IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 516-DB of 2006 DATE OF DECISION : 25.02.2009 Gurtinder Singh @ Soni and others .... APPELLANTS Versus The State of Punjab ..... RESPONDENT Crl. A. No. 648-DB of 2007 DATE OF DECISION : 25.02.2009 Amrik Singh alias Lady .... APPELLANT Versus The State of Punjab ..... RESPONDENT Crl. A. No. 802-DBA of 2006 DATE OF DECISION : 25.02.2009 State of Punjab .... APPELLANT Versus Surjit Singh ..... RESPONDENT Crl. Revn. No. 1525 of 2006 DATE OF DECISION : 25.02.2009 Rajinder Pal Singh .... PETITIONER Versus State of Punjab and another ..... RESPONDENTS Crl. A. No. 516-DB of 2006 -2- CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr. R.S. Bains, Advocate, for appellants Gurtinder Singh & Gurjinder Singh (in Crl. A. No. 516-DB of 2006) Mr. J.B.S. Gill, Advocate, for appellant Kulwant Singh (in Crl. A. No. 516-DB of 2006) and for the respondent (in Crl. A. No.802-DBA of 2006 & Crl.Revn.No.1525 of 2006) Mr. R.K. Handa, Advocate, for appellant Amrik Singh (in Crl. A. No. 648-DB of 2007) Mr. Rajesh Bhardwaj, Addl. A.G., Punjab for the respondent-State (in Crl. A. No. 516-DB of 2006 & Crl. A. No. 648-DB of 2007) and for the appellant (in Crl. A. No. 802-DBA of 2006) Mr. K.S. Dadwal, Advocate, for the petitioner (in Crl. Revn. No. 1525 of 2006) * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeal No. 516-DB of 2006, filed by three accused, namely Gurtinder Singh alias Soni, Gurjinder Singh alias Happy and Kulwant Singh alias Kanta, each of whom has been convicted and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- each under Section 302/34 IPC, they have also been convicted and sentenced under Sections 324, 323 read with Section 34 IPC; Criminal Appeal No. 648-DB of 207, filed by accused Amrik Singh alias Lady, who Crl. A. No. 516-DB of 2006 -3- has been convicted and sentenced to undergo imprisonment for life and to pay fine of Rs. 500/- under Section 302 IPC, he has also been convicted and sentenced under Sections 324/34 and 323/34 IPC; Crl. A. No. 802-DBA of 2006, filed by the State of Punjab against the acquittal of accused Surjit Singh, who according to the prosecution was also present at the place of occurrence, and Crl. Revision No. 1525 of 2006, filed by Rajinder Pal Singh (complainant) against acquittal of aforesaid accused Surjit Singh. 2. In this case, a small incident, which had taken place at 4.00 P.M., on 23.10.2004, has resulted into the death of Pavinder Singh alias Lucky on the same day at about 7.30 P.M. 3. In brief, the prosecution version (as unfolded by Rajinder Pal Singh in his statement Ex.PA, recorded by Inspector Ram Singh, SHO Police Station Sadar Hoshiarpur, at Civil Hospital, Hoshiarpur, at 3.10 A.M. on 24.10.2004, on the basis of which FIR Ex.PA/2 was registered on the same day at 3.30 A.M.) is that on 23.10.2004, complainant Rajinder Pal Singh along with his wife Seema Rani went to City Hoshiarpur from their village Sataur for purchasing vegetables and other household articles. (The distance between Hoshiarpur and village Sataur is 8 Km.). At about 4.00 P.M., when they were coming back to their village after purchasing the household articles, and when they reached near Bhangi Choe, Hoshiarpur, accused Gurtinder Singh alias Soni and his brother Gurjinder Singh alias Happy teased the wife of the complainant by saying that she is very beautiful. Due to that, some altercation took place between them and hot Crl. A. No. 516-DB of 2006 -4- words were also exchanged. Thereafter, they came back to their village. The complainant further stated that at about 7.00 P.M., he along with Sandip Singh (injured) and Pavinder Singh alias Lucky (deceased), both sons of his Mausi (mother's sister) residents of village Sataur went to Bus Adda Sataur (which is at a distance of 1 Km. from village Sataur) for purchasing some sweets. At that time, accused Gurjinder Singh alias Happy armed with Datar, Gurtinder Singh alias Soni armed with Kirpan, Kulwant Singh alias Kanta (uncle of the aforesaid two accused) armed with Sota, Surjit Singh empty handed and Amrik Singh alias Lady son of Darshan Singh resident of village Tohlian, Police Station Mahilpur, armed with Kirch came there on scooter and motor cycle. They encircled the complainant and his two cousins. Surjit Singh raised Lalkara to teach a lesson to the complainant for abusing his sons. It is further alleged that at the same time, Surjit Singh caught hold of Pavinder Singh, and Amrik Singh, who was having Kirch in his hand, gave a Kirch blow to Pavinder Singh, which hit on the left side of his chest, on which Pavinder Singh fell down on the ground and