IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl. A. No. 458-DB of 2001 DATE OF DECISION : 14.09.2010 Gurpreet Singh @ Ghoki .... APPELLANT Versus State of Punjab ..... RESPONDENT Crl. Revn. No. 458 of 2002 DATE OF DECISION : 14.09.2010 Harsimranjit Singh .... PETITIONER Versus State of Punjab and another ..... RESPONDENT CORAM :- HON'BLE MR. JUSTICE SATISH KUMAR MITTAL HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. Vinod Ghai, Advocate, for the appellant (in Crl. A. No. 458-DB of 2001) respondent No.2 (in Crl. Revn. No. 458 of 2002). Ms. Gurveen H. Singh, Addl. A.G., Punjab. Mr. G.C. Dhuriwala, Advocate, for the complainant (in Crl. A. No. 458-DB of 2001) the petitioner (in Crl. Revn. No. 458 of 2002). * * * SATISH KUMAR MITTAL , J. 1. This judgment shall dispose of Criminal Appeal No. 458-DB of 2001, filed by accused Gurpreet Singh alias Ghoki for setting aside his Crl. A. No. 458-DB of 2001 -2- conviction and sentence, and Criminal Revision No. 458 of 2002, filed by complainant Harsimranjit Singh for enhancement of the sentence of accused and for allowing compensation against the accused. 2. Appellant Gurpreet Singh alias Ghoki was tried by the Court of Sessions Judge, Sangrur, for the offences under Section 302 IPC and 27 of the Arms Act, for committing the murder of Yadwinder Singh son of his real uncle, by firing shots from his licensed revolver. The trial court, vide its judgment and order dated 13.8.2001, convicted and sentenced the appellant to undergo imprisonment for life under Section 302 IPC and to undergo rigorous imprisonment for three years and to pay a fine of ` 500/-, in default to undergo further rigorous imprisonment for one month under Section 27 of the Arms Act. 3. As per the prosecution version, which is based upon the statement (Ex.PD) made by Harsimranjit Singh (PW.3), younger brother of deceased Yadwinder Singh, on 25.10.1998 at about 8.30 AM, he and his elder brother Yadwinder Singh were going on scooter from their house to their fields for agriculture work, which was being driven by Yadwinder Singh. When they crossed the main gate of Army Unit, situated on Patiala Road, then a little ahead of the gate, appellant Gurpreet Singh alias Ghoki was standing along with his scooter on the edge of the road. When they reached near him, appellant came ahead on the road, raised hand and stopped them. Yadwinder Singh stopped the scooter by taking the same on his side. When the scooter was just stopped, appellant took out .32 bore Crl. A. No. 458-DB of 2001 -3- licensed revolver from his Dub and fired shots towards Yadwinder Singh with intention to kill him, which hit on the right side of shoulder, left flank and on the right side of the head of Yadwinder Singh, as a result of which he died on the spot. In the meantime, a Military person, who was present in the gate of the Army Unit, and a Head Constable of the Punjab Police, namely Hans Raj, came there running and caught hold the appellant with revolver. Subsequently, he was handed over to the police, who came on the spot, where SI Sat Pal (PW.13) recorded the statement of the complainant at 9.45 AM, on the basis of which the formal FIR (Ex.PD/2) was registered at 10 AM. The motive of the crime, as stated by the complainant, was that the appellant was having grudge against the complainant party, because there was a land dispute between the appellant and the complainant party and a compromise in that regard was effected in the High Court, according to which the appellant was to execute sale deed of 3 bighas of land in favour of the complainant party, but he did not want to give that land. 4. After recording the statement of the complainant, inquest report (Ex.PC) on the dead body of the deceased was prepared and the dead body was sent for most mortem examination. The blood stained earth lifted from the spot was taken into police possession vide memo Ex.PO. The scooters (Ex.P17 and Ex.P18) belonging to the appellant and the deceased were also taken into possession vide separate memos Ex.PB and Ex.PQ, respectively. One .32 bore revolver (Ex.P14) was recovered from the possession of the appellant. On unloading the revolver, four empty Crl. A. No. 458-DB of 2001 -4- cartridges (Ex.P20 to Ex.P23), one live cartridge (Ex.P24) and one missed cartridge (Ex.P25) were taken out. 5. On the same day i.e. on 25.10.1998 at 3.15 PM, Dr. Suresh Kumar Singla conducted the post mortem examination on the dead body of deceased Yadwinder Singh and found four injuries on his body. Injury No.1 was an oval lacerated wound with inverted