IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 183-DB of 2001 Dated of Decision:- August 26, 2009 Surinder Pal Singh @ Shinder Singh ....APPELLANT VERSUS State of Punjab ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present:- Sh. S.S.Sidhu, Advocate for the appellant. Sh. Satinder Singh Gill, Addl. A.G. Punjab. ------ MEHTAB S.GILL, J. This is an appeal against the judgment dated 24.2.2001 of the Addl. Sessions Judge, Bathinda, whereby he convicted Surinder Pal Singh @ Shinder Singh under Section 302 IPC and sentenced him to undergo life imprisonment. He was directed to pay a fine of Rs.1,000/-, in default to further undergo R.I. for one year. He was further convicted under Section 449 IPC and was awarded sentence of five years R.I. and to pay a fine of Rs.500/-, in default to further undergo R.I. for six months. Both the sentences were to run concurrently. 2 Criminal Appeal No. 183-DB of 2001 The case of the prosecution is unfolded by the statement Ex.PF of Rachhpal Singh given to Narotam Singh Inspector, Police Station Kot Fatta. Rachhpal Singh stated, that he is a resident of Village Chathewala. On 8.8.91 at about 8.45 p.m., he along with his mother and father were taking meals and listening to the T.V. news. They heard a knock at the gate of the outer door of their house. Some one shouted, that they should open the door. Rachhpal Singh along with his mother went to the outer door and asked them as to who they were. They stated that they were “Singhs”. They wanted to take meals. Thereafter Jasbir Singh armed with an assault rifle, Chhinder Singh armed with a rifle, Gurjant Singh uncle of Jasbir Singh armed with a weapon like a pistol and the fourth person, namely, Balbir Singh armed with a rifle entered in their house and they asked them as to where their (Accused) Bhhau (brother) had gone. On hearing their voice, Rachhpal Singh’s father Gurdevinder Singh came outside to the courtyard. Jasbir Singh immediately fired two shots with his assault rifle, which hit Gurdevinder Singh on the right side of his neck. Gurdevinder Singh fell down. Chhinder Singh with his rifle fired a shot on the right nipple of Gurdevinder Singh, when he was lying down. Gurjant Singh then fired a shot with his pistol, which hit on the backside of the head of Rachhpal Singh’s father, when he was trying to turn to his left side. Out of fear, Rachhpal Singh hid himself. All the four then fled away with their respective weapons. Rachhpal Singh knew all four of them, as he was the mediator of the marriage of Chhinder Singh. They were on visiting terms with Chhinder Singh. The motive for the commission of the offence was 3 Criminal Appeal No. 183-DB of 2001 that a day earlier Gurdevinder Singh had gone to irrigate the land of the opposite party at Village Bhagi Bander. This was not liked by the accused. Due to fear, Rachhpal Singh did not come out from the house and it was in the morning, that he went to the house of Natha Singh, ex- Sarpanch and informed the police. On the basis of this statement, FIR Ex.PF was recorded on 9.8.91 at 8.30 a.m. at Police Station Kotfatta and the special report reached the J.M.I.C., Bathinda on the same day at 11.00 a.m. The prosecution to prove its case brought into the witness box, Dr. Raj Kumar Garg PW1, SI Balwinder Singh PW2, Narotam Singh Inspector PW3, Rachhpal Singh PW4, Amarjit Kaur PW5, HC Sukhmander Singh PW6, Anil Kumar Executive Magistrate PW7, HC Dilbag Singh PW8, Constable Surjit Singh PW9 and SI Babu Ram PW10. In defence, Pritam Singh DW1, Guranditta Singh DW2, Jarnail Singh DW3 and Dalbir Singh DW4 were examined. Learned counsel for the appellant has argued, that the medical evidence does not corroborate the ocular account. Dr. Raj Kumar Garg PW1, who conducted the post-mortem examination on the dead body of the deceased on 9.8.91, found four injuries on the person of the deceased. Injuries No.1, 2 and 4 had inverted margins, while injury No.3 had everted margins. There were injuries on the person of the deceased i.e. on the neck, back and chest. As per the Investigating Officer SI Babu Ram PW10, two empties were recovered and as per the post-mortem report Ex.PA, two bullets were found in the body of the deceased. 4 Criminal Appeal No. 183-DB of 2001 Amarjit Kaur PW5 has stated, that Jasbir Singh accused fired two shots. Similarly, Rachhpal Singh PW4 has also stated, that Jasbir Singh fired two shots. Appellant Chhinder Singh as per the statement of Rachhpal Singh PW4, fired one shot, which hit on the neck of the deceased and as per Amarjit Kaur PW5, Chhinder Singh fired two shots, which hit on the chest of the deceased. Learned counsel has further argued, that from the place of occurrence only two empties were recovered, while Amarjit Kaur PW5 has stated, that four shots were fired by the assailants. In Inquest report Ex.PC, no bullet has been shown recovered from the place of occurrence. There is a discrepancy in the Site Plan Ex.PJ. It has not been shown as to where the accused were standing and