fainted. It is further alleged that then all the accused persons attacked the complainant and Sandip Singh. Gurjinder Singh alias Happy gave a Datar blow on the complainant, which hit on the little finger of his right hand. Then Kulwant Singh alias Kanta gave five blows with his Sota on the complainant, which were hit on his forehead, left and right sides of head, near ears, near back side of head and on his right hand. When Sandip Singh came forward to save the complainant, then Gurtinder Singh alias Soni gave him two Kirpan Crl. A. No. 516-DB of 2006 -5- blows, which hit on his left hand and backside of his left thigh. When they raised hue and cry, then their brother Lakhwinder Singh and many other persons also came at the spot. On seeing them, all the accused ran away from the spot with their respective weapons. It is further case of the prosecution that immediately after the occurrence, Lakhwinder Singh had taken them to Civil Hospital, Hoshiarpur, where Pavinder Singh alias Lucky succumbed to his injuries. Dr. R.P. Saroa (PW.4) medico legally examined Sandip Singh on 23.10.2004 at 8.25 P.M., and found the following injuries on his person : 1. An incised wound 2.5 x 0.7 cm in size, muscle deep was obliquely present on the medial side of the lower part of left thigh, 9 cm above the knee joint. Fresh bleeding was present and ortho opinion was advised. 2. An incised wound 1.5 x 0.5 cm in size, muscle deep was present on the back of the left thigh on its middle 1/3rd. Fresh bleeding was present and ortho opinion was advised. Both the injuries were declared simple in nature. On the same day at 9.00 P.M., Dr. R.P. Saroa also medico legally examined complainant Rajinder Pal Singh and found the following injuries on his person : 1. A lacerated wound 2.5 x 0.5 cm in size, present on left side of the head, 2 cms from the anterior hair line, 10 cm from the left pinna. Fresh bleeding was present. X-ray and surgical specialist opinion was advised. 2. A diffuse swelling and a reddish contusion was present on the back of right ear. X-ray and surgical specialist Crl. A. No. 516-DB of 2006 -6- opinion was advised. 3. Diffuse swelling 9 x 3 cm in size was present on right side of the forehead, a reddish contusion was present with an abrasion. X-ray and surgical specialist opinion was advised. 4. Diffuse swelling with reddish abrasion was present on the back of the head, 10.5 cm from the posterior hair line and 8.5 cm from the left pinna of the ear. X-ray and surgical specialist opinion was advised. 5. An incised wound 1 x 0.2 cm in size was vertically present on nuckle of right little finger, bone deep and fresh bleeding was present. Ortho opinion and X-ray was advised. 6. A reddish abrasion 0.6 x 0.5 cm in size was present on palmer and literal side of the distal phalanx of little finger. All the injuries were declared simple in nature. Further, on the same day at 11.00 P.M., Dr. R.P. Saroa also medico legally examined accused Kulwant Singh alias Kanta and found the following injuries on his person : 1. A lacerated wound was obliquely present on scalp 5 x 0.8 cm in size, 9 cm from the middle of the left eye brow and 10 cm from the left pinna of the ear. Fresh bleeding was present. X-ray and surgical specialist opinion was advised. 2. Two lacerated wounds 2.5 x 0.2 cm and 2 x 0.2 cm in size were present on the front of pinna, one on the back of pinna. Diffuse swelling over the left pinna was present. Fresh bleeding was present. ENT specialist opinion was advised. 3. Two lacerated wounds 1 x 0.2 cm and 1.5 x 0.5 cm in Crl. A. No. 516-DB of 2006 -7- size were present on the mucosa of the lower lip, patient complained of pain in the corresponding teeth, bleeding from the gums was present, dental surgeon opinion was advised. 4. A reddish abraded contusion 7 x 5.5 cm in size was present on the right size of the chest on the nipple and lateral to it. X-ray was advised. 5. Redness in an area of 6 x 4 cm in size was present on the lower part of front of left side of chest. Patient complained of pain all over the chest and X-ray was advised. 6. Patient complained of pain abdomen, no external mark of injury was seen and surgical specialist opinion was advised. 