margins measuring 1.5 cm x 1 cm on the right tempo parietal area of skull, 7 cms above the right ear. Metallic piece (bullet) was found embedded in the right occipital bone at the posterior end. Injury No.2 is entry wound on the top of right shoulder and injury No.3 is the exit wound on the back of right shoulder. Injury No.4 was an oval lacerated wound with inverted margins measuring 1.25 cm x 0.75 cm on the left side of chest in the anterior axillary line, 10 cm to the left of nipple. One metallic piece (bullet) was found embedded in the sub cutaneous tissue on the postero lateral aspect of right chest. Two metallic pieces (bullets - Ex.P7 and Ex.P8), removed from injuries No.1 and 4, were sealed in a vial and were handed over to the police. The Post Mortem Report of the deceased is Ex.PA. 6. On 26.10.1998, the appellant got recovered one arms license (Ex.P15), driving license and one chit (challan chit) pertaining to RC of the scooter, which were taken into possession vide memo Ex.PR. 7. Report of the Deputy Director (Ballistic), Forensic Science Laboratory, Punjab, Chandigarh dated 12.11.1998 (Ex.PZ) was received, whereby it has been reported that out of two .32 bore calibre lead bullets, Crl. A. No. 458-DB of 2001 -5- one has been found to be fired from .32 inch Erma revolver, whereas regarding the firing of second bullet from .32 inch Erma revolver, it has been stated that no definite opinion can be given due to lack of sufficient individual characteristic marks. Regarding the four empty cartridges, which were taken out after unloading the recovered revolver, it has been reported that no definite opinion can be given regarding firing of one cartridge from the recovered revolver, as the percussion cap of that cartridge is missing and no other sufficient individual characteristic marks are available on it. However, the remaining three empty cartridges have been reported to be fired from the recovered revolver. 8. After completion of investigation, the challan was filed against the appellant and he was charge sheeted for the offences under Section 302 IPC and 27 of the Arms Act, to which he did not plead guilty and claimed trial. 9. In support of its case, the prosecution examined 17 witnesses, out of whom PW.1 Dr. Suresh Kumar Singla, PW.2 Lias Naik Sunil Kumar, PW.3 Harsimranjit Singh complainant – eye witness, PW.6 Head Constable Hans Raj and PW.13 Sub Inspector Sat Pal, the Investigating Officer are the material witnesses. 10. PW.1 Dr. Suresh Kumar Singla, who conducted post mortem examination on the dead body of deceased Yadwinder Singh, has proved the Post Mortem Reports of the deceased as Ex.PA. 11. PW.2 Lias Naik Sunil Kumar has specifically stated that on the Crl. A. No. 458-DB of 2001 -6- day of occurrence, i.e. on 25.10.1998, he was present at Gate No.1 of the Army Unit, situated on Patiala-Sangrur road, in connection with the rally of Ex-Servicemen. At about 8.30 AM, when he was inside the gate, he heard sound of three fires. He came out of the gate and saw a scooter parked at its stand, a Sikh gentleman having a turban on his head standing by it, and the victim having a fire lying on the kacha berm of the road. He further stated that one man, standing nearby, was trembling. On suspicion, this witness apprehended the man, who was standing near the scooter. In the meantime, the Punjab Police officials were seen coming and the man standing at a distance started saying that his brother has been killed. He further stated that the Sikh gentleman, apprehended by him, was possessing a revolver. 12. PW.3 Harsimranjit Singh complainant, who witnessed the entire occurrence, narrated the entire occurrence and has fully supported the case of the prosecution, on each and every aspect of the occurrence. 13. PW.6 Head Constable Hans Raj stated that on the day of occurrence, he along with other police officials was on duty in the Military area in connection with the rally of Ex-Military personnel. He was deputed on guard duty at the gate of Army Area, Sangrur and Lac. NK Sunil Kumar (PW.3) was also standing there. After dropping him at the Army Gate, the remaining police party went inside the Army Area. He further stated that at about 8.30 AM, on hearing the gun fire shots, he along with LC NK Sunil Kumar rushed towards that side, which was outside the Army Gate towards Patiala Road. He saw out of the gate that across the road, one young man Crl. A. No. 458-DB of 2001 -7- was standing in perplexed condition and one person was lying on the ground and one person, who was having a revolver in his Dub, was