Punjab-Haryana High Court
Sarabjit Alias Sharfi And Others vs State Of Punjab on 9 August, 2012
Author: Inderjit Singh
Bench: Satish Kumar Mittal, Inderjit Singh
In the High Court of Punjab and Haryana at Chandigarh
......
(1) Criminal Appeal No.-D-1226-DB of 2010
.....
Date of decision:9.8.2012
Sarabjit alias Sharfi and others
...Appellants
v.
State of Punjab
...Respondent
....
Coram: Hon'ble Mr. Justice Satish Kumar Mittal
Hon'ble Mr. Justice Inderjit Singh
.....
Present: Mr. Jasjit Singh Bedi, Advocate for the appellants.
Ms. Ritu Punj, Additional Advocate General, Punjab for the
respondent-State.
.....
(2) Criminal Appeal No.-D-1251-DB of 2010
.....
Nirmal Singh and another
...Appellants
v.
State of Punjab
...Respondent
....
Present: Mr. H.N. Mehtani, Advocate for the appellants.
Ms. Ritu Punj, Additional Advocate General, Punjab for the
respondent-State.
.....
Cr. A Nos.-D-1226-DB of 2010 etc.
[2]
(3) Criminal Appeal No.-D-240-DB of 2011
.....
Rohit alias Dimple
...Appellant
v.
State of Punjab
...Respondent
....
Present: Mr. D.S. Pheruman, Advocate and Mr. Ritesh Pandey, Advocate
for the appellant.
Ms. Ritu Punj, Additional Advocate General, Punjab for the
respondent-State.
.....
Inderjit Singh, J.
This judgment will dispose of the above three criminal appeals i.e. Criminal Appeal No.-D-1226-DB of 2010 filed by appellants-Sarabjit alias Sharfi, Rakesh Kumar alias Billa, Anil Kumar alias Neela, Balwant Raj and Tinku alias Goldy; Criminal Appeal No.-D-1251-DB of 2010 filed by appellants-Nirmal Singh and Arjun Singh and Criminal Appeal No.-D-240- DB of 2011 filed by appellant-Rohit alias Dimple as these arise from the same judgment and order.
These appeals have been filed against the judgment and order dated 30.11.2010 passed by the Additional Sessions Judge, Gurdaspur, whereby all the accused-appellants have been held guilty for the offence under Section 148 IPC and sentenced to undergo rigorous imprisonment for three years each. Appellants-Sarabjit and Rakesh Kumar have also been convicted for the offence under Section 302 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of `5,000/- each and in Cr. A Nos.-D-1226-DB of 2010 etc. [3] default of payment of fine to further undergo rigorous imprisonment for six months each. Appellants-Anil Kumar alias Neela, Balwant Raj, Tinku alias Goldy, Rohit alias Dimple, Nirmal Singh and Arjun Singh have also been convicted for the offence under Section 302 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for life and to pay a fine of `5,000/- each and in default of payment of fine to further undergo rigorous imprisonment for six months each. All the appellants have also been convicted for the offence under Section 325 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for four years each and to pay a fine of `1,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one month each. Appellants-Rakesh Kumar alias Billa, Rohit, Nirmal Singh and Arjun have also been convicted for the offence under Section 324 IPC and sentenced to undergo rigorous imprisonment for three years each. Appellants-Sarabjit Singh, Anil Kumar, Balwant Raj and Tinku have also been convicted for the offence under Section 324 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for three years each. Appellants-Anil Kumar, Tinku and Arjun Singh have also been convicted for the offence under Section 323 IPC and sentenced to undergo rigorous imprisonment for one year each. Appellants-Sarabjit, Rakesh Kumar, Balwant Raj, Rohit and Nirmal Singh have also been convicted for the offence under Section 323 read with Section 149 IPC and sentenced to undergo rigorous imprisonment for one year each. However, all the substantive sentences have been ordered to run concurrently.
