Criminal Appeal No.138-DB of 2001 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Baljinder Singh APPELLANT VERSUS The State of Haryana RESPONDENT CORAM : HON'BLE MR.JUSTICE MEHTAB S.GILL HON'BLE MR.JUSTICE JITENDRA CHAUHAN Present:- Shri Gurinder Singh Dhillon, Advocate for the appellant. Shri S.S.Randhawa, Additional A.G. Haryana assisted by Shri S.C.Pathela, Advocate. MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.138-DB of 2001 and Criminal Revision No.1037 of 2001 by this common judgment, as they arise out of the same judgment/order dated 20.12.2000/22.12.2000 of the learned Additional Sessions Judge, Fatehabad whereby he convicted Baljinder Singh son of Gurdial Singh under Section 302 I.P.C. and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5000/-. Co-accused Gurdial Singh was acquitted by the learned trial Court and the State has not filed any appeal. Criminal Appeal No.138-DB of 2001 -2- The case of the prosecution is unfolded by the statement Ex.PF of Jasvir Kaur given to Raj Kumar SI/SHO at Civil Hospital, Hissar, on 8.2.1998 at 1.15 a.m. Jasvir Kaur stated, that her husband Darshan Singh has three brothers namely Balbir Singh, Harbans Singh and Baljinder Singh. Darshan Singh and Harbans Singh had a joint kitchen, while Balbir Singh and Baljinder Singh lived separately for the last 10/11 years. Her father-in-law Gurdial Singh lived with Baljinder Singh. Her father-in-law had 25 acres of land. He retained 5 acres of land for himself and distributed the rest in equal shares i.e. 5 acres each to his four sons. Gurdial Singh wanted to give the 5 acres he retained to Baljinder Singh. Darshan Singh filed a suit in the Civil Court, but the matter was compromised by the intervention of relatives and friends. A joint tubewell had been installed and all the brothers used that tubewell for irrigation purposes. This tubewell fell in the share of land of Baljinder Singh. He refused to give water and there was always a quarrel about the share of water in this tubewell. In the previous year, Balbir Singh had caused injuries to Baljinder Singh. A criminal case was pending in the court at Fatehabad. On 7.2.1998 at about 5 p.m. when Jasvir Kaur was going to the house of her Jethani Gurjit Kaur wife of Balbir Singh, she saw her husband going to the village through the lane of Kaka Singh. In the meanwhile, Baljinder Singh and her father-in-law Gurdial Singh came there. Baljinder Singh was holding a Gandasa in his hand, while Gurdial Singh was holding a Lathi. They intercepted Darshan Singh and told him that they were going to teach him a lesson for demanding his share of land in the 5 acres and also a share of water in the tubewell. Darshan Singh told them that this can be settled in the panchayat. Both Gurdial Singh and Baljinder Singh started abusing Darshan Singh. Baljinder Singh then gave 2/3 blows with his Gandasa on the head of Darshan Singh. Darshan Singh fell down. While he was falling down on the ground, Gurdial Singh gave a number of Lathi blows to Darshan Singh. Darshan Singh started bleeding Criminal Appeal No.138-DB of 2001 -3- profusely. Jasvir Kaur shouted for help. Her Jethani Gurjit Kaur wife of Balbir Singh and her son Gurpreet came to the spot who had also seen the occurrence. Both Gurdial Singh and Baljinder Singh then ran away. On the basis of this statement F.I.R. Ex.PF/1 was recorded on 8.2.1998 at 3.15 a.m. at Police Station Ratia. The special report reached J.M.I.C. Fatehabad on the same day at 6.15 a.m. The prosecution to prove its case, brought into the witness-box Balvinder Singh MHC PW-1, Constable Satbir Singh PW-2, Dr.Varun Kwatra PW-3, Jasvir Kaur PW-4, Balbir Singh PW-5, Dr.N.K.Goyal PW-6, ASI Anoop Singh PW-7, Constable Dinesh Kumar PW-8, Girish Kumar Draftsman PW-9, Constable Ishwar Singh PW-10, Harbans Singh PW-11, HC Sher Singh PW-12 and SI Raj Kumar PW-13. In defence DW-1 Rajinder Singh, DW-2 Karamjit Kaur wife of Baljinder Singh accued and DW-3 Kuljit Singh Advocate were examined. Learned counsel for the appellant has argued, that deceased Darshan Singh and his brother Balbir Singh demolished the wall of the verandah which was in between the houses of the appellant Baljinder Singh and deceased Darshan Singh in which their mother lived. Genesis of the occurrence has been suppressed by the prosecution as it had taken place near the verandah. Verandah was in the possession of Baljinder Singh appellant. In the right of protecting his property, appellant came forward to stop them from demolishing the wall. Appellant picked up a Kassi and