Criminal Appea No.209-DB of 1998 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH Criminal Appeal No.209-DB of 1998 Date of Decision: September 02, 2008 Surain Singh and others ...........Appellants Versus State of Punjab ..........Respondent Coram: Hon'ble Mr.Justice Jasbir Singh Hon'ble Mrs. Justice Sabina Present: Mr.R.S.Cheema,Senior Advocate with Mr.Pawan Girdhar Advocate and Mr.P.S.Brar, Advocate for the appellants. Mr.Rajesh Bhardwaj, Deputy Advocate General,Punjab Mr.H.S.Gill, Senior Advocate with Mr.R.K.Dhiman, Advocate (In Criminal Revision No. 654 of 1998) * * * Sabina, J. Vide this judgment Criminal appeal Nos. 209-DB, 568-DBA of 1998 and Criminal Revision No. 654 of 1998 would be disposed of as the same have arisen out of judgment dated 26.3.1998 passed by Additional Sessions Judge, Faridkot. Prosecution case was set in motion on the basis of statement of complainant/injured Amrik Singh. About nine months prior to Criminal Appea No.209-DB of 1998 2 the occurrence, Sukhchain Singh, brother of complainant was given injuries by Surain Singh and his brother. A case was registered against them at Police Station Sadar Faridkot. Surain Singh, Darshan Singh, Jhanda Singh and Pala Singh were arrested and were sent up for trial. A month before the occurrence, complainant party and accused had received injuries in a quarrel and a case was registered against them at Police Station Sadar, Faridkot. All of them were arrested and sent up for trial. Apart from this, both the parties were also facing proceedings under Section 107/151 of the Code of Criminal Procedure,1973 in the Court of Executive Magistrate, Faridkot on 17.2.1995. Complainant along with his brothers Raj Singh, Harbans Singh, Sukchain Singh and father Mander Singh and cousin brother Gursewak Singh, maternal uncles-Santa Singh and Banta Singh and cousin brother Satnam Singh had come to attend the Court proceedings in a case under Sections 107/151 Cr.P.C. Bhajan Singh, relative of the complainant, had also come to the Court to meet them. Surain Singh, Jasmail Singh, Darshan Singh, Jhanda Singh, Pala Singh and Boota Singh had come to attend the Court proceedings from the opposite side. At about 11.00 a.m., both the parties were waiting for their case in the compound of the Court. Surain Singh asked Bhajan Singh as to what he was doing there and what was the purpose of his visit on the date of hearing. On this, both of them started exchanging hot words and abuses. Surain Singh, who was `amritdhari' Sikh, took out his sirisahib (small kirpan) which he was wearing around his neck and gave 3/4 blows on the person of Bhajan Singh which hit him below the left side of his chest. Complainant party came forward to separate them. Surain Singh gave a `kirpan' blow from the sharp side on Criminal Appea No.209-DB of 1998 3 the person of Mander Singh which hit him on his waist. Darshan Singh, who had concealed his `kirpan', took out the same and gave blows with it on the person of Santa Singh. Surain Singh gave a blow on the left shoulder of the complainant with his `kirpan' and complainant retreated. Surain Singh then gave two `kirpan' blows on the person of Sukhchain Singh which hit him on his right flank. Then, Surain Singh gave two `kirpan' blows on the right flank of Harbans Singh. Boota Singh kept on instigating his son that none of the complainant party should escape alive. Jasmail Singh held Raj Singh, whereas, Darshan Singh gave a `kirpan' blow on his right flank and right hip joint. Pal Singh and Jhanda Singh caught hold of Gursewak Singh and Darshan Singh gave a `kirpan' blow on his left flank. Jhanda Singh, Pal Singh and Jasmail Singh caught hold of Santa Singh and Harbans Singh from their long hair and supported them with their arms and helped Surain Singh and Darshan Singh in causing injuries to them. They raised alarm and all the accused fled away from the spot with their respective weapons after causing injuries to the complainant party with intention to kill them. Injured were got admitted in Guru Gobind Singh Medical Hospital, Faridkot by Chanan Singh and others. Santa Singh and Harbans Singh succumbed to their injuries. The motive behind the occurrence was that about nine months before the occurrence, a dispute had arisen over the turn of water and, thereafter, due to injuries received by both the parties the enmity persisted. On the basis of the statement of the complainant, formal FIR No.14 dated 17.2.1995 was registered by the Police of Police Station City Faridkot. The Investigating Officer-Ranjit Singh, Sub Inspector recorded Criminal Appea No.209-DB of 1998 4 the statement of complainant after