7. A lacerated wound 1 x 0.5 cm in size was present on the external side of lower lip, just to the right side from the mid line, fresh bleeding was present and Dental Surgeon opinion was advised. Injury No.5 was declared grievous in nature. It is pertinent to mention here that on 23.10.2004 at 9.30 P.M., Dr. Sudesh Kumar, Medical Officer, CHC Hariana (who was examined in defence as DW.2), medico legally examined Gurjinder Singh and found following injuries on his person : 1. Incised wound 11 cm x 0.5 cm bone deep on the right parietal region, 10 cm from the right pinna, fresh bleeding was present. Advised X-ray. 2. Incised wound 3 cm x 0.5 cm bone deep on the palmer surface of left little finger, 1 cm above the base of left little finger. Fresh bleeding was present. Advised X-ray. 3. Incised wound 2.5 cm x 0.5 cm, muscle deep on the Palmer surface of the left ring finger, 1 cm above the Crl. A. No. 516-DB of 2006 -8- base of the left ring finger. Fresh bleeding was present. 4. Further, as per the statement of PW.8 Inspector Ram Singh, the Investigating Officer, on 23.10.2004, when he was present in Police Station Sadar, Hoshiarpur, he received a telephonic message with regard to the death of Pavinder Singh alias Lucky. Accordingly, he visited Civil Hospital, Hoshiarpur, where the concerned Medical Officer presented ruqa to him. At that time, the Medical Officer also handed over corbon copies of the MLRs of Sandip Singh and Rajinder Pal Singh. Thereafter, Inspector Ram Singh moved an application Ex.PF to the Medical Officer seeking his opinion with regard to the fitness of injured Sandip Singh to make statement, but vide endorsement Ex.PH/1, he was declared unfit to make statement. Then, he moved another application Ex.PJ to the concerned Medical Officer seeking opinion with regard to the fitness of Rajinder Pal Singh to make statement. Vide endorsement Ex.PJ/1, he was declared fit to make statement. Thereafter, the Investigating Officer recorded the statement Ex.PA of Rajinder Pal Singh at 3.10 A.M., on 24.10.2004, on the basis of which FIR Ex.PA/2 was registered. Thereafter, inquest report Ex.PC in respect of the dead body of Pavinder Singh alias Lucky was prepared. On 24.10.2004 at 1.15 P.M., Dr. Jaswinder Singh (PW.3) conducted the post mortem on the dead body of Pavinder Singh alias Lucky. He noticed the following injuries on the body of the deceased : 1. Incised wound 2 x 1.5 cm elliptical in shape obliquely placed, present on the left side of the chest in mid- axillary line, 7 cm lateral to left nipple and 6.5 cm below Crl. A. No. 516-DB of 2006 -9- the anterior fold of left axilla (corresponding cut on the Tee-shirt was present). The wound extended inverts to the chest cavity between the inter space of ribs, cutting pleura and left lung (through and through). The left pleural cavity was full of liquid blood and the left lung collapsed. 2. Red contusions 2 x .5 cm and .5 x .5 cm, .5 cm apart from each other present on lateral aspect distal 3rd left arm, 2 cm above the lateral border of left elbow. 3. Red contusion 5 x 1 cm obliquely placed present on upper 3rd left neck, 1.5 cm below left ear lobule. 4. Red contusion 1 x .5 cm on internal aspect middle of lower lip. 5. Incised wound 2.5 x .2 cm x subcutaneous tissue deep transversely placed on upper third left ear. The probable time between injuries and death was stated to be within 6 hours, and between death and post mortem examination, the time was within 12 to 24 hours. The cause of death was injury No.1, which was a stab wound, which according to the Doctor was sufficient to cause death in the ordinary course of nature. 5. During investigation, only a motor cycle Hero Honda along with its RC was taken into possession from the spot vide memo Ex.PN/1. No scooter, as alleged by the complainant, was found on the spot. Amrik Singh was arrested on 24.10.2004. During interrogation, on 26.10.2004, on the basis of his disclosure statement, a Kirch (Ex.P7) was recovered and taken into possession vide memo Ex.PQ/2. Accused Gurjinder Singh was arrested on 30.10.2004 and on 1.11.2004, on the basis of his disclosure Crl. A. No. 516-DB of 2006 -10- statement (Ex.PR), Datar (Ex.P8) was recovered and taken into possession vide memo Ex.PR/2. Accused Gurtinder Singh was arrested on 6.11.2004 and on 7.11.2004, in pursuance of his disclosure statement Ex.PS, he got recovered Kirpan (Ex.P9), which was taken into possession vide memo Ex.PS/2. The other accused were also arrested. 6. After completion of investigation, challan was presented against accused Amrik Singh, Kulwant Singh alias Kanta, Gurjinder Singh alias Happy and Gurtinder Singh alias Soni. Thereafter, supplementary challan was filed against accused Surjit Singh. Charges under Sections 302, 324, 323, 148 read with Section 149 IPC were framed against all the five accused, who did not plead guilty and claimed trial. 