Crl. Appeal No. 591-DB of 2000. 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Crl. Appeal No. 591-DB of 2000. Date of Decision : 7.8.2009. Babu Singh son of Sadhu Singh r/o Giana, Distt. Bathinda. (1) ...... Appellant Versus State of Punjab & others ......Respondent Crl. Appeal No. 422-DBA of 2001. Date of Decision : 7.8.2009. The State of Punjab ...... Appellant (2) Versus Sadhu Singh son of Mohinder Singh son of Kirpal Singh, Cultivator, r/o Giana, P.S. Raman, Distt. Bathinda. ......Respondent Crl. Revision No. 346 of 2001. Date of Decision : 7.8.2009. Gurmail Singh son of Harcharan Singh r/o VPO Giana, Teh. Talwandi Sabo, Distt. Bathinda. (3) ...... Petitioner Versus 1. Sadhu Singh son of Mohinder Singh; 2. Babu Singh son of Sadhu Singh Both residents of VPO Giana Tehsil Talwandi Sabo, Distt. Bathinda. 3. State of Punjab. ......Respondents CORAM : HON'BLE MR. JUSTICE K.S. GAREWAL HON'BLE MR. JUSTICE NAWAB SINGH Present: Mr. T.S. Sangha, Sr. Advocate with Mr. Narinder Singh, Advocate, for the appellant. Crl. Appeal No. 591-DB of 2000. 2 Ms. Gurveen Singh, Addl. AG Punjab for the appellant-State. Mr. A.P.S. Deol, Sr. Advocate with Mr. Devinder Bir Singh, Advocate, for the complainant-revision-petitioner. NAWAB SINGH J. This judgment would dispose of Criminal Appeal No. 591-DB of 2000, Criminal Appeal No. 422-DBA of 2001 and Criminal Revision No. 346 of 2001 as they have been filed against the common judgment dated October 10th, 2000 passed by learned Sessions Judge, Bathinda, whereby, Babu Singh accused-appellant was convicted under Sections 302 of Indian Penal Code and Section 27 of Arms Act and sentenced to undergo imprisonment for life and three years respectively and to pay a fine of Rs.2500/- in total with default stipulation. Sadhu Singh- respondent was acquitted. 2. On November 8th, 1997 at about 8.30 PM, Gurmail Singh-complainant (PW-6), Surjit Singh-injured (PW-5) and Harcharan Singh (deceased) were going to see off Surjit Singh to his house in village Giana. When they reached near the house of Sadhu Singh and his son Babu Singh, they noticed both of them standing outside the Chaubara (a room on the ground floor of the house) of their house. Sadhu Singh was armed with a 12-bore single barrel gun. Babu Singh exhorted Sadhu Singh that Harcharan Singh and Surjit Singh should be taught a lesson for stopping the flow of the water of the drain of their house. Sadhu Singh fired a shot upon his father Harcharan Singh standing in the staircase of his house. The shot hit the right arm of Harcharan Singh. Some pellets also hit Surjit Singh (PW-5) on his right hand and right thigh. Harcharan Singh fell down. Babu Singh Crl. Appeal No. 591-DB of 2000. 3 took the gun of his father and fired another shot which hit the head of Harcharan Singh. An alarm was raised. On hearing the noise raised by the complainant, Jagdeep Singh brother of Surjit Singh and Sukhdev Singh reached the spot. Prior to the occurrence, an altercation had also taken place on October 30th, 1997 over a dispute of flow of drain water between the complainant and the accused. 3. Surjit Singh was brought to the Civil Hospital by his brother Jagdeep Singh. Gurmail Singh and Sukhdev Singh proceeded to lodge the report to the Police. Des Raj Sub-Inspector (PW-15) met them near Raman Kanchian, Raman, and recorded the statement (Exhibit PJ) of Gurmail Singh. He appended his endorsement (Exhbit PJ/1) and sent the same to Police Station. On the basis of which, FIR (Exhibit PJ/2) was registered. The scene of occurrence was got photographed. Des Raj inspected the spot on November 9th, 1999. Inquest proceedings (Exhibit PC) were conducted. Blood stained earth was lifted and two fired shots (empties) and two wads were taken into possession from the spot vide recovery memorandums Exhibit PM and PK respectively. Site plan of the place of occurrence (Exhibit PU) was prepared. The dead body of Harcharan Singh was sent for post-mortem examination, which was conducted by Dr. Satpal Garg (PW-3). On November 9th, 1999 clothes of Surjit Singh and a pellet taken out from his body were made into a sealed parcel and were taken into possession vide recovery memorandum (Exhibit PW). 4. On November 14th, 1997 Babu Singh and Sadhu Singh were produced by Dyal Singh Member Panchayat before Des Raj. They Crl. Appeal No. 591-DB of 2000. 