Criminal Appeal No. 83-DB of 1999 -1- ... IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ... Criminal Appeal No. 83-DB of 1999 Date of Decision : March 26th, 2008 Gurbachan Singh and anr. ... Appellants Versus State of Punjab. ... Respondent CORAM : HON'BLE MR. JUSTICE ADARSH KUMAR GOEL, HON'BLE MR. JUSTICE S.D. ANAND. Present : Mr. Bikramjeet Arora, Advocate for the appellants. Mr. Rajesh Bhardwaj, Deputy Advocate General, Punjab, for the respondent. S.D. ANAND, J. Appellant Gurbachan Singh is in appeal against his conviction (for offences under Section 302 IPC and 27 of the Arms Act) and appellant Santa Singh is in appeal against his conviction ( for offence under Section 302/34 IPC) by the learned Trial Court, Facts in the first instance: On 8.5.1997, a civil litigation between appellant Gurbachan Singh and Inder Singh was pending in a court at Nakodar. On that day, Karnail Singh deceased (who was maternal uncle of Chaman Singh) came over to Criminal Appeal No. 83-DB of 1999 -2- ... latter's house at about 7.30 AM. Thereafter, Chaman Singh and his mother proceeded to Bus Adda, Asmailpur, in the company of the deceased, who (deceased) was to board a bus for Nakodar to be able to attend the hearing in the above indicated case. Chaman Singh and his mother were to go to the town to get some medicine for the latter who was unwell. In the meantime, appellant Gurbachan Singh came over there. There, Karnail Singh informed appellant Gurbachan Singh that the matter was fixed in the Court for that day. In response, appellant Gurbachan Singh announced that he would settle the matter there and then. In the meantime, appellant Santa Singh came over there while he was carrying a gun (licenced in the name of appellant Gurbachan Singh). He handed over that gun to appellant Gurbachan Singh and told him to 'pronounce' the judgment there itself. Thereupon, Gurbachan Singh fired a shot which hit Karnail Singh in between his eye-brows over the ends of the nose. Gurbachan Singh reloaded the single barrel gun and fired another shot which hit Karnail Singh over the umbilicus. Karnail Singh fell down upon the ground and died instantaneously. The appellants fled the spot immediately thereafter. The ocular presentation at the trial consists of the statements of PW 2 Chaman Singh and PW 3 Pritam Kaur (the latter being sister of the deceased). The medical segment consists of the solitary statement of Dr. Navpreet Singh who had conductd the post mortem examination on the dead body of Karnail Singh on 8.5.1997, at 3.45 PM and had found the following injuries on it:- “1. Lacerated wound 4 cm in diameter in the front of abdomen 3” below xiphoid process. Margins of wound were Criminal Appeal No. 83-DB of 1999 -3- ... inverted. Omentum was coming out of the wound. On dissection of above wound abdominal cavity was found full of blood. Both lobes of liver were badly lacerated. Left kidney was lacerated. A piece of leather shell found in the abdominal cavity. Two rubber pices rounded in shape and one plastic piece rounded were found in abdominal cavity. Multiple pallets were embedded in liver and kidney and were in abdominal cavity. 2. Lacerated wound 4 cm in diameter was present on the left side of face at the angle of mouth. Margins of wound wee inverted. On dissection of above wound 2nd incisor tooth and first pre-mollar tooth were broken. 3. Lacerated wound 7 cm x 3 cm on the left side of face just above upper lip. Margins of the wound were averted. 4. Lacerated wound 7 cm x 10 cm on the left side of face involving left eye, nose and forehead. Margins of wound were averted. 5. Multiple abrasions were present on the left side of face and whole face was covered with clotted blood. On dissection of injury No.3,4 and 5 multiple fractures of mixilla nasal bone and lower border of front bone were present. One rubber piece and multiple pallets found embedded in the tissues of maxilla, nose, forehead and left side of face.” In his opinion, the cause of death was due to haemorrhage and neuroganic Criminal Appeal No. 83-DB of 1999 -4- ... shock as a result of injuries No.1,2,3 and 4 which were sufficient to cause death in the ordinary course of nature. Injuries were ante mortem in nature. Apart therefrom, he also proved the 43 pellets and the wads which had been taken out of the seat of injury No.1 and handed over to the concerned police official who got the post mortem examination conducted on the dead body of the deceased. Besides those witnesses, the Investigating Officer ASI Ajit Singh appeared as PW 12. PW 5 HC Sukhdev Singh is a formal witness of link evidence. He was also present when ASI Ajit Singh arrested both the appellants and recovered a gun, a licence, three cartridges and a licence from the possession of Gurbachan Singh-two live cartridges were recovered from the side pocket; while one cartridge was recovered from the fire arm itself. PW 6 Constable Major Singh, PW 7 Head Constable Ram Pal, PW 8 Head Constable Karnail Singh, PW 9 Constable Chanchal Singh are formal witnesses. PW 10 Harbans Singh, Halqa Patwari had prepared the scaled site plan Ex. PS while PW 11 ASI Mandeep Singh had partly investigated this case. P.Ws Jagir Singh Sarpanch, Head