-1- Criminal Appeal No.884-SB of 2000. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.884-SB of 2000. Date of Decision: January 15, 2010. Hari Singh and others ... Appellants. VERSUS State of Punjab ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? CORAM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. K. K. Aggarwal, Senior Advocate, with Mr. Kapil Aggarwal, Advocate, and Mr. Karam Singh Malik, Advocate, for the appellants. Mr. Vishal Munjal, Additional Advocate General, Punjab. Mr. Madan Sandhu, Advocate, for Mr. R.K. Handa, Advocate, for the complainant. -.- MOHINDER PAL, J. Ram Diya (appellant No.5) died during the pendency of this appeal as has been mentioned in the order dated 3.7.2009 passed by this Court. Accordingly, criminal proceedings -2- Criminal Appeal No.884-SB of 2000. against appellant No.5 Ram Diya stand abated. Appellants Hari Singh, Harprem Singh, Ajmer Singh and Amar Singh, who stand convicted and sentenced under Sections 307, 436, 452, 148, 307 read with Section 149 and 452 read with Section 149 of the Indian Penal Code (for short `the Code'), as per judgment of conviction and the sentence order dated 18.9.2000 passed by the trial Court, have challenged their conviction and sentence by way of filing this appeal. Under Section 148 of the Code, appellants Hari Singh, Harprem Singh, Ajmer Singh and Amar Singh were sentenced to undergo rigorous imprisonment for two years. Under Section 307 of the Code, appellant Hari Singh was sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/- in default whereof to undergo further rigorous imprisonment for six months. Under Section 436 of the Code, appellant Hari Singh was sentenced to undergo rigorous imprisonment for seven years and to pay fine of Rs.5,000/-, in default whereof to undergo further rigorous imprisonment for six months. Under Section 452 of the Code, appellant Hari Singh was sentenced to undergo rigorous imprisonment for four years and to pay fine of Rs.2,000/-, in default whereof to undergo further rigorous imprisonment for three months. Under Section 307 read with Section 149 of the Code, appellants Harprem Singh, Ajmer Singh and Amar Singh were sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1,000/- each, in default -3- Criminal Appeal No.884-SB of 2000. whereof to undergo further rigorous imprisonment for one month. Under Section 452 read with Section 149 of the Code, appellants Harprem Singh, Ajmer Singh and Amar Singh were sentenced to undergo rigorous imprisonment for three years and to pay fine of Rs.1,000/- each, in default whereof to undergo further rigorous imprisonment for one month. All the substantive sentences of imprisonment awarded to appellants Hari Singh, Harprem Singh, Ajmer Singh and Amar Singh were ordered to run concurrently. Surjit Singh and Harpal Singh, co-accused of appellants Hari Singh, Harprem Singh, Ajmer Singh and Amar Singh, were acquitted of the charges framed against them. The instant F.I.R was lodged at the instance of complainant Arjan Singh on 7.4.1995. Arjan Singh (complainant) was having litigation with Surjit Singh (acquitted accused) and Hari Singh (appellant) regarding the land measuring more than two Killas. Two Kanals out of the said land adjoined the Abadi land. The complainant and his brothers had built a small room in that land. In the early morning hours on 7.4.1995, the complainant was informed by his brother that Hari Singh and Surjit Singh had set on fire their out-house and had demolished the room built there. Hearing this, the complainant along with Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh went to the spot and tried to put off the fire. Hari Singh, who was armed with a 12 bore gun, Harprem Singh, who was armed with a 315 bore gun, Surjit Singh -4- Criminal Appeal No.884-SB of 2000. (acquitted accused), who was armed with a Sword, Harpal Singh (acquitted accused), who was armed with a Sword, Ajmer Singh, who was armed with a `Sotti', Amar Singh, who was armed with a `Barcha' and Ram Diya (since deceased), who was armed with a `Takua', were standing at the spot. As the complainant party tired to put off the fire, Harpal Singh challenged them and threatened them to burn them alive. In the meantime, Hari Singh fired a shot from his 12 bore gun, with intention to kill Arjan Singh, but the shot hit Baldev Singh as Arjan Singh had ducked down. All the accused then encircled the complainant party. Hari Singh and Harprem Singh then fired from their guns. Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh received firearm injuries in the incident. Hearing the cries of the complainant party, Surjit Singh son of Natha Singh and Mohan Singh son of Waryam Singh had reached the spot and had seen the occurrence. The motive for the attack was that appellant Hari Singh wanted to forcibly grab the land which was in possession of the complainant and his brothers. After completion of investigation, report under Section 173 of the Code of Criminal Procedure was presented against the accused in the Court of Ilaqa Magistrate, who committed the case to the Court of Session. Charge under Sections 148, 307, 427, 436, 452, 307 read with Section 149, 427 read with Section 149, 436 read with -5- Criminal Appeal No.884-SB of 2000. Section 149 and 452 read with Section 149 of the Code was framed against the accused. They did not plead guilty to the charge sheet and claimed a trial. In order to prove its case, the prosecution examined Arjan Singh (P.W.1), Surjit Singh (P.W.2), Baldev Singh (P.W.3), Superintendent of Police (Detective) Raghbir Singh (P.W.4), Assistant Sub Inspector Kartar Singh (P.W.5), Assistant Sub Inspector Som Nath (P.W.6), Dr. Sukhcharan Singh Brar (P.W.7), Dr.Jaswinder Kaur Mohi (P.W.8), Inspector Kuldip Kumar (P.W.9) and Gursharan Kaur (P.W.10). In their statements recorded under Section 313 of the Code of Criminal Procedure, the accused denied the prosecution allegations and pleaded innocence. Appellant Hari Singh, in his statement recorded under Section 313 of the Code of Criminal Procedure, further stated as under:- “ I am innocent. I was not present at home on the alleged day of occurrence. My son Surjit singh has also been falsely implicated in this case along with other villagers. Myself and my son and other villagers were illegally detained before the police and later on we were falsely implicated in the present case. The true facts are that on the day of the alleged occurrence, my daughter-in-law -6- Criminal Appeal No.884-SB of 2000. Lakhwinder Kaur was alone at my house and by taking this advantage, Pritpal Singh alias Preet entered the house of mine and outraged the modesty of my daughter-in-law. In such a situation a scuffle took place between my daughter-in-law and the said Pritpal Singh and during that scuffle there was a hue and cry from both sides and the ladies and children entered in the room. My daughter-in-law took out the gun which was lying in the Petti and fired it which hit the women, children as well as the other. My daughter-in-law came to the Police Station along with some respectables including Amar Singh, Sham Singh and reported the matter to the S.H.O who arranged private doctor and gave her first aid. Myself and my son along with others were illegally detained in the Police Station at that time. Later on by the orders of the Magistrate, my daughter-in-law was medically examined in Rajendra Hospital, Patiala. The complainant party has got influence with the police as well as administration and falsely implicated us due to civil litigation pending between us and -7- Criminal Appeal No.884-SB of 2000. the complainant party. All the five eye witnesses are inimical and interested in the complainant party. No such occurrence took place as alleged by the prosecution. The prosecution roped all of us in this false case.” The accused examined Lakhwinder Kaur (D.W.1), Sham Singh (D.W.2), Dr. Karnail Singh (D.W.3), Dr.Sukhcharan Singh Brar (D.W.4) and Harbhajan Singh, Chief Pharmacist, Rajendra Hospital, Patiala (D.W.5) in their defence. I have heard the learned counsel for the parties and have gone through the records of the case. There are six injured in this case, namely, Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh, who had received firearm injuries. Dr.Sukhcharan Singh Brar (P.W.7) had medico-legally examined all these injured on 7.4.1995 i.e on the day of occurrence itself. On the person of injured Baldev Singh multiple lacerated contused wounds on front and medial aspect of the lower limb were observed. Each wound was ½ cm x ½ cm. Fresh bleeding was present. X-ray was advised. On the person of injured Lajwanti, a lacerated contused punctured wound measuring ½ cm x ½ cm on the medial aspect of right leg was observed. Fresh bleeding was present. X-ray was advised. Lacerated contused punctured wounds on the right hand, -8- Criminal Appeal No.884-SB of 2000. second phalanx of the left hand and left leg of injured Daljit Kaur were observed. X-rays for the said injuries were advised. On the person of injured Pritpal Singh lacerated punctured wounds on front of the left thigh besides lacerated wound on the left hand and left forearm were observed. X-rays for the injuries were advised. Fresh bleeding was present. On the person of injured Angrej Kaur, lacerated wounds on the lower abdomen below the umbilicus, left leg and abrasions on the upper abdomen and right