Crl. Appeal No.451-DB of 1998 1 In the High Court of Punjab and Haryana, Chandigarh. Crl. Appeal No.451-DB of 1998 Date of Decision: 30.05.2008 Nishan Singh and another. ....Appellants. Versus State of Punjab. ....Respondent Coram:- Hon'ble Mr.Justice J.S. Khehar. Hon'ble Mr. Justice Jora Singh. Present: Mr. A.K. Kanwar, Advocate for the appellants. Mr. V.K. Jindal, Addl.A.G., Punjab for the respondent. ... J.S. Khehar, J. The instant appeal has been preferred by the accused/appellants Nishan Singh and Waryam Singh as against the judgement rendered by the Additional Sessions Judge, Amritsar, in Sessions Case No.74 of 1997, on 18.7.1998, by which both the accused/appellants Nishan Singh and Waryam Singh were held guilty for having intentionally committed the murder of Jagtar Singh. The accused/appellant Nishan Singh was convicted under Section 302 of the Indian Penal Code, whereas, the accused/appellant Wariam Singh was convicted under Section 324 read with Section 34 of the Indian Penal Code. The accused/appellants Nishan Singh and Waryam Singh were also held guilty of having caused simple hurt to Balkar Singh Crl. Appeal No.451-DB of 1998 2 PW4. Accordingly, the accused/appellant Nishan Singh was convicted under Section 324 of the Indian Penal Code, whereas, the accused/appellant Wariam Singh was convicted under Section 324 read with Section 34 of the Indian Penal Code. It would be relevant to mention, that both the accused/appellants Nishan Singh and Waryam Singh are brothers, being the sons of Makhan Singh. It would be pertinent to mention, that the deceased Jagtar Singh and the injured Balkar Singh PW4 were also brothers, being sons of Charan Singh. Additionally, it would be pertinent to mention, that amongst themselves, the accused party and the complainant party were cousins i.e. sons of two brothers. The accused/appellants Nishan Singh and Waryam Singh have also impugned the order passed separately on 18.7.1998, by the Additional Sessions Judge, Amritsar, whereby, both the accused/appellants Nishan Singh and Waryam Singh have been sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, under Section 302 (read with Section 34 of the Indian Penal Code, for Jagtar Singh) of the Indian Penal Code. In case of default in payment of fine, they have been ordered to undergo further rigorous imprisonment for six months. Additionally, the accused/appellants Nishan Singh and Waryam Singh have been sentenced to undergo rigorous imprisonment for a period of one year for having caused simple hurt to Balkar Singh PW4, under Section 324 (read with Section 34 of the Indian Penal Code, for Jagtar Singh)) of the Indian Penal Code. The prosecution version of the incident emerges from the statement made by the complainant Balkar Singh PW4 to SI Balkar Singh Crl. Appeal No.451-DB of 1998 3 PW7. It would be pertinent to mention that Balkar Singh PW4 commenced to record his complaint to SI Balkar Singh PW7 at 12.40 AM on 20.11.1995, and the same came to be completed at 1.12 PM. In his aforesaid statement the complainant Balkar Singh PW4 stated that he was a resident of village Lopoke, and that, he had one other brother Jagtar Singh. He also stated that his brother Jagtar Singh was elder to him. According to Balkar Singh PW4, the two brothers were residing in their father's house constructed outside the village. According to Balkar Singh PW4, the house of his “taya” (father's elder brother) Joginder Singh is situated at a distance of 3/4 killas from the house of his father. On 19.11.1995 at about at 7.00 PM, the accused/appellant Waryam Singh son of his “taya” Joginder Singh passed from near the house of the complainant Balkar Singh PW4 in a drunken condition. While passing by his house, the accused/appellant Waryam Singh was raising cat-calls. On hearing the accused/appellant Waryam Singh, the brother of the complainant (Balkar Singh PW4), Jagtar Singh stopped him from raising cat-calls. The accused/appellant Waryam Singh felt insulted at the hands of the brother of the complainant (Balkar Singh