IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 378-DB of 2001 DATE OF DECISION : 20.01.2010 Dara Singh .... APPELLANT Versus State of Punjab ..... RESPONDENT Crl. A. No. 138-DBA of 2002 DATE OF DECISION : 20.01.2010 State of Punjab .... APPELLANT Versus Achhar Singh and another ..... RESPONDENTS CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JORA SINGH Present: Ms. Baljit K. Mann, Advocate, for the appellant. (in Crl. A. No. 378-DB of 2001) Mr. Rajesh Bhardwaj, Addl. A.G., Punjab for the respondent-State (in Crl. A. No. 378-DB of 2001) for the appellant-State (in Crl. A. No. 138-DBA of 2002) Mr. D.S. Pheruman, Advocate, for the respondents (in Crl. A. No. 138-DBA of 2002) * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of the aforesaid two appeals. Crl. A. No. 378-DB of 2001 -2- Criminal Appeal No. 378-DB of 2001 has been filed by accused Dara Singh against the judgment and order dated 7.7.2001, passed by Additional Sessions Judge, Amritsar, in Sessions Case No. 162 of 1998, arising out of FIR No. 73 dated 24.6.1998, Police Station Gharinda, whereby he has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine, to undergo further RI for six months under Section 302 read with Section 34 IPC for committing the murder of Sham Singh; and to undergo RI for 7 years and to pay a fine of Rs. 500/-, in default of payment of fine, to undergo further RI for three months under Section 307 read with Section 34 IPC for causing injuries to Balwinder Singh with intention to kill. However, Tarsem Singh @ Sema, co-accused of appellant Dara Singh, has been sentenced to undergo imprisonment for life and to pay a fine of Rs. 1,000/-, in default of payment of fine, to undergo further RI for six months under Section 302 IPC; and to undergo RI for 7 years and to pay a fine of Rs. 500/-, in default of payment of fine, to undergo further RI for three months under Section 307 IPC. 2. Criminal Appeal No. 138-DBA of 2002 has been filed by the State of Punjab against the aforesaid judgment, whereby accused Achhar Singh and Jasbir Singh alias Sabhi have been acquitted of the charges. 3. In the present case, four accused, namely Tarsem Singh alias Sema, Achhar Singh, Jasbir Singh alias Sabhi and Dara Singh (appellant herein), who are related to each other, were tried for committing the murder of Sham Singh and for causing fire arm injuries to Rachhpal Singh (PW.5) Crl. A. No. 378-DB of 2001 -3- and Balwinder Singh (PW.6), with intention to kill them. Accused Tarsem Singh alias Sema is son of accused Achhar Singh and accused Jasbir Singh alias Sabhi is son of accused Dara Singh. The learned trial court convicted accused Tarsem Singh alias Sema and appellant Dara Singh for committing the murder of Sham Singh and causing injuries to Balwinder Singh (PW.6) with intention to kill him, whereas the remaining two accused, namely Achhar Singh and Jasbir Singh alias Sabhi have been acquitted of the charges. 4. As per the office report, accused Tarsem Singh alias Sema has not filed any appeal against his conviction and he is in custody. However, accused Dara Singh, who has filed Crl. A. No. 378-DB of 2001, is on bail. 5. As per the prosecution version, the occurrence had taken place on 23.6.1998 at about 9/9.30 P.M. The complainant Sawinder Kaur (PW.4) and the accused party were residing in the same area having a common street in front of their houses. In this case, the FIR (Ex.PQ/1) was registered on 24.6.1998 at 7.15 A.M at Police Station Gharinda, on the statement (Ex.PW4/A) made by Smt. Sawinder Kaur wife of deceased Sham Singh to SI Prabhdev Singh (PW.13), the then SHO of the Police Station, on 24.6.1998 at 6.15 AM in Guru Nanak Dev Hospital, Amritsar. In her statement, she stated that on 23.6.1998 at about 9/9.30 P.M., accused Tarsem Singh, while standing in the common street, was abusing her husband Sham Singh. On hearing abuses, she and her husband went on the roof of their house and asked from there to accused Tarsem Singh as to why Crl. A. No. 378-DB of 2001 -4- he was abusing them. He replied that they have contested elections against them, and continued giving abuses. On hearing the noise, their neighbour Rachhpal Singh injured (PW.5) and Balwinder Singh injured (PW.6) came there. Appellant Dara Singh also came and went near accused Tarsem Singh. He raised Lalkara and said to accused Tarsem Singh to go and bring rifle to teach a lesson to Sham Singh etc. for contesting elections against them. Thereafter, accused Tarsem Singh went running to his house and brought the rifle. In the meanwhile, accused Jasbir Singh and Achhar Singh came at the spot. Achhar Singh