Criminal Appeal No.379-DB of 2004 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Date of Decision : 14.11.2008 Balwinder Singh and another .....Appellants versus State of Punjab .....Respondent CORAM : HON'BLE MR.JUSTICE UMA NATH SINGH. HON'BLE MR.JUSTICE A.N.JINDAL. Present : Mr.R.S.Cheema, Senior Advocate with Mr.J.S.Mehendiratta, Advocate, for the appellants. Ms.Gurveen H.Singh, Addl.AG, Punjab. -.- UMA NATH SINGH, J. This Criminal Appeal arises out of a judgment dated 24.3.2004, passed by learned Additional Sessions Judge, Kapurthala in Sessions Case No.67 of 17.10.2000, holding the accused-appellants Balwinder Singh and Charanjit Singh guilty of offence on various counts and sentencing them accordingly, as under: 1) Balwinder Singh U/s 302 IPC : To undergo imprisonment for life and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further rigorous imprisonment for one month. U/s 307 IPC To undergo rigorous imprisonment for seven years and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further RI for one month. U/s 323/34 IPC To undergo rigorous imprisonment Criminal Appeal No.379-DB of 2004 2 for nine months and to pay a fine of Rs.500/-; in default of payment of fine, to undergo further RI for one month. U/s 27 of the To undergo rigorous imprisonment Arms Act for three years and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further RI for one month. 2) Charanjit Singh U/s 302/34 IPC To undergo imprisonment for life and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further rigorous imprisonment for one month. U/s 307/34 IPC To undergo rigorous imprisonment for five years and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further RI for one month. U/s 323 IPC To undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-; in default of payment of fine, to undergo further RI for one month. However, the learned trial Judge having not found sufficient evidence against co-accused Jaswinder Singh, recorded his acquittal. Briefly narrated the facts of the prosecution case are that Joga Singh, complainant, has one brother, namely Baldev Singh, younger to him. Jarnail Singh, his father, had two brothers, namely, Teja Singh and Mohinder Singh. Teja Singh, uncle of Joga Singh, has two sons, namely, Criminal Appeal No.379-DB of 2004 3 Manjit Singh and Surjit Singh. Jarnail Singh, father of Joga Singh, and his two brothers alongwith their families were residing in one house. They were also cultivating the land jointly. One of their lands was on the bank of a river, where they had constructed an out-house (Haveli), whereas, their another land was located near river Beas. About four years prior to 1.3.2000, Parjinder Singh son of Balwinder Singh, accused, was murdered by Joga Singh and others. In that case, Joga Singh, his father Jarnail Singh, Surjit Singh and Manjit Singh, two sons of Teja Singh and his uncle were sentenced to undergo imprisonment for life. Joga Singh, his father Jarnail Singh and Surjit Singh, were on bail in that case. Manjit Singh was still in jail undergoing the sentence. On account of this reason, there was enmity between Joga Singh and his family, on the one hand, and Balwinder Singh and his family, on the other. On 1.3.2000, at about 1.00 p.m., Joga Singh, Surjit Singh and Mohinder Singh, uncle of Joga Singh, were coming to their out-house on a tractor after cultivating their land located near river Beas, and when they passed near the tubewell of accused Balwinder Singh, they noticed that accused Balwinder Singh was armed with a 12 bore DBBL gun, and his brothers Charanjit Singh and Jaswinder Singh, were standing there (near his tubewell). On seeing Joga Singh and others, Charanjit Singh and Jaswinder Singh gave an exhortation that Balwinder Singh should take revenge of murder of his son Parjinder Singh. Whereupon, Balwinder Singh fired two shots from his 12 bore DBBL gun, towards Joga Singh, Mohinder Singh and others. Those shots hit into the head of Mohinder Singh, who was Criminal Appeal No.379-DB of 2004 4 sitting on the left mudguard of the tractor. On receipt of fire arm injuries, Mohinder Singh fell down on road and died. Surjit Singh, who was driving the tractor, sped it away. However, accused-Balwinder Singh, with an intention to kill, fired another gun shot from his 12 bore DBBL gun at Joga Singh and other members. After leaving the tractor on way, Joga Singh and others ran through fields. In the meanwhile, Balwinder Singh alongwith Jaswinder Singh and Charanjit Singh, came in Jeep No.DDA-2981, to the out-house of Joga Singh. Jeep was being driven by accused-Charanjit Singh. Teja Singh, uncle of Joga Singh and Naranjan Kaur wife of Teja Singh, were present in the out-house. Accused-Balwinder Singh fired two shots from his 12 bore DBBL gun at Teja Singh, which hit into his