Criminal Appeal No.1712-SB of 2002, 1 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.1712-SB of 2002 Date of Decision: August 26, 2010 Surmukh Singh and others .......Appellants Versus State of Punjab .......Respondent AND Criminal Revision No.248 of 2003 Surinder Singh .......Petitioner Versus State of Punjab and others .......Respondents AND Criminal Revision No.558 of 2003 Surinder Singh .......Petitioner Versus State of Punjab and others .......Respondents CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr.Baldev Singh, Senior Advocate with Mr.Sudhir Sharma, Advocate for the appellants. Mr.Mehardeep Singh, Deputy Advocate General, Punjab. Mr.GS Sandhawalia, Advocate for the revisionist. Mr.MS Lobana, Advocate for the respondent (in Crl.R.558 of 2003). <><><> Criminal Appeal No.1712-SB of 2002, 2 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 JITENDRA CHAUHAN, J. 1. This order will dispose of three cases, i.e. Criminal Appeal No. 1712-SB of 2002; Criminal Revision Nos. 248 and 558 of 2003 as the same arise out of the same judgment and order, dated 17.10.2002, passed by the Sessions Judge, Patiala. 2. It deserves to be noticed first as to how the above said appeal and the revision petitions came to be filed and by whom, and what is the prayer made therein. From the impugned judgment, it is discerned that nine persons, namely, Surmukh Singh, Karnail Singh, Bhajan Singh, Darbara Singh, Nachhattar Singh, Nirmal Singh, Karam Singh, Dara Singh and Satpal Singh were tried by the trial Court for the offences punishable under Sections 302/307/323/148/149 of the Indian Penal Code (in short “IPC”). Appellant Surmukh Singh was also convicted and sentenced for the offence under Section 27 of the Indian Arms Act, 1959. The trial Court after appreciating the evidence produced on record by the prosecution as well as by the defence, and hearing both sides, acquitted the latter six persons, i.e. Darbara Singh, Nachhattar Singh, Nirmal Singh, Karam Singh, Dara Singh and Satpal Singh of all the charges, by giving benefit of doubt, but convicted the remaining three, i.e. Surmukh Singh, Karnail Singh and Bhajan Singh, vide order dated 17.10.2002, who are the appellants in the instant appeal. 3. The learned trial Court came to the conclusion that offence under Section 302 IPC was not made out against the appellants. The trial Court, however, convicted the appellants as indicated here-in-below: “Surmukh Singh accused is convicted under Section 304 Part- II, IPC while Karnail Singh and Bhajan Singh accused are Criminal Appeal No.1712-SB of 2002, 3 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 convicted under Section 304, Part-II, read with Section 34 IPC. Surmukh Singh accused is also convicted for having committed an offence punishable under Section 27 of the Arms Act as he had used his licensed gun for unlawful purpose in contravention of Section 5 of the Arms Act.” 4. The trial court after hearing the appellants on the quantum of sentence and considering the submissions made by them in that behalf sentenced them as follows: Name of appellants Sentence of Rigorous imprisonment Sentence of fine in Rs. Sentence of R.I. in default of payment of fine Sentence for the offence punishable under sections Surmukh Singh Five years 5000/- Three months 304 Part-II IPC Surmukh Singh Three years 1000/- One month 27 of the Arms Act Karnail Singh Five years 5000/- Three months 304 Part-II read with Section 34 IPC Bhajan Singh Five years 5000/- Three months 304 Part-II read with Section 34 5. The substantive sentences awarded to Surmukh Singh were ordered to run concurrently. It was further ordered that out of the amount of fine, if realized, a sum of Rs. 10,000/- shall be paid to the kith and kin of Avtar Singh deceased. The arms licence of the gun possessed by Surmukh Singh was cancelled and the gun was ordered to be confiscated to the State. 6. Criminal Appeal No. 1712-SB of 2002 has been filed by the three convicted accused, namely, Surmukh Singh, Karnail Singh and Bhajan Singh against their conviction and sentence passed by the trial Court under various offences mentioned above whereas Criminal Revision No. 248 of Criminal Appeal No.1712-SB of 2002, 4 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 2003 has been filed praying for modification of the order of the trial Court so as to convict Surmukh Singh, Karnail Singh and Bhajan Singh for offence punishable under Section 302 IPC and not under Section 304, Part- II IPC done by the trial Court. Criminal Revision No. 558 of 2003 has, however, been filed against acquittal of the remaining six accused who were tried along with the appellants in the present appeal. 