4 were arrested and interrogated. Sadhu Singh made disclosure a statement regarding concealment of the gun used by him, that is, 12 bore gun in an iron box in his house. In pursuance thereto, he led the Police party to his house and got recovered the gun (Exhibit P-19) and also handed over the licence of the gun which was taken into possession vide recovery memorandum (Exhibit PY). 5. Babu Singh and Sadhu Singh were charged for offences under Sections 302 and 307 read with Section 34 IPC and Section 27 of Arms Act. They pleaded not guilty and claimed trial. 6. Trial ensued. In order to prove its case, prosecution examined Dr. I.B. Aggarwal (PW-1), Dr. S.S. Malik (PW-2), Dr. Satpal Garg (PW-3), Dr. Harinderpal Singh (PW-4), Surjit Singh (PW-5), Gurmail Singh (PW-6), Sukhdev Singh (PW-7), Darshan Kumar Bansal (PW-8), Hardial Singh (PW-9), Mohinder Pal (PW-10), Balbir Singh (PW-11), C-I Gurpal Singh (PW-12), Thana Singh Constable (PW-13), Manjit Singh Head Constable (PW-14)and Des Raj, Sub-Inspector (PW-15). 7. When examined under Section 313, Babu Singh accused denied the allegations. It was stated by him that Surjit Singh (PW- 5) had illicit relations with Sulinder Kaur wife of Darshan Singh residing in his neighbourhood for the last many years. It was creating a bad impact on his children. Surjit Singh was reprimanded 4-5 months prior to the occurrence. An altercation had taken place between Surjit Singh and his father. 15 days prior to the occurrence, Surjit Singh again visited the house of Sulinder Kaur and again a quarrel took place and the matter was referred to the Gram Panchayat comprising of Dyal Singh, Gurnam Singh and Crl. Appeal No. 591-DB of 2000. 5 others. Surjit Singh was also reprimanded by the Panchayat. On the fateful day, that is, November 8th, 1997 at about 8.30 PM Surjit Singh armed with gun, Harcharan Singh armed with gandasa came in front of his house and started abusing him and his father Sadhu Singh. His father Sadhu Singh and brother Lila Singh went upstairs and asked Surjit Singh and Harcharan Singh not to abuse them whereupon Surjit Singh fired shot upon Lila Singh. Lila Singh took the gun of his father from the room situated on the ground floor and fired a shot in self-defence towards Surjit Singh and Harcharan Singh when Surjit Singh was trying to fire another shot towards Leela Singh. Harcharan Singh and Surjit Singh also tried to go to the Chaubara. Gurmail Singh alleged eye witness was not present on the spot. He came later on and the FIR was recorded after confabulations and concoctions. Similar stance was taken by Sadhu Singh. 8. Lila (DW-1) was examined in defence evidence. He gave the version of the occurrence in the manner stated by Babu Singh recorded under Section 313 Cr.P.C. Gurnam Singh (DW-2) Member Panchayat corroborated the story propounded by Babu Singh and Lila Singh (DW-1). 9. Learned counsel for the parties have been heard. Record over the file has been perused. 10. As regards prosecution evidence, Gurmail Singh (PW- 6) is the complainant-eye witness and Surjit Singh (PW-5) received injuries in the occurrence. Both these witnesses gave a recital of the occurrence and the manner in which Harcharan Singh (deceased) and Surjit Singh were caused injuries with 12-bore gun by the accused. The occurrence has been Crl. Appeal No. 591-DB of 2000. 6 admitted by the accused except that according to them Babu Singh-appellant and Sadhu Singh-respondent did not cause injuries to Harcharan Singh and Surjit Singh, rather, Lila Singh brother of Babu Singh fired a shot upon Harcharan Singh and Surjit Singh and that too, in self-defence. Facts of the case are such that the plea of self-defence would be rendered to be ludicrous. It was pleaded by the accused that Harcharan Singh armed with gandasa and Surjit Singh came in front of their house and started hurling abuses upon the accused. Sadhu Singh and Lila Singh went upstairs and asked Surjit Singh and Harcharan Singh not to abuse them whereupon Surjit Singh fired a shot upon Lila Singh. No pellet or any other evidence was found on the spot to substantiate that Surjit Singh fired the shot on Sadhu Singh or Lila Singh. Had Surjit Singh fired the shot, the empty cartridge would have been lying on the spot and there would have been bullet marks on the house of the accused. No such evidence was however available on the spot. Why ? There is no answer to these questions. It also appears unbelievable that the witnesses would not name Lila Singh who was none else