he was declared fit to make the statement by doctor at 11.45 a.m. He prepared the inquest report with regard to dead bodies of Santa Singh and Harbans Singh. He lifted blood stained earth from the spot . He also lifted chadras, seven turbans and two parnas from the spot. He prepared the site plan of the place of occurrence. Accused- Surain Singh, Jhanda Singh and Jasmail Singh were arrested and from the personal search of accused Surain Singh, one small `kirpan' stained with blood kept in a sheath which was also blood stained was recovered. On 18.2.1995, he recorded the statement of PWs Mander Singh, Raj Singh and Harbhajan Singh, after they were declared fit. He also recorded the statement of accused Pal Singh. Statement of Sukchain Singh PW was recorded on 21.2.1995 after he was declared fit to make the same. On . 1.3.1995, he arrested accused Boota Singh. Ram Singh, ASI arrested accused Darshan Singh on 24.2.1995 after he surrendered in the Court at Muktsar. On the basis of his disclosure statement, during interrogation, one `kirpan' was recovered and was taken in possession. On 12.3.1995, he arrested accused Lachman Dass and, on his interrogation, application dated 16.2.1995 meant for 17.2.1995 and attendance register were recovered and were taken in possession. Dr.Sarabjit Singh Sandhu had conducted the post mortem examination on the dead body of Santa Singh on 17.2.1995 at 4.25 p.m. and found following injuries on his person:- "1. Transverse stab wound 3 x 0.5 cm was present on the anterior side of chest on the left side, 6 cms below and lateral to left nipple at 4.00 O clock position. C.B.P. was present. On dissection, it is going in words and medically through 6th inter costal space, Criminal Appea No.209-DB of 1998 5 Piercing the pericardium and left vertifcal. Persicardial sac contains about 200 C.C. Of fluid blood. 2. Transverse stab wound 3 x 0.5 cm on the lateral side of left side of chest 6 cms lateral to the injury no.1. It was bone deep C.B.P. 3. Transverse stab wound 2 x 0.5 cm was present at the back of the left side of abdomen 3 cms lateral to midline and 15 cm above the posterior superior lliac spine of left side on dissection, the peritonium large iniestia was cut. Peritonial cavasity contained about 500 C.C. Of fluid and clotted blood. 4. Transvese stab wound 2.5 x 0.5 cm was present on the back of the left side of abdoman, 6 cms lateral to the injury no.3 C.B.P. It was skin deep. 5. An oblique stain wound 1.5 x 25 cm on the back of left side of chest, 2 cms from the midline and 20 cms below the nape of neck, it was bone deep C.B.P. 6. A transverse stab wound 4 x 0.5 cms on the back of left side of chest, 5 cms from the midline and 12 cms below the nape of the neck. C.B.P. It was bone deep." All the injuries were opined to be ante mortem in nature and cause of death was due to injury to heart (vital organ) and large intestine as a result of injuries no. 1 to 3 which were sufficient to cause death in the ordinary course of nature. On the same day, he also conducted post mortem examination on the dead body of Harbans Singh at 4.50 p.m. and found the following injuries on his person:- "1. An onlique stand wound 3 x 0.5 cm was present on Criminal Appea No.209-DB of 1998 6 the lateral side of right side of chest in mid Axillary line, 22 cms below the Axillary apax, C.B.P it was bone deep. 2. A transverse stab wound 2.0 5 cm was present on the right side of back of abdomen, 8 cms below and lateral of injury no.1 on exploring, it was going medially and in words cutting substanoaus tissue, muscles, right kidney, pertonium and large intestine. Pertonium cavity contained above 1000 C.C. of fluid and clotted blood. Stomach contained about 150 C.C. of semi digested flood. All other organs were healthy". In his opinion, all the injuries were ante morten in nature and cause of death was due to injury No.2 i.e. Kidney (Hemorrhage and shock) and large intestine which were sufficient to cause death in the ordinary course of nature. He examined Pal Singh, accused on 20.2.1995 at 3.30 p.m. and found following injuries on his person:- "1. A linear stiched wound having 5 stiching intact 6.5 cms long was present on left side of head, 9 cms above the left ear, it was antero posteriorly placed. Margins were regular. The wound was covered by brownish scab over it. X-ray was advised. 2. A longitudinal contusion 8 x 1.5 cm was present on the to of the head, bluish blach in colour. It was 11.5 cms above the left ear. X-ray was advised. 