IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Murder Reference No. 5 of 2010 DATE OF DECISION : 15.03.2011 State of Punjab .... PROSECUTOR Versus Gursewak Singh and another ..... RESPONDENTS Criminal Appeal No. 1032-DB of 2010 DATE OF DECISION : 15.03.2011 Gursewak Singh and another .... APPELLANTS Versus State of Punjab ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE M. JEYAPAUL Present: Ms. Manjari Nehru Kaul, Addl. A.G., Punjab. Mr. Sanjeev Sharma, Advocate, for the respondents (in Murder Reference No.5 of 2010) and for the appellants (in Crl. A. No. 1032-DB of 2010). Mr. Sant Pal Singh Sidhu, Advocate, for the complainant. * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Murder Reference No. 5 of 2010, made by Sessions Judge, Ferozepur, for confirmation of death sentence awarded to Gursewak Singh and his brother Jagsir Singh alias Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -2- Jagga; and Criminal Appeal No. 1032-DB of 2010, filed by both the brothers against the judgment dated 22.9.2010 and order dated 24.9.2010, passed by the court of Sessions Judge, Ferozepur. Vide judgment dated 22.9.2010, appellant Gursewak Singh has been convicted under Section 302 IPC for having committed the murder of Baldev Singh and under Section 302 read with Section 34 IPC for committing the murder of Kuldip Singh; and appellant Jagsir Singh alias Jagga has been convicted under Section 302 IPC for having committed the murder of Kuldip Singh and under Section 302 read with Section 34 IPC for committing the murder of Baldev Singh. Vide order dated 24.9.2010, both the appellants have been sentenced as under :- Name of appellant Offence Sentence Gursewak Singh 302 IPC Sentenced to death i.e. to be hanged till death and to pay fine of ` 50,000/- (Rs. Fifty thousand only). In default of payment of fine, to further undergo RI for two years for the commission of murder of Baldev Singh. Jagsir Singh @ Jagga 302/34 IPC Sentenced to death i.e. to be hanged till death and to pay fine of ` 50,000/- (Rs. Fifty thousand only). In default of payment of fine, to further undergo RI for two years for the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -3- commission of murder of Baldev Singh. Jagsir Singh @ Jagga 302 IPC Sentenced to death i.e. to be hanged till death and to pay fine of ` 50,000/- (Rs. Fifty thousand only). In default of payment of fine, to further undergo RI for two years for the commission of murder of Kuldip Singh. Gursewak Singh 302/34 IPC Sentenced to death i.e. to be hanged till death and to pay fine of ` 50,000/- (Rs. Fifty thousand only). In default of payment of fine, to further undergo RI for two years for the commission of murder of Kuldip Singh. The trial court has further ordered that in case, the fine imposed upon the appellants is deposited, the same shall be disbursed to the legal heirs of deceased Baldev Singh and Kuldip Singh, respectively. Case of the prosecution 2. Appellants Gursewak Singh and Jagsir Singh alias Jagga are the real brothers. Baldev Singh and his son Kuldip Singh (both deceased) were the uncle (father's brother) and cousin, respectively, of the appellants. The appellants and the deceased were residents of village Kundal, Tehsil Abohar, District Ferozepur. On 23.8.2007, Baldev Singh and his sons, Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -4- namely Kuldip Singh and Gurwinder Singh (PW.1), went to their fields for cultivation. Their turn of water was in the evening. On that day, complainant Angrej Kaur wife of deceased Baldev Singh (PW.3) along with Harnek Singh resident of Roohrian Wali and Shivraj Singh resident of Daulatpura, who were their relatives and had come to meet them, was going to the fields with tea. At about 6.30 PM, when they reached near the Pakka Nakka of khal (water course) of the land of Gurjant Singh, which they had taken on lease, accused Gursewak Singh (appellant No.1 herein) armed with a spade, accused Jagsir Singh alias Jagga (appellant No.2 herein) armed with a spade, Sikander Singh son of Balkar Singh armed with spade, Darshan Singh son of Mall Singh armed with dang and one unknown person armed with dang were spotted. They were speaking loudly to Baldev Singh and Kuldip Singh regarding breaking of water (Nakka). When Baldev Singh and Kuldip Singh were about to lift cemented lid placed on Nakka, while entering into the water course, in order to break the water, then appellant No.1 Gursewak Singh raised lalkara to the effect that they (Baldev Singh and Kuldip Singh) be taught a lesson for always picking up quarrel with them for water, so that the dispute should be finished for ever. Then