The brief facts of the prosecution case are that the FIR has been Cr. A Nos.-D-1226-DB of 2010 etc. [4] registered on the basis of statement given by Avtar Singh to Bachittar Singh, SI/SHO, Police Station Sadar, Pathankot on 14.1.2004. The complainant stated that on 13.1.2004, his all family members and relatives were celebrating the Lohri festival of new born child of his brother Jasbir Singh. When they were enjoying the heat of fire (Lohri), his brother Fateh Singh, who arrived from the village, told them that Rakesh alias Billa and Sarabjit alias Sharfi had encircled paternal uncle Gurmukh Singh at Brar Chowk and were beating him. On knowing it, the complainant along with his father Karnail Singh, brothers Fateh Singh and Jasbir Singh and maternal uncle Jarnail Singh and his sons Balwinder Singh, Mohan Singh and other relatives, namely, Gurmit Singh, Amarjit Singh reached at Brar Chowk where the bulbs were lighting in the chowk. There Rakesh alias Billa armed with `Gandasi', Sarabjit alias Sharfi armed with sword, Anil alias Nilla armed with a hockey, Sunder alias Shinda armed with rod, Vikas alias Basu armed with `Datar', Rohit alias Dimple armed with sword, Tinku-carpenter armed with sword, Nirmal Singh alias Aju armed with `Datar', Arun Singh armed with `Gandasi' and Balwant empty handed were standing there, who got seated his paternal uncle there after beating him. On seeing them, Balwant Raj raised a `Lalkara' and said that they be caught hold and taught a lesson for helping Gurmukh Singh. At the same time, Sukhbir Singh alias Laada, who had come to the house of his maternal uncle Sardar Singh also came on the spot on listening the noise. It was about 8.30 p.m. On his seeing, Rakesh alias Billa gave a `Gandasi' blow to Balwinder Singh, which hit upon his head and he fell down on the ground. Sarabjit alias Sharfi gave two sword blows to Balwinder Singh while he was lying on the ground, Cr. A Nos.-D-1226-DB of 2010 etc. [5] which hit on the right side of his head and near his forehead. In the meantime, his maternal uncle Jarnail Singh, his father Karnail Singh and his brothers Fateh Singh and Jasbir Singh; Mohan Singh son of his maternal uncle and their other relatives, namely, Gurmit Singh and Amarjit Singh came forward and on seeing them the above said accused caused injuries to them with their respective weapons with the intention to kill them. When the complainant raised alarm `Maar Ditta - Maar Ditta' and `Bachao - Bachao', then all the accused ran away by raising `Lalkara' along with their respective weapons. The motive behind this fight was that above accused were beating his paternal uncle Gurmukh Singh and they reached at the spot to help him. In this way, the above said accused in connivance with each other got injured Jarnail Singh, Karnail Singh, Mohan Singh, Fateh Singh, Jasbir Singh, Gurmit Singh, Amarjit Singh, Gurmukh Singh and Balwinder Singh. They were brought to the Civil Hospital, Pathankot for treatment after arranging the conveyance. On the way to hospital, Balwinder Singh- son of his maternal uncle succumbed to his injuries. After leaving the dead body of Balwinder Singh in the Civil Hospital, Pathankot, the complainant got recorded his statement to SI/SHO Bachittar Singh, Police Station Sadar, Pathankot and stated that he and Sukhbir Singh alias Laddi were the eye witnesses of the whole occurrence. `Ruqa' was sent to the Police Station through Constable Jaswinder Singh for registration of case, on the basis of which formal FIR No.7 dated 14.1.2004 was registered at 2.30/4.00 a.m. by MHC Balwinder Kumar.
The Investigating Officer proceeded to Civil Hospital, Pathankot along with Avtar Singh-complainant in the mortuary of the Cr. A Nos.-D-1226-DB of 2010 etc. [6] hospital, where the dead body of Balwinder Singh was lying. He prepared inquest report (Ex.PL) in the presence of Baldev Singh and Swaran Singh, who identified the dead body. He sent the dead body through HC Deepak Kumar with his written request for got conducting post-mortem examination. Thereafter, he along with the complainant reached the place of occurrence and inspected the place. He lifted blood stained earth from the place of occurrence, put into a plastic container and converted into a sealed parcel, which was taken into possession vide memo (Ex.P.5). He prepared the rough site plan (Ex.P.6) with correct marginal notes. He conducted raid on the house of the accused but they were not traceable. On the way to the hospital, HC Deepak Kumar produced clothes of the deceased which were converted into sealed parcel and taken into possession. Thereafter, he reached at Civil Hospital, Pathankot and moved request (Ex.PC) regarding the fitness of Amarjit Singh to whom the Doctor declared unfit to make statement. Similarly, he moved applications (Ex.PD) regarding Gurmit Singh, Ex.PE regarding Jarnail Singh, Ex.PF regarding Mohan Singh, Ex.PG regarding Gurmukh Singh, Ex.PH regarding Karnail Singh, Ex.PJ regarding Fateh Singh, Ex.PK regarding Jasbir Singh. All the above named injured were declared unfit to make statement by the Doctor. On 15.1.2004, the Investigating Officer reached in the hospital and moved application (Ex.P.6) regarding Gurmukh Singh injured. He was unfit to make statement. Similarly, he moved application regarding the fitness of Jarnail Singh but he was not on the bed and had been taken for C.T. Scan. Thereafter, he moved application regarding Jasbir Singh, Gurmit Singh, Karnail Singh, Mohan Singh and Amarjit Singh who were taken for X-ray examinations and Fateh Cr. A Nos.-D-1226-DB of 2010 etc. [7] Singh was referred to Guru Nanak Dev Hospital at Amritsar. On 16.1.2004, he conducted raid on the house of accused at Village Lahir Bawain and Village Mirjapur Khabe but none of the accused was traced. He again visited Civil Hospital, Pathankot and moved applications Ex.P.14 to Ex.P.20 regarding Amarjit Singh, Mohan Singh, Jasbir Singh, Jarnail Singh, Karnail Singh, Gurmit Singh and Gurmukh Singh respectively and all were declared fit to make statement by the Doctor and he recorded their statements. On 16.1.2004, he arrested accused Balwant Raj vide arrest memo (Ex.P.21). On the same day, Swaran Singh produced clothes of Mohan Singh stained with blood, which were taken into custody vide memo Ex.P.22. Similarly, blood stained clothes of injured-Jasbir Singh, Karnail Singh, Gurmit Singh and Jarnail Singh produced before him were made into parcels and taken into police custody vide memos Ex.P.23 to Ex.P.26 respectively. On 28.1.2004, he arrested accused Vikas alias Basu, Rohit alias Dimple, Sarabjit alias Sharfi. He interrogated accused Vikas alias Basu on 30.10.2004, who made disclosure statement Ex.P.27 and got recovered the `Datar' in pursuance of his disclosure statement, which was taken into police possession vide recovery memo Ex.P.30. Similarly, on interrogation, accused Rohit alias Dimple and Sarabjit alias Sharfi made disclosure statements Ex.P.28 and Ex.P.29 and got recovered `Kirpans' from the disclosed place respectively, which were taken into police possession vide recovery memos Ex.P.31 and P.32 respectively. He prepared rough sketch of `Kirpans' and `Datar' which are Exs.P.33 to P.35. He also prepared rough site plans of the place of these recoveries which are Exs.P.36 to Ex.P.38.