was saying to appellant Dara Singh that they should not go alive today and he asked his son Tarsem Singh to fire. Then accused Tarsem Singh fired one shot with his rifle on her husband. Pallets of the shot hit the body of her husband in front of chest and other parts of his body. Tarsem Singh then fired upon Balwinder Singh (PW.6). Thereafter, accused Jasbir Singh snatched the rifle from Tarsem Singh and fired on Rachhpal Singh (PW.5). The pallets of the shot hit his body. After receiving the fire arm injuries, her husband fell down on the roof and became unconscious. They raised alarm and on hearing the noise, more people of the village gathered there. Then the assailants ran away from the spot along with the rifle. It was also stated by the complainant that during the quarrel, the accused also threw brick bats towards them. It was further stated that Gurdev Singh, a resident of the village, arranged for conveyance and got her husband Sham Singh, Balwinder Singh and Rachhpal Singh admitted in Guru Nanak Hospital. Due to the fire arm injuries received by Crl. A. No. 378-DB of 2001 -5- her husband, he died in the hospital. She stated that the grudge of the quarrel was that in the Panchayat elections, her husband opposed appellant Dara Singh and supported Bakhshish Singh. Due to the said grudge, the accused in connivance with each other had murdered her husband by firing shots and injured Balwinder Singh and Rachhpal Singh. 6. As per the medical evidence, available on the record, the deceased and injured were brought to the Hospital at 12.45 AM (night) on 24.6.1998. A wireless message was sent to the police. On the said information, SI Prabhdev Singh (PW.13) along with other police officials went to the Hospital and recorded the above statement (Ex.PW4/A) of complainant Savinder Kaur (PW.4), on the basis of which FIR (Ex.PQ/1) was registered. Statements of both the injured persons were also recorded by the police under Section 161 Cr.P.C. After the inquest proceedings (Ex.PJ), dead body of the deceased was sent for post mortem examination. Special report reached to Illaqa Magistrate at 12.15 PM (noon time) on 24.6.1998. Dr. Gurmanjit Rai (PW.3) conducted the post mortem examination on the dead body of the deceased on 24.6.1998 at 1.15 P.M. He noticed 30 pallet injuries on the body of the deceased. All the injuries were ante-mortem in nature and the cause of death was given as haemorrhage and shock, as a result of pallet injuries to heart, both lungs and liver, which were sufficient to cause death in the ordinary course of nature. The probable time between injuries and the death was stated to be within few minutes to few hours and between death and post mortem, it was about 12 to 24 hours. On 25.6.1998 Crl. A. No. 378-DB of 2001 -6- at about 10.30 A.M. and 11.30 A.M., injured Rachhpal Singh and Balwinder Singh, respectively, were medically examined by Dr. Jagdish Singh Gill (PW.2). MLRs of both these injured persons have been proved as Ex.PC and Ex.PE, respectively. On the body of Rachhpal Singh, 7 injuries were found, which were subjected to X-ray report. The probable duration of injuries was found within about 36 to 48 hours. Vide opinion Ex.PD, Dr. Jagdish Singh Gill found injury No.1 on the person of Rachhpal Singh as dangerous to life, injuries No.2, 3 and 4 as grievous in nature and injuries No. 5, 6 and 7 were found as simple in nature. It was opined that all the injuries were caused by fire arm pallets. On the body of Balwinder Singh, 5 injuries were found. All the injuries were found simple in nature. Vide opinion Ex.PF, injury No.1 was opined to be caused by fire-arm and the remaining injuries with blunt weapon. 7. On 24.6.1998, SI Prabhdev Singh inspected the spot and vide recovery memo (Ex.PR), he took into possession two empties (Ex.P1 and Ex.P2) of .12 bore gun from the place of occurrence, lifted the blood stained earth from there and after making into a parcel, it was also taken into possession vide separate memo (Ex.PS). Rough site plan (Ex.PT) was prepared. As per the statement of SI Prabhdev Singh, though brick bats were lying on the spot, but the same were not taken into possession. 8. On 30.6.1998, accused Tarsem Singh was arrested by SI Prabhdev Singh. On 1.7.1998, during interrogation, he suffered disclosure statement (Ex.PX) that he has kept concealed one .12 bore gun, with its Crl. A. No. 378-DB of 2001 -7- barrel and Butt having been cut, under the Kikkar tree on the bank of the drain in the ground, which he could get recovered. On the basis of the said disclosure statement, accused Tarsem Singh got recovered a gun (Ex.P8), which was taken into possession vide memo (Ex.PX/2). 