IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No.116-DB of 2005 Date of decision:-30.11.2011. Iqbal Singh alias Pappu .....Appellant Versus State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE S.S. SARON HON'BLE MR. JUSTICE RAMESHWAR SINGH MALIK Present: Mr. H. S. Diwana, Advocate for the appellant. Mr. Surinder Singh Dhaliwal, Addl. AG, Punjab. S.S. SARON, J. This criminal appeal has been filed by Iqbal Singh alias Pappu (appellant) against the judgment and order dated 7.12.2004 passed by the learned Sessions Judge, Bathinda whereby the appellant has been convicted for the offence under Section 302 of the Indian Penal Code ('IPC' - for short) for committing the murder of his father-in-law Bhajan Singh and his wife Chhinder Pal Kaur as also for the offence under Section 324 IPC for causing injuries to Tarsem Chand (PW-2) and Section 25 of the Arms Act, 1959 for carrying a 'barcha' (spear), which he used in the occurrence. He has been sentenced to imprisonment for life for committing the murder of Bhajan Singh and again imprisonment for life for committing the murder of Chhinder Pal Kaur; besides, pay a fine of Rs.1000/- separately for each of the murders and in default of payment of fine, to undergo further rigorous imprisonment for six Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 2 - months separately for each of the murders; he has been sentenced to undergo rigorous imprisonment for two years; besides, pay a fine of Rs. 500/- and in default of payment of fine to undergo further rigorous imprisonment for three months for committing an offence under Section 324 IPC and he has also been sentenced to undergo rigorous imprisonment for three years for the offence under Section 25 of the Arms Act. All the sentences have been ordered to run concurrently. The appeal is on the regular board of this Bench. However, none appeared for the appellant. Therefore, on request of this Bench to Mr. H. S. Deol, Addl. AG, Haryana is appointed as amicus curiae of the appellant. He has gracefully accepted to be an amicus curiae of the appellant. The FIR (Ex.PA/2) has been registered on the statement of Roop Singh alias Kala (PW-1) son of Bhajan Singh on 30.7.2002 at 3.40 pm in respect of the incident that occurred at 11.00 am on the same day. It is stated by Roop Singh alias Kala (PW-1) aged about 22/23 years that he is a resident of village Khiali Chahalan Wali, Police Station Jhunir. They were two brothers and five sisters. His one sister namely Chhinder Pal Kaur (deceased) was married to Iqbal Singh alias Pappu (appellant) son of Parminder Singh, resident of village Baghair Mohabbat Singh for the last about fifteen-sixteen years. She had two daughters and a son. His three father's sisters ('bhuas') i.e. Bhajan Singh's sister were married at village Burj Sema (village Baghair Mohabbat Singh is also known as village Burj Sema). On the date of the incident i.e. 30.7.2002, the complainant Roop Singh alias Kala (PW-1), his father Bhajan Singh and his father's sister's husband namely Balwant Singh son of Baghair Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 3 - Singh resident of Burj Sema had come to the house of his (complainant's) sister Chhinder Pal Kaur for meeting her. They had come because the brother-in-law of the complainant namely Iqbal Singh (appellant) used to ill-treat and harass his sister, besides, used to keep disharmony in the house of his sister namely Chhinder Pal Kaur. They had come to make him understand. The time would be 11.00 am in the day and they were sitting at home and were talking. In the meantime, Iqbal Singh alias Pappu (appellant) holding a spear ('barcha') fitted on an iron pipe entered in the house and abused 'kanjro' (shameless) as to for what had they to come to his house. By saying this, Iqbal Singh alias Pappu (appellant) gave a spear blow from its sharp side in the abdomen of Bhajan Singh (father of the complainant). When Bhajan Singh (father of the complainant) ran, he (Iqbal Singh alias Pappu- appellant) gave two more spear blows on the back of Bhajan Singh. Then father of the complainant fell down and he gave more straight spear blows on the nose, neck and chest of his father. The complainant and his sister Chhinder Pal Kaur (deceased) raised an alarm of 'marta marta'. Balwant Singh (father's sister's husband of the complainant) ran away raising an alarm towards the house of Parminder Singh master. The sister of the complainant also ran towards the street which leads to the common area. Iqbal