7. It is noteworthy to mention here that the F.I.R. in the present case was registered on the basis of statement (Exhibit PN) of the complainant, Gurdip Singh (PW-10) son of Sarwan Singh. Gurdip Singh having died, the above revision petitions were preferred by his father, Sarwan Singh in the capacity of his father and also being an ex-Sarpanch of the village Sekhan Majra. 8. During the pendency of the revision petitions, Sarwan Singh also died and consequently, his son Surinder Singh, i.e. the brother of complainant-Gurdip Singh (PW-10) was ordered to be impleaded as petitioner in both the revision petitions, by orders passed on 21.10.2005 in criminal miscellaneous applications moved separately in the respective petitions, in that regard. 9. Now it is necessary to notice a few facts. The prosecution version, which emerges from the judgment of the trial Court, is that the incident in the present case took place on 21.4.1999 at about 10.00 p.m. within the revenue estate of village Sekhan Majra. The Panchayat of that village had about 100 killas of land as Shamlat Deh. Out of this land, a civil litigation was pending in respect of 70/80 killas, between Panchayat on one side and three sons of Hari Singh, i.e. the appellants in the present appeal, on the other. On 17.4.1999, the case was decided in favour of the Criminal Appeal No.1712-SB of 2002, 5 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 Panchayat. At that time, wheat crop was standing in the disputed land. The accused-appellants wanted to harvest the wheat crop standing in the fields, i.e. the land in respect of which the civil litigation was pending and had been decided on 17.4.1999 in favour of the Panchayat. 10. On 21.4.1999, at about 10.00 p.m., in furtherance of their common intention, the appellants, i.e. Surmukh Singh armed with a gun, Karnail Singh armed with a pistol, and Bhajan Singh along with six other persons, namely, Darbara Singh, Nachhatar Singh, Nirmal Singh and Dara Singh, all armed with Gandasis), Satpal Singh armed with lathi and Karam Singh who was empty handed were approaching the fields where the crop was standing. They were stopped by Gurdip Singh (complainant, since died), his father Sarwan Singh (who has also expired during the pendency of these cases), Avtar Singh, Panch of the village and Bhag Singh from going to the Gram Panchayat land for harvesting the wheat crop on the plea that the civil court had decided the case in favour of the Panchayat and they should not take the law into their own hands. On this, Darbara Singh and Karam Singh gave a lalkara that those people were the special representatives of the Panchayat and they should not be spared. At this stage, Surmukh Singh fired a shot from his gun which hit the lower leg of Avtar Singh who fell down. Karnail Singh also fired a shot from his pistol which did not hurt anyone. In the brawl that ensued thereafter, Bhajan Singh grappled with Gurdip Singh when Nachhattar Singh gave a Gandasi blow on Gurdip Singh hitting at his left upper arm. Dara Singh, Nirmal Singh and Satpal Singh attacked Bhag Singh with their respective weapons. On a noise made by Gurdip Singh, people of the village were attracted and they also started raising alarm. Sarwan Singh father of the complainant also Criminal Appeal No.1712-SB of 2002, 6 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 advised the accused-party not to indulge in violence on which the accused persons ran away from the spot with their weapons by shooting fires. Sarwan Singh took Bhag Singh and Avtar Singh to Govt. Medical College and Hospital, Sector 32, Chandigarh. Avtar Singh was declared brought- dead whereas Gurdip Singh and Bhag Singh injured were admitted in the hospital for treatment. 11. On the basis of the statement of Gurdip Singh-complainant (PW-10) made to the aforesaid effect, a case was registered against the appellants and six others (who have been acquitted by the trial Court), for the offences punishable under Sections 302/307/323/148/149 IPC. The police came into action, started investigation, arrested the accused and recovered the weapons of offence from their possession pursuant to the disclosure statements suffered by them on interrogation. On completion of investigation, challan was presented in Court and the case was committed to the Court of Session for trial. 