appellant No.2 Jagsir Singh alias Jagga gave three successive blows with spade on the head of Kuldip Singh with intention to kill him. Thereafter, appellant No.1 Gursewak Singh gave four successive blows with spade on the head of Baldev Singh. The other three persons, accompanying Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -5- the appellants, were standing nearby and were raising lalkara. On receiving the injuries, Baldev Singh fell into the flowing water of Pacca Khal and Kuldip Singh fell into the water of Kacha Khal. Then complainant Angrej Kaur, Harnek Singh and Shivraj Singh raised hue and cry. In the meantime, Gurwinder Singh son of complainant Angrej Kaur, who was at some distance having a round of the Khal and witnessed the occurrence, had also come. He also raised clamour, upon which all the accused persons fled away from the spot with their respective weapons. When the complainant and other persons went near Baldev Singh and Kuldip Singh, they saw that both had succumbed to their injuries on their heads. After deputing Gurvinder Singh and Harnek Singh to guard the dead bodies, complainant Angrej Kaur along with Shivraj Singh left the spot for reporting the matter to the police. In the way, at a petrol pump in the area of village Kundal, the police party headed by Inspector Harjit Singh, SHO, Police Station Sadar Abohar, met them. Statement (Ex.P9) of complainant Angrej Kaur was recorded by Inspector Harjit Singh (PW.5) at 10.00 PM, on the basis of which the formal FIR (Ex.P9/B) was registered at 10.30 PM. In her statement, the complainant also stated that on account of the dispute regarding the turn of water, the accused were having a grudge against the deceased persons. Due to that, in connivance with each other, they have committed the murder of her husband and son. Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -6- Investigation 3. On 23.8.2007, after registration of the FIR, Inspector Harjit Singh along with ASI Kundan Singh (PW.10), complainant Angrej Kaur and other police officials, visited the place of occurrence. A photographer was also called at the spot, who clicked the photographs of the dead bodies of Baldev Singh and Kuldip Singh. After preparing the inquest reports (Ex.P11 and Ex.P15), the dead bodies were sent to Civil Hospital, Abohar, for post mortem examination. 4. On 24.8.2007, Inspector Harjit Singh conducted the spot inspection, prepared the rough site plan of the place of occurrence (Ex.P16) with correct marginal notes. He also lifted simple water and blood stained water from the spot in separate small glass containers, which were sealed by him with his seal bearing impression `HS' and both the parcels were taken into possession vide memo (Ex.P17), which was attested by Shivraj Singh and ASI Kuldip Chand. Two spades, which were lying at the spot, were also taken into possession vide separate memo (Ex.P18), which was also attested by the aforesaid witnesses. 5. Thereafter, Inspector Harjit Singh conducted the raid to arrest the accused, named by the complainant in her statement, and he arrested both the appellants from Bus Stand, village Bahawal Wassi. During interrogation, appellants Gursewak Singh and Jagsir Singh alias Jagga, in pursuance of their disclosure statements (Ex.P19 and Ex.P20), got Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -7- recovered spades, used by them in the crime, which were taken into possession vide memos (Ex.P22 and Ex.P24), attested by ASI Kuldip Chand and Shivraj Singh. Appellant No.1 Gursewak Singh got recovered the spade from the room meant for the storage of chaff and appellant No.2 Jagsir Singh alias Jagga got recovered the spade from the manure heap, lying in the courtyard of his house. Site plans (Ex.P22/A and Ex.P25) of the places of both the recoveries were prepared. Appellants Gursewak Singh and Jagsir Singh alias Jagga were also subjected to personal search, which led to the recovery of currency notes of ` 50/- and ` 100/-. 