7. The prosecution, in support of its case, examined 8 witnesses, namely PW.1 Rajinder Pal Singh (complainant), PW2 Sandip Singh (injured), PW.3 Dr. Jaswinder Singh, PW.4 R.P. Saroa, PW.5 HC Jasbir Singh, PW.6 Constable Major Singh, PW.7 HC Vijayant Kumar (PW.5 to PW.7 formal witnesses) and PW.8 Inspector Ram Singh, the Investigating Officer. The prosecution did not examine Lakhwinder Singh, brother of the complainant, HC Kuldip Kumar, Dr. S.S. Chohan, Dr. Gurbachan Singh, Dr. J.S. Dhami and Dr. Jagmohan Singh, who initially examined and treated the injured. They were given up by prosecution being un-necessary witnesses. 8. All the accused were examined under Section 313 Cr.P.C., wherein they denied the incriminating evidence appearing against them and claimed innocence and false implication. Accused Amrik Singh took the Crl. A. No. 516-DB of 2006 -11- plea that he was not present at the time of the occurrence. Kulwant Singh alias Kanta stated that he came to Adda Bagpur Sataur by a bus and as soon as he got down from the bus, complainant Rajinder Pal Singh and his companions started assaulting him. He further stated that his nephew Gurjinder Singh was already present at Adda and he was also assaulted by Rajinder Pal Singh and others. Accused Kulwant Singh was medico legally examined at Civil Hospital, Hoshiarpur. Accused Gurjinder Singh alias Happy pleaded false implication and stated that he had come to bus stop Bagpur Sataur to make some purchase. In the meantime, his uncle Kulwant Singh also reached there by bus. Complainant Rajinder Pal Singh and his companions assaulted them and caused some injuries. He (Gurjinder Singh alias Happy) was medico legally examined at CHC Hariana. Accused Gurtinder Singh alias Soni took the plea that he was not present at the time of the alleged occurrence. Accused Surjit Singh claimed that at the time of occurrence, he was on duty in connection with checking of passengers of the buses of Azad Transport Company, Hoshiarpur, in his capacity as Inspector. He stated that an inquiry was held by SP (D) Hoshiarpur, who found him innocent. 9. In defence, accused examined 5 witnesses. DW.1 Jasbir Kaur is Mausi (mother's sister) of Gurtinder Singh alias Soni. She stated that on the day of occurrence, Gurtinder Singh alias Soni was with her at village Ahrana Kalan. DW.2 Dr. Sudesh Kumar, Medical Officer, CHC Hariana, who on 23.10.2004 at 9.30 P.M., medico legally examined Gurjinder Singh, Crl. A. No. 516-DB of 2006 -12- proved the MLR of accused Gurjinder Singh as Ex.DB/2. DW.3 Jarnail Singh, a resident of village Ahrana Kalan, stated that on the day of occurrence, accused Gurtinder Singh alias Soni was in the village with Jasbir Kaur. DW.4 C. Satnam Singh, who brought the enquiry file regarding the enquiry conducted by Shri S.S. Bhatti, the then SP (D) Hoshiarpur, in which accused Surjit Singh and his son Gurtinder Singh alias Soni were found innocent. DW.5 Malkiat Singh, who was working as Clerk in Azad Transport Company, Hoshiarpur, proved that on the day of occurrence, at 7.35 P.M., Surjit Singh was checking the bus of the company. 10. After hearing the arguments of learned counsel for the parties and considering the evidence available on the record, the trial court acquitted accused Surjit Singh, while coming to the conclusion that his presence at the time of the alleged occurrence was doubtful. Accused Amrik Singh was convicted under Section 302 IPC and the other three accused, namely Gurtinder Singh alias Soni, Gurjinder Singh alias Happy and Kulwant Singh alias Kanta were convicted and sentenced under Section 302 read with Section 34 IPC, as stated above. In addition to this, accused Amrik Singh, Gurtinder Singh alias Soni, Gurjinder Singh alias Happy and Kulwant Singh alias Kanta were also convicted and sentenced under Sections 324, 323 read with Section 34 IPC, as stated above. 11. Learned counsel for the appellants-accused argued that in the instant case, there was a delay in registering the FIR, which has not been explained by the prosecution. He submitted that the alleged occurrence had Crl. A. No. 516-DB of 2006 -13- taken place on 23.10.2004 at about 7.00/7.30 P.M. The injured and the deceased were taken to the Hospital at 8.15 P.M. Sandip Singh and Rajinder Pal Singh were medico legally examined on the same day, as is clear from their MLRs Ex.PE/1 and Ex.PF/1, respectively. Learned counsel further submitted that though as per the opinion of the Doctor, Sandip Singh was not fit to make statement, but complainant Rajinder Pal Singh was very much conscious and fit to make the statement and he could have made the statement to the police, as he was present in the Hospital at 9.00 P.M. But, his statement was recorded only at 3.10 A.M., on the next day and the FIR was registered at 3.30 A.M. The inquest report was also prepared on 24.10.2004. This delay goes to the root of the matter and clearly reflects that the alleged prosecution version was lateron concocted after due deliberations and consultations. 