Singh alias Pappu (appellant) ran behind sister of the complainant with the spear. The complainant Roop Singh alias Kala (PW-1) also ran behind them. Then in the street when Chhinder Pal Kaur had covered some distance, Iqbal Singh alias Pappu (appellant) within the sight of the complainant gave two spear blows with his spear on Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 4 - her back. The sister of the complainant fell down and Iqbal Singh alias Pappu (appellant) gave a blow with a spear from its sharp side on her neck. In the meantime, his uncle (father's sister's husband) Balwant Singh also came at the spot. Iqbal Singh alias Pappu (appellant) gave more blows on his sister which hit her left jaw and arm. They raised an alarm of 'marta marta' and then Iqbal Singh alias Pappu (appellant) ran away with his spear and his sister died at the spot. Then the complainant and his uncle (Balwant Singh) reached at the house of his sister and they found that the father of the complainant had also died due to the injuries. In the meantime, the other uncle (husband of father's sister) of the complainant namely Chaghar Singh son of Sher Singh resident of Burj Sema also came at the spot. He (Chaghar Singh) was left at the spot and the complainant accompanied by his uncle (husband of his father's sister) Balwant Singh were going to the police station for giving information and the police met them on the way at Bus Stand Kot Bhara. The motive of the grudge was that Iqbal Singh alias Pappu (appellant) had been harassing Chhinder Pal Kaur (deceased), sister of the complainant. He did not do any work and had kept disharmony in the house. They had been preventing him from doing so and advised him to do some productive work. Due to this grudge, Iqbal Singh alias Pappu (appellant) had committed the murders of Chhinder Pal Kaur and father of the complainant namely Bhajan Singh. It was stated that the action may be taken. The said statement was signed by Roop Singh alias Kala (PW-1) which was attested by SI/SHO Dhian Singh, Police Station Kot Fatta (PW-13) who was present at Bus Stand Kot Bhara along Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 5 - with other police officials namely ASI Jasbir Singh, ASI Kundan Lal, Constable Badal Singh and Punjab Home Guard Kulwant Singh in official Canter, which was driven by HC Jagdev Singh. At that time, Roop Singh alias Kala (PW-1) son of Bhajan Singh, resident of Khiali Chahalan Wali accompanied with Balwant Singh son of Baghair Singh, resident of Burj Sema. They came before SI/SHO Dhian Singh (PW-13) and Roop Singh alias Kala got his above statement recorded, which was reduced into writing and was read over to him. He after hearing and admitting the same to be correct signed below it in Punjabi which SI/SHO Dhian Singh (PW-13) attested. From the statement, a case for the offence under Section 302 IPC was found to be made out. The statement was sent to HC Jagdev Singh to the Police Station for registration of a case (FIR). SI/SHO Dhian Singh (PW-13) along with officials proceeded for the spot. The Police Control Room (PCR) and the officer were asked to be intimated and special reports were asked to be issued. The statement was recorded at Bus Stand, Kot Bhara at 3.15 p.m. on 30.7.2002. SI/SHO Dhian Singh (PW-13) made his endorsement Ex.PA/1 on the statement (Ex.PA). On the basis of which FIR No.30 dated 30.7.2002 (Ex.PA/2) was registered at Police Station Kot Fatta against Iqbal Singh alias Pappu (appellant) by MHC Hargobinder Singh for the offence under Section 302 IPC. SI/SHO Dhian Singh (PW-13) then accompanied Roop Singh alias Kala (PW-1) went to the place of occurrence and prepared inquest report (Ex.PP) in respect of Bhajan Singh (deceased) and inquest report (Ex.PQ) in respect of Chhinder Pal Kaur (deceased). The dead bodies were identified by Baldev Singh Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 6 - and Gurcharan Singh. SI/SHO Dhian Singh (PW-13) also lifted blood stained earth and simple earth from near the dead body of Bhajan Singh and memo (Ex.PR) in this regard was prepared which was attested by Roop Singh alias Kala (PW-1) and ASI Jasvir Singh. The blood stained earth was made into a parcel and duly sealed in a plastic 'dabbi' (box). A pair of shoes ('gurgabi'), one spectacles and one green colour turban were also taken in possession vide separate memo (Ex.PS), which was attested by the above said witnesses. These articels were also made into a parcel and were duly sealed