trying to run on the scooter. He further stated that he and Sunil Kumar apprehended that person, who was identified by him in the court as the appellant. They took him inside the gate and in the meantime, ASI Sat Pal came there, who completed the proceedings. He further stated that the appellant was in possession of a revolver, which was taken into possession by the police. On its unloading, four empties, one live cartridge and one missed cartridge were taken out. 14. PW.13 Sub Inspector Sat Pal, who conducted investigation in this case, recorded the statements of the witnesses and arrested the appellant, has proved all the material documents prepared by him. 15. In his statement under Section 313 Cr.P.C., the appellant denied all the allegations appearing against him in the prosecution evidence. He pleaded innocence and false implication. He stated that no such occurrence took place. He was taken by the police from his house and his revolver was also taken forcibly by the police. 16. The trial court, while relying upon the medical evidence and the statement of the complainant, who is also the eye witness of the occurrence, as well as the statements of PW.2 Lias Naik Sunil Kumar and PW.6 Head Constable Hans Raj, who immediately after the occurrence apprehended the appellant along with the weapon of offence at the spot, convicted and sentenced the appellant, as indicated above. Crl. A. No. 458-DB of 2001 -8- 17. We have heard the arguments of learned counsel for the parties and have gone through the trial court record. 18. Learned counsel for the appellant argued that in the present case, the prosecution has failed to prove its case against the appellant beyond reasonable doubt. According to the learned counsel, case of the prosecution is based upon the testimony of the sole eye witness, namely Harsimranjit Singh (PW.3), but his presence at the time of the occurrence is highly doubtful. Learned counsel argued that when the appellant allegedly fired three shots towards the deceased, then it does not stand to reason that why he did not cause any injury to Harsimranjit Singh. If Harsimranjit Singh would have been present at the spot, then the appellant would have definitely caused injury to him. He further argued that as per the prosecution case, father of the complainant had already gone to the fields. If that is so, then there was no need for Harsimranjit Singh, who was a minor and was a student of 10 + 2 Class, to accompany his brother Yadwinder Singh to the fields. According to the learned counsel, these facts show that Harsimranjit Singh, the alleged eye witness, was not present at the spot. 19. Learned counsel for the appellant further argued that report of the Forensic Science Laboratory (Ex.PZ) does not support the prosecution case. As per this report, out of two bullets, which were removed from the body of the deceased, only one was found to have been fired from the revolver, recovered from the appellant, whereas regarding the second bullet, no definite opinion was given. Learned counsel further argued that PW.2 Crl. A. No. 458-DB of 2001 -9- Lias Naik Sunil Kumar and PW.6 Head Constable Hans Raj, who are alleged to have arrested the appellant on the spot, had not seen the occurrence. They have only stated that on hearing the fire shots, they came and found the appellant standing there in a perplexed condition. Then they arrested him and produced before the police. According to the learned counsel, statements of these two witnesses cannot be taken as corroboration to the eye version account of PW.3 Harsimranjit Singh. Therefore, on the basis of the sole testimony of PW.3 Harsimranjit Singh, whose presence at the spot is doubtful, conviction of the appellant for causing murder is not safe. 20. Learned counsel for the appellant further submits that the alleged motive in the present case is not so strong, which may lead to commission of the offence of murder. Learned counsel further contends that as per the statement of PW.1 Dr. Suresh Kumar Singla, in the month of October, rigor mortis starts appearing in the body after about 3 to 4 hours of the death and it completes within 18 hours, which further maintain for 12 hours. This witness has also stated that in this case, rigor mortis was present in the body of the deceased in all the four limbs. In view of these facts, learned counsel argued that post mortem examination of the deceased was conducted by Dr. Suresh Kumar Singla on 25.10.1998 at 3.15 PM and presence of the rigor mortis in whole body shows that death might have taken place about 18 hours before the post mortem examination, and the time of death thus comes as 9.00 to 10.00 p.m on the previous night. This Crl. A. No. 458-DB of 2001 -10- fact also creates doubt in the prosecution version. 