IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH 1) Criminal Appeal No. 737 -DB of 2007 Dated of Decision:- February 16, 2009 Gurmukh Singh ....APPELLANT VERSUS The State of Haryana ....RESPONDENT 2) Criminal Appeal No. 787 -DB of 2007 Balwinder Singh and another ....APPELLANTS VERSUS The State of Haryana ....RESPONDENT CORAM: HON'BLE MR. JUSTICE MEHTAB S.GILL HON'BLE MR. JUSTICE L.N.MITTAL Present:- Sh. Rajesh Bhateja, Advocate for appellant- Gurmukh Singh (Crl.Appeal No.737-DB of 2007) Sh. Sameer Sachdeva, Advocate for appellants Balwinder Singh and Mohan Singh (Crl.Appeal No.787-DB of 2007) Sh. Kulvir Narwal, Addl. Advocate General Haryana. ------ MEHTAB S.GILL, J. We will be deciding Criminal Appeal No.737-DB of 2007 and Criminal Appeal No.787-DB of 2007 by a common judgment, as they arise out of the common judgment/order dated 19.7.2007 of the Sessions Judge, Fatehabad. 2 Criminal Appeal No. 737 -DB of 2007 and Criminal Appeal No. 787 -DB of 2007 The learned Sessions Judge, Fatehabad convicted Gurmukh Singh @ Binda son of Bir Singh, Balwinder Singh son of Chanan Singh and Mohan Singh son of Chanan Singh under Sections 302/34 and 324/34 IPC. Under Section 302/34 IPC, appellants were sentenced to undergo life imprisonment and to pay a fine of Rs.5,000/- each and in default to further undergo simple imprisonment for six months. Under Section 324/34 IPC, they were sentenced to undergo R.I. for two years and to pay a fine of Rs. 2,000/- each. In default to further undergo simple imprisonment for two months. Sentences were ordered to run concurrently. The case of the prosecution is unfolded by the statement Ex.P9 of Chhinder Kaur w/o Karnail Singh given to Randhir Singh ASI at Village Hanspur. Chhinder Kaur w/o Karnail Singh stated, that she is a resident of Village Hanspur and does household work. Her husband manufactured Fitter- Rehras. About two years back, Baba Tikka alias Jagraj Singh resident of Ahlupur and Darshan Singh son of Chanan Singh, resident of Hanspur were murdered in Fatehabad. Chanan Singh father of Darshan Singh, his sons Mohan Singh and Balwinder Singh and his daughter’s son Binda, who are residents of Village Amiwala District Ferozepur (Punjab), came to Village Hanspur, after the death of Darshan Singh. They started residing in the house of Darshan Singh. They started asking his widow Chhinder Kaur, that she has nothing to do here and she should vacate the house and leave. Chhinder Kaur wife of Karnail Singh further stated, that her husband Karnail Singh helped Chhinder Kaur wife of Darshan Singh. Chanan Singh filed complaints against her husband Karnail Singh and Chhinder Kaur. He also threatened them. On 8.11.2004 complainant 3 Criminal Appeal No. 737 -DB of 2007 and Criminal Appeal No. 787 -DB of 2007 Chhinder Kaur along with her husband Karnail Singh and their children were sleeping after taking meals. At about 12.30 a.m. (night), the gate of their room was opened. Light of the room was on. She saw three young boys with muffled faces. Out of them two were armed with pistols and one was armed with a sword. All three were having woolen Chaddars around them. On their arrival, they attacked Karnail Singh. The person carrying the sword caused injuries on her husband’s abdomen and forehead. Chhinder Kaur was taken to another room by all the three persons. Her mouth and both her hands were tied and she was also given injuries. After about half an hour, she got up and came out and after removing the cloth around her mouth, she called Santa Singh, her neighbor. Santa Singh came after scaling the wall. He untied her hands. They went inside her room and saw that Karnail Singh had died. Thereafter Santa Singh brought her father- in-law Maan Singh, who also lived in the neighbourhood. Further Chhinder Kaur stated, that she had reasons to believe ( “Pura Yakeen Hai”) that the three persons were Mohan Singh, Balwinder Singh sons of Chanan Singh and Binda son of Bir Singh, residents of Amiwala (Punjab). They had committed the murder of her husband Karnail Singh on account of Karnail Singh helping Chhinder Kaur wife of Darshan Singh. They also attempted to kill her (Chhinder Kaur w/o Karnail Singh). On the basis of this statement, FIR Ex.P10 was registered on 8.11.2004 at 5.30 a.m. The special report reached the J.M.I.C., Fatehabad on the same day at 6.50 a.m. The prosecution to prove its case brought into the witness box, Balwant Singh Draftsman PW1, Const. Sher Singh PW2, Maan Singh PW3, HC Des Raj PW4, Santa Singh PW5, Bharat Singh Inspector PW6, Baljeet 4 Criminal Appeal No. 737 -DB of 2007 and Criminal Appeal No. 787 -DB of 2007 Singh SI PW7, Const. Shishpal PW8, Chhinder Kaur PW9, Ramphal PW10, Dr. M.L.Sharma PW11, HC Kuldeep Singh PW12, HC Sumer Singh PW13, Bachan Singh PW14, Dr. Om Parkash Dhamiwal PW15, HC Ram Bhagat PW16 and Randhir Singh PW17. Learned counsel for the appellants has argued, that the identification of the appellants is doubtful. All that is said in the FIR by Chhinder Kaur is, that she had reasons