6. On 24.8.2007, Dr. Alka Khurana (PW.4), conducted autopsy on the dead body of Baldev Singh and she found the following injuries on the body of the deceased : 1. An incised wound 10 cm x 5 cm x bone deep on the back of the middle of the neck. On dissection, underlying muscles were cut. Bones fractured and blood vessels were cut. 2. An incised wound 10 cm x 4 cm x bone deep on the back of the skull, 3 cm above injury No.1. On dissection, underlying muscles were cut. Occipital bone was cut and blood vessels were cut. 3. An incised wound 5 cm x 4 cm on the back of the skull, 3 cm above injury No.2. On dissection, underlying muscles were cut. Bone fractured and blood vessels were cut. 4. An incised wound 6 cm x 4 cm x 2 cm extending from the outer corner of left eye to left ear. 7. On the same day, i.e. on 24.8.2007, Dr. Alka Khurana, conducted autopsy on the dead body of Kuldip Singh and she found the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -8- following injuries on the body of the deceased : 1. An incised wound 8 cm x 4 cm x bone deep on the right side of back of the neck. On dissection, underlying muscles were cut. Bone fractured and blood vessels were cut. 2. An incised wound 10 cm x 2 cm x bone deep on the right side of the back of skull. On dissection, underlying muscles were cut. Bone fractures and blood vessels were cut. 3. An incised wound 1 cm x 2 cm on the left ear pinna. 8. The cause of death in the cases of both the deceased were opined as due to haemorrhage and shock, i.e. due to injuries to vital organs, i.e. brain. Injuries were ante mortem in nature. The probable time between injuries and death of both the deceased was stated to be within few minutes, whereas between death and the post mortem examination, the time was within 12 to 24 hours. 9. After completion of investigation, the challan was filed against the appellants. 10. It is pertinent to mention here that initially, the case was registered against four persons, i.e. both the appellants, namely Gursewak Singh and Jagsir Singh alias Jagga, as well as Darshan Singh and Sikander Singh. However, during investigation, Darshan Singh and Sikander Singh were found innocent and they were kept in column No.2 of the report under Section 173 Cr.P.C. Thereafter, during trial, the prosecution moved an application under Section 319 Cr.P.C., for summoning aforesaid Darshan Singh and Sikander Singh along with one Lakhwinder Singh as accused to Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -9- face trial. Vide order dated 5.12.2008, the said application was allowed. The revision against the said order, filed by the aforesaid three persons, who were summoned to face trial, was allowed by this Court on 21.8.2009, and the trial court was directed to decide the application under Section 319 Cr.P.C., afresh. Thereafter, vide order dated 14.10.2009, the trial court dismissed the aforesaid application. The said order was not challenged. 11. Thereafter, appellant No.1 Gursewak Singh was charge sheeted under Section 302 IPC for committing the murder of Baldev Singh and under Section 302 read with Section 34 IPC for committing the murder of Kuldip Singh, whereas appellant No.2 Jagsir Singh alias Jagga was charge sheeted under Section 302 IPC for committing the murder of Kuldip Singh and under Section 302 read with Section 34 IPC for committing the murder of Baldev Singh. Both the appellants did not plead guilty to the charges and claimed trial. Prosecution evidence 12. In support of its case, the prosecution examined thirteen witnesses. 13. PW.1 Gurwinder Singh is the eye witness, who is son of deceased Baldev Singh and brother of deceased Kuldip Singh. He has fully supported the case of the prosecution. In the cross-examination, he has stated that he did not make any effort to intervene to save his father and brother, as he was at a distance of 15-16 karams, when the injuries were Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -10- being caused to them by the accused. He denied the suggestion put to him by the defence that neither he nor his mother nor Harnek Singh and Shivraj Singh were present at the spot at the time of the alleged occurrence. He further denied the suggestion that the injuries were caused by accused Gursewak Singh to Baldev Singh in self defence and in defence of property. 14. PW.2 Balwant Singh is the formal witness, who clicked photographs (Ex.P1 to Ex.P8) on the dead bodies. 15. PW.3 Angrej Kaur, who is widow of deceased Baldev Singh and mother of deceased Kuldip Singh, is the complainant and the eye witness. In the cross-examination, she has also denied the suggestion that neither she nor Gurvinder Singh nor Harnek Singh and Shivraj Singh were present at the spot. She further denied the suggestion put to her by the defence that her husband Baldev Singh tried to get turn of water at about 6.35 PM i.e. about 10 minutes prior to his turn and when Gursewak Singh accused asked him to desist from doing so, Baldev Singh gave a spade blow from blunt side on the arm of Gursewak Singh and thereafter, Gursewak Singh in his self defence and in the defence of property, gave injuries to Baldev Singh firstly and when Kuldip Singh was about to assault him, then Gursewak Singh caused injuries to Kuldip Singh. 