead. FIR was recorded at the instance of Teja Singh (PW2) at 11.00 pm, however, special report reached the Illaqa Magsitrate at 7.22 am. It has come on record that after registration of FIR, special report was handed over to constable Nirmal Singh (PW1) at 11.45 pm on 31.10.1995, for onward delivery to the Illaqa Magistrate, at Gurdaspur, who 8 Criminal Appeal No.203-DB of 1999 delivered the same to the officer concerned at 7.22 am on 1.11.1995. Distance between Dhariwal and Gurdaspur is less than 15 kms. Both falls on a national highway. This witness has admitted that buses and other vehicles ply on the said road. The witness has further stated that when he came to the bus stand no vehicle was available, however, the PW1 has specifically admitted that several official vehicles were available in the police station at Dhariwal. The witness has further stated that regarding late delivery of special report, he neither informed the investigating officer nor the Magistrate concerned. It appears that the special report was dispatched at a later stage and the intervening period was used for concocting a story. For this serious lapse, no explanation has been given by the prosecution. Contention of counsel for the appellants that an attempt has been made to suppress the true facts, by the prosecution, appears to be correct in this case. As per medical evidence on record, Kuljit Kaur received as many as five injuries at her person. She was medico-legally examined on 31.10.1995 at about 9.08 pm. Detail of the injuries, as found mentioned in her medico-legal report, is as under:- “1. An L-shaped incised wound over lateral aspect of right chest, measuring 12 cms (length of long limb) and 5.5. cms (length of short limb). Wound is very tender. Probing not done. Oozing of blood present from the wound. Adv. (1) Expert opinion of surgical specialist (2) X-ray chest. 2. An incised wound 3 cm x 0.2cm in size on longituded direction over tip of right ring finger, extending over dorsal as well as palurar aspect. Wound covered with clotted 9 Criminal Appeal No.203-DB of 1999 blood. Probing not done. Adv. X-ray Pt. ring finger – AB – Lat.view 3. An incised wound 0.8 cm x 0.2 cm in size, skin deep, over middle of palu of right hand. Wound is covered with clotted blood. 4. An incised wound 1 cm x 0.2 cm in size, skin deep, over proximal part of medial border of left hand. Wound is covered with soft blood clot. 5. An incised wound 2 cm x 0.2 cm in size, skin deep over lateral aspect of right gluteal region. Wound covered with soft blood clot.” Perusal of the injury statement indicates that all the five injuries were the incised wounds. Her condition was serious. To save her, a surgical operation was conducted on her by Dr.H.S.Bhatia (DW1) on 2.11.1995. This witness has given opinion, regarding injury to her, as under:- “There was an incised wound ‘L’ (shape over the lateral aspect of right side of chest measuring 12 cms (length of long limb) and 5.5. cms (length of short limb). Clotted blood was present. Subscutaneous tissues alongwith intercostal muscles were cut and there was a small cut of one cm on the underlying pleura on the medial end of short limb of injury.” Witness has further stated that Kuljit Kaur would not have survived but for blood transfusion and other medical aid given to her well in time. Injury to her was declared grievous in nature. Similarly, on the person of Baljit Singh @ Beeta on 1.11.1995 at 8.40 am, following injury was detected by Dr.Harbhajan Ram (DW2):- 10 Criminal Appeal No.203-DB of 1999 “Incised wound 2 x 1 cm bone deep just below the middle of right mandible. Clotted blood present. Marginal of the wounds were well defined. Advised x-ray.” Injury was declared simple. In FIR, there is no explanation regarding injuries received by above named persons. In her statement recorded under Section 161 Cr.P.C., Paramjit Kaur (PW3) has made a reference to the injuries caused to the accused party. Perusal of the original statement made by her indicates that explanation was an after thought. Last three lines in her statement appear to have been added at a later stage. In Court, Teja Singh (PW2) has tried to improve upon his earlier statement, by stating that injury was caused to Kuljit Kaur by one of the assailants, namely, Dalbir Singh @ Kala when she intervened in the fight. Others have also tried to say so. However, taking note of number of injuries on the person of Kuljit Kaur, statements of the prosecution witnesses in that regard do not inspire confidence. Dalbir Singh @ Kala has taken the following defence in his statement under Section 313 Cr.P.C.:- “Beeta Singh along with Kuljit Kaur were passing in frount of the Haveli of Joginder Singh when they were attacked by Joginder Singh Paramjit Kaur, Manmohan Singh, Nirmal Singh, Kashmir Singh and Dhanna Singh with their respective weapons and were caused serious injuries. I rushed to their help and caused injuries to the complainant party to save Beta Singh and my mother Kuljit Kaur. If I had not intervened they would have killed Beta Singh and my mother Kuljit Kaur. Joginder Singh had contested the Panchayat election and we 11 Criminal Appeal No.203-DB of 1999 had opposed him. For that reason that were aggrieved and caused injuries to Beta Singh and Kuljit Singh.” To