21. In the last, learned counsel argued that the occurrence in this case had taken place suddenly without any premeditation or intention of the appellant to cause death of Yadwinder Singh. It is by chance that the appellant, who was having his licensed revolver, met the complainant along with his brother Yadwinder Singh (deceased) near the gate of Army Complex on Patiala road and at that time, the appellant had no pre- meditation or intention to cause the death of Yadwinder Singh. It is only in the heat of passion that he fired shots, which resulted into the death of Yadwinder Singh. In these circumstances, learned counsel submits that conviction of the appellant for the offence under Section 302 IPC is not sustainable at all and, at the most, he can be convicted for the offence under Section 304 IPC. 22. On the other hand, learned Additional Advocate General, Punjab, supported the judgment of conviction and the order of sentence, passed by the trial court and submitted that the prosecution has fully established its case against the appellant and he has been rightly convicted and sentenced for the offence under Section 302 IPC. 23. Learned counsel for the complainant argued that though the appellant has been rightly convicted for the offence under Section 302 IPC, but the sentence awarded to him by the trial court is less. He argued that keeping in view the manner, in which the appellant has caused the death of Yadwinder Singh, he is liable to be awarded the maximum sentence of Crl. A. No. 458-DB of 2001 -11- death. He further argued that since the appellant has committed the murder of a young man, aged about 24 years, therefore, dependents of the deceased are entitled to get compensation from the appellant. 24. We have considered the submissions of learned counsel for both the parties and have gone through the impugned judgment as well as the record of the case. 25. The case of the prosecution is based upon the statement of Harsimranjit Singh (PW.3), the sole eye witness, younger brother of the deceased. According to his statement, when he along with his brother Yadwinder Singh was going on scooter to their fields, appellant Gurpreet Singh alias Ghoki met them, a little ahead of the gate of Army Unit on Patiala Road. By stopping them, he (appellant) fired three shots after taking out a .32 bore licensed revolver from his Dub with intention to kill Yadwinder Singh, which hit on his right side of shoulder, left flank and right side of the head, as a result of which he died on the spot. The motive of causing the death was that the appellant was having grudge against the complainant party, because there was a land dispute between the appellant and the complainant party and a compromise in that regard was effected in the High Court, according to which the appellant was to execute sale deed of 3 bighas of land in favour of the complainant party, but he did not want to give that land. 26. The most important fact of the case is that the appellant was apprehended on the spot with the revolver by PW.2 Lias Naik Sunil Kumar Crl. A. No. 458-DB of 2001 -12- and PW.6 Hans Raj, a Head Constable of the Punjab Police. Both these persons were present at the time of the occurrence on the Army gate, to discharge their duty, as on that day, a rally by Ex-Servicemen was to be held. They have categorically stated that after hearing the fire shots, they came out of the gate and found a Sikh gentleman standing there in a perplexed condition, whereas one person was lying dead on the ground and another man was standing nearby, who was saying that his brother has been killed. They have further stated that they apprehended the Sikh gentleman (identified as appellant in the court) and produced him before the police. 27. The medical evidence led by the prosecution is in conformity with the ocular version, given by PW.3 Harsimranjit Singh. The licensed revolver of the appellant was taken into possession at the spot. On unloading the revolver, four empty cartridges, one live cartridge and one missed cartridge were taken out. These four empty cartridges and two bullets, which were removed by the Doctor from injuries No.1 and 4 on the body of the deceased, were sent to the Forensic Science Laboratory for examination and as per the report of the Deputy Director (Ballistic), Forensic Science Laboratory, Punjab, Chandigarh, out of two bullets, which were removed from the body of the deceased, one has been found to be fired from the recovered revolver, whereas regarding the firing of second bullet, it has been reported that no definite opinion can be given due to lack of sufficient individual characteristic marks. 