PW-1 Dr. Ashok Sharma, Medical Officer, Civil Hospital, Cr. A Nos.-D-1226-DB of 2010 etc. [8] Pathankot along with Dr. Rajinder Parshad and Dr. Sucha Ram conducted post-mortem examination on the dead body of Balwinder Singh and found the following injuries:-
"1. 6 x 2 cm sized oblique incised wound present on left side of forehead with medial side of the wound 2 cm above the left eye brow, underlying left frontal bone was fractured and the edges were depressed. There was present laceration of underlying meninges and small subdural haematoma present.
2. 7 x 2 cm sized horizontally oblique incised wound present obliquely on left parietal region of scalp 12 cm above left ear. There was fracture of underlying left parietal and temporal bone. There was present laceration of meninges, presence of big subdural haematoma underlying brain also had laceration and contusion.
3. 3 x 1 cm sized vertical incised wound present 3 cm behind left ear. Underlying mastoid bone was fractured. Bleeding was present both nostrils and right ear."
In the opinion of the doctors the cause of death in this case was due to injuries to vital organ brain which was sufficient to cause death in the ordinary course of nature. All the injuries were ante-mortem in nature. Probable time that elapsed between injuries and death was within 1 to 2 hours and between death and post-mortem was within 24 hours.
PW-2 Dr. Deepak Manhas medico-legally examined Jarnail Singh and found the following injuries on his person:-
"1. 6 cm long, one cm broad, .5 cm deep lacerated wound on Cr. A Nos.-D-1226-DB of 2010 etc. [9] the left parietal region of skull. Advised X-ray and surgical opinion.
2. 6 cm long, 1 cm broad and 0.5 cm deep lacerated wound on the top of skull 15 cm away from the bridge of the nose. Advised X-ray and surgical opinion.
3. 3 cm long, 1 cm broad, .5 deep lacerated wound on the occipital part of the skull. Advised X-ray and surgical opinion.
4. Pain left little finger. Advised X-ray and orthopaedic opinion.
5. Pain left thigh. Advised X-ray and orthopaedic opinion.
6. Pain chest. Advised X-ray and orthopaedic opinion."
In the opinion of the doctor, all the injuries were kept under observation pending specialist opinion. Weapon used for all the injuries was blunt. The probable duration of the injuries was less than six hours. Injuries No.1, 2 and 3 on the person of Jarnail Singh were declared that possibility of dangerous to life could not be ruled out. Injury No.4 was declared grievous.
On the same day at about 11.00 p.m., he also medico-legally examined Fateh Singh and found the following injuries on his person:-
"1. 12 x 1 x 0.5 cms lacerated wound on the right side of forehead in the lateral part extending from right eyebrow to longitudinally upward and posteriorly. Injury kept for opinion of surgical Specialist and X-rays.
2. Blackening present on black eye right side. Injury kept for Cr. A Nos.-D-1226-DB of 2010 etc. [10] eye surgical opinion and X-ray.
3. Patient complained of back pain of lower lumber region. Injury kept for Orthopaedic consultation and X-ray.
4. 2 cm x 2 cm haematoma on the occipital region. It was kept for surgical opinion and X-rays."
All the injuries were kept under observation. The probable duration of the injuries was within 6 hours. The weapons used for injury No.1 was sharp and blunt for rest of the injuries. However, subsequently he corrected his opinion and declared that injury No.1 was with a blunt weapon and not sharp. Vide opinion Ex.PN/2, he opined that the possibility of injuries No.1, 2 and 4 being dangerous to life could not be ruled out.
On the same day at about 11.00 p.m., he also medico-legally examined Mohan Singh and found the following injuries on his person:-
"1. 3 cm x 0.8 cm x 0.5 cm lacerated wound on the forehead just above the left eyebrow.