side of chest were observed. On the person of injured Gurdev Kaur, two lacerated wounds on the posterior aspect of the right forearm, contusion on the lateral aspect of the left forearm and lacerated wound on the anterior aspect of the left leg were observed. In the case of all the injured, the probable duration of the injuries was within six hours. As mentioned above, all the six injured were having firearm injuries on their persons as observed by Dr.Dr.Sukhcharan Singh Brar (P.W.7). Learned counsel for the appellants argued that the accused have been convicted and sentenced for the aforesaid offences by the learned trial Judge only on the basis of ocular version furnished by complainant Arjan Singh (P.W.1) and injured Baldev Singh (P.W.3) whereas the other eye-witness, namely, Surjit Singh (P.W.2) has been disbelieved by it (trial Court). According to the learned counsel, it casts a doubt upon the truthfulness of the eye-witnesses. He also referred to certain -9- Criminal Appeal No.884-SB of 2000. discrepancies in the statements of Arjan Singh (P.W.1) and Baldev Singh (P.W.2). It has also been argued that the person who had informed complainant Arjan Singh (P.W.1) about the setting his small room situated on the land adjoining the Abadi of the village on fire, has not been examined by the prosecution and it casts a dent in the prosecution version. It has also been argued by the learned counsel with vehemence that the defence version as put forth by the accused is more trustworthy than the prosecution version. On the other hand, learned Additional Advocate General, Punjab, has supported the conclusions arrived at by the learned trial Judge while convicting and sentencing the appellants, as afore-mentioned, and has argued that there is no material available on record warranting interference in the impugned judgment of conviction and the sentence order. I have given thoughtful consideration to the arguments raised by learned counsel for the parties and do not find any force in the arguments addressed by learned counsel for the appellants. As mentioned above, in this case six persons, namely, Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh had received firearm injuries. At the time of occurrence, appellant Hari Singh was armed with a 12 bore gun whereas appellant Harprem Singh was armed with 315 bore gun. Appellant Ajmer Singh was armed with a `Sotti' and appellant Amar Singh was armed with a -10- Criminal Appeal No.884-SB of 2000. `Barcha' Appellant Hari Singh had fired from gun towards complainant Arjan Singh with an intent to kill him. However, the complainant, in order to save himself, at once laid down on the ground and the fire hit Baldev Singh (P.W.3). The accused then encircled Arjan Singh, Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh. As per the prosecution version, appellants Hari Singh and Harprem Singh started firing from his gun. Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh received injuries from the gun shots and they fell down on the ground. Surjit Singh (P.W.2) and Mohan Singh had also been attracted to the spot on hearing the alarm raised by the complainant party and had seen the occurrence. After causing injuries, the accused decamped from the spot with their respective weapons. As has been noticed above, civil litigation between the complainant party and the accused party in respect of land measuring about more than two Killas was going on; meaning thereby both the parties were inimically disposed towards each other. As such, parties being known to each other, there was no question of mis-identity of the accused persons. However, motive on account of enmity being a two pronged weapon, could be a reason for falsely implicating the accused and, at the same time, it could be a reason for the accused to give injuries to Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh. The evidence furnished by the -11- Criminal Appeal No.884-SB of 2000. prosecution shows that the appellants had inflicted injuries to Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh with their common intention because of inimical relations between the parties. In fact, indiscriminate firing was done at the spot by appellant Hari Singh resulting in firearm injuries to six persons i.e Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh. Assistant Sub Inspector Som Nath (P.W.6), in his cross-examination, stated that it is correct that from the gun of 315 bore only one lead bullet is discharged whereas from 12 bore gun pellets are discharged and number thereof depends upon the mind of cartridge used. Dr.Sukhcharan Singh Brar (P.W.7), in his cross-examination, stated that keeping in view the dimension of the