right biceps. When accused-Balwinder Singh tried to re-load his gun, Teja Singh came forward and caught hold of his gun. Naranjan Kaur also grappled with him and finally snatched his Double Barrel gun. During the grappling, the butt of gun was also broken. Thereafter, Charanjit Singh brought an iron rod from the Jeep and caused injuries on the neck, left ear and other parts of body of Naranjan Kaur. Balwinder Singh and other accused persons thereafter sped away the Jeep from there. Jit Singh was left to guard the dead body of Mohinder Singh, and injured Teja Singh and Naranjan Kaur were taken to Civil Hospital, Dhilwan by their son Surjit Singh. Joga Singh went to Police Station Dhilwan, for lodging a report and produced the DBBL gun, with broken butt, before Gurbachan Singh, Sub Inspector/SHO, P.S. Dhilwan. His statement, Ex.PA, was recorded and after it was read over and explained to him, which he admitted to be correct, he put his signatures. This was finally recorded as First Information Report. Aforesaid DBBL Criminal Appeal No.379-DB of 2004 5 gun, which was produced by Joga Singh, before Gurbachan Singh, Sub Inspector, was unloaded and two empties were recovered. Gun and two empties were converted into separate parcels, sealed with the seal impression 'GS' and taken into possession vide memo Ex.PB, which was attested by Joga Singh and ASI Ajit Singh. Thereafter, SI Gurbachan Singh, alongwith complainant and other police officials, proceeded towards the scene of occurrence, in the area of village Butala. Dead body of Mohinder Singh was found lying there and thus, Inquest proceedings of dead body were conducted and a report, Ex.PG, was prepared. The dead body was identified by Jit Singh and Piara Singh and it was entrusted to HC No.717 Gurmel Singh and Constable No.711 Santokh Singh, to be carried for conducting post-mortem examination in Civil Hospital, Kapurthala, vide request letter Ex.PF. Blood stained earth was also lifted from the spot and put into a tin box, which was also sealed with the seal bearing impression 'GS'. It was taken into possession, vide memo Ex.PW11/A, which was attested by Jit Singh, Piara Singh and ASI Ajit Singh. Three empties of 12 bore gun lying on spot, were lifted and converted into a sealed parcel. They were taken into possession vide memo Ex.PW11/B. Scene of occurrence was inspected and a site plan, Ex.PW11/C, was prepared with correct marginal notes. Thereafter, SI Gurbachan Singh, alongwith other police officials and Joga Singh, complainant, proceeded towards the out-house of Teja Singh, near Dhusi Bandh. Blood stained earth was also lifted from that place and converted into a parcel, which was sealed with the seal, bearing impression 'GS'. This was taken into possession, vide memo Ex.PW11/D, attested by Joga Singh and ASI Ajit Singh. Site plan, Ex.PW11/E, of the Criminal Appeal No.379-DB of 2004 6 place of occurrence, in the out-house of Teja Singh, was prepared with correct marginal notes. When SI Gurbachan Singh, alongwith other police officials, was returning and reached near village Mangewal, he noticed a Jeep coming from the opposite direction. The jeep (Mahindra No.DDA- 2981), which was being driven by accused-Balwinder Singh, was stopped and the accused was apprehended, and the jeep was also taken into custody vide memo Ex.PW11/F, alongwith its R.C., Ex.P.2. Arrest memo and information memo, Ex.PG and Ex.PH, of accused Balwinder Singh, were prepared. Thereafter, SI Gurbachan Singh, proceeded towards Civil Hospital, Dhilwan. The attending Doctor and injured Teja Singh, were not found available in the hospital. On 2.3.2000, a raid was conducted at the house of the other accused persons, but they were not found present. Thereafter, SI Gurbachan Singh, proceeded to Police Station Dhilwan, and recorded the statement of injured Naranjan Kaur. The attending Doctor informed Sub Inspector Gurbachan Singh, that injured Teja Singh, was referred to Civil Hospital, Kapurthala, and hence, SI Gurbachan Singh, reached the Civil Hospital, Kapurthala, and moved an application Ex.PJ to find out the condition of injured Teja Singh for recording his statement. The attending Doctor vide his endorsement, EX.PJ/1, declared injured Teja Singh, fit to make a statement, and thus, his statement was recorded. After post-mortem examination of dead body, HC Gurmel Singh, produced the clothes of deceased Mohinder Singh, before SI Gurbachan Singh, which were converted into a separate parcel and sealed with seal impression GS, and then taken into possession vide memo Ex.PW-11/J. On 3.3.2000, the Criminal Appeal No.379-DB of 2004 7 licence of DBBL gun, Ex.P8, was also taken into possession vide memo Ex.PW11/K, which was produced by Jaswinder Singh, Ex-Sarpanch of village Butala. Accused Charanjit Singh, was arrested