12. The accused were charge-sheeted under Sections 148/302/307/323 read with Section 149 IPC and 27 of the Arms Act. 13. To prove its case, the prosecution examined as many as 18 witnesses, viz., Dr. Andesh, Medical Officer, Civil Hospital, Phase VI, Mohali as PW-1; Dr. Inderpal Singh as PW-2; Gurdip Singh, complainant as PW-10, Bhag Singh, the eye witness of the occurrence who was also injured in the incident, as PW-11; Surinder Singh brother of Gurdip Singh as PW-12; Sarwan Singh who is another eye-witness of the occurrence and is father of Gurdip Singh and Surinder Singh, as PW-17; and Inspector Gurvinderpal Singh, the Investigating Officer of the case as PW-18, besides other formal witnesses, namely, PW-3 Constable Jaswant Singh, PW-4 Criminal Appeal No.1712-SB of 2002, 7 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 Kulwant Rai, Senior Clerk of the office of D.T.O. Patiala, PW-5 Om Parkash Clerk of the office of S.D.M. Mohali, PW-6 ASI Gurnam Singh, PW-7 Constable Pardeep Singh, PW-8, C-1 Pardeep Singh, PW-9 Sukhbir Singh, Arms and Ammunition Clerk, PW-13 Gian Singh,PW-14 Constable Sohan Lal, PW-15 Balwinder Singh Naib Nazir of the court of Additional Civil Judge, Senior Division, Kharar, and PW-16 ASI Som Nath. 14. A detailed reference to the testimony of the aforesaid witnesses will be made at the appropriate place while delving into the submissions made by the counsel for the parties. At this stage, it is further suffice to mention that after closure of prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure and all incriminating evidence appearing against them was put to them in order to afford them an opportunity to explain the circumstances in which the occurrence took place. All of them took the plea of false implication in the case and denied the occurrence having taken place as alleged by the prosecution. Surmukh Singh, besides taking other pleas, stated in plain terms that he never caused any injury to Avtar Singh. He stated that on 21.4.1999, he had suffered an injury on his shoulder and got treatment from Sector 32 Hospital, Chandigarh, and on 23.4.1999, his pain aggravated and he got himself admitted in the said hospital for further treatment and during that period, he was being looked after by Bhajan Singh, his co-accused in the case. 15. In defence the accused examined Dr. Gurdarshan Singh as DW- 1, who proved on record bed head ticket in respect of admission and treatment of Surmukh Singh in the hospital, as Ex. DAA. The accused also tendered various documents Ex.DC to Ex.DZ and Ex.DZ/1 to Ex.DZ/6. Criminal Appeal No.1712-SB of 2002, 8 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 16. Thereafter, the prosecution also tendered in evidence copies of certain orders and other documents, Exhibits PHH, PJJ, PKK and PLL and closed additional evidence. The accused were once again examined under Section 313 of the Code of Criminal Procedure in which they pleaded their ignorance about the documents produced by the prosecution in additional evidence. 17. The accused were again called upon to lead evidence and they examined Ram Darshan, Naib Reader to the Superintendent of Police, Mohali as DW-2, who proved on record Zimni No.25 dated 10.6.1999 as Ex. DBB. 18. At the conclusion of the trial, six accused mentioned above were acquitted of the charges whereas three, i.e. the present appellants, were convicted and sentenced as indicated in the preceding paras of the judgment. 19. I have heard Mr. Baldev Singh, Senior Advocate, learned counsel for the appellants; Mr. Mehardeep Singh, learned Deputy Advocate General, Punjab and Mr. G.S. Sandhawalia, learned counsel for the revision-petitioners and perused the case file with their assistance. 20. The learned counsel for the appellants has argued that there is inordinate and unexplained delay in lodging the FIR. The occurrence allegedly took place at 10.00 pm on 21.4.1999. Inspector Gurinderpal Singh, PW18, was telephonically informed about the occurrence, however, the statement of Gurdip Singh, PW10, was recorded at 3.00 am on 22.4.1999 and special report was delivered to the learned Illaqa Magistrate at 8.00 a.m. on 22.4.1999. The learned counsel has submitted that delay in lodging the FIR and then sending the special report renders the entire case Criminal Appeal No.1712-SB of 2002, 9 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 of the prosecution doubtful and in view of the particular circumstance of this case, the delay is fatal to the prosecution case. The learned counsel has referred to the observations made by learned trial Court in para 58 with regard to delay in reporting the matter to the Police which makes possible the introduction of coloured version and roping in of innocent persons as accused. The learned counsel also refers to Pritpal Singh Vs. State of Punjab, 1987(2) RCR (Criminal) 68, wherein a Division Bench of this Court observed that though the delay in lodging a report is not fatal to the prosecution case, it robs the prosecution story of its spontaneity, and therefore, possibility of garbled version of facts, introduction of false witnesses and innocent persons being accused, cannot be ruled out. A delayed report enjoins the Court to sift the prosecution evidence with still greater care and caution. 