2. 2 cm x 10 cm contusion over the left shoulder.
3. Patient complained of pain in the left shoulder and left side of chest.
4. Patient complained of pain and swelling in the right foot.
5. Patient complained of pain chest and back.
6. There was a swelling of upper lip on the left side."
On the same day, he medico-legally examined Karnail Singh and found the following injuries on his person:-
"1. 6 cm x 1 cm x 0.5 cm lacerated wound on the left side of forehead, 5 cms above the right corner of right eyebrow.
Cr. A Nos.-D-1226-DB of 2010 etc. [11]
2. 6 cm x 1 cm x 0.5 cm deep lacerated wound on the occipital region of the skull.
3. Patient complained of pain and swelling in the right hand.
4. Complaint of pain in the left forearm.
5. Swelling and 1 cm incised wound in the middle of upper lip."
On the same day, he medico legally examined Jassa Singh and found the following injuries on his person:-
"1. 2 x 0.5 x 0.3 cm lacerated wound on the centre of the forehead.
2. Blackening of the right eye.
3. 1 cm x 0.5 x 0.3 cm incised wound on the left corner of left eye.
4. Haematoma 2 cm x 2 cm on the occipital region.
5. Patient complained of pain and swelling on the right cheek."
On the same day, he also medico-legally examined Gurmeet Singh and found the following injuries on his person:-
"It was V shape lacerated wound 4 x 0.5 x 0.3 cm on one side and 3 cm x 0.5 x 0.3 cm on the second side, on the left side of forehead."
On the same day, he also medico-legally examined Gurmukh Singh and found the following injuries on his person:-
"1. 3 haematomas each measuring 2 cm x 3 cm on the left parietal, right parietal and occipital region.
2. Abrasion on the nose.
Cr. A Nos.-D-1226-DB of 2010 etc. [12]
3. 1 cm x 0.3 cm x 0.2 cm lacerated wound on the dorsal aspect of the left thumb.
4. Patient complained of pain in the chest and upper abdomen."
On the same day, he also medico-legally examined Amarit Singh and found the following injuries on his person:-
"1. There was bleeding from mouth and nose.
2. Blackening around left eye.
3. There was pain in neck.
4. Pain in left shoulder.
5. 10 cm x 10 cm bruise on the right side of chest, lower part and lateral part of chest.
6. Pain in the lower back."
On the same day, he also medico-legally examined Sarabjit Singh and found the following injuries on his person:-
"1. 8 cm x 1 cm x 0.5 cm lacerated wound on the skull on the front in the midline, 10 cms above the nasal bridge.
2. 3 cm x 1 cm x 0.5 cm lacerated wound on the lateral aspect of left eyebrow.
3. Swelling and laceration 1 cm x 1 cm on the right side of skull in the occipital region, 8 cms from the posterior aspect of pinna. Expert surgical and radiological opinion were obtained for injuries No.1, 2 and 3.
4. Pain left thumb X-ray and radiological opinion was advised.
5. Bruise 2 cm x 10 cm on the right shoulder. X-ray and orthopaedic opinion.
Cr. A Nos.-D-1226-DB of 2010 etc. [13]
6. 20 cm x 1 cm long bruise on the right shoulder on the supra scapular region. Advised X-ray and orthopaedic opinion.
7. 10 cm x 2 cm bruise on the posterior aspect of right shoulder. Advised X-ray and orthopaedic opinion.
8. 18 cm x 2 cm bruise on the back in the left side of chest.
9. 12 cm x 2 cm bruise on the back of the left side of chest.
10. 12 inch x 2 cm long bruise on the back. Advised Orthopaedic and Radiological opinion."
All the injuries were declared simple on receipt of Radiological opinion.
On the same day, he also medico-legally examined Rohit son of Surinder Kumar and found the following injuries on his person:-
"1. 5 cm long x 1 cm x 0.5 cm lacerated wound on the left side of forehead. Advised X-ray.
2. 7 cm x 1 cm x 0.5 cm lacerated wound on the top of skull on the right side in the longitudinal direction. Advised X-ray.
3. 6 cm x 1 cm x 0.5 cm lacerated wound on the left occipital region running vertically. Advised X-ray.
4. Pain in the teeth. Advised dental opinion.
5. Pain in the back. Advised X-ray and Orthopaedic opinion.
6. Headache. Advised X-ray and expert surgical opinion."
All the injuries were kept under observation pending surgical, orthopaedic, dental and radiological opinion. The probable duration of the injuries was less than 2 hours. Injuries No.1, 2, 3 and 6 were caused by sharp weapon, which was corrected subsequently, caused by blunt weapon Cr. A Nos.-D-1226-DB of 2010 etc. [14] and rest of the injuries with blunt weapon.
On the same day, he also medico-legally examined Vikas Nanda son of Surinder Kumar and found the following injuries on his person:-
"1. 6 cm x 1 cm x 0.5 cm lacerated wound on the forehead right side, 8 cms above the middle point of right eyebrow. Advised X-ray and surgical opinion.