on 16.3.2000, and the case property was deposited with the MHC. Statements of witnesses were also recorded during the course of investigation, and after completion of investigation, a challan against accused Balwinder Singh, was presented, whereas, names of accused Charanjit Singh and Jaswinder Singh, were kept in column No.2 of the report, under Section 173 Cr.P.C. Accused Charanjit Singh, was in custody, when the challan was presented. On appearance of accused Balwinder Singh and Charanjit Singh, in the Court of Committing Magistrate, they were supplied with copies of necessary documents, relied upon by the prosecution. Case was finally committed to the Court of Sessions with directions that accused Charanjit Singh be also produced before that Court. On receiving the case on commitment, in the Court of Sessions, charges were drawn against accused Balwinder Singh and Charanjit Singh. However, after some evidence was recorded, an application under Section 319 Cr.P.C., was moved for summoning accused Jaswinder Singh. That application was accepted and accused Jaswinder Singh, was also summoned, for facing trial alongwith other two accused persons. On appearance of accused Jaswinder Singh, in the Court of Sessions, he was also supplied with copies of necessary documents, relied upon by the prosecution. Thus accused Balwinder Singh was charged with committing offence under Sections 302, 307, and 323/34 of the Indian Penal Code and also Section 27 of the Arms Act, whereas, accused Criminal Appeal No.379-DB of 2004 8 Charanjit Singh was put up for trial on charges under Sections 302/34, 307/34 and 323 of the Indian Penal Code. Similarly, charges under Sections 302/34, 307/34 and 323/34 of the Indian Penal Code, were also framed against accused Jaswinder Singh. When the charges were read over and explained to accused persons, in simple Punjabi language, they pleaded not guilty and claimed trial. Prosecution, in support of its case, examined as many as 15 witnesses, namely, Joga Singh (PW-1), complainant, Teja Singh (PW-2) and Naranjan Kaur (PW-3) both injured eye witnesses, Balwinder Singh (PW-4), Dr.Ashok Dhingra (PW-5), Dr.H.L.Mehmi (PW-6), Dr.Gurbachan Singh (PW-7), Dr.Rajat Obroi (PW-8), HC Subhash Chander (PW-9), Constable Balwinder Singh (PW-10), SI Gurbachan Singh (PW-11), Nisha Rani (PW-12), HC Gurmail Singh (PW-13), Ajit Singh (PW-14) and HC Jaswinder Singh (PW-15). Learned trial Judge, while placing reliance on the evidence of aforesaid witnesses, as also on circumstantial evidence placed on record, convicted two accused-appellants herein, while recording the acquittal of co-accused Jaswinder Singh, as the prosecution failed to prove its case against him beyond reasonable doubt. We have heard learned counsel for parties and perused the record. Learned Senior counsel Shri R.S.Cheema, appearing on behalf of appellants, submitted that accused-appellants had no motive to commit the murder of Mohinder Singh, who was not their target as in the murder of Parjinder Singh son of accused Balwinder Singh, deceased Mohinder Singh Criminal Appeal No.379-DB of 2004 9 was not made an accused. He further submitted that initially accused Balwinder Singh alone was challaned under Section 302 and two co- accused Charanjit Singh and Jaswinder Singh (since acquitted), were placed in column No.2, being found to be innocent. Learned Senior counsel also questioned the site as well as occurrence of the first incident itself, said to have taken place on a road near the tubewell of accused persons. Learned Senior counsel further submitted that as per the evidence of witness Joga Singh, two co-accused had given lalkara, whereas the third one namely accused Balwinder Singh had fired two gun shots from his 12 bore DBBL gun on the deceased and thereafter, on witnesses. According to learned Senior counsel, looking to the nature of injuries, gun shots should have been fired from point blank range, but the site plan of this case disclosed that the gun shot was fired from a distance of 27-1/2 feet. Further, according to Senior counsel, the complainant side, after leaving their tractor, had run into fields, and the accused side after boarding the Jeep had gone to the Haveli of the complainant, where accused Balwinder Singh fired two gun shots from his 12 bore DBBL gun and caused gun shot injuries to witness Teja Singh and his wife Naranjan Kaur. When he started re-loading the gun, injured Teja Singh caught hold of his gun and his wife Naranjan Kaur grappled with accused Balwinder Singh. During the course of grappling, the butt of gun was also broken. However, this has come on record that the gun was deposited with police by complainant Joga Singh at the time of lodging FIR. Learned senior counsel submitted that in this background, the version given by