21. The learned counsel for the appellants has further argued that neither Karnail Singh nor Bhajan Singh is attributed any injury. They have been convicted with the aid of Section 34 IPC. Their presence is not proved and, therefore, they have been falsely implicated in the case being brothers of Surmukh Singh. 22. The learned counsel has further submitted that the appellant purchased the land through registered sale deed. They had sown the wheat crop in the lands purchased by them during the Rabi season, 1999, i.e., at the time of alleged incident. The version of the complainant that Surmukh Singh, Bhajan Singh and Karnail Singh had harvested the wheat crop by using their combine machine totally falsifies their version itself. As per the case of the prosecution, at the time of occurrence, the appellants were going Criminal Appeal No.1712-SB of 2002, 10 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 to harvest their crop. Once the crop had been harvested, there was no occasion with the appellants to again go to the alleged site for the purpose of harvesting the crop. 23. The learned counsel has argued that the complainant, PW10 and Bhag Singh, PW11, are not reliable witnesses. Learned counsel has referred to the fact that as per the statements of these two witnesses, Nachhatar Singh gave gandasi blow on the head of Gurdip Singh, Satpal Singh gave lathi blow to Bhag Singh and Dara Singh. Nirmal Singh gave gandasi blows to Bhag Singh. Similarly Bhag Singh, PW11, has stated that Satpal, Dara Singh and Nirmal Singh had given him injuries with gandasi from reverse side and Nachhatar Singh gave gandasi blow to Gurdip Singh on the left upper arm. He has further argued from that statement, it is evident which injuries were attributed to the other co-accused by the two eye-witnesses, however, the learned trial Judge disbelieved that version rendered by these witnesses observing that the prosecution has failed to prove how these six persons, namely, Darbara Singh and his son Nachhattar Singh, Nirmal Singh, Karam Singh, Dara Singh and Satpal Singh, were interested in Surmukh Singh etc. and at the same time it is also proved that these six accused persons had hostile relations with the complainant party and their false implication was very much probable. The settled law is that if two views are possible, the one favouring the accused should be taken. 24. Therefore, the learned counsel argues that the whole prosecution story is a concocted version on account of previous hostility between the parties. 25. The learned counsel has further argued that the oral evidence of Gurdip Singh, PW12 and Bhag Singh, PW11, does not deserve reliance to Criminal Appeal No.1712-SB of 2002, 11 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 record conviction of accused-appellant Surmukh Singh as the same was found unreliable by the learned trial Court for acquitting the other accused. 26. Learned counsel has lastly argued that these witnesses are wholly unreliable witnesses as per the findings of the learned trial Judge coupled with the fact that the Ballistic Expert’s report, Ex.PT, does not help the prosecution as the same has failed to match the licenced gun of Surmukh Singh with the two cartridges allegedly recovered from the spot. 27. On the other hand, the learned State counsel, assisted by Mr. G S Sandhawalia, Advocate, for the revisionists, has submitted that it cannot be accepted that whenever the death is due to single shot, then the offence is one under Section 304 IPC and not under Section 302 IPC. In the instant case, the accused gave gun-shot injury resulting into instantaneous collapse. The parties were involved in the litigation, therefore, the accused are guilty of offence under Section 302 IPC. 28. I have heard learned counsel for the parties and perused the record. 29. As per the endorsement Ex.PN/2 prepared by Inspector Gurvinderpal Singh, PW18, on receiving telephone from Surinder Singh of Village Sekhonmajra, he reached the hospital on 21.4.1999 itself, as is clear from the application, Ex.DA, made to the doctor to know about the fitness of Gurdip Singh for making statement. However, the statement of Gurdip Singh could be recorded on 22.4.1999 at 3.00 am i.e., after three hours of arrival of the Police in the hospital. The learned trial Court observed that the fact remains that there is delay in reporting the matter to the Police which makes the introduction of coloured version possible for roping in innocent persons as accused. Criminal Appeal No.1712-SB of 2002, 12 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 30. The occurrence took place at 10.00 pm. The matter was reported to the Police at 3.00 am i.e., after a dalay of five hours. In the application, Ex.DA, made for seeking opinion of the doctor as to whether the complainant-Gurdip Singh was fit to make statement or not, the time has not been mentioned. However, the delay is not fatal to the extent that it will make the whole case of the prosecution doubtful. 