PW4) Jagtar Singh and started abusing him. All the same, the accused/appellant Waryam Singh went to his own house. After some time, the complainant Balkar Singh PW4, as also, his brother Jagtar Singh went to their land for irrigating their fields. The agricultural land of the family of Balkar Singh PW4 lies beyond the house of Kishan Singh. On their way back from their agricultural land at about 10.30 PM, when the complainant Balkar Singh PW4 and his brother Jagtar Singh reached near the tubewell of Pal Singh (of the same village) the accused/appellant Nishan Singh, armed with a “barchhi” (spear) and the accused/appellant Waryam Singh, who was Crl. Appeal No.451-DB of 1998 4 empty handed, came to the tubewell of Pal Singh, and raised a “lalkara” (out cry). The accused/appellant Waryam Singh told the accused/appellant Nishan Singh to teach Jagtar Singh and Balkar Singh PW4, a lesson for hurling abuses at him. Thereupon, the accused/appellant Nishan Singh gave a “barchhi” blow to the brother of the complainant (Balkar Singh PW4) i.e. Jagtar Singh, which hit him on the left side of his chest, below his nipple. Jagtar Singh fell down on the ground. The complainant Balkar Singh PW4 came forward to rescue his brother Jagtar Singh. Whereupon, the accused/appellant Nishan Singh gave a “barchhi” blow, which hit the complainant Balkar Singh PW4, on the upper side of his left eye. On the receipt of the aforesaid injury, the complainant Balkar Singh PW4 raised a “raola” (hue and cry) “mardita-mardita” (killed-killed). On hearing the “raola”, the complainant's (Balkar Singh PW4) “taya” Swaran Singh and father Charan Singh PW5 came to the place of occurrence. On seeing them, the assailants ran away alongwith their weapons. According to the statement made by Balkar Singh PW4, he had seen the occurrence with his own eyes in the light of the bulb affixed on the tubewell of Pal Singh. The father of the complainant (Balkar Singh PW4) i.e. Charan Singh PW5 and his “taya” Swaran Singh took Jagtar Singh to the hospital. However, on the way to the hospital, when they reached the house of the father of the complainant, Jagtar Singh succumbed to his injuries. After leaving his father Charan Singh PW5 and “taya” Swaran Singh near the dead body of Jagtar Singh, Balkar Singh PW4 went towards the Police Station, alongwith Dr. Davinder Singh Randhawa to make a report. He prayed for action against the accused/appellants Nishan Singh and Waryam Singh for having committed the murder of his brother Jagtar Singh. Crl. Appeal No.451-DB of 1998 5 On the basis of the statement made by Balkar Singh PW4 to SI Balkar Singh PW7, First Information Report bearing No.226 was registered at Police Station, Lopoke, on 20.11.1995. Whereupon, a special report in respect of the aforesaid First Information Report was sent to the Ilaqa Magistrate. The Ilaqa Magistrate signed the special report at 5.00 AM on 20.11.1995. It is evident from the factual position noticed hereinabove, that the occurrence took place on 19.11.1995 at 10.30 PM. Balkar Singh PW4 started to record his statement to SI Balkar Singh PW7 at 12.40 AM on 20.11.1995, and completed his statement at 1.12 AM. Whereupon, the special report addressed to the Ilaqa Magistrate was signed at 5.00 AM on 20.11.1995 itself. SI Balkar Singh PW7 after recording the statement of the complainant Balkar Singh PW4, sent the same to the Police Station for registration of a case. SI Balkar Singh PW7 then accompanied the complainant Balkar Singh PW4, Dr. Davinder Singh Randhawa and other police officials to the house of Balkar Singh PW4, where the dead body of Jagtar Singh was lying on a cot in the verandah of the house. The father of the deceased (Jagtar Singh) i.e. Charan Singh PW5 and the “taya” of the deceased (Jagtar Singh) i.e. Swaran Singh were present near the dead body of Jagtar Singh. SI Balkar Singh PW7 then prepared the inquest report of the dead body Ex.PC. He also prepared injury statement Ex.PK. The dead body of Jagtar Singh was then handed over to Constable Narinderpal Singh