2. 6 cm x 1 cm x 0.5 cm lacerated wound on the forehead on the left side, 7 cms. above the middle point of left eyebrow. Advised X-ray and surgical opinion.
3. Pain on the left side of the chest on the lateral aspect on the lower 1/3rd of chest. Advised X-ray and surgical opinion."
All the injuries were kept under observation. Probable duration of the injuries was less than two hours. Injuries No.1 and 2 were caused by sharp weapon, which was subsequently corrected, caused by blunt weapon and injury No.3 with blunt weapon.
PW-2 Dr. Deepak Manhas on 16.1.2004 medico-legally examined Tara Devi and found the following injuries on her person:-
"1. Deformity of left leg with diffuse swelling present in the middle, crepitus present, unnatural mobility also present. Puncture wound 0.5 x 0.2 cm present in the middle of anterior part of left leg. Advised X-ray left leg, AP and lateral view.
2. Lacerated wound 2 cm x 1.5 cm present on the planter aspect of left foot over the second metaterso phalangeal joint. Advised X-ray left foot and lateral view."
Injuries No.1 and 2 were kept under observation. The weapon used Cr. A Nos.-D-1226-DB of 2010 etc. [15] was blunt for all the injuries. Report of the Radiologist indicates fracture of upper end of left fibula and a fracture of left tibia was seen in its middle. X- ray of the foot was normal. Injury No.1 was declared as grievous in nature.
PW-3 Dr. Jagjiwan Lal, Radiologist, Civil Hospital, Gurdaspur on 15.1.2004 conducted medico-legal X-ray examination of Mohan Singh son of Jarnail Singh which was advised by Dr. Deepak Kumar, Medical Officer, Civil Hospital, Pathankot and given the following report:-
"X-ray skull AP and lateral view, X-ray left shoulder, X-ray chest PA view, X-ray right foot and X-ray dorsal lumber spine showed no abnormality."
After the radiological examination Sarabjit son of Balwant Raj, Rohit son of Surinder, Amarjit Singh son of Ranjit Singh, Gurmit Singh son of Harbhajan, Jassa Singh son of Karnail Singh, Vikas Nanda son of Surinder Kumar, the injuries were found simple in nature as there was no fracture of bones.
He also radiologically examined Karnail Singh son of Kharak Singh on 15.1.2004 and given following X-ray report:-
"X-ray skull, AP and lateral view, X-ray left forearm showed no abnormality, X-ray right hand, showed a fracture of proximal phalanx of right middle finger in its middle."
He also radiologically examined Tara Devi wife of Des Raj on 17.1.2004 and found the fracture of upper end of left fibula and a fracture of left tibia in its middle.
On completion of investigation challan was presented. After presentation of challan, the trial Court finding prima facie charges against Cr. A Nos.-D-1226-DB of 2010 etc. [16] the accused under Sections 148, 302, 325, 324, 323 read with Section 149 IPC framed charges to which the accused pleaded not guilty and claimed trial.
In support of its case, the prosecution examined PW-1 Dr. Ashok Sharma, Medical Officer, Civil Hospital, Pathankot, who conducted the post-mortem examination on the dead body of Balwinder Singh along with Dr. Rajinder Parshad and Dr. Sucha Ram. PW-2 Dr. Deepak Manhas, Medical Officer, mainly deposed regarding medico-legal examination conducted on 13.1.2004 at about 11.00 p.m. of Jarnail Singh, Fateh Singh, Mohan Singh, Karnail Singh, Jassa Singh, Gurmeet Singh, Gurmukh Singh, Amarjit Singh. In cross-examination, he also deposed regarding medico- legal examination of Sarabjit Singh, Rohit, Vikas Nanda accused and one Tara Devi. PW-3 Dr. Jagjivan Lal, Radiologist mainly deposed regarding conducting of X-ray examination on the person of Mohan Singh etc. PW-4 Avtar Singh is the complainant of this case and he deposed as per prosecution version. PW-5 Karnail Singh, PW-6 Jarnail Singh are the injured and eye witnesses to the occurrence. They have also deposed as per prosecution version. PW-7 HC Deepak Kumar mainly deposed regarding getting conducted post-mortem on the dead body of Balwinder Singh. He further deposed that on 1.2.2004, he joined the investigation with ASI Pal Chand where Shamsher Singh produced accused Surinder Kumar, Anil Kumar, Tinku alias Goldy, Arjun Singh, Nirmal Singh and one Rajesh Kumar. He also deposed regarding disclosure statements of the accused and the recoveries got effected by them. PW-8 Gurmukh Singh is also injured and eye witness to the occurrence. He also deposed as per prosecution Cr. A Nos.-D-1226-DB of 2010 etc. [17] version. PW-9 Fateh Singh is also injured and eye witness to the occurrence and deposed as per prosecution version. PW-10 HC Balwinder Kumar, PW-11 Constable Rajinder Parshad and PW-12 Constable Joginder Pal are formal witnesses, who tendered into evidence their affidavits (Exs.P.2, P.3 and P.4) respectively. PW-13 Jasbir Singh is also injured and eye witness to the occurrence. He also deposed as per prosecution version. PW-14 Bachittar Singh SI/SHO deposed regarding the investigation of the case. PW-15 ASI Pal Chand had joined the investigation with SI Bachittar Singh etc. and deposed regarding the investigation of the case. PW-16 Janak Singh Dhanjal, Draftsman deposed regarding scaled site plan.