with his seal bearing letters 'DS'. The pair of shoes was identified by Roop Singh alias Kala (PW-1) during his deposition in Court which was objected to being hit by Section 162 of the Code of Criminal Procedure ('CrPC' – for short). The objection was kept open. Blood stained earth and simple earth were taken in possession from near the dead body of Chhinder Pal Kaur by making a separate parcel vide memo (Ex.PW). One 'jutti' (shoe) which was on the dead body of Chhinder Pal Kaur and another 'jutti' (shoe) was taken in possession from near the dead body of Chhinder Pal Kaur and that pair of shoes ('juttis') was taken in possession vide memo (Ex.PU). The said pair of shoes was identified by Roop Singh alias Kala (PW-1), which was objected and the objection was kept open. The dead bodies were handed over to ASI Kundan Lal and Punjab Home Guard Kulwant Singh for getting autopsy done on the dead bodies vide request (Ex.PD). SI/SHO Dhian Singh (PW-13) prepared rough site plan (Ex.PV) with correct marginal notes. Roop Singh alias Kala (PW-1) got the spot inspected. He (SI/SHO Dhian Singh) also recorded the statements Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 7 - of witnesses and prepared rough site plan (Ex.PV/1) with correct marginal notes. SI/SHO Dhian Singh (PW-13) received a wireless message that Tarsem Chand (PW-3) had been admitted in the hospital after receiving injuries. He (SI/SHO Dhian Singh) went to the hospital on 30.7.2002 and made a request (Ex.PW) on which doctor opined Tarsem Chand (PW-3) unfit to make a statement vide endorsement (Ex.PW/1). Then SI/SHO Dhian Singh (PW-13) returned to the Police Station on 30.7.2002 and deposited the case property with MHC Hargobind Singh in an intact condition. Then on 31.7.2002, SI/SHO Dhian Singh (PW-13) again went to Civil Hospital and made a request (Ex.PF) for getting opinion of doctor. Dr. Mohan Lal vide opinion Ex.PF/1 on 31.7.2002 at 12.55 pm declared Tarsem Chand (PW-3) fit to make a statement. The statement of Tarsem Chand (PW-3) was recorded. Besides, the statement of Bittu Kumar (PW-12) was also recorded. The statement (Ex.PX) of Tarsem Chand was read over him. He signed the same after admitting the same as correct. An endorsement was made vide Ex.PX/1 that FIR had already been registered and as such no separate FIR was required. ASI Kundan Lal on 31.7.2002 produced before SI/SHO Dhian Singh (PW-13) three sealed parcels which were taken in possession. SI/SHO Dhian Singh (PW-13) searched for the accused and returned to the Police Station. The accused Iqbal Singh alias Pappu (appellant) was arrested on 01.08.2002. He was identified by Roop Singh alias Kala (PW-1) and the ground of arrest was disclosed to him vide memo (Ex.PY), which was signed by him and attested by Roop Singh alias Kala (PW-1) and ASI Kundan Lal. Iqbal Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 8 - Singh alias Pappu (appellant) was interrogated in the presence of Roop Singh alias Kala (PW-1) and ASI Kundan Lal on 3.8.2002. He made a disclosure statement (Ex.PZ) to the effect that he had concealed the spear in his residential house in the verandah under the chaff and he could get the same recovered. In consequence of the disclosure statement (Ex.PZ), the appellant Iqbal Singh alias Pappu got recovered spear (Ex.P1) from the place as was disclosed by him. It was taken in possession vide memo (Ex.PZ/1). The spear (Ex.P1) was blood stained. A rough sketch (Ex.PZ/2) of the place of recovery was prepared by SI/SHO Dhian Singh (PW-13). The spear (Ex.P1) was made into a parcel and was sealed by SI/SHO Dhian Singh (PW-13) before taking it in possession. A rough sketch (Ex.PZ/3) of the spear was also prepared by SI/SHO Dhian Singh (PW-13) which was attested by the abovesaid witnesses. The statements of witnesses were recorded. The spear (Ex.P1), parcel containing clothes of Bhajan Singh (Ex.P2), parcel containing wearing apparel of Chhinder Pal Kaur (Ex.P3), parcel containing nose pin and ear rings of Chhinder Pal Kaur (Ex.P4), Pair of shoes (Ex.P-5 to Ex.P-9), parcel of blood stained earth (Ex.P10 to Ex.P11) and parcel of simple earth (Ex.P12 to Ex.P13) were taken in possession by the police. The case property was deposited with the MHC. After investigation, the police report ('challan') was filed by SI/SHO Dhian Singh (PW-13). On filing the police report ('challan'), the learned Judicial Magistrate Ist Class, Talwandi Sabo vide order dated 4.1.2003 observed that prima facie a case for the offences under