and Head Constable Madan Lal PW9 for getting the postmortem examination conducted. After preparation of the inquest proceedings, SI Balkar Singh PW7 recorded the statements of the father of the deceased (Jagtar Singh) i.e. Charan Singh PW5 and the “taya” of the deceased (Jagtar Crl. Appeal No.451-DB of 1998 6 Singh) Swaran Singh, under Section 161 of the Code of Criminal Procedure. SI Balkar Singh PW7 went to the place of occurrence and took into possession the blood stained earth from the place of occurrence and placed the same in a sealed parcel. The aforesaid parcel was taken into possession vide recovery memo Ex.PG, which was attested by ASI Paramjit Singh PW6, as also, by the complainant Balkar Singh PW4. SI Balkar Singh PW7 then prepared the rough site plan Ex.PL and recorded the statements of other persons present at the spot. SI Balkar Singh PW7 required ASI Paramjit Singh PW6 to take Balkar Singh PW4 to the civil hospital in order to get his medico-legal examination conducted. On 20.11.1995 itself, ASI Paramjit Singh PW6 went to the Court of the Sub Divisional Judicial Magistrate, Ajnala, where the accused/appellants Nishan Singh and Waryam Singh had surrendered. He formally arrested the accused/appellants Nishan Singh and Waryam Singh with the permission of the Court. On the same day, he got both the accused/appellants Nishan Singh and Waryam Singh medico-legally examined as directed by the Court. SI Balkar Singh PW7 then returned to the Police Station, Lopoke, where Head Constable Madan Lal PW9 produced before him the blood stained clothes removed from the dead body of Jagtar Singh, contained in a sealed parcel. The aforesaid sealed parcel was taken into possession vide recovery memo Ex.PJ. The entire case property was deposited by SI Balkar Singh PW7 with MHC Vijay Kumar PW8 at Police Station, Lopoke. After completion of the investigation and other police formalities, a challan was presented in the Court of the Sub Divisional Judicial Magistrate, Ajnala on 23.12.1995. The Sub Divisional Judicial Magistrate, Ajnala, after examining the facts emerging out of the investigation carried out by the police, arrived Crl. Appeal No.451-DB of 1998 7 at the prima-facie conclusion, that the offences punishable under Sections 302 and 324 (read with Section 34) of the Indian Penal Code, were made out against the accused/appellants Nishan Singh and Waryam Singh. The offence under Section 302 of the Indian Penal Code is exclusively triable by the Court of Session. Accordingly, the Sub Divisional Judicial Magistrate, Ajnala, by his order dated 3.1.1996 committed the case for trial to the Court of Session. The Additional Sessions Judge, Amritsar, framed the following charges against the accused/appellants Nishan Singh and Waryam Singh:- “Firstly:- That on 19.11.1995, at about 10.30 PM in the area of village Lopoke, you Nishan Singh in furtherance of the common intention of your co-accused Waryam Singh did commit murder by intentionally causing the death of Jagtar Singh and that you Nishan Singh thereby committed an offence punishable under section 302 Indian Penal Code and you Waryam Singh thereby committed an offence punishable under Section 302/34 of the Indian Penal Code and within my cognizance. Secondly:- On the same date, time and place you Nishan Singh in furtherance of the common intention of your co-accused Waryam Singh caused simple hurt to Balkar Singh and that you Nishan thereby committed an offence punishable under Section 324 of the Indian Penal Code and you Waryam Singh thereby committed an offence punishable under Section 324/34 of the Indian Penal Code and within my cognizance.” The accused/appellants Nishan Singh and Waryam Singh were Crl. Appeal No.451-DB of 1998 8 then confronted with the charges levelled against them. Both the accused pleaded not guilty, and claimed trial. During the course of the trial, the prosecution examined a number of witnesses. A brief description of the statements of the witnesses produced by the prosecution is being summarised hereunder. The prosecution first of all, examined Dr. Ashok Chanaan, Assistant Professor, Department of Forensic Medicines, Government Medical College, Amritsar, as PW1. While testifying before the trial Court, Dr. Ashok Chanaan PW1 asserted that he had conducted the postmortem examination on the dead body of Jagtar Singh on 20.11.1995 and found the following injuries on his person :- “1. A radish brown abrasion 3 x 1.4 cm was present on the back of left leg in its upper 1/3. 