9. On 1.7.1998, accused Jasbir Singh and appellant Dara Singh were arrested by ASI Ashok Kumar (PW.9) and accused Achhar Singh was arrested by him on 5.7.1998. 10. After completion of investigation, the challan was filed against the accused and charges under Sections 302, 307, 34 IPC were framed, to which the accused did not plead guilty and claimed trial. 11. In support of its case, the prosecution examined 15 witnesses. PW.1 Dr. Karamjit Singh proved the opinion Ex.PA and the bed head ticket regarding the treatment of injured Rachhpal Singh. PW.2 Dr. Jagdish Singh Gill medically examined injured Rachhpal Singh and Balwinder Singh. PW.3 Dr. Gurmanjit Rai conducted the post mortem examination on the dead body of deceased Sham Singh. PW.4 Sawinder Kaur is the complainant, who reiterated the version given by her in her statement Ex.PW4/A. PW.5 Rachhpal Singh and PW.6 Balwinder Singh are the eye witnesses, who suffered injuries in the occurrence of this case. PW.7 MHC Parveen Kumar and PW.8 Constable Amrik Singh are the formal witnesses. PW.9 ASI Ashok Kumar partly investigated the matter and arrested accused Jasbir Singh, Dara Singh and Achhar Singh. PW.10 Constable Mukhtiar Singh, PW.11 Rishi Ram, Draftsman and PW.12 Dr. Bikramjit Singh are Crl. A. No. 378-DB of 2001 -8- also formal witness. PW.13 SI Prabhdev Singh is the Investigating Officer. PW.14 ASI Lakhbir Singh is the recovery witness. PW.15 Dr. Rakesh Chauhan gave X-ray reports Ex.PBB/1 and Ex.PCC/1, regarding injured Rachhpal Singh and Balwinder Singh. 12. In their statements under Section 313 Cr.P.C., the accused denied all the allegations appearing against them in the evidence led by the prosecution. They pleaded innocence and false implication due to party faction in the village. However, they did not lead any evidence in their defence. 13. As stated earlier, the learned trial court, after hearing learned counsel for the parties, convicted accused Tarsem Singh alias Sema and appellant Dara Singh for committing the murder of Sham Singh and causing injuries to Balwinder Singh (PW.6) with intention to kill him, whereas the remaining two accused, namely Achhar Singh and Jasbir Singh alias Sabhi have been acquitted of the charges. 14. We have heard the arguments of learned counsel for the parties. 15. Learned counsel for appellant Dara Singh, while referring to the time of the alleged occurrence, the distance between the place of occurrence and the Hospital, the time of recording the statement of the complainant and registration of the FIR, as well as the time at which the special report reached to the Magistrate, argued that in the instant case, there was sufficient time available to the complainant party to falsely implicate the appellant, because of political enmity, which the complainant Crl. A. No. 378-DB of 2001 -9- party was having due to the electing of appellant Dara Singh as Sarpanch in the Panchayat elections. She argued that it is the common tendency in this part of the country to falsely implicate more persons in an incident, in order to settle their political rivalry. Referring to the rough site plan (Ex.PT), which was prepared by SI Prabhdev Singh (PW.13), she argued that the distance between the place from where the shots were allegedly fired and the place where the deceased and the injured were standing, was more than 70 feet and it was not possible that during the night, in the light of one bulb, the injuries could have been caused by the accused with intention to cause death of Sham Singh, Rachhpal Singh and Balwinder Singh. She further argued that since the appellant Dara Singh had won the elections, there was no motive and occasion for him to kill Sham Singh or cause injuries to Rachhpal Singh and Balwinder Singh. Learned counsel further argued that in the initial statement (Ex.PW.4/A) made by Savinder Kaur to the police, she did not state that after accused Tarsem Singh brought the gun from his house, the appellant exhorted him to fire upon deceased Sham Singh. According to the said statement, only accused Achhar Singh had exhorted his son to fire on the deceased. Learned counsel argued that the complainant Savinder Kaur and the injured witnesses, namely Rachhpal Singh and Balwinder Singh, subsequently improved their version in the court and stated that Achhar Singh and Dara Singh exhorted Tarsem Singh to fire upon deceased. She further argued that the role attributed to accused Achhar Singh and appellant Dara Singh is the same and the learned trial court, Crl. A. No. 378-DB of 2001 -10- while disbelieving the version of the