IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.630-DB of 2007 Date of Decision: 16.11.2009 Ranjit Singh @ Kala and another Appellants Versus State of Punjab Respondent CORAM:- HON'BLE MR. JUSTICE JASBIR SINGH HON'BLE MRS. JUSTICE DAYA CHAUDHARY Present: Mr.Vinod Ghai, Advocate for the appellants Mr.D.S.Brar, Deputy Advocate General, Punjab for the respondent …. Jasbir Singh, J. This order will dispose of Criminal Appeal No.630-DB of 2007 titled as Ranjit Singh @ Kala and another v. State of Punjab and Criminal Revision No.2373 of 2007 titled as Jatinder Kumar versus Ranjit Singh @ Kala and others, arising out of the same judgment and order. For facility of reference, facts are being taken from Criminal Appeal No.630-DB of 2007. Appellants Ranjit Singh @ Kala and Jarnail Singh, who are son and father respectively, have filed this appeal against judgment and order dated 19.7.2007, vide which, Ranjit Singh @ Kala (A1) was held guilty of commission of an offence punishable under Section 302 IPC and Section 27 of the Arms Act, 1959. Jarnail Singh (A2) was held guilty for commission of an offence punishable under Section 302 read with Section 34 IPC. A1 Criminal Appeal No.630-DB of 2007 was ordered to undergo imprisonment for life and to pay a fine of Rs.2000/- under Section 302 IPC with a default clause. He was also sentenced to undergo RI for three years and to pay a fine of Rs.1000/- under Section 27 of the Arms Act 1959 with a default clause. A2 was sentenced to undergo imprisonment for life and to pay a fine of Rs.2000/- with a default clause for commission of an offence under Section 302 IPC read with Section 34 IPC. Periods of sentence were ordered to run concurrently. It was allegation against the appellants that they, in furtherance of their common intention, have committed murder of Ravinder Kumar on 1.2.2003 at 7 pm in village Rattana Police Station Sudhar, district Ludhiana. The trial Court has noted in paragraph No.2 of the impugned judgment, the following facts regarding case of the prosecution:- “The prosecution case in brief is that on 1.2.03, SI/SHO Dharampal of Police station, Sudhar alongwith other police officials was present at Bus Stand Jodhan in connection with patrol duty and search of suspected persons, where Jatinder Kumar complainant met him and made his statement to SI Dharam Pal which in brief reads as under:- That complainant Jatinder Kumar is resident of village Rattana and his father Ravinder Kumar was an Ayurvedic doctor who runs a doctor’s shop at Khadoor Road, Jodhan and complainant also work at the shop of his father; that on the day of statement i.e. on 1.2.03, at about 7.00 P.M. complainant alongwith his father Ravinder Kumar and mother Santosh Kumari, who had also come to the shop, were returning to their house in village Rattna after closing the shop; that his father 2 Criminal Appeal No.630-DB of 2007 Ravinder Kumar was going ahead, whereas, complainant and his mother were following him; that when they turned toward Kachcha Rasta leading to their house then father of the complainant was going about 15 yards ahead of the complainant, when suddenly Ranjit Singh alias Kala son of Jarnail Singh and Jarnail Singh came from the opposite side and Jarnail Singh raised a Lalkara that “Kale, shot be fired at doctor and he should not escape today and the matter should be closed forever” and thereupon Ranjit Singh alias Kala fired a shot in the right side of the head of the father of complainant with his double barrel 12 bore gun and the fire went through and through and thereafter Kala fired two more shots; that complainant and his mother retreated back out of fear and Ranjit Singh and his father Jarnail Singh went towards the house of complainant while abusing; that after sometime, complainant and his mother went to the spot and found that complainant’s father had died; that the motive after the occurrence was that in October 2001, complainant’s father agreed to purchase a land from Jarnail Singh, where complainant’s father had constructed house and possession of the land was also given to the complainant’s father and thereafter father of the complainant constructed the house; that the agreement for sale of land was oral and was for Rs.3.5 lacs out of which, Rs.2.20 had been given by his father and 3 Criminal Appeal No.630-DB of 2007 remaining amount was yet to be paid but Jarnail Singh denied if he had received the said amount and started pressuring the complainant to vacate the house and both the accused also started threatening to kill the complainant party and due to this motive, accused have murdered father of the complainant.” Jatinder Kumar (PW2) son of the deceased, after leaving Santosh Kumari (PW3) wife of the deceased near to the dead body, went to the police. SI Dharam Pal, the investigating officer, met him on his way to the police station, recorded his statement (Ex.PD), whereupon a formal FIR (Ex.PD/2) was recorded at 9.50 pm on 1.2.2003. Special report reached the Ilaqa Magistrate at 11.30 pm. SI Dharam Pal went to the spot, prepared rough site plan (Ex.PM) with correct marginal notes. He also took into his possession three empty cartridges of .12 bore DBBL gun from the spot, which was found lying near the dead body. He collected blood