Constable Mukhtiar Singh, ASI Mehanga Singh were given up as unnecessary while Kulwant Singh was given up as having been won over by the appellant. Ex.PX is the report of the Forensic Science Laboratory and Ex.PY is the report of the Chemical Examiner. Insofar as appellant Santa Singh is concerned, no overt act is attributed to him in the prosecution presentation. It is not even the plea that he fired a shot at the deceased or that he held the deceased captive to enable the co-appellant to fire a shot at him. The only role attributed to him is that he appeared on the scene while he was carrying a gun which is licenced in the Criminal Appeal No. 83-DB of 1999 -5- ... name of appellant Gurbachan Singh. He is not related to Gurbachan Singh. He was not affected either way on account of the pendency of the civil litigation between appellant Gurbachan Singh and Inder Singh. There is complete want of evidence to prove that he had any relatability to appellant Gurbachan Singh on account whereof he would have assisted the latter in making available to him the gun licenced in the own name of Gurbachan Singh. Our quest to find out what actuated the witnesses to name him ends in the statement of PW 2 who averred, in the course of cross-examination, that “ accused Santa Singh has been helping accused Gurbachan Singh in the civil suit referred above.” It appears that the members of the complainant party were irritated with the assistance Santa Singh was rendering to appellant Gurbachan Singh in the prosecution of the civil litigation. We, thus, have no reservations in holding that the prosecution has not been able to prove the charge against appellant Santa Singh. However, the same is not true of appellant Gurbachan Singh, who did have the motive to commit the crime for which he stands convicted. The appellant was a son of Inder Singh who was a litigating party in the civil suit filed by Gurbachan Singh. Apart therefrom, we find that the testimony of PW 2 Chiman Singh PW 3 Pritam Kaur, in the context of the manner in which the impugned occurrence had taken place in their presence, is absolutely reliable and nothing whatsoever could emerge in their cross-examination which could shake or impeach their credibility. The learned counsel for the appellant argued that it were the members of the complainant party who opened an attack to force their way into the house of the appellant Gurbachan Singh and ransacked it with a view Criminal Appeal No. 83-DB of 1999 -6- ... to enter into possession thereof. To buttress that plea, the learned counsel drew sustenance from the photographs Ex.D1 to Ex.D4 which were conceded by PW 2 Chiman Singh to be that of appellant Gurbachan Singh, his wife and children. He had also conceded that “the house shown therein is the very house of accused Gurbachan Singh resides.” The learned counsel thereby raised a plea that the appellant acted in self defence and for the protection of his property. The plea raised is thoroughly untenable. All that Ex.D1 to Ex.D4 indicate is the identity of the appellant, his wife and their children and also the scattered house hold articles lying in that house. The photographs do not indicate the date and time at which that state of affairs existed. The appellant has not, thus, been able to falsify the plea on behalf of the prosecution that the status indicated in the photographs pertained to long time after the impugned occurrence had taken place. The still photographs do not buttress the appellant's plea. If the appellant had got the scene videographed, we would have had evidence available on record to prove the date and timing on which the videography had been done. In that eventuality, the appellant could perhaps raise that plea which he is presently not able to do. In the context of the facts noticed in the preceding para, we cannot be equally oblivious of the fact that if there was even an iota of truth in the plea presently put forth on behalf of the appellant, he would have taken up the matter with the higher police authorities and aver that they were, in-fact, a party which had been 'wronged' at the hands of the members of the complainant party. Finding no response from the police, they could very well have gone in for a private complaint. Nothing of the type is even averred to Criminal Appeal No. 83-DB of 1999 -7- ... have been done by the appellant in this case. In view of the fact that the prosecution has been able to prove the motive on the part of Gurbachan Singh to commit the impugned crime and also in view of the fact that the impugned occurrence had been notified to the police without any unexplained and/or inordinate delay and further in view of the fact that the affirmative evidence in the statements of PW 2 Chiman Singh and PW 3 Pritam Kaur is reliable and in accord with the medical segment, we have no hesitation in affirming the finding of indictment of the learned Trial Judge qua appellant Gurbachan Singh. The appeal of appellant Santa Singh shall stand allowed. He shall stand acquitted and discharged of the bonds. However, the appeal filed by appellant Gurbachan Singh shall stand dismissed. ( S.D. ANAND ) JUDGE March 26, 2008. ( ADARSH KUMAR GOEL ) JUDGE sn