At the close of the prosecution evidence accused were examined under Section 313 Cr.P.C. and were confronted with the evidence of the prosecution. Accused denied the correctness of the evidence and pleaded themselves as innocent and had stated that in fact Jarnail Singh, Karnail Singh, Jasbir Singh, Fateh Singh, Bittu, Gurmukh Singh, Amarjit Singh and Gurmeet Singh armed with deadly weapons had given injuries to Sarabjit Singh, Rohit, Vikas and Tara Devi and that they were the aggressors. DW-1 PHC Ashok Kumar mainly deposed regarding the statement of Sarabjit Singh in the Police file.
At the time of arguments, learned counsel for the appellants contended that in the present cases appellants-accused party have also suffered injuries on their person and these injuries have not been explained by the prosecution. Learned counsel for the appellants next contended that the complainant side was aggressors, therefore, they have given injures on the head of Sarabjit Singh etc. The complainant also gave injuries to Rohit, Cr. A Nos.-D-1226-DB of 2010 etc. [18] Vikas accused and one Tara Devi. Therefore, the complainant side being aggressors, the appellants are entitled to acquittal. Learned counsel for the appellants contended that the occurrence took place near the house of Arjun Singh and as per prosecution version the complainant party with so many persons came to the spot from their house. In the alternative, it is also argued that it is a case of free fight and the offence under Section 148 IPC is not made out and the accused cannot be held liable for the injuries given by other accused with the aid of Section 149 IPC. Learned counsel for the appellants also contended that there was no earlier enmity between the accused and the complainant side. There was no motive to cause the murder of Balwinder Singh and to cause injuries to any other person. The occurrence even as per prosecution version was a sudden fight. Learned counsel for the appellants further argued that even accused Balwant Raj was only attributed `Lalkara' and he had not caused any injury to any person. Therefore, learned counsel for the appellants contended that the appellants should be acquitted accordingly.
On the other hand, learned Additional Advocate General, Punjab argued that case of the prosecution has been duly proved by PWs who are eye witnesses as well as injured. Their statements have been duly supported and corroborated by medical evidence and investigation of the case. There is no cross-version given by the accused. The injuries on the person of accused are simple injuries etc. There is no evidence that the complainant party was aggressor party. Balwant Raj-accused has taken active participation in the commission of offence. She argued that the appeals of the appellants have no merit and the same be dismissed.
Cr. A Nos.-D-1226-DB of 2010 etc. [19] In the present case, Balwinder Singh has died and eight other persons, namely, Jarnail Singh (PW-6), Fateh Singh (PW-9), Jasbir Singh (PW-13), Gurmukh Singh (PW-8), Mohan Singh, Gurmit Singh, Amarjit Singh also suffered injuries. On the other hand, accused-appellants Sarabjit alias Sharfi, Rohit and Vikas and one Tara Devi also suffered injuries. The main point for determination in the present case is whether the complainant party was the aggressor or the accused were the aggressor or it is a case of free fight. From the evidence on record, we find that it is case of the prosecution that Balwinder Singh was given injuries by Rakesh alias Billa and Sarabjit alias Sharfi by way of beating. Then as per prosecution case on knowing this from Fateh Singh, complainant-Avtar Singh along with his father Karnail Singh, his brothers Fateh Singh and Jasbir Singh and maternal uncle Jarnail and his sons Balwinder Singh, Mohan Singh and other relatives, namely, Gurmit Singh and Amarjit Singh reached at Brar Chowk. To reach at the conclusion which is the aggressor, we are to see the number of injured persons, number of injuries, the weapon used, the place of occurrence, the nature of the injuries, the fact whether these injuries were given on vital organs or not, which of the parties reached hospital at what time and also who got recorded the statement to the Police and after what time of the occurrence.