injuries on the persons of the injured, none of those could be said to have been caused with the help of a bullet. Under the circumstances, the learned trial Judge was right in holding that no firing from 315 bore gun had taken place during the occurrence. However, the appellants had common intention to cause injuries to the aforesaid six injured because of the animosity between the parties. No doubt, Dr.Sukhcharan Singh Brar (P.W.7), in his cross-examination, stated that all the injuries on the persons of all the injured were simple in nature and none of those injuries were dangerous to life, but for coming to a conclusion whether the offence under Section 307 of the Code has been committed by -12- Criminal Appeal No.884-SB of 2000. the culprits, it is not essential that bodily injury capable of causing the death should have been inflicted by the accused. Although the nature of injuries actually caused may often give considerable assistance in coming to a finding as to the intention of the accused, yet such intention can also be deduced from other circumstances. It is not necessary that the injury actually caused to the victim of the assault should be sufficient under ordinary circumstances to cause the death of the assaulted. What the Court has to see is whether the act, irrespective of its result, was done with the intention or knowledge and under the circumstances mentioned in Section 307 of the Code. An attempt need not be the penultimate act. It is sufficient in law if there is present an intent coupled with some overt act in execution thereof. In view of the discussion made above, it stands sufficiently proved on record that the accused persons had the intention to cause such bodily injuries to the injured as would be sufficient to cause death. Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh had received firearm injuries. Dr.Sukhcharan Singh Brar (P.W.7) had medico-legally examined all these injured. On the person of injured Baldev Singh multiple lacerated contused wounds on front and medial aspect of the lower limb were observed. Injured Lajwanti had suffered a lacerated contused punctured wound measuring on the medial aspect of right leg. Lacerated contused punctured wounds on the right hand, second phalanx -13- Criminal Appeal No.884-SB of 2000. of the left hand and left leg of injured Daljit Kaur were observed. Also, on the person of injured Pritpal Singh lacerated punctured wounds on front of the left thigh and on the left hand and left forearm were observed. On the person of injured Angrej Kaur, lacerated wounds on the lower abdomen below the umbilicus, left leg and abrasions on the upper abdomen and right side of chest were observed. Injured Gurdev Kaur had two lacerated wounds on the posterior aspect of the right forearm and one lacerated wound on the anterior aspect of her left leg. Under the circumstances, for constituting an offence under Section 307 of the Code, two ingredients i.e the intent or knowledge and second the act have been proved in the present case. The ocular version given by complainant Arjan Singh (P.W.1) and Baldev Singh (P.W.3), who is a stamped witness having received firearm injuries in the occurrence is unimpeachable. Some discrepancies and inconsistencies are bound to occur when the witnesses depose in Court, but, when taking into consideration the entire evidence the case of the prosecution stands proved, such discrepancies and inconsistencies hardly affect the merits of the case, as in the present case. The testimonies of complainant Arjan Singh (P.W.1) and Baldev Singh (P.W.3) get full corroboration from the medical evidence furnished by Dr.Sukhcharan Singh Brar (P.W.7), who had medico- legally examined Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh, had found -14- Criminal Appeal No.884-SB of 2000. firearm injuries on their persons, as mentioned above. Dr.Jaswinder Kaur Mohi (P.W.10), who had radiologically examined the said injured,had observed radio opaque shadows in various injuries suffered by the said six injured. Under these circumstances, if the trial Court did not believe the version given by the other eye-witness i.e Surjit Singh (P.W.2), it hardly affects the veracity of the prosecution version which stands proved on record by the cogent and trustworthy evidence led by it, which has been discussed above. Similarly, non-examination of the person who had informed complainant Arjan Singh (P.W.1) about the setting his small room situated on the land adjoining the Abadi of the village on fire, is not sufficient to discard the evidence furnished by the prosecution. The other argument raised on behalf of the appellants that the defence version as put forth by the