3. An irregular bluish black contusion 2.5 x 1. cm Criminal Appea No.209-DB of 1998 7 on the posterior occipital Propubrance. Advoed x- ray. Nature of injuires: Injury No.1 to 3 were subjected to X-ray and Surgeon's opinion. Probabale duration of injuries was within 3 to 4 days. Weapon used for injuries No.1 was subjected to X-ray and Surgeon”s opinion and for injuries no. 2 and 3 was blunt. Ex.PW4/D-B is the photostat certified copy of the MLR, original of which I have brought today in the court.” On 18.2.1995 at 5.45 p.m. , he examined Surain Singh, accused under the order of the Chief Judicial Magistrate Faridkot and found following injuries on his person:- “1. Right eye was raddish with blackening below it lower the lids. 2. Four small abrasions with raddish scab, on the left side of forehead measuring 9.25 to 0.5 cms in length, hair line in breadth.” On the same day at 5.55 p.m., he also examined accused Jhanda Singh under the orders of the Chief Judicial Magistrate Faridkot and found following injuries on his person:- “1. Irregular raddish scabbed abrasion 3 x 2.5 cms on the from of left knee joint. 2. Superficial reddish brown 2.5 x 1 cm at the back of right elbow joint.” On the same day, he examined accused Jasmail Singh at 6.10 p.m. and found the following injury on his person:- Criminal Appea No.209-DB of 1998 8 “ Patient complains of pain in the back of chest but no external injury” Dr.Manjit Singh, examined Sukchain Singh on 17.2.1995 at 11.35 a.m. and found following injuries on his person:- “ 1. 1. 0 cm x 0.25 cm incised wound on the meddle of forehead. X-ray advised. 2. 2 cm x 1 cm inclised wound on right side of chest 17 cms from Yiphisternum. Profuse bleeding was present. X- ray advised. 3. 3 x 2 cms incised wound on right lumber region-10 cms below injury no.2. Surgical opinion and x-ray advised” Injury No.2 was declared dangerous to life as per Surgeon's opinion, whereas, injuries no 1 and 3 were declared simple. On the same day at 11.40 a.m., he examined Bhajan Singh and found the following injuries on his person:- “1. 2.3 cms x 1 cm inciseed wound on left side of medical edge was 10 cms below and literally to left memory gland. Surgical opinion and x-ray of chest advised. 2. 2 x 3 cm incised wound, 1 cm below the injury No.1 Medial and was 0.4 cm away from each other on left side of chest. Labterally 2.5 cms away from each other. Surgicial opinion and x-ray chest advised. 3. 1.8 cm x 1 incised wound-29.5 cm below the left post axillary fold. 6.5 cms below lateral to injury no.2. Surgical Emphsam present. Sugical opinion and X-ray advised.” All the injuries on the person of Bhajan Singh were declared simple in Criminal Appea No.209-DB of 1998 9 nature and were result of a sharped edged weapon. On the same day at 11.45 a.m., he examined Mander Singh and found following injuries on his person:- “1.2 cm x 0.5 on incised wound on right side of back-15 cms medially and superiorly to right post. Illia spine. 2 ½ cms right lateral to spine. X-ray of spine advised.” The said injury was declared simple, after x-ray report and was a result of sharp weapon. On the same day at 11.55 am, he examined Gursewak Singh and found the following injuries on his person:- “ 1.8 cm x 0.3 cm incised wound on back left side of chest 30 cm below the left shoulder. X-ray of chest was advised. Injury was kept under observation and weapon used was sharp and duration was within 6 hours. Ex.PL is the correct carbon copy of the MLR of Gursewak Singh which is correct and signed by me and was prepared in the same process which is the original. The said injury was declared simple in nature and was a result of sharp weapon. On the same day at 12.05 pm, he examined Raj Singh and found following injuries:- “1. 1.9 cm x 1 cm incised wound in right Gluteal region-6 ½ cms below the right. Anterior superior iliac spine. X-ray advised. 2. 2 cms x 1 cm inciseed wound on right lower chest. Bonedeep 22 cms below the right anterior, Axillary Criminal Appea No.209-DB of 1998 10 fold-17 cms below and slightly lateral to right memory gland. Surgical opinion was advised.” Injuries were declared simple in nature and were result of a sharp weapon. On the same day at 12.15 p.m., he examined Amrik Singh and found the following injuries on his person:- “2.4 cm x1 cm incised wound-10.5 cms below and posterior to left shoulder joint. X-ray of left shoulder joint advised. Injury was kept under observation and duration was within 6 hours weapon used was sharp weapon” Injuries were declared simple in nature as per x-ray report and was result of a sharp weapon. After completion of investigation and necessary formalities, accused were sent up for trial under Sections 302/148,307,324/149,218,201 IPC against the accused-Surain Singh, Darshan Singh, Pal