2. An oblique incised wound 4 x 1.8 cm with clotted blood was present on the front and left side of the chest over the aeroral region on on dissection the wound was communicating with the right ventricle after perforating he intervening structure i.e. structures of left anterior chest wall left, left lung and pericardium. The clotted blood was present in the track. The paricadial cavity contained 250CC fluid and clotted blood. The left pleural cavity contained 20ML of blood.” In the opinion of Dr. Ashok Chanaan PW1 all the injuries on the person of the deceased Jagtar Singh were ante-mortem in nature. He also opined that the death of Jagtar Singh had occurred on account of a perforation in his heart as a result of injury No.2, which was sufficient to cause death in the ordinary course of nature. The statement of Rishi Ram was recorded as Crl. Appeal No.451-DB of 1998 9 PW2. While appearing before the trial Court, he asserted that he had prepared the scaled site plan Ex.PD of the place of occurrence on the pointing out of the complainant Balkar Singh PW4. The statement of Gurvinder Singh, Orthopaedic Surgeon, Guru Ram Dass Hospital, Amritsar, was recorded as PW3. It would be pertinent to mention, that Dr. Gurvinder Singh PW3, had conducted medico-legal examination of the complainant Balkar Singh PW4 on 20.11.1995 at 9.15 AM. According to the statement of Dr. Gurvinder Singh PW3, the complainant Balkar Singh PW4 was found with the following injuries on his person:- “1. An incised wound 1.5 cm 0.2 cm x skin deep on the left side of the forehead extending from the left eye brow upwards and 2.5 cm from the base of the nose. 2. An incised wound 1 cm x 0.3 cm x skin deep on the inner aspect of left uppereye lid extending upto the inner canthus of left eye. The whole of upper eye lid was swollen with reddish blue contusion measuring 3 x1 cm.” Dr. Gurvinder Singh PW3 also opined that the injuries on the person of Balkar Singh PW4 had been caused with a sharp edged weapon. The statement of Balkar Singh was recorded as PW4. While appearing before the trial Court, the complainant Balkar Singh PW4 reiterated the factual position as had been narrated by him when he had made the complaint to SI Balkar Singh PW7, on 20.11.1995. The statement of Charan Singh was recorded as PW5. It would be pertinent to mention, that Charan Singh PW5 was the father of the deceased Jagtar Singh, and is the father of the complainant Balkar Singh PW4. While recording his statement before the trial Court, Charan Singh PW5 corroborated the testimony of the Crl. Appeal No.451-DB of 1998 10 complainant Balkar Singh PW4 on all material particulars. The statement of ASI Parminder Singh was recorded as PW6. While deposing before the trial Court, ASI Parminder Singh PW6 asserted that he had attested various articles of the case property put in sealed parcels at the place of occurrence by SI Balkar Singh PW7. He also stated that he had taken the complainant Balkar Singh PW4 to the Civil Hospital, Lopoke, and had got his medico- legal examination conducted. He also stated that on the same day, the blood stained clothes of the deceased Jagtar Singh were produced by Head Constable Madan Lal PW9 before SI Balkar Singh PW7, who put the same into a sealed parcel and took the same into possession vide recovery memo Ex.PJ. He further stated that the aforesaid sealed parcel was attested by him (ASI Parminder Singh PW6) and Head Constable Madan Lal PW9. The statement of SI Balkar Singh was recorded as PW7. It would be pertinent to mention, that SI Balkar Singh PW7 had conducted the