prosecution to the extent of role played by accused Achhar Singh and Jasbir Singh acquitted them by giving them the benefit of doubt, whereas appellant Dara Singh has been wrongly convicted for the offences under Section 302 and 307 IPC, with the aid of Section 34 IPC. Learned counsel while referring to the decisions of this Court in Baldev Singh v. State of Haryana, 1997 (3) AICLR 577, Mohinder Singh and others v. The State of Punjab, 2005 (3) AICLR 546 and Manbhari and others v. State of Haryana, 2008 (3) ACLR 440 has contended that in the facts and circumstances of the case, when benefit of doubt has been given to the co-accused, who has been attributed the same role, the same benefit should also have been extended to the appellant and he also deserves to be acquitted by giving him the benefit of doubt. In the last, learned counsel submits that even if it is taken that appellant Dara Singh came on the spot immediately on the start of the occurrence and he raised Lalkara and then asked accused Tarsem Singh to bring the gun from the house to teach a lesson to the deceased for opposing them in the elections and thereupon, Tarsem Singh brought gun from his house and fired at the deceased and the injured, even then these allegations are not sufficient to convict appellant Dara Singh for the offences of murder and causing injuries with intention to murder, with the aid of Section 34 IPC, and he is also entitled for acquittal. 16. On the other hand, learned counsel for the State argued that the prosecution by examining the complainant Savinder Kaur (PW.4), injured Crl. A. No. 378-DB of 2001 -11- Rachhpal Singh (PW.5) and Balwinder Singh (PW.6), who had also witnessed the entire occurrence, has proved the guilt against the appellant and the other accused, beyond a reasonable doubt. While arguing the appeal against acquittal (Crl. A. No. 138-DBA of 2002), he submits that the learned trial court has wrongly acquitted accused Achhar Singh and Jasbir Singh, by giving much weightage to the recovery of only two empties (Ex.P1 and Ex.P2) by the police and while doubting the arrival of these two accused persons on the scene of occurrence. Learned counsel argued that as per the prosecution, after firing two shots from the gun, the gun was again loaded and thereafter, only one shot was fired from the said gun and then accused Jasbir Singh had taken over the gun. He argued that the third empty could not be found at the spot, as the same remained in the gun, which was taken with him by accused Jasbir Singh. But it is admitted position that when the gun was recovered, the said empty was not found in the gun and it is not the case of the prosecution that the said third empty was also got recovered on the disclosure statement of accused Tarsem Singh. 17. After hearing the arguments of learned counsel for the parties and going through the record of the case, we do not find any ground to interfere in the judgment passed by the learned trial court. 18. In this case, the homicidal death of Sham Singh has been established by the medical evidence. As per the Post Mortem Report (Ex.PG), 30 pallet injuries were found on the body of the deceased by Dr. Gurmanjit Rai (PW.3), who conducted the post mortem examination of the Crl. A. No. 378-DB of 2001 -12- deceased on 24.6.1998 at 1.15 PM. In his opinion, the cause of death in this case was haemorrhage and shock, as a result of pallet injuries to heart, both lungs and liver, which were sufficient to cause death in the ordinary course of nature. The probable time between injuries and death was given few minutes to few hours. By leading the medical evidence, the prosecution also proved that both the injured, namely Rachhpal Singh (PW.5) and Balwinder Singh (PW.6) had received pallet and brick bat injuries and the probable time of the injuries was found within 36 to 48 hours from the day and time of their medical examination. Injury No.1 on the person of injured Rachhpal Singh was found to be dangerous to life, which was caused by pallet; three injuries on his person were found as grievous in nature and the remaining three injuries were found to be simple in nature. 