In the present case, as per evidence of PW-1 Dr. Ashok Sharma conducted the post-mortem on the dead body of Balwinder Singh along with Dr. Rajinder Parshad and Dr. Sucha Ram. He found three injuries on the person of the deceased. One was on the forehead and frontal bone was fractured. The other injury was on left parietal region and fracture of Cr. A Nos.-D-1226-DB of 2010 etc. [20] underlying left parietal and temporal bone and the third was behind left ear and underlying mastoid bone was fractured and bleeding was present on both nostrils and right ear. The doctor gave his opinion that the cause of death in this case was due to injuries to vital organ brain which was sufficient to cause death in the ordinary course of nature. PW-2 Dr. Deepak Manhas on 13.1.2004 at about 11.00 p.m. medico-legally examined Jarnail Singh and found six injuries. Three of the injuries were on the skull and were lacerated wounds. The doctor gave the opinion regarding the injuries being dangerous to life and grievous in nature on the basis of CT scan. On the same day, he also examined Fateh Singh and found four injuries. One injury was on the right side of forehead and the other was blackening present on black eye right side. Then six injuries were found on the person of Mohan Singh and injury No.1 on the forehead which was lacerated wound. Then he medico-legally examined Karnail Singh and found five injuries and injury No.1 was on forehead and injury No.2 was on the skull. Similar is the case of Jassa Singh where four injuries on vital organs. Injury on the person of Gurmeet Singh was on the left side of the forehead. As regards injuries on the person of Amarjit Singh there was bleeding from the mouth and nose and blackening around left eye etc. As regards injuries on the person of Gurmukh Singh, there were three haematomas on the left parietal, right parietal and occipital region, abrasion on the nose and lacerated wound on the dorsal aspect of the left thumb and the patient complained of pain in the chest and upper abdomen. All the injuries on him were caused with blunt weapon. As per the cross-examination of this doctor, he also medico-legally examined accused-Sarabjit alias Sharfi on the Cr. A Nos.-D-1226-DB of 2010 etc. [21] same day and found ten injuries on his person. Injury No.1 was lacerated wound on the skull, injury No.2 was lacerated wound on the lateral aspect of left eye brow. Injury No.3 was also on the skull. The doctor says that all the injuries were declared simple on receipt of radiological opinion. On medico-legal examination of Rohit, six injures were found. He also suffered three injuries on the forehead, skull etc. i.e. on the vital organs. Vikas received three injuries and out of the three, two were on the forehead. This evidence of the doctor itself shows that both the parties have received injuries and they have also received the injuries on the vital organs of the body. The number of injuries is also large on the person of both the sides. The material fact in the present case is that Gurmukh Singh has suffered simple injuries and only three. One of which was on the left thumb and the other was simple abrasion on the nose which shows that the accused-party had confined Gurmukh Singh there after giving simple two-three injuries but it cannot be held that so many accused had caused the injuries to Gurmukh Singh with deadly weapons. Otherwise also, as per statement of the complainant-Avtar Singh, Fateh Singh had informed that beating was being given to Gurmukh Singh by only two persons which fact shows that after reaching 8-9 persons from the complainant side, the other accused persons also came on the spot and it is clear that it is a case of free fight. Our opinion regarding free fight is further fortified from the fact that there was earlier no enmity or motive to cause injuries to each other. The occurrence had taken place in the street near the house of Arjun Singh but the complainant party admittedly gone there as Gurmukh Singh,their relative was confined there after giving beating. Therefore, in no way, the Cr. A Nos.-D-1226-DB of 2010 etc. [22] complainant party can be held as aggressor. The injuries on 8 persons from the complainant side and one person died from the complainant side itself shows that they are not the aggressors. Similarly, receiving ten injuries by sarabjit alias Sharfi and some of the injuries on vital organs also shows that accused party also cannot be held as aggressor. So when a quarrel took place on the spot, the persons from both the sides caused injuries to each other. Therefore, the offence regarding unlawful assembly in the present case is not made.
PW-4 Avtar Singh in his cross-examination stated that Gurmukh Singh is his maternal uncle. Gurmukh Singh has no dispute with the accused prior to the present occurrence. He also stated in cross- examination that nobody had given injury to Gurmukh Singh in his presence when they reached. Gurmukh Singh was made to sit by the accused when they reached the spot. They did not get any chance to ask the accused as to why they had confined Gurmukh Singh. The complainant was given suggestion that they were armed with deadly weapons and had started inflicting injuries to Sarabjit Singh, Vikas, Rohit and Tara Devi. The witness denied the suggestion. Keeping in view the fact that three accused and one Tara Devi also received injuries itself shows that these injuries were caused from the complainant side. There is no explanation regarding these injuries. All these facts show that when there was no motive for the occurrence and Gurmukh Singh was given only simple injuries or beating and the accused persons have also suffered injuries on their person and some of the injuries on vital organs of the body, all this shows that this was a case of free fight. PW-8 Gurmukh Singh stated that none from their side Cr. A Nos.-D-1226-DB of 2010 etc. [23] was carrying any weapon nor they had inflicted any injury. He also denied the suggestion that they attacked the accused party and inflicted injuries to them. The statement of PW-8 Gurmukh Singh also shows that when he reached Brar Chowk, he saw Rakesh alias Billa, Sarabjit alias Sharfi and Balwant Raj and the motive for causing him injury was that he had been misrepresenting to his relatives Jarnail Singh and Karnail Singh about them and they would teach him a lesson for that. He stated that Rakesh alias Billa and Sarabjit gave beating to him. This statement also shows that beatings were given only as per him by Rakesh and Sarabjit and Balwant Raj was present and other accused were not present at that time, which fact also shows that they had not formed the unlawful assembly and the offence under Section 148 IPC is not made out. From the statement it also looks that some of the appellants-accused came after the arrival of the complainant at the spot.