16. PW.4 Dr. Alka Khurana, who conducted post mortem examination over the dead bodies of deceased Baldev Singh and Kuldip Singh, proved their Post Mortem Reports (Ex.P10 and Ex.P13) and the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -11- pictorial diagrams (Ex.P10/A and Ex.P13/A). 17. PW.5 Inspector Harjit Singh is the Investigating Officer of the case, who supported the entire case of the prosecution. In the cross- examination, he has admitted that at the time of arrest of the accused, he had noticed an injury on the right arm of accused Gursewak Singh and on 25.8.2007, he was also got medico legally examined from Civil Hospital. 18. PW.6 HC Rajbir Singh and PW.7 HC Resham Singh are the formal witnesses. 19. PW.8 Jaswider Singh Patwari proved the scaled site plan (Ex.P34) of the place of occurrence, prepared by him at the demarcation of the complainant. 20. PW.9 Ram Partap, Assistant Revenue Clerk, Canal, has proved the record regarding turn of water (Warabadi) as Ex.P35. 21. PW.10 ASI Kundan Singh and PW.11 HC Kaur Singh are the formal witnesses. 22. PW.12 Daya Ram, an official of the Canal Department, proved that as per the record, on the day of occurrence i.e. on 23.8.2007, the water kept on flowing in Abohar Branch canal from morning to evening. 23. PW.13 HC Nishan Singh is another formal witness. Besides examining the aforesaid witnesses, the prosecution also tendered into evidence the report of Forensic Science Laboratory as Ex.P39. Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -12- Statements of accused under Section 313 Cr.P.C. 24. In their statements under Section 313 Cr.P.C., both the appellants denied all the incriminating evidence appearing against them. They pleaded their innocence and false implication in the case. They took the plea that on the day of occurrence, while they were taking their turn of water, 10 minutes before the expiry of their turn, both the deceased persons, namely Baldev Singh and Kuldip Singh, tried to get water from the khal and that too beyond the Nakka. When appellant No.1 Gursewak Singh stopped them from doing so saying him that this act will create loss to them, Baldev Singh gave a kassi blow, and to ward off the same, appellant Gursewak Singh raised his right arm and the blow hit near his wrist from the blunt side of the kassi. In his self defence and defence of property, appellant Gursewak Singh caused injuries to Baldev Singh and when deceased Kuldip Singh tried to hit appellant Jagsir Singh alias Jagga, he too was given injuries by Jagsir Singh apprehending danger to his life. Both the appellants specifically denied the presence of complainant Angrej Kaur, her son Gurvinder Singh, Harnek Singh and Shivraj Singh. They further stated that they went to the police station, informed the police and gave kassi to them on the same day. However, the police got up false witnesses and false mode of recoveries. 25. In their defence, the appellants did not examine any witness. Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -13- The findings of the trial court 26. After hearing learned counsel for the parties and considering the evidence on record, while relying upon the statements of two eye witnesses, namely PW.1 Gurwinder Singh and PW.3 Angrej Kaur, the medical evidence, the recovery of spades at the instance of the appellants, and while disbelieving the plea of private defence, taken by the appellants, the trial court convicted and sentenced the appellants, as mentioned in the first para of the judgment. Arguments of learned counsel for the appellants 27. Learned counsel for the appellants argued that PW.1 Gursewak Singh and PW.3 Angrej Kaur, the alleged eye witnesses, had not witnessed the occurrence, as at the time of the occurrence, they were not present at the spot. Subsequently, after due deliberations and consultation, they gave a concocted version of the occurrence. Actually, on 23.8.2007, the appellants had gone to their fields to irrigate the same with canal water. At 5.47 PM, they had taken turn of their water from Nachhattar Singh, but 10 minutes before their turn, deceased Baldev Singh and Kuldip Singh tried to get water from the khal and that too beyond the Nakka. When appellant Gursewak Singh tried to refrain them from doing so, by saying that their act will cause loss to him, Baldev Singh gave a Kassi blow and to ward off the same, appellant Gursewak Singh raised his right arm and the blow hit near his wrist from the blunt side of the Kassi. In his self defence and defence of Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -14- property, appellant Gursewak Singh caused injuries to Baldev Singh. According to the learned counsel, when Kuldip Singh