19. As per the prosecution version, the aforesaid injuries were caused to the deceased Sham Singh by accused Tarsem Singh with .12 bore double barrel gun on 23.6.1998 at about 9/9.30 PM, on the exhortation of appellant Dara Singh and accused Achhar Singh. The injuries to Balwinder Singh and Rachhpal Singh were caused by accused Tarsem Singh and Jasbir Singh, respectively. The motive to cause the aforesaid injuries was stated that the deceased Sham Singh opposed appellant Dara Singh in the Panchayat elections and having the said grudge in mind, the accused party wanted to teach a lesson to Sham Singh. The alleged occurrence took place in the common street existing between the houses of both the parties. The deceased and the injured were standing on the roof of the house, whereas Crl. A. No. 378-DB of 2001 -13- the accused were standing in the common street. In order to prove that the aforesaid injuries to the deceased and the injured witnesses were caused by the accused on the day of occurrence, by using fire arm and brick bats, the prosecution has examined three eye witnesses, namely PW.4 Sawinder Singh (wife of deceased Sham Singh), PW.5 Rachhpal Singh injured and PW.6 Balwinder Singh injured. All these three witnesses have supported the case of the prosecution. In addition to the oral evidence, the prosecution has also proved the recovery of two empties (Ex.P1 and Ex.P2) on 24.6.1998 from the place of occurrence and .12 bore gun (Ex.P8) on 1.7.1998 on the disclosure statement of accused Tarsem Singh. These recoveries have been duly proved. 20. The learned trial court has doubted the participation of accused Achhar Singh and Jasbir Singh in the alleged occurrence and by giving them the benefit of doubt, they have been acquitted of the charges. Accused Tarsem Singh has been convicted under Section 302 IPC for committing the murder of Sham Singh and under Section 307 IPC for causing injuries to Balwinder Singh, whereas appellant Dara Singh has been convicted under Sections 302 and 307 with the aid of Section 34 IPC. Though accused Tarsem Singh has not filed any appeal against his conviction, but we have considered his case also. 21. Learned counsel for appellant Dara Singh argued that in the instant case, because of availability of sufficient time between the alleged occurrence and the registration of the FIR, appellant Dara Singh, who was Crl. A. No. 378-DB of 2001 -14- elected as Sarpanch of the village in the Panchayat elections, had been falsely implicated in the case, due to the village politics, at the instance of Bakhshish Singh, the defeated candidate. We have carefully examined the record of the case, to appreciate this argument of learned counsel for the appellant, and we do not find any substance in this argument. As per the eye witnesses, the occurrence had taken place in village Bhadiar on 23.6.1998 at about 9/9.30 PM in the common street in between the houses of both the parties. Immediately after the occurrence, the deceased and the injured were taken to Guru Nanak Dev Hospital, Amritsar, which is at sufficient long distance. As per the medical evidence, the deceased as well as the injured were brought to the Hospital on 24.6.1998 at 12.45 AM. Thereafter, a ruqa was sent to the police station and the police reached the Hospital at 6 AM on 24.6.1998. Thereafter, on the same day, statement of Savinder Kaur wife of deceased Sham Singh was recorded by SI Prabhdev Singh at 6.15 AM in the Hospital, on the basis of which the FIR was registered in Police Station Gharinda, at 7.15 AM and the special report was received by the Ilaqa Magistrate at 12.15 PM. From all these facts, it is clear that there was no time for the eye witnesses, two of whom were injured, to falsely implicate appellant Dara Singh. It is the admitted fact that appellant Dara Singh contested the elections of Sarpanch of the Gram Panchayat in the village, in which deceased Sham Singh had opposed him. According to learned counsel for appellant Dara Singh, deceased Sham Singh supported Bakhshish Singh, the defeated candidate, and a suggestion was given to Crl. A. No. 378-DB of 2001 -15- PWs that said Bakhshish Singh was present in the Hospital, which was denied by the prosecution witnesses. No positive evidence was led by the defence to prove that Bakhshish Singh was in fact present in the Hospital. Merely on the basis of a suggestion in this regard, it cannot be concluded that appellant Dara Singh was named by the eye witnesses at the instance of Bakhshish Singh, in order to settle the score of his defeat at the hands of appellant Dara Singh. 22. Learned counsel further doubted the prosecution version, while making reference to the site plan (Ex.PT), prepared by the police. It has been argued that the distance between the place where the accused and the deceased as well as the injured were standing was more than 70 feet. The accused were standing in the street, whereas the deceased and the injured persons were standing on the roof of the house. Learned counsel argued that causing of fire arm injury from such a distance, particularly in the night, shows