From the perusal of the evidence on record, reasonable doubt exists regarding the offence under Section 148 IPC made out in this case. From the evidence on record, we find that neither the accused are aggressor party nor the complainant are held as aggressor party. It is a case of free fight. There being no unlawful assembly, they have no common object to cause the occurrence, there was no motive to cause the occurrence. Therefore, all the accused are liable for their individual act and they cannot be held liable for the act committed by the co-accused. The argument of the learned counsel for the appellants that the complainant party is aggressor is having no merit as his argument of free fight in the alternative has merit.
The prosecution has duly proved its case by bringing so many Cr. A Nos.-D-1226-DB of 2010 etc. [24] injured eye witnesses. Their presence cannot be doubted on the spot. They have consistently deposed regarding having received the injuries. PW-5 Karnail Singh, PW-6 Jarnail Singh, PW-8 Gurmukh Singh, PW-9 Fateh Singh and PW-13 Jasbir Singh have deposed regarding the occurrence along with PW-4 complainant Avtar Singh there. Their oral statements are fully supported by medical evidence and investigation of this case.
As per evidence on record appellants Sarabjit alias Sharfi and Rakesh alias Billa gave injuries to Balwinder Singh due to which he died. Therefore, both these accused-appellants are liable for the offence under Section 302 IPC. Rakesh also gave simple injuries with sharp edged weapon and he is also liable for the offence under Section 324 IPC. Anil Kumar alias Neela gave simple and grievous injuries with blunt weapon and he is liable for the offences under Sections 323 and 325 IPC. Appellant- Tinku alias Goldy is liable for the offence under Section 323 IPC as he caused injuries with blunt weapon. Appellant-Rohit alias Dimple caused simple injuries with sharp edged weapon and he is liable for the offence under Section 324 IPC. Appellant-Nirmal Singh is liable for the offence under Section 324 IPC as he had caused injuries with sharp edged weapon and Arjun Singh is liable for the offences under Sections 324 and 323 IPC. Appellant-Balwant Raj is only attributed a `Lalkara'. As per prosecution version, he had not caused any injury to any person, therefore, he is not held guilty for any of the offence. As already discussed, the offence under Section 148 IPC is not made out and, therefore, all the accused are not held guilty under Section 148 IPC also. All the accused also not held guilty for any of the offences with the aid of Section 149 IPC.
Cr. A Nos.-D-1226-DB of 2010 etc. [25] Therefore, from the above discussion, the appeals are partly allowed; the impugned judgment of conviction and order of sentence is modified to the extent that all the appellants in the three appeals are acquitted of the charge under Section 148 IPC. Conviction and sentence of appellant-Sarabjit alias Sharfi under Section 302 IPC is upheld and he is acquitted for the offences under Section 325 read with Section 149 IPC, Section 324 read with Section 149 IPC and Section 323 read with Section 149 IPC. Conviction and sentence of appellant-Rakesh Kumar alias Billa for the offences under Sections 302 and 324 IPC is upheld and he is acquitted for the offences under Section 325 read with Section 149 IPC and Section 323 read with Section 149 IPC. Appellant-Anil Kumar alias Neela is acquitted for the offences under Section 302 read with Section 149 IPC and Section 324 read with Section 149 IPC and his conviction and sentence for the offences under Section 325 and 323 IPC is upheld. Appellant- Balwant Raj is acquitted of all the offences under which he was convicted and sentenced. He be set at liberty forthwith, if not required in any other case. Appellant-Tinku alias Goldy is acquitted for the offences under Section 302 read with Section 149 IPC, Section 325 read with Section 149 IPC and Section 324 read with Section 149 IPC. His conviction and sentence for the offence under Section 323 IPC is upheld. Appellant-Rohit alias Dimple is acquitted for the offences under Section 302 read with Section 149 IPC, Section 325 read with Section 149 IPC and Section 323 read with Section 149 IPC. His conviction and sentence for the offence under Section 324 IPC is upheld. Appellant-Nirmal Singh is also acquitted for the offences under Section 302 read with Section 149 IPC, Section 325 Cr. A Nos.-D-1226-DB of 2010 etc. [26] read with Section 149 IPC and Section 323 read with Section 149 IPC. His conviction and sentence under Section 324 IPC is upheld. Appellant-Arjun Singh is acquitted for the offences under Section 302 read with Section 149 IPC and Section 325 read with Section 149 IPC. His conviction and sentence for the offences under Sections 324 and 323 IPC is upheld.
Therefore, from the above, the appeals are partly allowed accordingly. Criminal Appeal No.D-1226-DB of 2010 qua appellant- Balwant Raj is allowed and he is acquitted of all the offences under which he was convicted and sentenced. He be set at liberty forthwith, if not required in any other case.
(Satish Kumar Mittal) (Inderjit Singh)
Judge Judge
August 9, 2012.
*hsp*