Section 302 and 324 IPC; besides, Section 25 of the Arms Act had been Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 9 - committed by the accused (appellant). Since the offence under Section 302 IPC was exclusively triable by the Court of Sessions, the case was committed to the Court of learned Sessions Judge, Bathinda for trial. The learned Sessions Judge, Bathinda vide order dated 14.2.2003 charge-sheeted the appellant-Iqbal Singh alias Pappu on the allegations that he on 30.7.2007 at about 11.00 am, in the area village Baghair Mohabbat Singh, Police Station Kot Fatta, committed murder by intentionally causing the death of Bhajan Singh and thereby he committed an offence punishable under Section 302 IPC. Secondly, on the said date, time and place, he commited murder by intentionally causing the death of Chhinder Pal Kaur and thereby he committed an offence punishable under Section 302 IPC. Thirdly, on the said date, time and place, he voluntarily caused injuries to Tarsem Chand (PW-3) with a spear ('barcha') which is an instrument for cutting as well as stabbing and thereby he committed an offence punishable under Section 324 IPC. Lastly, the appellant in the area of village Baghair Mohabbat Singh was found in possession of 'barcha' (spear) without any licence or permit and thereby he committed an offence under Section 25 of the Arms Act. It was directed that the appellant be tried of the said charges by the Court of learned Sessions Judge, Bathinda. The charges were read over and explained to the accused (appellant) in Punjabi and a copy was supplied to him. The appellant stated that he heard and understood the charges, besides, pleaded not guilty to the charges framed against him and claimed trial. The prosecution in order to establish its case examined Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 10 - as many as 13 witnesses; besides, tendered documents in evidence. Appellant Iqbal Singh alias Pappu in his statement under Section 313 Cr.P.C stated that he was innocent. He was running a shop. At about 9.00 am when he came to his house, the door of the house was bolted and he found that Bhajan Singh was sitting on a cot and Chhinder Pal Kaur was sitting on his thigh and he was embracing and kissing her. Chhinder Pal Kaur scaled over the wall and ran away. He picked up a spear lying in his house and caused injuries under grave and sudden provocation to Bhajan Singh and also caused injuries to his wife while in the street. He never asked for any maintenance from his in-laws. He was running the shop and he also had land. Both were sufficient for him to pull on. This was the actual case and the real facts had been concealed. He (Roop Singh alias Kala) was not present in the village. He was called from his village by Balwant Singh by a telephone message. The appellant reported the matter to the police on the same day. But the police did not record his statement. The police had not brought the true facts and had falsely involved him (appellant) in the case in connivance with the complainant. He (appellant) was innocent. He did not cause any injuries to Tarsem Chand (PW-3). He (PW-3) was a false witness because he had levelled allegations against him, which were false. He (Tarsem Chand PW-3) withdrew the said allegations and apologized to him and now he had taken revenge from him (appellant) by giving false evidence on this account. The appellant did not lead any evidence in defence. The learned Sessions Judge, Bathinda after considering the evidence and material on record convicted the appellant for Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 11 - committing the murders of Bhajan Singh and Chhinder Pal Kaur and sentenced him separately to undergo imprisonment for life for each of the murders; besides, he was also sentenced for the offence under Section 324 IPC and Section 25 of the Arms Act. The appellant aggrieved against the same has filed the present appeal. Shri H. S. Deol, Addl. AG, Haryana appointed as amicus curiae for the appellant has contended that there is considerable delay in lodging the FIR. The incident in the case is said to have occurred at 11.00 am, however, the FIR has been registered at 3.40 pm on 30.7.2002. It is further submitted that the deposition of Tarsem Chand (PW-3) is absolutely baseless and false. It is further submitted that there is a variance between the occular evidence and medical evidence on record inasmuch as several injuries are stated to have been caused on the person of Bhajan