than the brother and son of Babu Singh and Sadhu Singh, respectively. Instead they would falsely name Babu Singh and Sadhu Singh. It could be understandable if the witnesses had named Lila Singh also to be an accused but it does not stand to reason that they would exonerate Lila Singh and name his brother and father. It is not digestible that the witnesses had substantial reason to shield the actual culprit and falsely implicate the accused and that too, brother and father of the actual culprit. In view of this, the plea of private defence and the involvement of Lila Singh in the occurrence is nothing but a cry in the wilderness and fails to inspire Crl. Appeal No. 591-DB of 2000. 7 confidence. Gurmail Singh and Surjit Singh have given vivid description of the occurrence. They have categorically stated in their deposition that firstly, Sadhu Singh fired a shot at Harcharan Singh and thereafter Babu Singh took the gun of Harcharan Singh and fired a shot at Harcharan Singh. On account of the first shot, Surjit Singh also received fire arm injuries. They were cross-examined quite at length but withstood the cross- examination so far as the involvement of Babu Singh was concerned. Their statements were not believed by the trial Judge with regard to the involvement of Sadhu Singh on the grounds (i) that Dr. Sat Pal Garg (PW-3) who conducted post-mortem examination on the dead body of Harcharan Singh categorically opined that injuries received on the person of Harcharan Singh were the result of one shot so, the story of the prosecution stands partly falsified when it has been stated by the witnesses that Harcharan Singh received two fire shots; (ii) that it was not possible for Sadhu Singh to fire a shot on account of his old age as he was in his eighties at the time of alleged occurrence. The allegations raised against Sadhu Singh have a strong element of doubt. When two opinions are possible, one favouring the accused concerned has to prevail. This being so, the acquittal of Sadhu Singh-accused by the learned trial Judge does not admit of interference. 11. As regards Babu Singh-accused, there is ample and un- impeachable evidence against him. Firstly, there is the eye witness account given by Surjit Singh (PW-5) and Gurmail Singh (PW-6) which stands the test of judicial scrutiny and is thoroughly convincing. Surjit Singh being injured is the 'stamped' witness whose presence at the time and place of occurrence cannot be doubted nor the version given by him regarding Crl. Appeal No. 591-DB of 2000. 8 complicity of Babu Singh accused can be doubted. It will be preposterous to reject his testimony on the basis of small variations on the fringes or the totally unbelievable defence version. At the same time, his testimony is natural and inspires all the confidence. 12. Secondly, there is medical evidence which fully corroborates the ocular account. To recapitulate, Dr. Sat Pal Garg, (PW-3) found five injuries on the person of the deceased and he opined that the injuries could be the result of one shot and were sufficient to cause death in the ordinary course of nature. 13. Thirdly, there is strong corroborative circumstance that the weapon of offence, that is, the gun (Exhibit P-19) and empties were recovered during the investigation and sent to FSL and subjected to examination. Per report (Exhibit PCC), the gun was in working order and the empties were fired from this gun which belonged to Sadhu Singh accused. He holds a licence for its possession. Two wads were also found at the scene of crime. The link evidence is complete and cogent. 14. Taking the evidence and circumstances cumulatively, prosecution case stands proved to the hilt that on November 8th, 1997 Babu Singh committed the murder of Harcharan Singh by firing shot upon him. 15. In view of what has been stated above, the impugned judgment does not suffer from any infirmity and is, therefore, upheld. Resultantly, the appeals and the revision being devoid of merit are dismissed. 16. Babu Singh accused-appellant was released on bail by this Court during the pendency of the appeal. His bail/surety bonds are Crl. Appeal No. 591-DB of 2000. 9 cancelled. He be arrested and sent to jail to undergo the remaining part of sentence. Learned trial Judge is directed to comply with this order forthwith under intimation to this Court. (NAWAB SINGH) (K.S. GAREWAL) JUDGE JUDGE 7.8.2009. SN Crl. Appeal No. 591-DB of 2000. 10