Crl.A. No.649-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl.A. No.649-DB of 2001 DATE OF DECISION: August 5, 2010 HARMANDER SINGH AND ANOTHER ...APPELLANTS VERSUS STATE OF PUNJAB ...RESPONDENT CORAM: HON'BLE MR. JUSTICE ASHUTOSH MOHUNTA. HON'BLE MR. JUSTICE NAWAB SINGH. PRESENT: MR. VINOD GHAI, ADVOCATE FOR THE APPELLANT. MS. MANJARI NEHRU KAUL, ADDL.A.G., PUNJAB. MR. P.S. DHALIWAL, ADVOCATE FOR THE COMPLAINANT. ASHUTOSH MOHUNTA, J. Appellant Harmander Singh and Parvinder Singh have filed this appeal impugning the judgement of conviction and order of sentence dated 29.10.2001, passed by the Sessions Judge, Faridkot vide which the accused-appellants have been convicted and sentenced imposed upon them is as under:- 1. Harmander Singh, accused-appellant No.1 Under Section 302 IPC - R.I. for life and fine of Rs.10,000/-. In default of payment of fine, R.I. for 6 months. Under Section 342/34 IPC - R.I. for 1 year and fine of Rs.500/-. In default of payment of fine, R.I. for 1 month. 2. Parvinder Singh, accused-appellant No.2 Under Section 302/34 IPC - R.I. for life and fine of Rs.10,000/-. In default of payment of fine, R.I. for 6 months. Crl.A. No.649-DB of 2001 -2- Under Section 342/34 IPC - R.I. for 1 year and fine of Rs.500/-. In default of payment of fine, R.I. for 1 month. Both the sentences were ordered to run concurrently. However, accused-appellant No.1 Harmander Singh died during the pendency of the appeal. Therefore, this appeal abates qua accused-appellant No.1 Harmander Sngh. The prosecution case, as embodied in the FIR, and the evidence is that on 17.6.1998, SI/SHO Jasbir Singh was present in the Police Station Badhni Kalan where Gurbachan Singh (PW4) alongwith Karam Singh (PW5) came and he made the statement on the basis of which FIR (Ex.PE) was recorded by SHO Jasbir Singh (PW8). Gurbachan Singh, complainant in his statement stated that he is resident of village Daulatpura Uccha and does the agriculture pursuit. They were four brothers, two of them had died. He and his elder brother Gurcharan Singh were married in one house at village Shakur. He had 4 brother-in-laws, i.e wife's brothers, namely, Santa Singh, Gurpal Singh, Puran Singh and Harbant Singh Ss/o Bhola Singh. The whole family of his in-laws used to reside in Singapore. The marriage of his wife's brother Harbant Singh had taken place about 20 years ago with Paramjit Kaur D/o Sher Singh, resident of Gholia Khurd. Harbant Singh had three daughters and no son and on that account and he used to compel his wife Paramjit Kaur to get his marriage arranged with her niece Pawandeep Kaur, so that a son could born, for which Paramjit Kaur had agreed, but Harbant Singh's wife's brother Harmander Singh (accused) did not agree for it. On 16.6.1998, Harbant Singh had to come from Singapore and in order to see him, he (complainant) and Harbant Singh's brother-in-law Crl.A. No.649-DB of 2001 -3- Harmander Singh (accused) and his son, Parvinder Singh (accused) had gone to bus stand, Moga at about 12.00 noon. He had come from his village, whereas Harmander Singh and Parvinder Singh had come from village Badhni Kalan in a hired Tata Sumo jeep bearing registration No.HR01-D-9839 driven by Karam Singh son of Nachhatar Singh, resident of village Rao Ke Kalan. They continued waiting for Harbant Singh till 7.00 p.m. Thereafter, they went to the house of Harmander Singh, accused in village Gholian Khurd, where his brother-in-law Harbant Singh had already reached. They all took their meals there. The complainant, his brother-in-law Harbant Singh, Harmander Singh and his son Parvinder Singh went to village Mehron in Tata Sumo alongwith the driver after having a round in village Mehron. Harmander Singh came back towards village Gholian. At that time, the complainant was sitting with Karam Singh, driver on the left side, behind him Harbant Singh was sitting on the middle seat and on his right side Harmander Singh was sitting,while Parvinder Singh was sitting on the back side. At about 11.00 p.m. when they reached ahead of village Ramuwala, after passing the canal minor bridge towards village Rania, Gurbachan Singh complainant heard a shriek. Karam Singh driver switched on the inner light. When the complainant turned his head back he saw that Parvinder Singh (accused) had removed the turban of Harbant Singh and had caught hold of him from his hair, while Harmander Singh (accused) gave 2-3 blows with a baked brick on the head and forehead of Harbant Singh. When Karam Singh, driver stopped the Tata Sumo, Harmander Singh and Parvinder Singh, accused dragged Harbant Singh and took him to the bank of the road. Parvinder Singh exhorted his father Harmander Singh, saying that they would bind him for Crl.A. No.649-DB of 2001 -4- marital knot with his sister Pawandeep Kaur. Thereafter, Harmander Singh, accused picked up an axe which was lying in the vehicle and gave 5-6 blows on Harbant Singh, which hit him on the head and right cheek, while Parvinder Singh, accused gave a blow with a baked brick on the right ear of Harbant Singh. Harbant Singh succumbed to the injuries at the spot. Gurbachan Singh, complainant and Karam Singh, driver continued raising alarm saying 'Don't kill-Don't kill', as they were scared at that time. Harmander Singh and Parvinder Singh, accused threatened them and took them to their house, where they were confined in a room, and they were further threatened that they would not leave them till the death of Harbant Singh was not proved to be an accidental death. Thereafter, Gurbachan Singh, complainant Karam Singh, driver managed to escape from there and came present in the police station for lodging the report. The dead body of Harbant Singh was lying at the spot. The complainant has further recorded that both the accused had murdered his brother-in-law Harbant Singh due to the demand of marriage of Pawandeep Kaur forcibly with Harbant Singh. SI Jasbir Singh alongwith Gurbachan Singh and Karam Singh went to the spot and prepared inquest report (Ex.PO). Passport (Ex.P1) of Harbant Singh and air ticket (Ex.P2) were taken into possession vide recovery memo (Ex.PF). The Investigating Officer lifted the blood stained earth and the simple earth and made the same into a sealed parcel and the same was taken into possession vide recovery memo (Ex.PG). The post mortem examination was got conducted vide post mortem report (Ex.PA). The Tata Sumo was recovered from the courtyard of the house of accused Harmander Singh and the same was taken into possession vide recovery memo (Ex.PJ). Rough site plans (Ex.PP) of the place of occurrence and Crl.A. No.649-DB of 2001 -5- recovery of Tata Sumo (Ex.PQ) were prepared. Blood stained clothes of the Harbant Singh (deceased), i.e. lining Shirt of white colour, waist of while colour, pant of black colour, a belt made of rexine of black colour and underwear of sky blue colour, pair of socks of blue colour, a shoe of black colour of left foot and an iron kada were taken into possession vide recovery memo (Ex.PR). A blood stained brick (Ex.P10) was also recovered from te spot which was taken into possession vide memo (Ex.PH). On 22.6.1998, both the accused were arrested vide arrest memo (Ex.PU). On 23.6.1998, accused Harmander Singh was interrogated and on interrogation, he made a disclosure statement (Ex.PK) and in pursuance thereof, he got recovered blood stained axe (Ex.P9) which was taken into possession vide recovery memo (Ex.PL). Vide report (Ex.PZ) of the Forensic Science Laboratory, the kulhari was opined to be stained with human blood. Vide report (Ex.PAA), soil, brick, shirt, waist, pant, underwear, socks were found to be stained with human blood. After completion of necessary investigation, the accused were challaned. After perusal of the record, the learned trial Court framed charge under Section 302/34 IPC against both the accused to which the pleaded not guilty and claimed trial. In order to prove its case, the prosecution examined as many as 11 witnesses. Gurbachan Singh, complainant appeared as PW4 and reiterated the facts as mentioned in the FIR (Ex.PE). S.I. Jasbir Singh appeared as PW8 and deposed that on 17.6.1998, he was posted at Police Station Badhni Kalan. Gurbachan Singh PW4 alongwith Karam Singh PW5 came to the police station and made Crl.A. No.649-DB of 2001 -6- statement/FIR (Ex.PE). Thereafter he alongwith Gurbachan Singh PW4 and Karam Singh PW5 went to the spot. The dead body of Harbant Singh was lying on the kacha portion of the road. The passport and air ticker of deceased Harbant Singh was taken into possession. Simple earth and blood stained earth was also taken into possession and were made into separate parcels. One blood stained brick was also taken into possession and was converted into a sealed parcel. Inquest report of the dead body of Harbant Singh was prepared and thereafter the dead body was sent for post mortem examination through H.C. Zora Singh to SMO Civil Hospital, Moga. Rough site plan of the place of occurrence was also prepared. Thereafter raid was conducted on the house of the accused and a Tata Sumo of Blue colour was recovered from the house of the accused which was taken into possession vide recovery memo (Ex.PJ). H.C. Zora Singh produced before him the post mortem report and clothes of the deceased which were taken into possession and were reduced into parcel. On 22.6.1998, the accused were arrested and on interrogation on 23.6.1998, accused Harmander Singh suffered a disclosure statement (Ex.PK) to the effect the he had kept concealed one Kulhari and one turban behind the tubewell Kotha in the fields under the Bel of the grapes and could get the same recovered. In pursuance to his disclosure statement, the abovesaid articles were got recovered which were taken into possession and were made into sealed parcel. ASI Surjit Singh, who also joined the investigation with PW8 SI/SHO Jasbir Singh appeared as PW9 deposed on the same lines as PW8 Jasbir Singh. Apart from the depositions of other witnesses, report of FSL Crl.A. No.649-DB of 2001 -7- (Ex.PZ and PAA) were also tendered into evidence. According to the FSL report (Ex.PZ) the kulhari was stated to be stained with human blood. According to another report of FSL (Ex.PAA), human blood was found on the the clothes as well as soil and brick were stated to be stained with human blood. Thereafter the prosecution evidence was closed. After closure of the prosecution evidence, statements of the accused under Section 313 Cr.P.C. were recorded. In their statements under Section 313 Cr.P.C., both the accused stated that it was was a blind murder and they had been falsely implicated in the present case. Both the accused claimed trial. The trial Court after going through all the aspects of the case, convicted the accused and sentenced them to undergo rigorous imprisonment as narrated in the opening paragraph. I have heard the learned counsel for the parties and have gone through their record with their assistance. At the outset, learned counsel for the appellant has vehemently argued that there is only a sole alleged eye witness, namely, Gurbachan Singh, PW4 who is the brother-in-law of Harbant Singh (deceased) and there is no corroboration to his statement, as the another alleged eye witness, namely, Karam Singh (PW5) has been declared hostile. Therefore, conviction and sentence based on the relation witnesses cannot be sustained in law. No doubt, Harbant Singh (deceased) was the brother-in-law of Gurbachan Singh (complainant, PW4), but because of relation with the deceased, the evidence of Gurbachan Singh cannot be discarded. At the most, the evidence of relation witnesses has to be scrutinized with care and Crl.A. No.649-DB of 2001 -8- caution. Admittedly, accused Harmander Singh (now dead) is also brother- in-law of Harbant Singh, as sister of Harmander Singh is married to Harbant Singh, deceased. There is no reason brought on record by the accused appellant why the complainant party would leave the real culprits and substitute the accused in the present case. The statement of Gurbachan Singh, PW4 is trustworthy and inspires confidence. Gurbachan Singh, PW4 has made emphatic statement to the effect that he had four brothers-in-law, namely, Santa Singh, Gurpal Singh, Puran Singh and Harbans Singh and all his four brother-in-laws were residing in Singapore with their families. He further stated that Harbant Singh, his brother-in-law was married at village Gholian Khurd about 20 years back and he had three daughters and he used to compel his wife Paramjit Kaur (sister of accused Harmander Singh) to get his marriage done with her niece Pawandeep Kaur daughter of Harmander Singh, so that a son could be born. This witness further stated that on 16.6.1998, Harbant Singh had come from Singapore and they wanted to receive him at Moga and they settled the programme to come to Moga bus stand. He reached Moga bus stand on 16.6.1998 and while accused Harmander Singh and his son Parvinder Singh also reached Moga on that day. Accused Harmander Singh and his son Parvinder Singh were having Tata Sumo and Karam Singh was the driver of the said vehicle. They waited for Harbant Singh from 12.00 noon to 7.00 p.m. at Moga bus stand. He, Harmander Singh, accused and accused Parvinder Singh went to village Gholian Khurd in the vehicle driven by Karam Singh on that day and they found that Harbant Singh were already present there in the house of accused Harmander Singh, where they took meals. Thereafter, Harbant Singh expressed his desire to go to village Mehron and then they, i.e. complainant Crl.A. No.649-DB of 2001 -9- Gurbachan Singh, accused Harmander sSingh, accused Parvinder Singh, Harbant Singh, and driver Karam Singh proceeded for village Mehron. After having a round of village Mehron, they started returning back to the house of accused Harmander Singh. At that time, Gurbachan Singh, complainant was sitting on the left side of the driver, while on his back side Harbant Singh was sitting, on the right side of Harbatn Singh, accused Harmander Singh was sitting and accused Parvinder Singh was sitting on the back seat of Harbant Singh. This witness further stated that when they crossed village Ramuwala at about 11.00 p.m. in the area of village Rania, the complainant heard shrieks. Thereupon, the driver switched on the light of Tata Sumo and when he turned his face towards his back side, he saw accused Parvinder Singh removing the turban of Harbant Singh and accused Parvinder Singh caught hold Harbant Singh by his hairs and accused Harmander Singh gave 2-3 blows of brick on the head of Harbant Singh. Thereupon, Karam Singh driver stopped the Tata Sumo. Thereafter, Harbant Singh was dragged and thrown out of the Sumo by accused Harmander Singh and Parvinder Singh, accused. Thereafter, accused Parvinder Singh exhorted taunting that 'let him give the hand of his sister to Harbant Singh'. On saying so by accused Parvinder Singh, accused Harmander Singh, accused took out the kulhari from Tata Sumo and gave 5-6 blows on the person of Harbant Singh hitting on his head and his right cheek. Then, Parvinder Singh gave brick blow on the right ear of Harbant Singh. Harbant Singh died at the spot. In the above statement of Gurbachan Singh, there is nothing unnatural that he had come from village Uchha Daulatpura, District Ferozepur to receive his brother-in-law Harbant Singh, where both the Crl.A. No.649-DB of 2001 -10- accused had also come. It is also not improbable that the complainant and the accused reached the house of Harmander Singh, accused and Harbant Singh (deceased) had already reached his in-laws's house. The contention of the learned counsel of the accused-appellant that statement of Gurbachan Singh, PW4 is contradictory to the medical evidence, as Gurbachan Singh had stated in his statement that they had taken meals, but Dr. Ramesh Sharma, PW1 stated in his cross examination that report the stomach of the deceased was empty. On careful perusal of statement of Gurbachan Singh, PW4 shows that he nowhere stated that Harbant Singh, deceased had also taken meals alongwith him and accused Hamander Singh and Parvinder Singh. He clearly stated that he, accused Harmander Singh and Parvinder Singh had taken meals, so, it cannot be inferred that Harbant Singh, deceased had also taken meals alongwith the complainant and the accused. The entire details of the occurrence prove the presence of PW4 Gurbachan Singh. Moreover, the statement of Karam Singh, PW5 also supports the case of the prosecution, though he has been declared hostile. Karam Singh, PW5 in his cross-examination by the Public Prosecutor admitted his signatures on the recovery memo of blood stained kulhari and turban (Ex.PL) made in pursuance to the disclosure statement of accused Harmander Singh (Ex.PK). and recovery memo (Ex.PJ) with regard to recovery of Tata Sumo. It is also observed here that Karam Singh, PW5 was employed as the driver of the Sumo and such like person does not want to earn enmity for others. The aforesaid statement of Gurbachan Singh, PW4 has been corroborated by medical evidence tendered by Dr.Ramesh Sharma, who Crl.A. No.649-DB of 2001 -11- found 11 following injuries on the person of the deceased:- “1. Incised wound 4cm x 1cm on back of left ear, 3 cms from it, oblique in direction. Clotted blood was present and it was bone deep. 2. Incised wound 2 x .5 cm on back left ear one cm in front and parallel to injury No.1. Clotted blood was present in the wound and it was bone deep. 3. Incised wound 3 x 1 cm on left side of head of occipital region, 3 cms above and back to injury No.1, oblique in direction. Clotted blood was present in the wound and it was bone deep. 4. Incised wound 2 x .75 cms on lift side of head in occipital region, 6 cms behind the ear and 14 cms above posterior hair line, oblique in direction. Clotted blood was present in the wound. It was bone deep. 5. Abraded contusion bruish in colour in left side of forehead, left side of face and it was swollen. Left mandiple was fractured. Bleeding was present from the mouth. 6. Lacerated wound 2 x 1 cm on right side of forehead 1 cm from midline and 2 cms from anterior hairline, vertical in direction. Clotted blood was present. It was bone deep. 7. Incised wound 3 x 1 cm on right cheek 3 cms below and outer to eye, oblique in direction. Underlying maxilla was fractured and clotted blood was present. Crl.A. No.649-DB of 2001 -12- 8. Lacerated wound 3 cm in length and upper part of pinna was cut obliquely and was lacerated. There was another lacerated wound 2.5 cms x 1 cm just behind right ear. Oblique in direction and it was bone deep. 9. Incised wound 2.5 x 1 cm on left side of head in occipital region 6 cms from ear and 10 cms from posterior hair line, oblique in direction and clotted blood was present. On dissection, left temporal bone was fractured. Cranial cavity was full of clotted and fluid blood . Brain matter was lacerated. 