investigation of the case under reference. While appearing before the trial Court, he narrated the details of the investigation carried out by him. Relevant aspects of the aforesaid investigation have already been narrated above. The statement of Vijay Kumar was recorded as PW8. He tendered into evidence his affidavit Ex.PM. A perusal of his affidavit reveals, that he was posted as a Moharrir Head Constable at Police Station, Lopoke, on 20.11.1995, and that, the case property was handed over to him by SI Balkar Singh PW7 in sealed parcels. He also stated that he had deputed Constable Sukhminder Singh to take the sealed parcels to the Chemical Examiner, Patiala. He also affirmed that Constable Sukhminder Singh after depositing the case property with the Chemical Examiner, Patiala, had handed over to him a receipt in token thereof, on 1.12.1995. The statement of Head Crl. Appeal No.451-DB of 1998 11 Constable Madan Lal was recorded as PW9. Head Constable Madan Lal PW9 while appearing before the trial Court, tendered into evidence his affidavit Ex.PN. A perusal of his affidavit reveals that SI Balkar Singh PW7 had sent Head Constable Madan Lal PW9, as well as, Constable Narinderpal Singh, with the dead body of Jagtar Singh to the Civil Hospital, Lopoke, to get the postmortem examination conducted. He stated that on the same day, he had got the postmortem examination conducted on the dead body of Jagtar Singh. The statement of Sukhminder Singh was recorded as PW10. He tendered into evidence his affidavit Ex.PO. A perusal of his affidavit reveals, that he had been handed over the special report in respect of the First Information Report bearing No.226, registered at Police Station, Lopoke, for being delivered to the Ilaqa Magistrate, and that, in obedience to the aforesaid direction, he had obtained the signatures of the Ilaqa Magistrate on the special report at 5.00 AM on 20.11.1995. After recording the statement of Constable Sukhminder Singh PW10, the prosecution evidence was closed by order. The statements of the accused/appellants Nishan Singh and Waryam Singh were then recorded under Section 313 of the Code of Criminal Procedure. Both the accused/appellants Nishan Singh and Waryam Singh, were in the first instance, confronted with the incriminating evidence appearing on the record of the case. The accused/appellants Nishan Singh and Waryam Singh denied the correctness of the incriminating evidence available on the record of the case. In his defence, the accused/appellant Nishan Singh, inter-alia stated as under:- “I am innocent. On the day of occurrence Balkar Singh injured and Jagtar Singh deceased caused injuries to Waryam Singh Crl. Appeal No.451-DB of 1998 12 after having entered into his house. I in order to save my brother inflicted injuries to Jagtar Singh and Balkar Singh in self defence.” Just as the accused/appellant Nishan Singh, the accused/appellant Waryam Singh also recorded his defence in, inter-alia, the following manner:- “I am innocent. On the day of occurrence, Balkar Singh injured and Jagtar Singh deceased caused injuries to me after having entered into my house and my brother Nishan Singh, in order to save me, inflicted injuries to Jagtar Singh and Balkar Singh in self defence.” The trial Court then afforded an opportunity to the accused/appellants Nishan Singh and Waryam Singh to lead evidence in their defence. The accused/appellants Nishan Singh and Waryam Singh produce only one witness, namely, Dr. Ashok Kumar, Medical Officer, Civil Hospital, Ajnala. The statement of Dr. Ashok Kumar was recorded as DW1. In his statement, Dr. Ashok Kumar DW1 stated that he had medico- legally examined the accused/appellant Waryam Singh and found the following injuries on his person:- “1. A laceration 4 cm x 1/2 cm on the lateral aspect of left leg lower third. 