the same effect is the statement made by Baljit Singh @ Beeta. When we look at the nature of injuries received by the deceased Joginder Singh, it appears that only two injuries were caused to him. As per medico-legal report, six injuries were found on person of the deceased. Dr.Harbhajan Ram (PW6) has categorically stated that injury Nos.2 and 3 could be a communicating wounds caused with one blow. Injury Nos.4 to 6 were simple and this witness has stated that possibility cannot be ruled out, of those injuries being caused by a fall. Simple injuries were attributed to Baljeet Singh allegedly armed with a dang, which was not recovered. This Court feels that had Baljit Singh been armed with a dang he would have caused grievous injury, may be on vital part of body of the deceased and not only simple abrasions. In a way, only two injuries appear to have been caused to the deceased. It has also come on record that during investigation, one knife, two small daggers were recovered from Dalbir Singh @ Kala, Mohinder Singh and Swinder Singh respectively. At the time of chemical examination, only the knife, which was recovered from Dalbir Singh @ Kala, was found to be stained with human blood. On the other two, blood was not found. In view of above, it appears that injuries were not caused by appellants Mohinder Singh and Swinder Singh to the complainant party, rather injuries were only caused by Dalbir Singh @ Kala. Kala has specifically admitted that he had caused injuries in his self defence, when he saw complainant party teasing the women folk and causing injuries to his family members. Injury to Nirmal Singh (injured witness) also appears to have been caused by Dalbir Singh @ Kala. Injury on the person of Paramjit 12 Criminal Appeal No.203-DB of 1999 Kaur was only simple in nature. She may have received the same during scuffle between the parties. Argument of Mr.Ghai that there was no motive with the accused party to cause injuries to the deceased and others also, appears to be correct. As per version in the FIR, Dalbir Singh @ Kala was arrested by the police during days of terrorism and he suspected Joginder Singh for the said cause. However, in his statement, Teja Singh (PW2) had stated that he got Dalbir Singh @ Kala arrested. The investigating officer has failed to state whether Kala was ever arrested or not. Nothing has been brought on record to show that Kala had any criminal past. Investigation also appears to be tainted in this case. The investigating officer has specifically admitted that he had received medico-legal reports of Kuljit Kaur and Baljit Singh @ Beeta from the hospital along with intimation of their admission there. However, despite that, he failed to take any action. He did not record their statements. No action was initiated against the complainant party. For non- action, the investigating officer has simply stated that injuries were minor in nature, however, medical evidence indicates to the contrary. Kuljit Kaur was not an accused in the FIR recorded at the instance of Teja Singh (PW2). In that event, it was duty of the investigating officer to look into her complaint and do the needful. It has also come on record that Kuljit Kaur remained in the hospital for about 21 days and thereafter, when she came out, she had filed a criminal complaint against the complainant party, however, the same was dismissed subsequent thereto. In view of facts mentioned above, we feel that the investigating officer made an attempt to give a different colour to the prosecution story. The injuries otherwise indicate that it was a case of scuffle between the parties, whose houses are situated near to each other. When Kuljit Kaur and 13 Criminal Appeal No.203-DB of 1999 Baljit Singh etc. were being caused injuries by the complainant party, Dalbir Singh @ Kala came in defence, caused injuries to Joginder Singh and Nirmal Singh etc., however, it appears that in the process, he has exceeded his right of private defence. He could have stopped the assailants by causing injuries on non-vital part of their body and / or without repeating the same. In view of facts mentioned above, this appeal is allowed qua Mohinder Singh (A1), Swinder Singh (A2), Baljit Singh (A4) and Jasbir Singh alias Killa (A5), their conviction and sentence is set aside and they are acquitted of the charges framed against them, however, qua Dalbir Singh @ Kala (A3), this appeal succeeds only in part. His conviction under Section 302 IPC is set aside, however, he is found guilty and convicted for commission of an offence under Section 304 Part II IPC. As per information supplied, all the appellants have undergone about six years of sentence. In view of this, sentence of Dalbir Singh @ Kala is reduced to the already undergone by him, however, he is directed to pay an amount of Rs.1,50,000/- by way of fine. In default, he shall undergo RI for a period of one year. By invoking the provisions of Section 357 Cr.P.C., amount of fine, on deposit, is ordered to be released in favour of wife of the deceased. Conviction and sentence awarded to Dalbir Singh @ Kala under Section 450 IPC is reduced to the already undergone by him, however, sentence of fine imposed upon him by the trial Court is maintained. (Jasbir Singh) Judge 20.11.2009 (Daya Chaudhary) gk Judge 14