to believe, that the three persons were Mohan Singh, Binda and Balwinder Singh, who had attacked her and her husband . No identification parade was held. It was for the first time that the appellants were recognized in Court, but by that time, complainant Chhinder Kaur PW9 had seen the appellants several times, when they had been coming to the Court. Injuries on the person of deceased Karnail Singh were given allegedly only by appellant Mohan Singh, who allegedly was armed with chhura (small kirpan) Ex.P16. Nothing is attributed to appellants Gurmukh Singh and Balwinder Singh regarding they inflicting any injury on the deceased, though allegedly they were armed with pistols. It has not come in evidence that they used the pistols. If they were armed with pistols, there was no need for them to use a chhura. In fact appellants were not present at the time of occurrence. The weapons of offence i.e. two pistols allegedly with which appellants Gurmukh Singh and Balwinder Singh were armed, were not recovered. The one recovered from appellant Balwinder Singh, but Balwinder Singh was acquitted of the charge under Section 25 of the Arms Act. There is delay in lodging of the FIR. Learned counsel for appellants Balwinder Singh and Mohan Singh, Sh. Sameer Sachdeva has adopted the arguments put forward by Sh. Rajesh Bhateja, counsel for appellant Gurmukh Singh and has added, that 5 Criminal Appeal No. 737 -DB of 2007 and Criminal Appeal No. 787 -DB of 2007 nothing comes out of the FSL report Ex.P31, regarding any sort of finger prints being picked up from the place of occurrence. Chhinder Kaur PW9 has stated, that the appellants ran away after committing the offence. Strangely no one stopped them, though it has come in evidence, that they belonged to Village Amiwala, Police Station Dharamkot, District Moga. Village Amiwala being about 250 K.Ms. away from the place of occurrence. There is no motive for the commission of the offence. Nothing has come on record as to whether the appellants wanted to usurp the property or whether the proceedings were going on in the Revenue Court or the Civil Court, regarding any property dispute between the deceased and the appellants. Learned counsel for the State has argued, that there is no delay in lodging of the FIR. This itself goes a long way in proving the case of the prosecution. The sole eye witness Chhinder Kaur PW9, who herself was injured, has identified the appellants having been the persons who have committed the offence and in Court she has specifically taken the names of the appellants having murdered her husband and caused injuries to her. Her testimony is truthful and it inspires confidence. The murder was preplanned, as it has come out that appellants after the death of Darshan Singh started living in Village Hanspur and wanted Chhinder Kaur w/o Darshan Singh to leave. They had an eye over the property of Darshan Singh, which they wanted to usurp. The hands and legs of the deceased and Chhinder Kaur PW9 were tied. One person could not have tied the hands and legs of deceased Karnail Singh and his wife Chhinder Kaur PW9. Not only were the hands and legs tied, a cloth was put around the mouth so that she could not shout. This was the handy work of more than one person. 6 Criminal Appeal No. 737 -DB of 2007 and Criminal Appeal No. 787 -DB of 2007 We have heard the learned counsel for the parties and perused the record with their assistance. Chhinder Kaur PW9, wife of deceased Karnail Singh, is a natural witness. Occurrence had taken place on 8.11.2004 at 12.30 a.m. FIR Ex.P10 came into existence on the same day at 5.30 a.m. and the special report reached the J.M.I.C., Fatehabad at 6.50 a.m. In FIR Ex.P10 the words used by Chhinder Kaur PW9 are that “Jo Mujhe Poora Yakeen Hai” that appellants Gurmukh Singh @ Binda, Balwinder Singh and Mohan Singh sons of Chanan Singh have committed the murder of Karnail Singh. FIR Ex.P10 is very prompt. As already mentioned above, by 5.30 a.m. FIR Ex.P10 was recorded and the special report reached the J.M.I.C., Fatehabad by 6.50 a.m. We cannot overlook this fact that recording of FIR Ex.P10 and the special report reaching the Magistrate was all done at night time. The promptness with which the FIR has come into existence itself goes a long way in proving the case of the prosecution. Chhinder Kaur has named the appellants in the FIR and asserted that she is sure that appellants have committed the murder of her husband. We also cannot overlook this fact that appellants Balwinder Singh and Mohan Singh are sons of the maternal uncle of the deceased and appellant Gurmukh Singh @ Binda is the son of sister of appellants Balwinder Singh and Mohan Singh. It is clear that appellants were known to Chhinder Kaur PW9. There could have been any mistake in their identification. Appellants have been identified by Chhinder Kaur PW9 in Court. The relationship has been spelt out by Maan Singh PW3 in his testimony. 