31. The learned trial Court convicted and sentenced Karnail Singh, appellant No.1, and Bhajan Singh, appellant No.3, on the ground that they are sons of Hari Singh, who had filed a civil suit against the Gram Panchayat wherein the application filed by them for interim stay under Order 39, Rule 1 and 2 was dismissed by the Court on 17.4.1999. On that basis, the learned trial Court concluded that their presence at the place of occurrence, as alleged by the complainant-Gurdip Singh, in his statement, Ex.PN, stands proved. 32. No recovery of the pistol was effected from Karnail Singh during the investigation. So far as the role of Bhajan Singh is concerned, he grappled with the complainant Gurdip Singh whereas accused Nachhattar Singh gave gandasi blow on his left arm. During cross-examination, Gurdip Singh has stated that Nachhattar Singh gave gandasi blow on his person from the sharp side, however, this version of Gurdip Singh is in contradiction with the medical evidence came on the file through Dr. Inderpal Singh, PW2, who has deposed that there was only an abrasion on the mid arm left outer aspect and the injury was caused by a blunt weapon. 33. From the attending circumstances, the presence of Karnail Singh and Gurdip Singh is not fully established. No recovery of pistol, as alleged by the prosecution, was effected from Karnail Singh during the Criminal Appeal No.1712-SB of 2002, 13 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 course of investigation and the statement of complainant-Gurdip Singh was found to be in contradiction with the medical evidence. Therefore, the presence of Karnail Singh and Bhajan Singh as projected by the prosecution, is not conclusively proved in the instant case. 34. However, from the statement of Gurdip Singh, PW10, Bhag Singh, PW11 and Sarwan Singh, PW17, it is fully established that Surmukh Singh, accused, fired a shot from his .12 bore DBBL gun, which hit Avtar Singh on his left leg. From the statement of Sukhbir Singh, PW9, Arms & Ammunition Clerk, it is made out that accused had arms licence, Ex.PM, with regard to DBBL gun bearing No.9308/6839/A/7. 35. Dr. Andesh, PW1, who conducted the port-mortem examination on the dead body has opined that shot was fired from a close range of about 10 feet. Therefore, in my opinion, the medical evidence in the form of statement of Dr. Andesh, PW1, is in consonance with ocular version made by Gurdip Singh, PW10, Bhag Singh, PW11 and Sarwan Singh, PW17. It is proved that accused-Surmukh Singh had fired shot from his .12 bore DBBL gun at Avtar Singh which hit his lower left leg and proved fatal. It is further proved from the report of the Forensic Science Laboratory, Ex.PFF, that the empty cartridges were fired from the left barrel of .12 bore DBBL gun bearing No.9308/6839/A/7, which establishes that the injury suffered by Avtar Singh was given by Surmukh Singh, accused, from the gun owned by him. Therefore, the case of the prosecution against appellant-Surmukh Singh is established beyond reasonable doubt. 36. In view of the discussions made hereinabove, the present appeal qua Karnail Singh, appellant No.2 and Bhajan Singh, appellant No.3, is allowed by giving them the benefit of doubt. They are stated to be on Criminal Appeal No.1712-SB of 2002, 14 Criminal Revision No.248 of 2003 and Criminal Revision No.558 of 2003 bail. Their bail bonds shall discharged. 37. The appeal qua Surmukh Singh, appellant No.1 is dismissed and the judgment of conviction and order of sentence passed by the learned trial Court qua this appellant is maintained. He is stated to be on bail. His bail bond shall stand forfeited. He be taken into custody forthwith to suffer the remaining part of his sentence. 38. Consequently, the revision petitions, namely, CRR No.248 of 2003 and CRR No.558 of 2003, shall also stand dismissed, accordingly. 39. Since the main appeal and revision petitions are decided by this judgment, misc. application(s) pending, if any, shall stand disposed of. ( JITENDRA CHAUHAN ) August 26, 2010 JUDGE SRM/atulsethi Note: Whether to be referred to reporter ? Yes/No