firing, as all it is said that they were firing from the west side. These discrepancies make the prosecution case highly improbable. Learned counsel has vehemently argued that, Rachhpal Singh PW4 is a police constable. He was entered as a constable after his father was murdered. He has stated in his testimony, that before coming to the Court, he was kept in custody by the police and after his evidence was recorded by the learned trial Court, he was asked to go back to duty. This clearly shows, that he was compelled to give a version, which was not truthful but favourable to the prosecution. The Investigating Officer feared that he may tell the truth to the Court that the appellant did not commit the murder of Gurdevinder Singh. The motive for the commission of the offence is not proved. In fact there is no motive. All it has been stated is that the deceased went to 5 Criminal Appeal No. 183-DB of 2001 Village Bhagi Bander to irrigate the fields of Kaur Singh. Nothing has been mentioned as to what was the dispute between the parties and specially with appellant Jasbir Singh. Pritam Singh Sarpanch DW1 and Dalbir Singh Sarpanch DW4, both have come forward to state on oath, that appellant was innocent and he had been falsely implicated in the case. Both these witnesses are from Village Chathewala, the village of the deceased. These witnesses, who have been the headmen of the village, would not have deposed falsely, if appellant had committed the murder of Gurdevinder Singh deceased. Learned counsel for the State has argued, that the occurrence had taken place at 8.45 p.m. on 8.8.91 and by 8.30 a.m. on the next day i.e. 9.8.91, FIR Ex.PF/2 came into existence. The special report reached the J.M.I.C., Bathinda on the same day at 11.00 a.m. The name of the appellant and accused are mentioned, the weapons of offence and the nature of injuries have been described. This itself goes a long way in proving the case of the prosecution. Both the eye witnesses to the occurrence Rachhpal Singh PW4 and Amarjit Kaur PW5 are natural witnesses, as the occurrence had taken place in the night and in the days of militancy, everyone stayed indoors at night time. Their testimony is consistent. They corroborate each other and get corroboration from the medical evidence. One bullet was recovered from the body of the deceased. This is the bullet which was fired by appellant Chhinder Singh. We have heard the learned counsel for the parties and perused the record with their assistance. 6 Criminal Appeal No. 183-DB of 2001 Rachhpal Singh PW4 has stated in his testimony before the Court, that accused Jasbir Singh fired two shots with his assault rifle, which hit Gurdevinder Singh on the neck. After he fell down, appellant Chhinder Singh fired a shot from his rifle hitting on the left side of the chest near the nipple of the deceased. Thereafter Gurjant Singh fired a shot from his pistol hitting on the back side of the head of the deceased. Amarjit Kaur PW5 in her testimony before the Court has stated, that Jasbir Singh fired two shots, which hit on the neck of the deceased. Deceased fell down. Thereafter Chhinder Singh fired two shots with his rifle, hitting on the left side of the chest over the nipple. Gurjant Singh fired a shot from his pistol, which hit on the back side of the head of the deceased. Rachhpal Singh PW4 has stated that appellant Chhinder Singh fired a shot from his rifle, which hit on the left side of his chest near the nipple, while Amarjit Kaur PW5 has stated, that appellant Chhinder Singh has fired two shots from his rifle hitting on the left side of the chest over the nipple. There are material discrepancies in the statements of the eye witnesses, which cannot be overlooked. Coming to the medical evidence, Dr. Raj Kumar Garg PW1 found the following injuries on the person of the deceased: - “1) Lacerated wound ½ cm. x ½ cm. over the left side of chest 1½ cm. below and medial to left nipple. The surrounding area of ¼ cm. to ½ cm. was blackened and abraded and burnt. The margins were inverted. On probing the direction of wound was upward medial and backward (wound of entrance). 7 Criminal Appeal No. 183-DB of 2001 2) Lacerated wound 2½ cm. x 1 cm. over the left side neck obliquely present just above and medial and to the medial and of left clavicle. The margins were inverted and blackened on probing the direction of the wound was medial backwards and slightly upwards (Wound of entrance). 3) Lacerated wound 6½ cm. x 2½ cm. over the back of right shoulder and supra scapular region. The margins were everted and proving the injury No.3 communicates with injury No.2 (Wound of exit). 