gave a blow on the head of the deceased. As per Dr.Varun Kwatra PW-3, the size of the injury on the head of the deceased was 13 inches, which could not have been caused by the Gandasa Ex.P7, which has a blade of 11-1/2 inches. It was actually a Kassi blow. Occurrence did not take place in the street but in the house of the appellant and deceased. There was no reason for Jasvir Kaur PW-4 and Balbir Singh PW-5 to be present in the street at 4.40 p.m. Diagram Ex.PD/1 qua the injury on the head of the deceased is slightly semi-circled. This type of injury cannot be caused by a Gandasa Ex.P7, Criminal Appeal No.138-DB of 2001 -4- but with a Kassi which has a semi-circled blade. The Investigating Officer SI Raj Kumar PW-13 in his statement, has stated that there was some demolished construction material lying on the back side of the house of Baljinder Singh. In fact, this was the material which had fallen after the verandah was demolished by deceased Darshan Singh and Balbir Singh. There was no motive for the commission of the offence and appellant Darshan Singh had been given a share of 5 acres of land and Gurdial Singh his father had kept 5 acres for himself for his own expenditure. Appellant had given only one Kassi blow to Darshan Singh and that also in self defence. He did not exceed his right of self defence of himself and his property. At the most, an offence under Section 304 Part-I I.P.C. is made out. Learned counsel for the State has argued that the occurrence has been admitted by the appellant. Gurdial Singh father of the appellant was acquitted by the learned trial Court as he had no role to play. Deceased Darshan Singh wanted to take his share out of the 5 acres, which though was not his rightful share, as his father Gurdial Singh had kept the same so that he is not dependent on his sons. There is no delay in lodging of the F.I.R. Occurrence had taken place at 4.40 p.m. on 7.2.1998 and by 6.15 a.m. on 8.2.1998 the special report reached the J.M.I.C., Fatehabad Registration of the F.I.R. Ex.PF/1, preparing of the inquest report Ex.PC/6 was all done at night time. Though working in the night being a handicap, still by 6.15 a.m. on 8.2.1998 the special report was delivered to the J.M.I.C., Fatehabad Gandasa Ex.P7 was seen by Dr.Varun Kwatra PW-3 and he stated that injury on the person of the deceased could be caused by the Gandasa Ex.P7. We have heard the learned counsel for the parties and perused the record with their assistance. Criminal Appeal No.138-DB of 2001 -5- There are two versions before us as to the place where the occurrence had taken place. The occurrence has been admitted by the appellant. Appellant has stated that the occurrence took place in the house when deceased Darshan Singh along with Balbir Singh started demolishing the verandah in which their mother was living with appellant Baljinder Singh. The prosecution has made the place of occurrence to be in the lane of Kaka Singh son of Jwala Singh in Village Bunderwas. Both the eye-witnesses Jasvir Kaur PW-4 and Balbir Singh PW-5 have categorically stated that the occurrence took place in the street. The Investigating Officer SI Raj Kumar PW-13, has stated that he lifted blood from the spot i.e. from the street and put it in a sealed box and put his seal “RK”. The box was taken into possession vide memo Ex.PJ. Further, the Investigating Officer, SI Raj Kumar PW-13 has stated, that on the disclosure statement of the appellant, Gandasa Ex.P7 was recovered and taken into possession vide memo Ex.PK. Taking the statements of Jasvir Kaur PW-4, Balbir Singh PW-5 and the Investigating Officer SI Raj Kumar PW-13 in totality, it is established that the occurrence had taken place in the street. Though the Investigating Officer SI Raj Kumar PW-13 has stated that he saw some construction material lying on the back side of the house of Baljinder Singh, but beyond this we do not have any evidence of the demolished material of the verandah. All that the Investigating Officer has stated is that he saw construction material lying there. There is a lot of difference in the construction material and material which is demolished, as the demolished material will be in pieces. No blood stained earth was recovered from near the verandah or in the house. The inquest report Ex.PC/6 also shows that the occurrence had taken place in the street. Site plan Ex.PM also shows that the occurrence took place in the street. The argument of the learned counsel for the appellant that the blow Criminal Appeal No.138-DB of 2001 -6- to the deceased was