7 Criminal Appeal No. 737 -DB of 2007 and Criminal Appeal No. 787 -DB of 2007 The testimony of Chhinder Kaur PW9 is truthful and it inspires confidence. Her statement corroborates her version given in FIR Ex.P10. Not only the statement of Chhinder Kaur PW9 corroborates FIR Ex.P10, but the statement given by Santa Singh PW5, her neighbour who came to her rescue also corroborates the statement of Chhinder Kaur PW9. Chhinder Kaur PW9 is a stamped witness. Dr. M.L.Sharma PW11 has stated in his testimony before the Court, that he medically examined Chhinder Kaur wife of Karnail Singh on 8.11.2004 and found the following injuries on her person: - “1. 1.5 cm. x .5 cm. incised wound was present on left side submandible area with clot present. 2. 2 cm. x .5 cm. incised wound on left side of front of the neck. 3. 2.5 cm. x .5 cm. incised wound on left side of the neck just near and parallel to injury No.2 outside with clot present. 4. 1.5 c.m. x .5 cm. incised wound on the right side of the neck in lower front part with clot present. 5. 1 cm. x .5 cm. incised wound on upper part front of the neck. 6. 1.5 cm. x .5 cm. incised wound on the left side of mid clavicular area above the breast with clots present. 7. 1.5 cm. x .5 cm. incised wound on just lateral and parallel to injury No.6 with clot present. 8. 3 x .5 cm. incised wound in the epigastric area in center present with clot”. These injuries clearly show, that they cannot be self-inflicted. In her testimony before the Court, Chhinder Kaur PW9 has stated that after the death of Darshan Singh who used to reside in Village 8 Criminal Appeal No. 737 -DB of 2007 and Criminal Appeal No. 787 -DB of 2007 Hanspur, the accused asked Chhinder Kaur wife of Darshan Singh to get out of the house. Deceased Karnail Singh husband of Chhinder Kaur PW9 helped Chhinder Kaur wife of Darshan Singh. Chanan Singh father of appellants Balwinder Singh and Mohan Singh filed complaint against her husband Karnail Singh (deceased) and also threatened him. Santa Singh PW5 in his testimony before the Court has stated, that he was woken up at about 1.00 a.m. in the night on 8.11.2004, as he heard the voice of Chhinder Kaur wife of Karnail Singh shouting for help. He reached the house of Chhinder Kaur by scaling the wall and saw that the hands of Chhinder Kaur were tied. She was lying in the courtyard of her house. He untied her hands. She told him, that the two sons of Chanan Singh and Chanan Singh’s daughter’s son have inflicted injuries to her and her husband Karnail Singh. Both Chhinder Kaur PW9 and Santa Singh PW5 went inside and they saw Karnail Singh had died. Thereafter Santa Singh PW5 went to the house of Maan Singh PW3, the father of the deceased who also lived nearby. Maan Singh PW3 came inside the room and saw the body of his son Karnail Singh. Maan Singh PW3 untied his hands and legs and opened the cloth by which Karnail Singh had been gagged. He (PW5) has further stated, that his house is about 20-25 paces from the house of Karnail Singh deceased. Maan Singh PW3 has also stated, that Chhinder Kaur PW9 had told him that appellants had committed the murder of Karnail Singh and had also injured her. The next piece of evidence is the statement of Bachan Singh PW14, regarding extra judicial confession made by appellants Mohan Singh and Gurmukh Singh @ Binda, that they along with appellant Balwinder Singh had committed the murder of Karnail Singh. They wanted to be 9 Criminal Appeal No. 737 -DB of 2007 and Criminal Appeal No. 787 -DB of 2007 produced before the police and asked him to help them out so that they may not be harassed. There is no infirmity in the statement of Bachan Singh PW14. He was in a position to help the appellants and thus they went to him. Randhir Singh ASI PW17, the Investigating Officer has stated, that on interrogation of appellant Balwinder Singh, pistol Ex.P5 and live cartridges were recovered, though Balwinder appellant has been acquitted of the charge under Section 25 of the Arms Act. Maan Singh PW3 has spelt out the motive, that the appellants wanted the wife of Darshan Singh, whose name is also Chhinder Kaur, to leave the village and go to her parental home. They wanted her to leave the house of Darshan Singh. Karnail Singh deceased objected to it and was helping Chhinder Kaur wife of Darshan Singh. Appellants had threatened Karnail Singh, that they would teach him a lesson some day. With the above discussion and observations, we are of the considered opinion that the murder of Karnail Singh son of Maan Singh was committed by the appellants. We do not find any infirmity in the judgment of the learned trial Court. Appeal of appellants Gurmukh Singh @ Binda son of Bir Singh, Balwinder Singh and Mohan Singh sons of Chanan Singh is dismissed. If on bail, they are directed to surrender before the C.J.M./ Duty Magistrate, Fatehabad, to undergo the remaining part of their sentence. (MEHTAB S.GILL) JUDGE (L.N.MITTAL) Febraury 16, 2009 JUDGE 10 Criminal Appeal No. 737 -DB of 2007 and Criminal Appeal No. 787 -DB of 2007 SKArora WHETHER TO BE REFERRED TO REPORTER? YES/NO