4) Lacerated wound ½ cm. x ½ cm. over the back of the head left side occipital region and margins were inverted and blackened. The wound was 6 cm. from the left pinna and 7½ cm. from the occiput. On proving the direction of the wound was to the right medial, downwards and forwards”. Injuries No.1, 2 and 4 had inverted margins, there was blackening, while injury No.3 had everted margins. There is only one injury on the left side of the chest below the left nipple. It is blackened. Amarjit Kaur PW5 has stated, that appellant Chhinder Singh had fired two rifle shots on the deceased. There is no second injury on the chest of the deceased. The medical evidence does not corroborate the ocular account. In Inquest report Ex.PC, no empty has been shown to be recovered from the place of occurrence, though the Investigating Officer SI Babu Ram PW10 and Narotam Singh Inspector PW3 have stated, that two empties were recovered from the place of occurrence. It has come in the evidence of Amarjit Kaur PW5, that four shots were fired. No explanation 8 Criminal Appeal No. 183-DB of 2001 has been coming forward as to non recovery of two more empties. In site plan Ex.PJ, it has not been shown as to where appellant was standing, when he fired from his rifle. There is blackening of injuries No.1, 2 and 4. The range from which the deceased was hit with a rifle shot shows it to be from very close. Nothing can be made out from the Site Plan Ex.PJ, regarding this, especially as to where the appellant was standing. In his statement Rachhpal Singh PW4 has stated as under:- “ My statement was recorded in Court when I was brought in cuttody. I was arrested by the police on 15.5.2000.”. No explanation has come from the side of the Investigating Officer Babu Ram SI PW10 or Narotam Singh Inspector PW3 as to why Rachhpal Singh PW4 was brought in police custody to give evidence. Rachhpal Singh PW4 was a Constable in the police department. The Investigating Officer did not have confidence in his own witness and that also when he was serving as a constable. Otherwise bringing Rachhpal Singh PW4 in police custody to give his statement before the Court, it seems that the Investigating Officer was fearing that he may not support the prosecution case. We cannot overlook the statements of Pritam Singh DW1 and Dalbir Singh DW4. Pritam Singh DW1 was the Sarpanch of Village Chathewala from 1983 to 1993 and Dalbir Singh DW4 was the Sarpanch of Village Chatthewala from 1978 to 1983 and from 1993 to 1998. Both these witness have stated, that appellant did not commit the murder of the 9 Criminal Appeal No. 183-DB of 2001 deceased and he has been falsely implicated. Both these witnesses are respectable persons and belong to the same village i.e. Village Chathewala, the village of deceased Gurdevinder Singh. In his statement under Section 313 of the Cr.P.C., appellant Surinder Pal singh alias Shinder Singh has stated, that he was the President of All India Sikh Students Federation of Bathinda. Police used to harass him for participating in the activities of the Federation. His father and brother were eliminated by the police. His two sister-in-laws of his sister were also eliminated along with one minor child. Due to fear of elimination, he fled to Calcutta. He settled in Calcutta. It is only under suspicion that he was falsely implicated in this case. We have taken on record the written statement Annexure- ‘A’ of Mukhtiar Singh SI/SHO Police Station Kotfatta. He has stated that the present case FIR No.27, dated 9.8.91 was registered against Surinder Pal Singh @ Shinder Singh, Jasbir Singh, Gurjant Singh and Balbir Singh. Accused Jasbir Singh, Balbir Singh and Shinder Singh were declared as proclaimed offenders. During the course of investigation, it came out that Gurjant Singh was killed on 4.9.91 in a police encounter in the area of Village Mehta, Police Station Sangat. Case FIR No. 72, dated 4.9.91 was registered at Police Station Sangat. Jasbir Singh was killed on 26.6.92 during an encounter with the police in the area of Village Sidana, Police Station Phul. In this context, FIR 42, dated 26.6.92 was registered under Sections 307/34 of the IPC etc. 10 Criminal Appeal No. 183-DB of 2001 Balbir Singh was killed on 21.7.92 in the area of Village Kurla, Police Station Jorkian District Mansa in a police encounter. In this context, FIR No.43, dated 21.7.92 under Sections 307/34 etc. of the IPC was registered at Police Station Jorkian. The present file and report under Section 173 Cr.P.C. and the judgment of the learned trial Court shows, that till date, Jasbir Singh, Gurjant Singh and Balbir Singh are shown as proclaimed offenders. Since they have already been killed in police encounters, case against them has abated. The present appellant was arrested in this case on 17.6.1998 and he was sent up for trial by submitting supplementary challan on 12.7.1998 in this case. With the above discussion and observations, we are of the considered opinion, that appellant did not commit the murder of Gurdevinder Singh. Appellant is given the benefit of doubt. He is acquitted of the charges framed against him. If in custody, he be set free forthwith, if not needed in any other case. Appeal is allowed. His conviction and sentence is set aside. (MEHTAB S.GILL) JUDGE (JITENDRA CHAUHAN) August 26, 2009 JUDGE SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO