IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) Criminal Appeal No.53 -DB of 2003 Dated of Decision:- March 17, 2009 Harbhinder Singh @ Bhinda ....APPELLANT VERSUS The State of Punjab ....RESPONDENT 2) Criminal Appeal No.250 -DB of 2000 Baldev Singh ....APPELLANT VERSUS The State of Punjab ....RESPONDENT 3) Criminal Revision No.203 of 2004 Tej Pal ....PETITIONER VERSUS Harbhinder Singh @ Bhinda ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE L.N.MITTAL Present:- Sh. T.S.Sangha, Senior Advocate with Sh. H.S.Sangha, Advocate for the appellant. ( In Crl. Appeal No.53-DB of 2003 & Crl. Appeal No. 250-DB of 2000). Sh. Gautam Dutt, Advocate for the petitioner (In Crl. Revision No.203 of 2004). Sh. Satinder Singh Gill, Addl. A.G. Punjab. ------ 2 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.53-DB of 2003, Criminal Appeal No.250-DB of 2000 and Criminal Revision No.203 of 2004 by a common order, as both the judgments though given on different dates, but arise out of FIR No.221, dated 9.1.1988, under Sections 302/307/148/149 IPC and Sections 25-54-59 of the Arms Act, Police Station Sadar Jalandhar. The complainants, witnesses and the accused in both these appeals are also the same. The occurrence is also the same. Sessions case titled ‘State Vs. Baldev Singh’ was decided on 8.5.2000, while Sessions case titled ‘State Vs. Harbhinder Singh alias Bhinda’ was decided on 9.12.2002, as Harbhinder Singh alias Bhinda was declared a proclaimed offender and his trial started after he surrendered before the Court. In Criminal Appeal No. 53-DB of 2003, the learned Sessions Judge, Jalandhar vide his order/judgment dated 9.12.2002 convicted Harbhinder Singh @ Bhinda son of Baldev Singh under Section 302 IPC and sentenced him to undergo life imprisonment. He further convicted him under Section 307 read with 34 IPC and sentenced to undergo three years R.I. and to pay a fine of Rs.2,000/- or in default of payment of fine to further undergo R.I. for three months R.I. He was also convicted under Section 25 of the Arms Act and sentenced to undergo R.I. for three years and to pay a fine of Rs. 1,000/- or in default of payment of fine to undergo R.I. for three months. He was further convicted under Section 27 of the 3 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 Arms Act and sentenced to undergo R.I. for three years and to pay a fine of Rs.1,000/- or in default of payment of fine to undergo R.I. for three months. Sentences were ordered to run concurrently. In Criminal Appeal No.250-DB of 2000, the learned Addl. Sessions Judge, Jalandhar vide order/judgment dated 8.5.2000 convicted Baldev Singh son of Bhagat Singh under Section 302 read with Section 34 IPC and Section 307 read with Section 34 IPC. The learned trial Court sentenced him life imprisonment and to pay a fine of Rs.5,000/- under Section 302 read with Section 34 IPC. In default of payment of fine to further undergo R.I. for two years. Under Section 307 read with 34 IPC, he was sentenced to undergo R.I. for three years and to pay a fine of Rs.2,000/-. In default to further undergo R.I. for one year. Both the sentences were ordered to run concurrently. Habhinder Singh @ Bhinda, Baldev Singh and Kulwinder Singh faced trial. Accused Tehal Singh was declared a proclaimed offender and as of today is still a proclaimed offender. Kulwinder Singh was acquitted by the learned trial Court, State did not file an appeal against his acquittal, while both Harbhinder Singh alias Bhinda and Baldev Singh were convicted. We have now before us appellants Harbhinder Singh @ Bhinda and Baldev Singh. We will be taking the facts from Criminal Appeal No.53-DB of 2003, as both the appeals arise out of the same FIR and occurrence. The case of the prosecution is unfolded by the statement of Gurdial Singh given to Beant Singh ASI at Civil Hospital, Jalandhar. 4 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 Gurdial Singh stated, that he is the Sarpanch of Village Gandiwind and does cultivation. For the last 1½/ 2 years, he had the special power of attorney of Pritam Singh @ Tiraa son of Bhagat Singh, resident of Village Nangal Krar Khan and was residing in the residential house of Pritam Singh in Nangal Krar Khan. A dispute was pending in the Civil Court between Pritam Singh and his brother Baldev Singh in respect of the residential house and the agricultural land. Baldev Singh wanted to take forcible possession of the house in the Village Nangal Krar Khan. On 1.9.1988 at about 1.00/1.30 Noon time, he along with his son Kulwinder Singh and servant Gurmej Singh son of Ujagar Singh, who worked with them and one Rachhpal Singh son of Harnam Singh also resident of Ghandi Wind were sitting in the house. The doors were closed. They heard lalkaras saying, Gurdial Singh come out, they now will teach him a lesson for intervening in the dispute of the brothers. Gurdial Singh on opening a window of the house saw Baldev Singh son of Bhagat Singh, who was empty handed, was raising lalkaras saying that the entire family of Gurdial Singh should be killed. Tehal Singh son of Baldev Singh armed with a double barrel gun, Harbhinder Singh @ Bhinda son of Baldev singh armed with double barrel gun, Balwinder Singh son-in-law of Baldev Singh armed with .12 bore gun and another person, who he could not identify, armed with .12 bore country made pistol standing outside. Gurdial Singh’s son Kulwinder Singh opened the door of the house and came out in the verandah along with his servant Gurmej Singh. Gurdial Singh was about to call them back, when Baldev Singh told Tehal Singh to fire gun shot at 5 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 them. Tehal Singh fired at Kulwinder Singh, who got injured. Gurmej Singh tried to lift Kulwinder Singh, but Harbhinder Singh @ Bhinda fired a gun shot at Gurmej Singh, who also got injured and fell down. Rachhpal Singh also witnessed the entire occurrence. Both Gurdial Singh and Rachhpal Singh raised a noise, but Baldev Singh and company kept on firing and raising lalkaras. After some time they went away. Both Gurdial Singh and Rachhpal Singh came out, they took Kulwinder Singh and Gurmej Singh in an injured condition to the Civil Hospital, Jalandhar, on a tractor trolley. The doctor declared Gurmej Singh dead. The grudge was that Baldev Singh had tried to take illegal possession of the house belonging to Pritam Singh in which Gurdial Singh was staying. Criminal and civil cases to this effect were also pending in the Courts. On the basis of this statement, FIR Ex.PK was recorded on 1.9.1988 at 3.25 p.m. The special report reached the J.M.I.C., Jalandhar on 1.9.1988 at 6.30 p.m. The prosecution to prove its case brought into the witness box, Gurdial Singh PW1, Dr. Kuldip Singh PW1, Kulwinder Singh PW2, Dr. Satish Sood PW3, SI Satnam Singh PW4, HC Tilak Raj PW5, Dalip Singh Draftsman PW6, Inspector Balkar Singh PW7, Beant Singh Inspector (Retd.) PW8, Harbans Lal HC PW9, Dr. Iqbal Singh PW10 and Hardev Singh Inspector (Retd.) PW11. Learned counsel for the appellants, Sh. T.S.Sangha, Senior Advocate has argued, that the prosecution has failed to prove its case in spite of the testimony of Kulwinder Singh PW2, the injured eye witness 6 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 and Gurdial Singh PW1, the other eye witness. Complainant Gurdial Singh PW1 is not a truthful witness. He in fact has been hired by Pritam Singh to take possession of the land and house forcibly, which was in possession of appellant Baldev Singh. Some sort of a clandestine deal had been struck between Pritam Singh and Gurdial Singh PW1. Gurdial Singh PW1 in his testimony before the Court has stated that he had a special power of attorney in his favour, executed by Pritam Singh for the last 10-10½ years. He has further stated in his testimony, that he was in possession of the disputed agricultural land and house in Village Nangal Krar Khan on behalf of Pritam Singh. He used to cultivate the land of Pritam Singh and sell the produce to the commission agent. When cross-examined as to who was the commission agent, he did not know the name of the commission agent, nor did he produce any evidence like J- Forms etc. regarding the sale of produce to show, that he was cultivating the land and selling the produce in the market (Mandi) on behalf of Pritam Singh. Further he has stated, that he was cultivating the land as a share cropper, on 50-50 basis with Pritam Singh. When cross-examined, again he could not show the receipts given to him of the 50% share he had given to Pritam Singh. No person from the village was produced by him to show that the 50% share had been given in front of him, nor he could name anyone from Village Nangal Krar Khan. He has further stated, that he is not a voter of Village Nangal Krar Khan and he does not know whether Village Nangal Krar Khan had a Gram Panchayat or did it have a Municipal Council. The reason that he did not know anything about Village Nangal Krar Khan was that he never lived there or 7 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 stayed there, though in FIR Ex.PK he has stated so. He has further stated, that he does not have any relative in Village Nangal Krar Khan. Further he has stated, that Pritam Singh does not live in the village. In fact the defence counsel put a suggestion, though Gurdial Singh PW1 denied it that he has been hired and has been brought from Village Gandiwind (Amritsar) to Village Nangal Krar Khan under some deal to take forcible possession of the house and land, which were in possession of appellant Baldev Singh and others. The power of attorney given by Pritam Singh to Gurdail Singh PW1, on the basis of which Gurdial Singh PW1 allegedly was cultivating the land and staying in the village, has not been put on record. In fact there was no power of attorney. He has also stated, that on the day of occurrence Pritam Singh was in India. If Pritam Singh was in India, he would have been the first person to go to the police to inform them about the occurrence, which had allegedly taken place in his house. Gurdial Singh PW1 has further stated, that he does not know anything about judgments Ex.DA and Ex.DC regarding the civil litigation pending between appellant Baldev Singh and Pritam Singh. Ex.DA is judgment dated 27.7.83 of the Sub Judge 1st Class, Jalandhar, where Baldev Singh had filed a Civil Suit against Pritam Singh not to dispossess him from the disputed house in Village Nangal Krar Khan. The learned Court has passed a decree in favour of appellant Baldev Singh and against Pritam Singh not to dispossess Baldev Singh forcibly but only with due process of law. Similarly document Ex.DC is judgment dated 31.3.1989 of the Sub 8 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 Judge IInd Class, Jalandhar, where the Court restrained Pritam Singh and Gurdial Singh PW1 from dispossessing Baldev Singh from the agricultural land in dispute. Lerned counsel vehemently argued that taking the statement of Gurdial Singh PW1 in totality as above, it comes out that he is a liar and is not telling the truth. Learned counsel has further argued that no evidence either documentary or oral has been led by the complainant party, that they were in possession of the house and agricultural land. The decrees Ex.DA and Ex.DC are binding on the criminal Court to the extent of possession being that of appellant Baldev Singh. Possession of Baldev Singh has been proved by documents Ex.DA and Ex.DC of the house and land. The Investigating Officer Beant Singh PW8 has stated, that he did not see any blood stains on the floor of the verandah of the house. Gurdial Singh PW1, Kulwinder Singh PW2 and Beant Singh PW8 belong to neighbouring villages in District Amritsar and the Investigating Officer has not been fair to the accused party. Learned counsel has further argued, that it clearly shows that the complainant party is suppressing the genesis of the occurrence. The other witness to the occurrence Kulwinder Singh PW2 has resiled from his testimony and has not supported the prosecution case, though the public prosecutor had tried to extract something in favour of the prosecution, but in cross-examination, he has demolished the prosecution case. This witness also cannot be relied upon, as he has given two different versions, one on 2.4.1998 and the other on 5.2.2002. 9 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 No charge for criminal trespass was framed against the appellants. It shows, that the trial Court did not feel that they were the aggressors. Learned counsel for the State has argued, that the case of the prosecution is proved by the statement of Gurdial Singh PW1. FIR Ex.PK is prompt, where the names of the accused are given, weapons of offence and nature of injuries they inflicted on the persons of Kulwinder Singh PW2 and deceased Gurmej Singh are also given. Learned counsel for the State has further argued, that Gurdial Singh PW1 died before the trial in Crl. Appeal No.53-DB of 2003 concluded. The statement of Gurdial Singh PW1 was taken on record in the trial of Criminal Appeal No.53-DB of 2003 by invoking Section 299 Cr.P.C. Statement of Gurdial Singh PW1 is categorical and clear. Though Kulwinder Singh PW2 has resiled, but we cannot overlook this fact, that he was injured in the occurrence and is a stamped witness. We have heard the learned counsel for the parties and perused the record with their assistance. The bone of contention in this case was agricultural land of Pritam Singh in Village Nangal Krar Khan and his house in the village. Vide judgment Ex.DA, it comes out that appellant Baldev Singh filed a suit for permanent injunction restraining defendant Pritam Singh from dispossessing appellant Baldev Singh from the residential house occupied by Baldev Singh in Village Nangal Krar Khan in Khewat No.122, Khatauni No.170, Khasra No.69 (1K-12m) as entered in Jamabandi for the year 1976- 10 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 77. As per the site plan, the boundaries have also been given. The Civil Court in judgment Ex.DA gave notice to the defendant- Pritam Singh, who appeared and filed a reply. Thereafter issues were framed and evidence led. Suit of the plaintiff was decreed vide judgment dated 27.7.1983 (Ex.DA). This judgment Ex.DA of the Civil Court was to the effect, that plaintiff (appellant) Baldev Singh was in possession of the residential house and defendant Pritam Singh was restrained from interfering in the possession of Baldev Singh. Similarly Ex.DC is the judgment of the Civil Court regarding the agricultural land, which was being cultivated by appellant Baldev Singh. The plea of appellant Baldev Singh was that both defendants i.e. Gurdial Singh PW1 and Pritam Singh be restrained from interfering in his possession. This suit was also decreed in favour of plaintiff (appellant) Baldev Singh. Both these judgments Ex.DA and Ex.DC regarding possession of the agricultural land and house went in favour of appellant Baldev Singh. Now coming to the statement of Gurdial Singh PW1, it comes out that he is not telling the truth. He in fact has been hired by Pritam Singh to take possession of the disputed agricultural land and residential house in Village Nangal Krar Khan. Gurdial Singh PW1 and Rachhpal Singh, the other person, who allegedly saw the occurrence and Kulwinder Singh PW2 belong to Village Gandi Wind Thanda (District Amritsar), which is about 60-70 K.Ms. away from Village Nangal Krar Khan (District Jalandhar). During his cross-examination, this witness had nothing to show, 11 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 that he knew anything about Village Nangal Krar Khan . He has stated in his testimony, that he was given the power of attorney about 10-10½ years back by Pritam Singh to look after his land and residential house. This document i.e. power of attorney, which is a crucial link between Pritam Singh and Gurdial Singh PW1, neither was taken into possession by the Investigating Officer, nor it has been put on record. Thus showing that there was no power of attorney given by Pritam Singh to Gurdial Singh PW1. Gurdial Singh PW1 has further stated, that he used to cultivate the land of Pritam Singh and sell the produce in the Anaz Mandi, Jalandhar. He did not know the name or the nick name of the commission agent through whom he sold the crop/produce. He did not have receipts of the crops i.e. J- Forms etc. of the crops sold. He did not produce any receipt before the police, nor he was in possession of the receipts of selling of the crops. All he has stated is that the commission agent was a Sardar. Gurdial Singh PW1 has further stated, that Pritam Singh at the time of occurrence was in India and stayed at Jalandhar. He did not know the permanent address of Pritam Singh. The relationship between Pritam Singh and him was that of a share cropper, but he did not take any receipt from Pritam Singh while giving him his share. This witness could not tell the name of any person of Village Nangal Krar Khan in whose presence he used to give the share of Pritam Singh to him. He (PW1) has further stated, that when the appellants came, the door of the house was bolted from inside. Appellants were armed with guns. If the appellants had been armed with guns, no prudent and 12 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 intelligent person would have opened the door of the house with whom he had enmity specially after seeing the assailants from a window coming armed with guns. Strangely this witness says that Kulwinder Singh PW2 and his servant Gurmej Singh, who were inside the house, opened the door and went outside. Appellant Harbhinder Singh kept firing on both Kulwinder Singh and Gurmej Singh for 5/7 minutes. If the appellants had come to kill Gurdial Singh PW1 against whom they allegedly had a grudge