2. Laceration 4 cm x 1/4 cm on the back of the chest right side. Lower half obliquely placed. Blood clots present on the laceration.” He also asserted that injury Nos.1 and 2 depicted hereinabove, were simple in nature, and that, they have been caused with a blunt weapon. During the course of his cross-examination, he asserted that the possibility of the Crl. Appeal No.451-DB of 1998 13 aforesaid injuries having been caused by fall, could not be ruled out. After recording the statement of Dr. Ashok Kumar DW1, defence evidence was closed by order on the basis of the statements made by the accused/appellants Nishan Singh and Waryam Singh. The Additional Sessions Judge, Amritsar, delivered the judgement in Sessions Case No.74 of 1997, on 18.7.1998. The accused/appellant Nishan Singh was held guilty of having intentionally committed the murder of Jagtar Singh on 19.11.1995, and as such, the accused/appellant Nishan Singh was convicted under Section 302 of the Indian Penal Code. On account of the fact, that the accused/appellant Waryam Singh had assisted the accused/appellant Nishan Singh in the murder of Jagtar Singh, the accused/appellant Waryam Singh was convicted for having participated in the murder of Jagtar Singh, under Section 302 read with Section 34 of the Indian Penal Code. Additionally, the accused/appellant Nishan Singh was convicted under Section 324 of the Indian Penal Code for having caused simple hurt to Balkar Singh PW4. The accused/appellant Waryam Singh, on account of having assisted the accused/appellant Nishan Singh in causing simple hurt to Balkar Singh PW4, was convicted under Section 324 read with Section 34 of the Indian Penal Code. On the same day i.e. on 18.7.1998, both the accused/appellants Nishan Singh and Waryam Singh were heard on the question of sentence. Whereupon, the accused/appellant Nishan Singh was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, under Section 302 of the Indian Penal Code. Likewise, the accused/appellant Waryam Singh was sentenced to undergo imprisonment for life and to pay a fine of Rs.2,000/-, under Section 302 read with Section 34 of the Indian Penal Code. In case of Crl. Appeal No.451-DB of 1998 14 default in payment of fine, the defaulting convict(s) was/were directed to undergo further rigorous imprisonment for six months. The accused/appellant Nishan Singh was also sentenced to undergo rigorous imprisonment for a period of one year under Section 324 of the Indian Penal Code. Likewise, the accused/appellant Waryam Singh was sentenced to undergo rigorous imprisonment for a period of one year under Section 324 read with Section 34 of the Indian Penal Code. A perusal of the evidence produced on behalf of the prosecution, as well as, the judgement rendered by the Additional Sessions Judge, Amritsar, reveal that while convicting the accused/appellants Nishan Singh and Waryam Singh, reliance was placed on ocular, as well as, expert evidence. In so far as ocular evidence is concerned, reliance was placed on the statements of Balkar Singh PW4, as well as, Charan Singh PW5. In this behalf it would be pertinent to mention, that Balkar Singh PW4 was an injured eye witness, inasmuch as, he suffered an injury during the course of the occurrence itself, whereas Charan Singh PW5 is stated to have been an eye witness to the occurrence. In so far as expert evidence is concerned, reliance was placed on the statement of Dr. Ashok Chanaan PW1, who had conducted the postmortem examination on the dead body of Jagtar Singh, inasmuch as, the seats of the injury depicted by the witnesses to the occurrence stood corroborated by the statement of Dr. Ashok Chanaan PW1. The fact that the injuries had been inflicted with a “barchhi” also stood affirmed with the statement of Dr. Ashok Chanaan PW1. The statement of Dr. Gurvinder Singh PW3 was taken into consideration to determine the nature of injuries suffered by Balkar Singh PW4 at the hands of the accused/appellants Nishan Singh and Waryam Singh. The report of Crl. Appeal No.451-DB of 1998 15 the Chemical Examiner, Patiala, Ex.PR was also taken into consideration, wherein it had been concluded that the case property, specially the “barchhi”, as well as, the blood stained earth taken from the place of occurrence,