28. The contention of learned counsel for the appellant that the Crl. A. No. 458-DB of 2001 -13- testimony of Harsimranjit Singh (PW.3), the sole eye witness, is not reliable and trust-worthy, because his presence at the time of the occurrence is doubtful, cannot be accepted. Merely because Harsimranjit Singh did not receive any injury or because he was a minor, a student of 10 + 2 Class and there was no occasion for him to go to the fields, when his father was already there, no inference can be drawn that he was not present at the time of the occurrence. His presence at the spot has been established by the statements of PW.2 Lias Naik Sunil Kumar and PW.6 Head Constable Hans Raj, who have categorically stated before the police as well as the Court that when they reached at the spot, one Sikh gentleman was standing there in a perplexed condition, whereas one person was lying dead on the ground and another man was standing nearby, who was saying that his brother has been killed. Testimony of these two witnesses, who are independent witnesses and whose presence on the gate of the Army Unit was not doubtful at all, are fully reliable and trust-worthy. Though these two witnesses had not seen the occurrence, but immediately after the occurrence, they reached on the spot and apprehended the appellant with revolver. Therefore, in our opinion, presence of PW.3 Harsimranjit Singh on the spot cannot be said to be doubtful at all. His testimony, which is in conformity with the medical evidence led by the prosecution, is wholly reliable and trust-worthy. It has been held in Bhimappa Chandappa Hosamani v. State of Karnataka, (2006) 11 Supreme Court Cases 323 that on the basis of the testimony of a single eye witness a conviction can be recorded, if the Court is satisfied that Crl. A. No. 458-DB of 2001 -14- the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the basis of testimony of that witness. In doing so, the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free from any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction on the basis of the testimony of a single witness. 29. We have examined the testimony of PW.3 Harsimranjit Singh in light of the aforesaid principle as well as other evidence led by the prosecution. In our opinion, presence of PW.3 Harsimranjit Singh at the time of the occurrence is not doubtful at all. His testimony is wholly reliable, trust-worthy and credible. His presence at the spot has been corroborated by PW.2 Lias Naik Sunil Kumar and PW.6 Head Constable Hans Raj. Therefore, in our opinion, the trial court has rightly relied upon the testimony of this solitary witness. Merely because rigor mortis was present in the whole body of the deceased at the time of the post mortem examination, it cannot be presumed that the occurrence had not taken place at the time, as stated by PW.3 Harsimranjit Singh. There may be different reasons for early appearing of the rigor mortis in the body of the deceased. It depends on many factors. Even otherwise, when there is direct evidence, the medical evidence being an opinion, cannot prevail upon the ocular version. 30. The prosecution has also proved the motive. It has been Crl. A. No. 458-DB of 2001 -15- established that civil litigation was going on between the parties. The matter was compromised in the High Court and according to that compromise, the appellant was to execute sale deed of 3 bighas of land in favour of the complainant party, but he did not want to give that land. Having the said grudge in his mind, the appellant has committed the murder of Yadwinder Singh. Therefore, in our opinion, in the instant case, the prosecution has proved the guilt of the appellant beyond reasonable doubt. 31. Now the question arises for consideration is whether in the facts and circumstances of the present case, the appellant is to be convicted under Section 304 IPC or his conviction under Section 302 IPC is to be upheld. If the culpable homicide committed by an accused does not amount to murder, he can be punished under Section 304 IPC. Learned counsel for the appellant argued that since in the present case, it is only by chance that the appellant, while having his licensed revolver, met the complainant along with his brother Yadwinder Singh (deceased)