tried to hit appellant Jagsir Singh alias Jagga, apprehending danger to his life, he also gave injuries to Kuldip Singh. Learned counsel argued that the Investigating Officer of the case, while appearing as PW.5, has admitted in his cross- examination that at the time of arrest of the accused, he had noticed an injury on the right arm of accused Gursewak Singh and on 25.8.2007, he was also got medico legally examined from Civil Hospital. This piece of the prosecution evidence itself establishes the defence, taken by the accused. Learned counsel argued that in order to suppress a part of the occurrence and the real genesis of the occurrence, the prosecution has deliberately not brought on record the MLR of accused Gursewak Singh. According to the learned counsel, it was obligatory on the part of the prosecution to explain the injuries on the person of accused Gursewak Singh, but it has failed to do so. Learned counsel further argued that in order to suppress the real facts, the prosecution has also not examined the other two alleged eye witnesses, namely Harnek Singh and Shivraj Singh, without any reason. Therefore, according to the learned counsel, the prosecution has failed to establish the allegations against the appellants beyond reasonable doubt and the trial court has acted illegally and arbitrarily, while relying upon the statements of the aforesaid two witnesses, namely PW.1 Gursewak Singh and PW.3 Angrej Kaur, and disbelieving the plea of private defence, taken by the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -15- accused. Learned counsel further argued that in the facts and circumstances of the present case, the learned trial court has erred in law as well as on facts, while coming to the conclusion that in the facts and circumstances of the case, the right of private defence was not available to the appellants. According to the learned counsel, in the facts and circumstances of the case, the injuries caused to deceased Baldev Singh and Kuldip Singh were fully justified to have been caused by the accused in their self defence and defence of their property. Therefore, the trial court has acted illegally, while disbelieving the plea of private defence, taken by the accused, and illegally convicting the accused for committing the murder of Baldev Singh and Kuldip Singh. Learned counsel further argued that even if it is held that the appellants had exceeded their right of private defence and caused death of Baldev Singh and Kuldip Singh, then in the facts and circumstances of the case and in view of Exception 2 of Section 300 IPC, they had committed the offence of culpable homicide not amounting to murder. Therefore, the appellants are liable to be punished under Section 304 IPC. In the last, learned counsel argued that the present case is not the rarest of rare case, where the awarding of capital punishment is justified. Arguments of learned State counsel as well as counsel for the complainant 28. On the other hand, learned Additional Advocate General, Punjab, assisted by learned counsel for the complainant, while supporting the impugned judgment and order, submits that it is the admitted case of the Murder Reference No.5 of 2010 & Crl. Appeal No. 1032-DB of 2010 -16- accused that the occurrence in this case had taken place on 23.8.2007 at about 6.30 PM, wherein accused Gursewak Singh caused injuries to Baldev Singh and accused Jagsir Singh alias Jagga caused injuries to Kuldip Singh, which resulted into death of Baldev Singh and Kuldip Singh. She argued that in the facts and circumstances of the case, the defence taken by the accused that they caused injuries to the deceased persons in their self defence and defence of their property has rightly not been believed by the trial court. She further argued that the prosecution, by leading sufficient evidence, has established beyond reasonable doubt that the accused have committed the murder of Baldev Singh and his son Kuldip Singh. Regarding the quantum of sentence, learned counsel argued that keeping in view the fact that on account of the dispute regarding the turn of water for irrigating their fields, the accused have committed the murder of their uncle (father's brother) and his son, by inflicting spade injuries on their heads, the case in hand falls in the category of rarest of rare case, therefore, the sentence of death awarded by the trial court, is liable to be confirmed. Discussion 29. According to the prosecution version, which is based upon the testimony of two eye witnesses, namely PW1 Gurwinder Singh and PW.3 Angrej Kaur, on 23.8.2007 at about 6.30 PM, on a lalkara being raised by accused Gursewak