IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.284-DB of 2001 Date of Decision: 09.12.2009 Gurmej Kaur Appellant Versus The State of Punjab Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.Vinod Ghai, Advocate for the appellant Mr.D.S.Brar, Deputy Advocate General, Punjab Mr.L.S.Sidhu, Advocate for the complainant …. Jasbir Singh, J. This order will dispose of Criminal Appeal No.284-DB of 2001 and also Criminal Revision No.2 of 2003, arising out of an FIR No.267 dated 27.9.1995. For facility of reference, facts are being mentioned from Criminal Appeal No.284-DB of 2001. Vide judgment and order dated 3.5.2001, the appellant Gurmej Kaur was convicted for commission of an offence under Section 302 IPC with the aid of Section 34 IPC and under Section 114 IPC. Following sentence was awarded to her:- U/s 302/34 IPC Imprisonment for life and to pay a fine of Rs.5000/- and in default of payment of fine to undergo further R.I. for one year. Criminal Appeal No.284-DB of 2001 U/s 114 IPC Imprisonment for life and to pay a fine of Rs.5000/- and in default of payment of fine to further undergo R.I. for one year. Both the sentences were ordered to run concurrently. It was allegation against her and her two sons, namely, Jit Singh and Rachhpal Singh that they, in furtherance of their common intention, had committed murder of Sukhwinder Singh on 27.9.1995 at about 12.00/1.00 noon in village Peeruwala PS Ferozepur. Main accusation was against Jit Singh. The appellant and Rachhpal Singh, her son were roped in with the help of Section 34 IPC and Section 120-B IPC. Process of criminal law justice system started on a statement (Ex.P1) made by Ajaib Singh (PW1), father of the deceased, at 2.30 pm on the date mentioned above. Formal FIR (Ex.P1/B) was recorded in PS Sadar Ferozepur at 3.10 pm on 27.9.1995. Special report reached the concerned Magistrate at 4.30 pm. Case of the prosecution, as noticed by the trial Court, in paragraph No.2 of the impugned judgment, reads thus:- “….. as per Ajaib Singh complainant, is that he is resident of village Peeruwala and is doing agriculture. Today, i.e. on 27.9.1995 at about 12 noon his son Sukhwinder Singh was reaping paddy crop in his fields situating near the house of Rachhpal Singh. He alongwith his wife Ranjit Kaur had gone to the fields. When they were present at a distance of one killa from Sukhwinder Singh then sighted Jit Singh armed with a spear while coming from the house of his brother Rachhpal Singh. When Sukhwinder Singh was reaping paddy crop by bending then from the side of Jit Singh gave a spear blow to 2 Criminal Appeal No.284-DB of 2001 Sukhwinder Singh which hit in his right flank. Second blow was given which hit on the testicles of Sukhwinder Singh. Third blow was given which hit on the left shoulder of Sukhwinder Singh. In the mean time mother of Jit Singh, namely, Gurmej Kaur brought a Sword from her house and the same was given to Jit Singh exhorting him not to spare Sukhwinder Singh. Then Jit Singh gave a sword blow to Sukhwinder Singh which hit on his left upper arm. Again Jit Singh gave 2/3 sword blows on the neck of Sukhwinder Singh. Head of Sukhwinder Singh was separated from the body. Then Jit Singh accused had fled away from the spot with the head of Sukhwinder Singh along with his weapon. Before leaving the place of occurrence Jit Singh had threatened them not to come forward otherwise they will also be given same treatment. Sukhwinder Singh was murdered by Jit Singh with the connivance of Racchpal Singh.” It was further stated in the FIR that motive, to commit murder, was that about six months earlier to the date of occurrence, deceased Sukhwinder Singh had caused injuries to Rachhpal Singh, to seek revenge, murder of Sukhwinder Singh was committed. The investigating officer ASI Tirlok Singh (PW15) went to the spot, prepared inquest report on the headless body of Sukhwinder Singh and sent it for post-mortem examination. He also removed blood stained earth from the spot and it was taken in possession against a recovery memo. He also prepared rough site plan with correct marginal notes. On the next day, police party headed by SI Tara Singh went to the spot. Surrounding area was searched to recover head of the deceased, which was found lying near 3 Criminal Appeal No.284-DB of 2001 cremation ground of village Rode. Inquest report was prepared and head was also sent to the hospital for post-mortem examination. Rough site plan of the place, from where head was recovered, was prepared. Post-mortem was conducted by Dr.H.L.Garg (PW12) on 28.9.1995, who found following injuries on body of the deceased:- “1. Incised wound 12.5 cm x 5.0 cm bone deep present on the lower part of left arm oblique in direction the lower end laid just above the middle of cubital fossa. On dissection no bone injury was seen. Vessels, muscles and tissues were cut. Blood clot was present. 