two injured witnesses that they were shot in the Haveli, look to be more probable than the first one in regard to causing of gun shot injury to Criminal Appeal No.379-DB of 2004 10 deceased Mohinder Singh near the tubewell of Baljinder Singh. Further, the police could not find any pellet mark on the tractor, nor on the person of Surjit Singh, who was driving that tractor and also on the body of Joga Singh who was sitting on the mudguard of tractor. Even if the first occurrence is believed, then the provisions of Section 34 IPC would not be attracted so as to fasten criminal liability on accused Charanjit Singh because he had only given a lalkara and did not participate in the actual occurrence. If at all, Section 34 of IPC is to apply, it would apply only in respect of the second occurrence when accused Charanjit Singh boarded the Jeep with accused Balwinder Singh and also caused injuries to Naranjan Kaur by an iron rod. Thus, according to learned senior counsel, eye witness Joga Singh being the complainant is not a dependable witness. Learned senior counsel also referred to the cross examinations of witness Joga Singh to impeach his credibility. Learned senior counsel further referred to the charge framed against accused persons to argue that Section 307 IPC would not be attracted. According to him, if first occurrence took place near the tubewell and deceased Mohinder Singh was shot dead, then a charge under Section 307 could not have been framed against accused Balwinder Singh. Witness Joga Singh deposed against this accused only because Joga Singh was also an accused in the murder case of Parjinder Singh, and had been convicted under Section 304-I IPC. According to learned senior counsel, Joga Singh could not have been an eye witness of the second incident, and he also referred to the report of ballistic Expert. According to Doctor, injury No.1 indicated that it was caused by firing from a close range, and moreover, Criminal Appeal No.379-DB of 2004 11 presence of burn injuries are not found explained in the report. Learned senior counsel also referred to the site plan (Ex.PC) prepared by Patwari (PW-4), to argue that the gun shot was fired from a distance of 27½ feet, and thus, pointed out contradictions between the medical evidence and the ocular version. Learned senior counsel, in order to substantiate his submissions, also referred to three judgments of Hon'ble the Apex Court. In the judgment of Santa Singh Versus State of Punjab, AIR 1956 S.C.526, the question of admissibility of site plan has been discussed, as under:- “If the draftsman is asked to prepare a sketch map of the place of the occurrence and if after ascertaining from the witnesses where exactly the assailant and the victim stood at the time of the commission of the offence and the draftsman measures the distance between the two places thus shown to him and puts it down on the plan, and further, if the witnesses corroborate his statement that they showed him the places, it is somewhat difficult to see how this is not legal evidence and why it is inadmissible.” In the second judgment, namely, Subhash and another Versus State of U.P., AIR 1976 S.C.1924, the question of appreciation of evidence has been elucidated as: “.....13. While we are on the medical evidence it would be appropriate to mention that there was no tatooing or charring on any of the firearm injuries which, according to the doctor, shows that the firing was done from a distance of more than 4 feet. In the First Information Report Bal Kishore has stated that as soon as he, his father and sister reached the culvert, Subhash touching the chest of Criminal Appeal No.379-DB of 2004 12 Ram Sanehi with the barrel of his gun, said that he shall not leave him alive. Shyam Narain thereupon exhorted Subhash not to delay and fire immediately; Subhash then fired three shots in quick succession, one of which misfired. The trend of the F.I.R. is that Subhash fired the first two shots at Ram Sanehi from a point blank range, in which event, indisputably there would have been tatooing and charring around the injuries. Bal Kishore has attempted to offer an explanation that what he mean to say in his complaint was that Subhash trained his gun towards Ram Saheni's chest and not on his chest. This explanation is an after thought and in the circumstances difficult to accept. Thus, in another important respect, the medical evidence falsifies the case of the prosecution.” In the third case also, namely Bahal Singh versus State of Haryana, AIR 1976 S.C.2032, in para 13 of the judgment, the above aspect of appreciation of medical and ocular evidence has been discusssed as: “......13. Coming to the 9th and the last reason mentioned above it would be noticed that the shirt of the deceased was found to be torn at two