stained earth from the spot against recovery memo. Inquest report on the dead body was prepared and it was sent for post-mortem examination, which was conducted by Dr.Ripjit Kaur (PW1), on 2.2.2003. The investigating officer recorded statements of the prosecution witnesses under Section 161 Cr.P.C. A1 was arrested on 3.2.2003. On interrogation, he suffered a disclosure statement, which led to the recovery of weapon of offence i.e. .12 bore DBBL gun, which was taken in possession alongwith its licence and 10 live cartridges against recovery memo. It is necessary to note here that on a complaint made, an enquiry was conducted by DSP Harjit Singh Brar and he found Jarnail Singh (A2) innocent. However, thereafter he was summoned to face trial, by invoking the provisions of Section 319 Cr.P.C. 4 Criminal Appeal No.630-DB of 2007 The investigating officer, on completion of investigation, put the final report in Court for trial. The appellants were charge sheeted, to which they pleaded not guilty and claimed trial. The prosecution produced 11 witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution’s evidence, statements of the appellants –accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. They also led evidence in defence to prove that murder of Ravinder Kumar deceased was committed by unknown persons and the alleged eye witnesses were not present at the spot. They were summoned after the occurrence and the appellants were falsely implicated in the present case. The trial Court, on analysis of evidence, as led by both the parties, found that the prosecution was successful in bringing home guilt of the appellants-accused and accordingly, they were convicted and sentenced as found mentioned in earlier part of this order. Hence, this appeal. Counsel for the appellants has vehemently contended that it was a blind murder. The eye witnesses were not present at the spot. Their houses are situated nearby. After the occurrence, they were summoned at the spot and introduced as eye witnesses. He further argued that the trial Court has committed an error in relying upon the sole testimony of interested witnesses without any independent corroboration. He also stated that one Pardeep Kumar was named as a prosecution witness, he was not produced, left out as unnecessary, however, said Pardeep Kumar had appeared in defence to state that Ravinder Kumar was killed by some unknown persons and the eye witnesses were not available at the spot. He 5 Criminal Appeal No.630-DB of 2007 further argued that empty cases of cartridges were sent to Forensic Science Laboratory for examination at a very belated stage, those were not recovered from the spot. In the inquest report, the investigating officer has not shown presence of those cartridges. In the alternative, without conceding anything, he further argued that Jarnail Singh, whose age is now more than 65 years, was falsely roped in, in the present case. Except exhortation, no other overt act has been attributed to him at the time of occurrence. He further stated that Jarnail Singh (A2) was involved in this case to settle some civil dispute. He prayed that appeal be allowed, judgment and order, under challenge, be set aside and the appellants be acquitted of the charges framed against them. Prayer made has vehemently been opposed by counsel for the State. He by making reference to the statements made by Jatinder Kumar (PW2), Santosh Kumari (PW3), the eye witnesses and also statement made by Dharam Pal (PW6), argued that case of the prosecution was fully proved against the appellants. By stating that death has occurred on account of fire arm injury, he argued that the participation of A1 is fully proved on record, in whose name, arm licence of the gun, was issued. He further argued that A2 was the main motivator and at his instance, shot was fired by A1 at the deceased. Both came with a pre-meditated mind to kill Ravinder Kumar. He prayed that appeal, having no substance, be dismissed. After hearing counsel for the parties, this Court is convinced that so far as Ranjit Singh @ Kala (A1) is concerned, his participation in the crime is fully proved on record. As per case of the prosecution, A1 caused fire arm injury to the deceased Ravinder Kumar on 1.2.2003. Post-mortem on the dead body was conducted by Dr.Ripjit Kaur on 2.2.2003. She observed as under:- 6 Criminal Appeal No.630-DB of 2007 “1. A round irregular inverted wound measuring 4 cm x 7 cm and 7 cm deep. There are multiple small pallet mark around the wound. Tatroing in the area around the wound present. Wound was present on left temporal region of the scalp. Four pallets were found in the wound. 2. A lacerated wound measuring 10 x 6 preset 3 cm below injury no.1. It is everted with flesh matter coming out. Whole of the ear is hanging out. A tract has been found between the two wounds at a depth of 5 cm. 3 pallets were found in the wound. 3. There is lacerated wound 3 x 4 cm in front of the left shoulder. It was 8 cm deep. There were multiple pallet marks each measuring about 2 mm in diameter in an area about 7 cm in diameter around the wound. 10 pallets were recovered from the wound. 