given with a Kassi and not by the Gandasa Ex.P7, does not cut much ice. Dr.Varun Kwatra PW-3 who prepared the post-mortem report Ex.PD, found the following injury on the person of the deceased :- “1. There was an incised wound measuring 13” in length extending from 1-1/2” above the middle of the left eye brow and running to the right forehead, right temporal area and right parietal area ending at 6” above the occipital protuberance. The scalp and the skull were also cut open along with the whole length and the meninges and the brain was found cut along with this line. Blood clot was present under the meninges. The brain substance was infiltrated with blood. The wound was horizontally placed.” The cause of death being due to shock and haemorrhage as a result of the head injury. Vide his opinion Ex.PE/1, he opined that the injury could be caused with Gandasa Ex.P7, which was shown to him. The length of the injury was 13”. Margins being sharp. Blade of the Gandasa Ex.P7 was measured as being 11-1/2”. He opined that Gandasa Ex.P7 could cause injury of the length of 13” as the Gandasa had also a bit curvature. Appellant Baljinder Singh in his statement under Section 313 Cr.P.C. has stated as under :- “I am innocent. After we brothers separated, I started living with my parents. Darshan Singh and others had filed a civil suit against my father for obtaining the land and they produced some bogus persons and obtained a decree. When my father came to know that a false decree has been obtained by Darshan Singh and others by impersonating him, he filed a civil suit for cancellation of the civil court decree but on account of the intervention of the relations, he withdraw that suit. My other brothers were having strained relations with me and my father. The house of Balbir Singh PW is on the back side of my house and is on different street. At the time of separation we brothers, my mother had a verandah in the part of the house of Balbir Singh and a door was fitted from that side to my house. On the day of occurrence, I noticed that Darshan Singh and other demolishing that verandah and closing the door opening in my Criminal Appeal No.138-DB of 2001 -7- house, I objected to it but Darshan Singh attempted to assault and gave injuries to me. In my attempt to save myself I reiterated but Darshan Singh armed with Kassi tried to yield a blow on my head and apprehending danger to my life, I also picked up a Kassi lying there and in my self defence I also gave a blow in which fell on the head of Darshan Singh. My father was not there nor he had caused any injury to Darshan Singh and no injury was found on his legs. The occurrence had not taken place on the chowk and the place of occurrence has also been changed.” Appellant has stated that the occurrence had taken place in the house. The verandah which was demolished was part of the house of Balbir Singh. From the statement if we take it that verandah was a part of the house of Balbir Singh, then Balbir Singh would have come forward to demolish the verandah, and not Darshan Singh. Balbir Singh is nowhere to be seen as per the story put forward by the appellant. Learned counsel for the appellant has tried to make out a case under Section 304 Part-I I.P.C., but we are not in consonance with the learned counsel for the appellant, as the murder of Darshan Singh is pre-meditated. There was a motive for the commission of the offence as Darshan Singh was wanting a share in the land of remaining 5 acres and in the water of the tubewell. Civil suit was also pending between the parties. A criminal case was also pending in the Court at Fatehabad Kuljeet Singh Advocate DW-3 who came into the witness-box, has given the number and title of the case “Gurdial Singh versus Balbir Singh”. He has stated that he prepared the plaint. The other defence witness is Karamjit Kaur wife of Baljinder Singh who appeared as DW-2, but while going through her evidence, she also could not throw much light as to the occurrence taking place in the house. She has stated that both Darshan Singh and Balbir Singh had demolished the verandah, but there is no evidence, as already discussed, as to the Criminal Appeal No.138-DB of 2001 -8- place occurrence taking place by the appellant and DW-2 Karamjeet Kaur. We do not find any infirmity in the judgment of the learned trial Court. Appeal is dismissed. We do not find any merit in Criminal Revision No.1037 of 2001 which is also dismissed. ( MEHTAB S.GILL ) JUDGE (JITENDRA CHAUHAN) August 21, 2009 JUDGE GD WHETHER TO BE REFERRED TO REPORTER? YES/NO