12. Learned counsel for the appellants-accused further argued that the prosecution has failed to explain the injuries on the persons of accused Kulwant Singh alias Kanta and Gurjinder Singh alias Happy. One of the injury on the person of accused Kulwant Singh alias Kanta was found grievous in nature. Learned counsel further pointed out that both the eye witnesses, namely PW.1 Rajinder Pal Singh and PW.2 Sandip Singh, have categorically taken the stand that they did not cause any injury to the accused, as they were not armed with any weapon. Learned counsel submitted that non-explanation of the injuries on the person of the deceased, which are not minor and superficial, has made the alleged occurrence Crl. A. No. 516-DB of 2006 -14- doubtful, as the prosecution has withheld the genesis of the alleged occurrence. 13. Learned counsel further submitted that from the evidence available on the record, it is clear that it was a case of free fight between both the parties. He submits that in this case, the complainant party was the aggressor. Learned counsel contended that in this case, the alleged motive that the accused wanted to cause injury to the complainant as he abused them at the previous occurrence, cannot be said to be a motive to commit the alleged crime. He submitted that actually there was no accusation from the complainant side that the accused party wanted to take revenge. Learned counsel submitted that in the instant case, the motive was otherwise. In fact, when accused Gurjinder Singh and Kulwant Singh were coming back to their village Bassi Kaso from City Hoshiarpur, the complainant side planned to teach them a lesson at bus stop Bagpur Sataur for teasing Smt. Seema Rani, because the accused could return to their village only through that bus stop. Learned counsel submitted that at the bus stop, a free fight had taken place, in which both the sides got injuries. Therefore, the alleged fight on the day of the occurrence was abrupt and sudden fight. Learned counsel submitted that there is nothing on the record to suggest that there was any pre-plan or pre-meditation among all the accused persons. 14. Learned counsel for the appellants-accused further argued that the ocular version given by both the eye witnesses did not find corroboration from the medical evidence with regard to the injuries. As per the version of PW.1 Rajinder Pal Singh and PW.2 Sandip Singh, accused Crl. A. No. 516-DB of 2006 -15- Amrik Singh gave only single blow of Kirch to Pavinder Singh, and no other accused caused any injury to him, but the post mortem report Ex.PD reveals that the deceased was having 5 injuries on his body. This discrepancy in the ocular version and the medical evidence has not been explained by the prosecution. Learned counsel further argued that admittedly, the occurrence had taken place in front of the shop of Pardhan and at the place of occurrence, large number of people gathered at the time of the alleged occurrence. But the prosecution did not examine any independent witness to corroborate the version given by these two injured eye witnesses. Learned counsel further submitted that PW.8 Inspector Ram Singh has categorically admitted in his cross-examination that during his investigation he did not enquire from the owners of the shops or any other persons who were present at the time of occurrence. Learned counsel further pointed out that most of the material witnesses, who should have been examined by the prosecution to corroborate the prosecution version, have not been examined on the ground that their examination is un-necessary, though they were cited as witnesses. 15. Shri R.K. Handa, Advocate, learned counsel for appellant- accused Amrik Singh argued that Amrik Singh was having no relation with the accused party and there was no reason for his participation in the alleged crime. He further argued that recovery of Kirch from Amrik Singh has also not been proved by any witness. Even the official witness, in whose presence the alleged recovery was effected, has not been examined. Crl. A. No. 516-DB of 2006 -16- 16. On the other hand, Shri Rajesh Bhardwaj, Additional Advocate General, Punjab and Shri K.S. Dadwal, Advocate, appearing on behalf of the complainant, argued that the trial court has rightly convicted all the four accused, as the prosecution has led sufficient evidence, which prove their involvement in the crime. The learned counsel have supported the reasoning given by