accused is more trustworthy than the prosecution version, also deserves to be rejected in view of the impeccable evidence led by the prosecution. The defence version has been projected by appellant Hari Singh in his statement recorded under Section 313 of the Code of Criminal Procedure by stating that he was not present at home on the alleged day of occurrence; that his son Surjit singh has also been falsely implicated in this case along with other villagers; that he, his son and other villagers were illegally detained by the police and later on the accused were falsely implicated in this case; that on the day of the alleged occurrence, his daughter-in- -15- Criminal Appeal No.884-SB of 2000. law Lakhwinder Kaur (D.W.1) was alone at the house and that by taking advantage of it, Pritpal Singh alias Preet entered his house and outraged the modesty of his daughter-in-law. He further stated that in such a situation a scuffle took place between his daughter-in-law and the said Pritpal Singh and during that scuffle there was a hue and cry from both sides; that the ladies and children entered in the room and that his daughter- in-law Lakhwinder Kaur (D.W.1) took out the gun which was lying in the `Petti' and fired from it which hit the women, children as well as others. He further stated that his daughter- in-law came to the Police Station along with some respectables including Amar Singh and Sham Singh (D.W.2) and reported the matter to the S.H.O who arranged private doctor for providing first aid to Lakhwinder Kaur. It was further stated by appellant Hari Singh in his statement recorded under Section 313 of the Code of Criminal Procedure that he, his son along with others were illegally detained in the Police Station at that time. Later on by the orders of the Magistrate, his daughter-in-law was medically examined in Rajendra Hospital, Patiala. The complainant party, who was having influence with the police as well as administration, falsely implicated the accused due to civil litigation pending between the parties. To corroborate the defence version, Lakhwinder Kaur (D.W.1), Sham Singh (D.W.2), Dr. Karnail Singh (D.W.3), Dr.Sukhcharan Singh Brar (D.W.4) and Harbhajan Singh, Chief Pharmacist, Rajendra Hospital, Patiala (D.W.5) were -16- Criminal Appeal No.884-SB of 2000. examined by the accused in their defence. The defence version, in the first instance, deserves to be rejected for the simple reason that the accused never reported to the higher authorities of the police that they had been falsely implicated in this case. Lakhwinder Kaur (D.W.1), in her cross-examination, stated that the shot was fired by her from the gun from a distance of 4-5 feet. It is not the case of the defence that so many shots were fired by Lakhwinder Kaur (D.W.1). With a single shot fired, there could not be so many injured i.e Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh. Further, Dr. Sukhcharan Singh Brar (D.W.4), who had medico-legally examined Lakhwinder Kaur (D.W.1) on 15.4.1995 i.e after seven days of the occurrence which took place on 7.4.1995, in his cross- examination, stated that “ it is correct that in case the data is not available as in the present case then the duration within 3 days cannot be ruled out. I have not mentioned in the MLR the case history of the injured and I do not remember whether Lakhwinder Kaur told me as to how she suffered the injuries or not. There is no mention in my record from where she took the treatment before coming to the hospital. “ Besides, Lakhwinder Kaur (D.W.1) did not file any complaint. Had Lakhwinder Kaur (D.W.1) suffered injuries at the hands of Pritpal Singh, as stated by her, there was no hitch for her to lodge report with the police or to file a private complaint. However, this -17- Criminal Appeal No.884-SB of 2000. course was never adopted by her. Further, if it is believed that the police did not take any action on the complaint presumed to have been filed by Lakhwinder Kaur, she could either approach the higher police authorities or could file a complaint before the Court of competent jurisdiction. There is nothing on record to show that Lakhwinder Kaur had either approached the higher police authorities or had filed any complaint before the concerned Magistrate. In this view of the matter, the defence version is not at all probable. Under the circumstances, the inescapable conclusion is that the appellants had caused injuries to Gurdev Kaur, Laj Kaur alias Lajwanti, Angrej Kaur, Daljit Kaur, Pritpal Singh and Baldev Singh with their common intention. For the aforesaid reasons, I do not find any ground to interfere in the judgment of conviction rendered by the learned trial Judge. The same