and the door of the house was open, nothing would have prevented them from entering the house and shooting at their prime target Gurdial Singh PW1. The Investigating Officer Beant Singh PW8 has stated, that he did not see the stains of blood on the floor of the verandah of the house. In fact the genesis of the occurrence is being suppressed by Gurdial Singh PW1. Further this witness (PW1) has stated, that he is not a voter of Village Nangal Krar Khan. He does not have any relative in Village Nangal Krar Khan. He did not know the daughter of Pritam Singh. He did not know where the in-laws of Pritam Singh were residing. He did not know how many children Pritam Singh had. He did not know the name of the wife of Pritam Singh, though he knew Pritam Singh for the last 13/14 years. He is a voter of Village Gandi Wind Thatal (District Amritsar) and has a ration card in this village. He did not vote any time in Village Nangal Krar Khan. He did not know whether the village was within the Municipal area of Jalandhar or whether it was being governed by a Gram Panchayat. He has further stated, that he did not know all these things because he never stayed in Village Nangal Krar Khan. No relative of his lived in Village 13 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 Nangal Krar Khan. He did not know as to which Khasra No. the house had been built on, though he had been looking after the property of Pritam Singh for the last 10/10½ years. He has further stated, that he did not know in whose name Khasra Girdawari entries were made in respect to the disputed land. He could not say, whether since 1971-72 till date Khasra Girdwaris were entered in the name of appellant Baldev Singh. He did not know as to whether the Jamabandi showed the possession of appellant Baldev Singh of the disputed agricultural land. He did not know anything about the Civil Court judgments Ex.DA and Ex.DC. In judgment Ex.DC, he is co- defendant with Pritam Singh and has appeared in the Court and filed written statement along with Pritam Singh. From his statement as above, it is clear that Gurdial Singh PW1 is a compulsive liar. As already stated above, he in fact has been hired by Pritam Singh to take possession of the house in dispute and the agricultural land, but he was not successful in doing so. It is clear from his statement, that he is suppressing the truth and the genesis of the occurrence. Taking his (PW1) statement into consideration in totality, it is not worthy of any credence. The other eye witness to the occurrence is Kulwinder Singh PW2. He has suffered injuries on his person and was examined by Dr. Kuldip Singh PW1. Kulwinder Singh PW2 has stated in his testimony before the Court, that on 1.9.1988, he had gone to Village Paragpur. Rachhpal Singh and Gurmej Singh were with him. He was finding out the house of Pritam Singh. Two persons fired at him, which hit him. Appellant 14 Criminal Appeal No.53 -DB of 2003 , Criminal Appeal No.250 -DB of 2000 & Criminal Revision No.203 of 2004 Harbhinder Singh, who is present in Court, was not seen by him. He was not the person, who had fired at him. No one raised lalkara. This witness was declared hostile. The public prosecutor cross-examined him and put to him, that he was examined in this case earlier on 2.4.1998 (Statement given in Crl.Appeal No.250-DB of 2000) by the Addl. Sessions Judge, Jalandhar. Kulwinder Singh PW2 answered, that he did not remember the name of the Presiding Officer. He did not remember whether any oath was administered to him before recording his statement on 2.4.1998. He remembered, that he was examined by the Public Prosecutor in Court. Whatever was recorded by him in that statement (on 2.4.1998), he did not raise any objection before the Judicial Officer, regarding the statement, as he was under fear of Pritam Singh. After about 5/7 days the fear went away, as he had been kept in illegal custody by Pritam Singh at the instance of the police. When cross- examined in his statement given on 5.2.2002, he has stated that he and his father never lived in Village Nangal Krar Khan. They did not cultivate any land of Pritam Singh. His father came from Village Gandiwind (District Amritsar). The distance between Village Gandiwind and Jalandhar is 70 K.Ms. He had not reached the house of Pritam Singh, when the present occurrence had taken place and some unidentified persons injured him. He has not stated anything how his father Gurdial Singh PW1 knew Pritam