10. There was diffuse swelling in left temporal region. 11. Contusion 2.5 cm x 2 cm on back of right chest, 5 cms from top of shoulder and it was reddish in colour.” In the opinion of the Doctor the death of Harbant Singh was caused due to asphyxia, as a result of head injury, which was sufficient to cause death in the ordinary course of nature. The other connecting evidence against the accused led by the prosecution is Ex.PK disclosure statement and in pursuance thereof recovery of blood stained kulhari and turban vide recovery memo (Ex.PL) and the recovery of Tata Sumo from the house of the accused was effected. As per the reports of FSL(Ex.PZ and Ex.PAA) the kulhari, soil, brick and the clothes of the deceased were found to be stained with human blood. As per the prosecution case, kulhari and brick were kept by the accused in Tata Sumo, which shows the intention of the accused to commit crime and i.e. why when they found proper opportunity they had caused the Crl.A. No.649-DB of 2001 -13- injuries to Harbant Singh, deceased and as such, they had the planning and premeditation. The Police had recovered the Tata Sumo from the house of the accused on the same day, i.e. on 17.6.1998. Learned counsel for the appellant further contended that in fact it was a blind murder and the accused have been falsely implicated in this case. He further contended that it is not probable that dead body of Harbant Singh was lying near the bank of the road of the village and nobody had come forward to report the matter to the police. This contention of the learned counsel for the appellant cannot be sustained, because the accused-appellant had not led any defence evidence in support of their version that there was a blind murder of Harbant Singh and they have been roped in the present case falsely. There is no reason or enmity for the complainant party to falsely implicate the accused-appellant in this case, as both the complainant and accused parties are closely related to the deceased. It is also observed here that nobody from the village like to come forward, because they would not like to become a witness and it is only the related witnesses who come forward in support of their relations. The occurrence in this case had taken place at about 11.00 p.m. on 16.6.1998 and the FIR was lodged at 9.10 a.m. on 17.6.1998, when Gurbachan Singh, PW4 had managed to escape from the house of accused Harmander Singh. Thus, virtually, the FIR was immediately lodged by the complainant when he managed to escape from the house of the accused Harmander Singh and therefore, the FIR was promptly recorded without any delay. Though it is not necessary in every case to prove motive for Crl.A. No.649-DB of 2001 -14- committing the crime, but in the present case the motive to commit the murder of Harbant Singh by the accused is duly proved by Gurbachan Singh, PW4, who stated that Harbant Singh, deceased was marreid to Paramjit Kaur sister of Harmander Singh accused 20 years ago and he had three daughters and no son and in order to get a son, the deceased wanted to get married with the daughter of accused Harmander Singh, to which Harbant Singh's wife had agreed, but accused Hamander Singh did not agree. Due to this reason, accused Harmander Singh and Parvinder Singh were annoyed and it could not be expected from Harmander Singh accused, brother of Paramjit Kaur, he would allow Harbant Singh (deceased) to contract second marriage with his own daughter Pawandeep Kaur during the subsistence of his first marriage with his sister Paramjit Kaur about 20 years back and on getting a chance they committed the murder of Harbant Singh. The last contention of the learned counsel for the appellant is that as per prosecution case it was Harmander Singh, accused who had given kulhari blows to Harbant Singh, deceased and on that account, Harbant Singh succumbed to his injuries and in fact accused Parvinder Singh cannot be said to have shared common intention with Harmander Singh, accused, as Parvinder Singh was not armed with any weapon. Therefore, Parvinder Singh, accused-appellant is not liable for an offence under Section 302/34 IPC. We do not find any substance in this argument, as there was premeditation to commit the crime and both the accused had acted in concert. Both the accused after hiring the taxi of Karam Singh placed kulhari and brick in the said vehicle and went to Moga and kept waiting for the deceased till late evening. However, Harbant Singh, accused reached Crl.A. No.649-DB of 2001 -15- the house of the accused and could not come in contact with them at Moga. It is possible that they felt disappointed due to their failure of their plan. Both the accused took Harbant Singh to village Mehron and on their return, they did