4. A lacerated wound 14 cm x 6 cm on the right side of scalp starting from the ear going downward and backward on the neck. Whole of the external ear has been damaged, just 2 cm deep. A plastic wad has been found from the wound. 4 pallets were found on the wound.” All the injuries were ante-mortem in nature and were sufficient to cause death in ordinary course. As per case of the prosecution, A1 fired a shot at the deceased, which hit at his head. Thereafter, two more shots were fired. Except raising exhortation, no overt act has been attributed to Jarnail Singh (A2). It was 7 Criminal Appeal No.630-DB of 2007 stated by PW2 that his father had entered into an oral agreement with A2 in October 2001 for purchase of a plot, possession of which was delivered to his father, who constructed a house thereon. Some amount was paid, however, A2 resiled from the contract agreement and started pressurizing his father to vacate the plot in question. On refusal, he threatened to kill the family. PW2 has given vivid description as to how when his mother and father were coming back from the shop to their house, suddenly, A1 and A2 emerged in the street. A2 raised an exhortation, upon which shot was fired by A1 upon his father. No injury was caused to the witnesses. It was further stated by PW1 that he, after leaving his mother and one Pardeep Kumar near to the dead body, went to the police station. Upon his statement, FIR was recorded. Despite lengthy cross-examination, defence has failed to shatter testimony of this witnesses. Recording of FIR and dispatch of special report to the concerned Ilaqa Magistrate is very prompt in this case, which leaves no chance to falsely implicate A1 in the crime. As per statement made by Ajit Singh Gill (PW7), licence for the gun in question, was issued in the name of A1. As per Forensic Science Laboratory, out of three empty cartridges, one was found to have been fired from the gun in question, regarding other two, opinion was not given because of lack of identifiable characteristic thereon. Merely because, existence of empties was not shown in the inquest report, case of the prosecution cannot be discarded. PW3 Santosh Kumari wife of the deceased has also supported version given by PW2. Her statement is very clear and believable so far participation of A1 in the crime is concerned. Merely because PW2 and PW3 were related to the deceased, their testimonies cannot be discarded. In such a situation, it is duty of the Court 8 Criminal Appeal No.630-DB of 2007 to scrutinize their statements in a careful manner, which was done by the trial Court in this case. It has come on record that Pardeep Kumar was cited as a prosecution witness, however, he was left out, being unnecessary. Merely because, he has appeared in the witness box in defence, case of the prosecution, cannot be rejected. A neighbour has also appeared as defence witness, to state that it was a blind murder and the eye witnesses were not available at the spot, however, in view of statements made by PW2, PW3 and the investigating officer (PW6), defence version do not appear to be plausible. The same has rightly been discarded by the trial Court. In view of facts mentioned above, this Court is of the opinion that participation of Ranjit Singh @ Kala (A1) in the crime is fully proved on record. So far as Jarnail Singh (A2) is concerned, there appears to be force in the arguments made by counsel for the appellants that at this old age (about 65 years at the time of crime), A2 would not like to involve his young son in the crime. Had he any intention to commit murder of Ravinder Kumar, he would have done so himself instead of asking his son to do the same. It has come on record that except alleged exhortation, A2 had not participated in the crime. There is no evidence on record that before committing murder, A2 has conspired with A1. It was a chance meeting in the street. There is no evidence on record to show that arrival of the deceased and his family members was known to the assailants. As per case of the prosecution, there was some civil dispute between the deceased and A2. In view of above, this Court feels that the complainant party may have made an attempt to falsely implicate A2 in the crime to settle that score. Under similar circumstances, their Lordships of the Hon’ble 9 Criminal Appeal No.630-DB of 2007 Supreme Court in Lalloo and another v. State of U.P., 2002 (9), Supreme Court Cases 431, have given benefit of doubt to a person, who raised only an exhortation. By taking note of the same, it was said that vicarious liability of his co-accused cannot be fastened upon him. In view of facts on record, Jarnail Singh (A2) cannot be held liable by invoking the provisions of Section 34 IPC. As per facts mentioned above, this appeal is dismissed qua Ranjit Singh @ Kala (A1) and his conviction and sentence under Section 302 IPC and Section 27 of the Arms Act 1959 is upheld. So far as Jarnail Singh (A2) is concerned, he is given benefit of doubt, this appeal is allowed qua him and he is acquitted of the charges framed against him. So far as Criminal Revision No.2373 of 2007 is concerned, prayer has been made to award compensation to the petitioner. Revision petition is disposed of by giving liberty to the petitioner to claim compensation in a competent forum. (Jasbir Singh) Judge 16.11.2009 (Daya Chaudhary) gk Judge 10