Singh, Jhanda Singh, Jasmail Singh and Boota Singh. So fas as accused Lachman Dass is concerned, charge was framed against him under Section 218, 201 IPC. The prosecution, in order to prove its case, examined,as many as, eighteen witnesses. After the closure of prosecution evidence, accused Darshan Singh when examined under Section 313 Cr.P.C. prayed that he was innocent and has been falsely involved in this case. He was a Government employee and was working as a Senior Laboratory Assistant in Senior Higher Secondary School, Janerian. On 17.2.1995, he had attended the School in the first half and had marked his presence at 9.00 a.m. He had left the School at 12.30 p.m. after getting leave for the second half. Application Criminal Appea No.209-DB of 1998 11 Ex.PW1/1 was got fabricated by the Police from him under pressure and duress after his arrest and endorsement of the Headmaster was also got fabricated by pressuring him. He had sent applications Exhibits.DJ and DG. He had surrendered before the Magistrate Muktsar on 22.2.1995. Surain Singh, accused when examined under Section 313 Cr.P.C. prayed that the occurrence had taken place suddenly. He had asked Bhajan Singh not to meddle in their affairs, to which he retorted and attacked him and caused injuries on his person. Harbans Singh and Santa Singh attacked Jhanda Singh and Pal Singh. Harbans Singh had thrown Jhanda Singh on the ground and had tried to strangulate him and, as such, he caused injuries on the person of Harbans Singh with his `kirpan'. Santa Singh caused a blow with his `sota' on the head of Pal Singh and, as such, he caused injuries to Santa Singh to save Pal Singh. He had acted in private defence, The other injured had also suffered injuries while they were trying to catch him. Darshan Singh was not there. His father and other brothers had not participated in the attack. They had reported the matter to the police and the injured were removed to the hospital. Pal Singh was admitted in the hospital but his name was scored off at the instance of the police from the register. They were not medico legally examined by the doctor except Pal Singh. They were removed to the Police Station and their formal arrest were shown in the record. He was innocent. He had caused injuries to the complainant party in self defence. Accused Jhanda Singh, when examined under Section 313 Cr.P.C. prayed that he had been forcibly thrown on the ground by Harbans Singh and he tried to strangulate him. On hearing his alarm, Surain Singh, in order to save him, gave `kirpan' blows on the person of Harbans Singh. Criminal Appea No.209-DB of 1998 12 Santa Singh gave `sota' blow on the head of Pal Singh and, in order to save Pal Singh, he inflicted injuries on Santa Singh in private defence. They were saved by Surain Singh from the attack of complainant party. Their turbans and Chadras had fallen at the place of occurrence. They reported the matter to the police. He was innocent. Accused Jasmail Singh, Pal Singh and Boota Singh when examined under Section 313 Cr.P.C. prayed that they were innocent. Lachman Dass, accused when examined under Section 313 Cr.PC prayed that he was innocent and had been falsely involved in the case. Darshan Singh had applied for leave on 16.2.1995 for 17.2.1995 but he attended the School at 9.00 a.m. and later on, left before noon after applying for leave for the second half. ASI Ajaib Singh took the attendance register along with leave applications of Darshan Singh on 22.2.1995 under the order of District Education Officer,(for short `DEO') Faridkot without giving any receipt to him. He informed DEO Faridkot in this regard on 23.2.1995. He was kept in illegal custody and was harassed by Police of Kotwali, Faridkot. He wrote a letter to Secretary Education on 4.3.1995 for saving him from unnecessary harassment. He was illegally arrested in bailable offence and his arrest was,however, shown on 12.3.1995 and he was produced before the Magistrate on 13.3.1995 and was released on bail. The accused examined eight witnesses in their defence. Learned Additional Sessions Judge, Faridkot, vide its impugned judgment dated 26.3.1998. convicted and sentenced accused Surain Singh under Sections 302,307,324 IPC and accused Jhanda Singh, Jasmail Singh and Pal Singh under Sections 302,307,302/34 IPC. So far as accused Darshan Singh, Lachman Singh and Jasmail Singh are Criminal Appea No.209-DB of 1998 13 concerned, they were acquitted vide the impugned judgment. Hence , present appeals and revision petition. So far as the State appeal, challenging the acquittal of accused Darshan Singh, Lachman Dass and Boota Singh is concerned, leave