Singh (deceased) whereas Dr. Niranjan Lal Garg (PW-2) states that there were six injuries on the person of Bhajan Singh (deceased); besides, it is alleged that many injuries were caused on the person of Chhinder Pal Kaur (deceased), but Dr. Niranjan Lal Garg (PW-2) has found only six injuries. It is further submitted that persence of Roop Singh alias Kala (PW-1) is highly doubtful as he did not interfere in the occurrence while Iqbal Singh alias Pappu (appellant) was causing injuries to Bhajan Singh and Chhinder Pal Kaur. It is stated that Roop Singh alias Kala (PW-1) is stated to be aged only about 22/23 years and in case he was present, he would have intervened on seeing appellant-Iqbal Singh alias Pappu causing injuries to his father Bhajan Singh and his sister Chhinder Pal Kaur; besides, it is submitted that the clothes of Roop Singh alias Kala (PW-1) were not Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 12 - smeared with blood even though it is stated that he was taking care of his father and sister who were severely injured. It is also contended that though the incident had occurred during the day at 11.00 am and no one from locality was joined as a witness. In response, Mr.S.S. Gill, learned Additional Advocate General, Punjab appearing for the State has submitted that the deposition of Roop Singh alias Kala (PW-1) is cogent and convincing and there is no reason to disbelieve the same. It is submitted that the appellant committed the murders of his father-in-law and wife. Therefore, there would be endeavour on the part of the complainant to ensure that the actual culprits are proceeded against and punished rather than an innocent person being convicted and sentenced; besides, it is submitted that the occurrence and inflicting of injuries is admitted by the appellant in his statement under Section 313 Cr.P.C and the only question is to be requires consideration is whether the case is one where the appellant committed the murders on account of sudden and grave provocation, which it is submitted is not made out as it cannot be said that he would commit two murders of his own wife and father- in-law and after killing his father he would go for Tarsem Chand (PW-3). We have given our thoughtful consideration to the contentions of the learned counsel for the parties and with their assistance gone through the records of the case. Roop Singh alias Kala (PW-1) while appearing in the witness box has reiterated the version as stated by him in his statement (Ex.PA) on the basis of which FIR (Ex.PA/2) was Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 13 - registered. It is not in dispute that Chhinder Pal Kaur (deceased) was the sister of Roop Singh alias Kala (PW-1). She was married to Iqbal Singh alias Pappu (appellant) about fifteen-sixteen years earlier to the incident that occurred on 30.7.2002. On the said date, Roop Singh alias Kala (PW-1) and his father Bhajan Singh and his father's sister's husband Balwant Singh had gone to the house of accused (appellant) in village Baghair Mohabbat Singh, which is also known as Burj Sema. They were conversing while sitting in the house of the appellant. At about 11.00 am, the appellant holding a spear ('barcha') in his hand came in his house and he called bad names to them saying 'kanjro' (shameless) as to why had they come to his house. He (appellant) gave a spear blow in the abdomen of Bhajan Singh (father of the complainant). When Bhajan Singh (father of the complainant) tried to run away, he (Iqbal Singh alias Pappu-appellant) gave two spear blows on his back. Then father of the complainant fell down and the appellant gave three more spear blows to the father of the complainant on his nose, neck and chest. They raised an alarm of 'mardita mardita'. Balwant Singh uncle (father's sister's husband) of the complainant Roop Singh alias Kalal (PW-1) ran away towards the house of his father (Parminder Singh). The sister of the complainant ran towards the street. The accused (appellant) started running after the sister of the complainant. The complainant also ran towards them. Iqbal Singh alias Pappu (appellant) in the presence of the complainant gave two spear blows on the back side of Chhinder Pal Kaur, the sister of the complainant. The sister of the complainant fell down and Iqbal Singh alias Pappu (appellant) gave spear blows Amit Kaundal 2014.07.10 17:25 I attest to the accuracy and integrity of this document Chandigarh Crl. Appeal No.116-DB of 2005 - 14 - on her neck, left jaw