2. Penetrating wound 5 cm x 5.5 cm present on the palmer and medial aspect of left arm, 7 cm from the left shoulder going down wards and inwards in left chest. On dissection pleaura, muscles and tissues were cut and also the upper lobe of lung. Margines clearly defined. The chest cavity contained about 250 to 300 CC of blood and blood clot was also present. 3. Penetrating wound 5 cm x 3.5 cm entering the thorax cavity on the right side was present on upper part of right chest at one 10 clock position. It was 5 cm away from sternum and 2.5 cm below the clavical. On dissection thoracic cavity contained blood and clots with injury to the muscles, tissues, blood vessels and pleaura. Underlying ribs were also fractured. No injury to the right lung. 4. Incised wound 6 cm x 3.5 cm present in the left inguinal region extending close to the root of penis. On 4 Criminal Appeal No.284-DB of 2001 dissection injuries of soft tissues, muscles, blood vessels was seen. Blood clot was present. 5. Penetrating wound 5 cm x 4.5 cm in the right groin 7 cm above the iliac crest. Ascending colon was protruding out. On dissection there was injury to the soft tissues, muscles and peritoneum. Blood clot was present. 6. Head with part of neck was chopped off at the level G-4 resulting in cutting of all the neck structures i.e. hypopharynx, spinal cord, blood vessels and nerves and tissues and blood clot was present. The wound circumference measured 43.5 cm. Margins clearly defined. Examination of skull, scalp vertebrae membranes, brain, spinal cord as described. Examination of thora healthy and as described. Atrial chambers contained blood and ventricals empty.” Death was caused due to shock and hemorrhage as a result of decapitation of the head and other injuries. Injuries were ante mortem in nature and were sufficient to cause death in an ordinary course. On that very day, he also conducted post-mortem of head of the deceased and found the following injuries:- “1. Incised wound 7.5 cm x 0.5 cm present in the left occipital region, hairs were cut, injury was bone deep. 2. Incised wound 2.5 cm x 0.5 cm about 1 cm away from injury No.1 towards the right side. Injury was bone deep. 3. Incised wound 2 cm x 0.5 cm. It was 2 cm from the injury No.2 towards the right side, on dissection. Blood 5 Criminal Appeal No.284-DB of 2001 clot was present and occipital bone was cut in relation to injury No.1 Skin colour of the part matches with the body. The circumference of the wound was 43.5 cm and concide with the wound of the body. Remaining servical vertebrae C-1, C-2 and C-3 were present. There was cutting of the hypopharynx, spinal cord, nerves and tissues as were seen in the post-mortem examination of the body. Blood clot was present.” All the injuries were the result of sharp edged weapon. It is necessary to mention here that Jit Singh accused could not be arrested and in due course of time, he was declared a proclaimed offender. On completion of investigation, final report was put in Court for trial against appellant Gurmej Kaur and her son Rachhpal Singh. They were charge sheeted, to which, they pleaded not guilty and claimed trial. Prosecution produced 16 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statement of the appellant-accused was recorded under Section 313 Cr.P.C. Incriminating material, existing on record, was put to her. She denied the same, claimed innocence and false implication. Accused also led evidence in defence. The trial Court on appraisal of evidence acquitted Rachhpal Singh, however, the appellant-accused was convicted and sentenced as found mentioned in earlier part of this order. Hence, this appeal. Counsel for the appellant has vehemently contended that as per admitted facts, appellant-accused was living separate from Jit Singh, the main accused, who was separate in mess and cultivation. Admittedly, Jit Singh was a Nihang and when he was causing injuries to the deceased, with 6 Criminal Appeal No.284-DB of 2001 a spear, there was no compulsion for the appellant-accused to bring and hand over a sword to him. He further argued that a Nihang generally carry both sword and spear with him. He further argued that at the time of occurrence, the appellant-accused was about 70 years of age and it was not expected from her to enter the house, bring sword and hand it over to her son, who had been causing injuries to the deceased with a spear. He