to appeal qua Darshan Singh only was granted and leave to appeal qua remaining two accused Boota Singh and Lachman Dass was declined. In appeal, it has been submitted by Sh.R.S.Cheema, learned Senior counsel for the accused that all the accused were unarmed and as such, there was no premeditation and it was a case of sudden fight. Both the parties were present at the spot in connection with security proceedings except accused Darshan Singh. The investigation in this case had not been conducted in a fair manner. There was a delay in lodging the FIR. The FIR had been lodged after the injuries on the person of deceased and injured had been examined, and that is why the exact seat of injuries had been given by the complainant in his statement before the police although it was not possible for him to have known the exact seat of injuries which had resulted in an occurrence of 4-5 minutes duration. Independent witnesses had not been associated by the Investigating Officer to get the real picture of the occurrence. Bhajan Singh, who was a relative of the deceased, has been given up as won over. Initially, the doctor prepared the medico legal report of Pal Singh but the same was scored off at the intervention of the Investigating Officer and thereafter, he was again re-examined. Surain Singh had inflicted injuries on the injured in self defence. Some of the accused had also suffered injuries but they were not got medically examined by the Investigating Officer. From the statements of the eye witnesses, it was evident that the appellants Jasmail Singh, Pal Singh and Jhanda Singh Criminal Appea No.209-DB of 1998 14 had been falsely involved in the case although they had not participated in the occurrence as suggested by the complainant. Mr.R.S.Cheema, learned Senior counsel has further submitted that so far as accused Darshan Singh was concerned, his acquittal was liable to be maintained . If two views were possible then one in favour of accused was liable to be preferred. Darshan Singh had worked in the School for the first half and was on leave for the second half and, as such, his presence at the spot was not established. Since there was no allegation that he was `amritdhari sikh', then , there was no occasion for him to carry `sirisahib' School Register was taken in possession on 22.2.1995. Learned State counsel, on the other hand, has argued that both the parties were at logger heads and were involved in criminal cases. All the accused were present at the spot. Presence of Darshan Singh at the spot could not be doubted as he was legally bound to appear in the security proceedings and his personal appearance had not been exempted. The occurrence had lasted for about 4-5 minutes and two persons had died,whereas, six persons had suffered injuries. The injuries could not have been inflicted on so many persons by a single man. Both Surain Singh and Darshan Singh with the help of other co-accused had inflicted injuries on the complainant party. The plea of alibi taken by the accused Darshan Singh was an after thought and was liable to discarded. Complainant, while appearing in the witness box as PW1, has deposed as per contents of FIR. PW2, Sukchain Singh and PW3 Raj Singh have corroborated their statements with regard to the manner of occurrence. This is a case where the parties have a history of criminal cases Criminal Appea No.209-DB of 1998 15 against each other. Even on the day of occurrence, parties had come to the Court to attend proceedings under Section 107/151 Cr.PC. Parties were waiting in the Court compound when the occurrence took place resulting in two murders, attempt to murder and injuries to, as many as, six persons from the complainant side. Injuries were also suffered by some of the accused. As per the prosecution case, about nine months prior to the occurrence in question, Sukchain Singh, brother of the complainant was inflicted injuries by Surain Singh and his brothers. Surain Singh, Banta Singh, Darshan Singh and Pal Singh were arrested and were sent up for trial in FIR No, 36 dated 23.5.1994 registered at Police Station Sadar under Sections 324 IPC. Thereafter, a month later, both the parties again suffered injuries in a fight and a case was registered against Santa Singh, Banta Singh complainant party beaing FIR No. 52 dated 27.6.1994 under Sections 326,325,324,323,148,149 IPC and they were arrested and were sent up for trial. Parties were also facing proceedings under Section 107/151 Cr.PC. As per DW4, Pawan Kumar, both the parties were convicted in the FIRs registered against them in hurt cases and appeals were pending. Hence, the parties were already