places. His dhoti was also torn and kachha was found torn at some places. It was not Manphool's evidence that Ram Sarup while going with him was wearing torn and tattered clothes. He was, therefore, obliged to give an explanation for their being found torn. The explanation was that while putting Ram Sarup on the bullock cart the clothes got torn. The trial Judge found it difficult to swallow this explanation. In our opinion, the High Criminal Appeal No.379-DB of 2004 13 Court was wrong in accepting it. In the circumstances of the case, the probability of the clothes being torn and especially of the kachha in the manner suggested by the prosecution, was not there at all. On the other hand, it was quite legitimate to think that Ram Sarup had a scuffle with his assailant and the clothes got torn in that scuffle. Neither Manphool nor PWs 4 and 5, perhaps, saw the occurrence. It is also clear that the gun was fired by the assailant at Ram Sarup's thigh from a very close range. The muzzle of the gun at the time of fire must not be more than a foot away from the thigh. The Doctor who did post mortem examination found a piece of card board torn in four parts and a metallic pellet in the left thigh of Ram Sarup. There was burning of the margins of the wound of entry. The Doctor was not quite right in saying that it was due to heat of the bullet or the pellet. And this showed that the gun was fired from a close range. The High Court was also of the same view. The ocular version of the occurrence given by the prosecution witnesses 2, 4 & 5 does not indicate that the gun was fired by the respondent after he had come very close to the deceased. Rather, according to the evidence of Manphool it was fired from a distance of about 1½ pondas i.e., about 7½ ft.” Learned senior counsel also pointed out certain improvements in the evidence of witness Joga Singh, who was examined twice. According to him, this witness has deposed according to his convenience. Learned senior counsel also took us through the testimony of investigating Officer Criminal Appeal No.379-DB of 2004 14 Gurbachan Singh (PW-11) who has stated that he had not found any pellet mark on the body of tractor. Thus, according to learned senior counsel, witness Joga Singh is not a dependable witness and further there is no corroboration to his evidence. Learned senior counsel further argued that the incident took place in a broad day light at 1.00 p.m. On 1.3.2000, and FIR was lodged at 3.30 p.m. on 1.3.2000, but the special report was sent after 7 hours at 10.30 p.m., to the Area Magistrate. Thus, there was a delay in sending the special report. According to him, three witnesses, 2 from public, i.e., Jeet Singh and Piara Singh, and one from police i.e., Ajit Singh, have not been examined and the empties were also sent for examination after an inordinate delay, on 23.3.2000, as per the evidence of HC Jaswinder Singh vide his affidavit Ex.PC. On the other hand, learned State Counsel tried to justify the impugned judgment. Learned State counsel submitted that the testimony of complainant Joga Singh (PW1), injured Teja Singh (PW2) and Naranjan Kaur (PW3), support the prosecution case in material particulars and their conducts also inspire confidence. On a careful consideration of rival submissions and perusal of record, we notice that testimonies of complainant Joga Singh (PW1), injured witnesses Teja Singh (PW2) and Naranjan Kaur (PW3), would be relevant for disposal of this appeal. Joga Singh (PW1) has supported his statement given in FIR. He has given a vivid description as to why and how the incident took place. According to him, on 1.3.2000, he alongwith Surjit Singh and Mohinder Criminal Appeal No.379-DB of 2004 15 Singh (deceased) were returning from their fields to their Haveli after cultivating their lands. When they reached near tubewell of accused persons, accused Balwinder Singh was seen standing with his 12 bore DBBL gun. Co-accused Charanjit Singh and Jaswinder Singh were also present there, but they were empty handed. Charanjit Singh and Jaswinder Singh are real brothers. They raised a lalkara that complainant’s side should not escape and the revenge of killing Parjinder Singh son of Balwinder Singh be taken. Thereupon, accused Balwinder Singh opened fire on complainant’s side hitting deceased Mohinder Singh, uncle of complainant Joga Singh, on his head. He was sitting on the left mud guard of Tractor while Surjit Singh was driving it and witness Joga Singh (PW1) was sitting on the tillers. Mohinder Singh fell down and succumbed to the injuries instantaneously. According to this witness, they were carrying fodder on tiller of the Tractor. Thereafter, accused Balwinder Singh continued firing further gun shots at them with the intention to kill them. Hence, accused Joga Singh