prayed that as on today, the appellant-accused is 85 years of age, leniency be shown to her, appeal be allowed, judgment and order, under challenge, be set aside. Prayer made has vehemently been opposed by the State counsel, who, by making reference to the statements of Ajaib Singh (PW1), Ranjit Kaur (PW2) and the investigating officer (PW5), argued that the trial Court was justified in passing the impugned judgment and order. He further argued that both the eye witnesses have categorically stated that the appellant-accused exhorted Jit Singh to kill Sukhwinder Singh. She handed over a sword to Jit Singh, who then severed head of Sukhwinder Singh and took it away with him. He prayed that appeal, having no substance, be dismissed. After hearing counsel for the parties, this Court is of the opinion that the prosecution has failed to prove participation of the appellant-accused in the alleged crime. In FIR (Ex.P1/B), it is stated that when Sukhwinder Singh deceased came near to the house of Rachhpal Singh, Jit Singh came out from the house and started causing injuries to him with spear. It was further stated as under:- “In the meantime Gurmej Kaur mother of Jit Singh took out a Kirpan from her house and handed over to Jit Singh and exhorted “Son, today, he should not be escaped alive.” 7 Criminal Appeal No.284-DB of 2001 It is further stated that thereafter, Jit Singh gave several blows to the deceased with the sword and after severing his head from his body, went away from the spot along with head of the deceased and weapons of offence. It appears from the evidence on record that an attempt was made to rope in entire family of the appellant in the alleged crime. The prosecution tried to show to the trial Court that the murder was committed after weaving a conspiracy by Jit Singh, his brother Rachhpal Singh and the preset appellant. Story of conspiracy was disbelieved by the trial Court and accordingly, Rachhpal Singh was acquitted of the charges framed against him. Dr.H.L.Garg (PW12) has categorically stated that causing of all the injuries on the dead body of the deceased by a sharp edged pointed weapon (kirpan) is possible. It was case of the prosecution that Jit Singh started causing injuries to the deceased with a spear. It is common knowledge that spear is a weapon, blade of which is pointed and sharp from both the sides. Spear can be used thrust wise and also stick wise. When used thrust wise, spear can cause penetrating wound, whereas when used as stick wise, it would cause an incised wound. If edges are very sharp, it can easily sever any part of the body from it. It is only allegation against the appellant that she brought a sword from her house, handed it over to Jit Singh, who then caused injuries to the deceased. This Court feels that such an action was not required under the given circumstances. Jit Singh was already armed with a spear, which is a potent weapon of offence, in such a situation, there was no necessity to hand over him the second weapon. Weapons of offence were not recovered. It is an admitted fact that Jit Singh was a Nihang. It is also a common knowledge that a Nihang always do carry spear, sword and other small 8 Criminal Appeal No.284-DB of 2001 weapons with him. It has also come on record that after committing the offence, Jit Singh went away, taking both the weapons with him. Sword was in the sheath. It has also come on record that Sukhwinder Singh deceased was registered as a bad character person in the police station. PW2 Ranjit Kaur mother of the deceased has also admitted that he was involved in some criminal cases. It has also come on record that the deceased was involved in litigation with one another Nihang. It is also apparent from the record that Jit Singh was living separate from the appellant-accused and Rachhpal Singh. He was individually cultivating his land. Alleged beating of Rachhpal Singh by the deceased had happened about six months earlier. Motive to get revenge may be with Rachhpal Singh but not with Jit Singh, as stated by the prosecution. Jit Singh may have caused injuries to the deceased on account of some different reasons. Qua Rachhpal Singh, the trial Court has disbelieved case of the prosecution. Appellant is about 85 years of age and has already undergone about six months of actual sentence. In view of facts mentioned above, this appeal is allowed and impugned judgment and order are set aside, appellant-accused is acquitted of the charges framed against her. In view of reasons mentioned above, Criminal Revision No.2 of 2003 filed by the complainant is dismissed. (Jasbir Singh) Judge 09.12.2009 (Daya Chaudhary) gk Judge 9