Punjab-Haryana High Court
Mukhtiar Singh And Ors. vs State Of Punjab on 20 February, 1992
Equivalent citations: 1992CRILJ2968
JUDGMENT J.S. Sekhon, J.
1. This judgment will dispose of Criminal Appeal No. 258-DB of 1989 filed by Mukhtiar Singh etc. (appellants) Criminal Appeal No. 328-DB of 1989 filed by Amru, appellant, Criminal Revision No. 940 of 1989 filed by the complainant, as also the reference under Section 318 of the Code of Criminal Procedure qua Amru, appellant, as these arise out of the same judgment.
2. All the appellants, were convicted by the learned Sessions Judge, Patiala, on charge for offence punishable under Section 148, Indian Penal Code, Mukhtiar Singh, Avtar Singh, Gurcharan Singh, Surjit Singh and Amru, appellants, were also convicted of the substantive charge of murder of Nirpal Singh, punishable Under Section 302, IPC, while the other appellants were convicted under Section 302, read with Section 149, Indian Penal Code; Bodhi, Mukhtiar Singh, Gurcharan Singh, Avtar Singh and Amru, appellants were also convicted for substantive charge of murder of Gurinder Singh alias Pappu, punishable under Section 302, Indian Penal Code while the remaining appellants were also convicted of this charge with the aid of Section 149, IPC. Sewa Singh and Mukhtiar Singh, appellants, were also found guilty of the offence punishable under Section 324, IPC for causing injuries to Mohinder Singh while the remaining appellants were convicted with the aid of Section 149, IPC. Amru and Bodhi, appellants, were also found guilty for voluntarily causing simple hurt with blunt weapon to Ranjit Singh Under Section 323, IPC while the remaining appellants were convicted with the aid of Section 149, IPC. Bodhi, appellant, was held guilty on charge for having voluntarily caused simple hurt with blunt weapon to Balbir Singh and the remaining appellants Under Section 323/149, IPC. Avtar Singh and Gurcharan Singh, appellants, were also found guilty Under Section 323, IPC, for causing hurt to Nathi Singh while the remaining appellants of an offence punishable under Section 323, read with Section 149, IPC. Gurcharan Singh, appellant, was also found guilty of the charge of theft of the revolver belonging the Nirmal Singh Under Section 379, IPC.
3. A reference under Section 318 of the Code of Criminal Procedure was made in the case of Amru, appellant, as he being deaf and dumb failed to understand the proceedings at the time of recording his statement under Section 313, Code of Criminal Procedure.
4. All the appellants excepting Amru and Bodhi were awarded sentence of imprisonment for life on two counts for the murder of Nirpal Singh and Gurinder Singh, deceased, under Section 302 and Section 302/149, IPC, as the case may be. Each one of them was also sentenced to pay fine of Rs. 500/- or in default of payment thereof to further undergo six months' rigorous imprisonment on each count. These appellants were awarded different terms of sentence of imprisonment and fine on the other counts. Bodhi, appellant, being less than 16 years of age at the time of commission of offence, was however, ordered to be released under the provisions of Section 27 of the East Punjab Children Act, 1949, as the trial Court found that he was not unruly or so depraved of a character which called for sending him to the Certified School. All the appellants except Amru had filed Criminal Appeal No. 258-DB of 1989 while Amru appellant filed Criminal Appeal No. 328-DB of 1989, as referred to above. The appeal filed by Amru and the reference under Section 318 of the Code of Criminal Procedure as well as the order of conviction against Amru accused have abated due to his death during the pendency of this appeal. Thus, no decision is called for on this reference and appeal.
5. In brief the facts of the prosecution case are that Nirmal Singh, deceased, his brother Satpal Singh (PW 8) along with Gajinder Singh father of Gurinder Singh alias pappu, deceased, had their land in the revenue estate of village Khusropur, falling at a distance of seven to eight kilometres from patiala. They along with their family members used to reside at patiala and supervise the cultivation of this land, situated in village Khusropur. Gurcharan Singh alias Channi, Avtar Singh, Amarjit Singh (since dead) and Jit Singh alias Surjit Singh accused are the sons of Waryam Singh and used to live in village Khusropur while Mukhtiar Singh accused is their neighbour. Sewa Singh accused is the husband of their (Gurcharan Singh etc.) cousin sister while Amar Singh alias Amru, accused belongs to their party. Bodhi accused is sister's son of Gurcharan Singh.
6. On 12-5-1984, a case under Section 307, read with Sections 506, 148, IPC. was registered against Mukhtiar Singh, Amarjit Singh accused-appellants and others for the injuries of Mohinder Singh, Prem Singh etc. In that case Nirpal singh had figured as an eye-witness. This case was still pending in the court of Chief Judicial Magistrate, Patiala, on the day of this occurrence.
7. On 7th October, 1985, a case under Section 452/427, 428, IPC, was registered against Mukhtiar Singh accused and his wife Surjit Kaur for snapping the tails of two she-buffaloes of Nirpal Singh, deceased. In that case, Mukhtiar Singh accused was released on bail hardly three-four days prior to this occurrence. Mukhtiar Singh felt offended for the alleged false implication of his wife and himself in that case and proclaimed in the village that he will teach Nirpal Singh a lesson for his wife's humiliation. Nirpal Singh, deceased, then started taking precautions against any possible attack from Mukhtiar Singh (accused) by keeping three or four persons for escorting him in the evening to his house at Patiala from his village.
8. On 23-1-1986, at about 6 p.m. Nirpal Singh, deceased, accompanied by Nathi Singh (P.W.9), Ranjit Singh (P.W. 10), Mohinder Singh (P.W. 11) and Balbir Singh left his fields for going to Patiala. Satpal Singh (P.W. 8) along with his nephew Gurinder Singh alias Pappu, deceased, also left for Patiala on a scooter ten minutes later than the departure of Nirpal Singh, deceased. Gurinder Singh was driving the scooter while Satpal Singh was sitting on its pillion. They overtook Nirpal Singh etc. On the culvert known as 'Shermajra Puli' in the area of village Sher Majra. Satpal Singh and Gurinder Singh had hardly covered above 100 yards towards Patiala from Sher Majra culvert, when Mukhtiar Singh, Avtar Singh, Amar Singh alias Amru, Gurcharan Singh Sewa Singh, Jit Singh alias Surjit Singh, Budh Singh alias Bodhi and Amarjit Singh (since dead) all armed with gandasas, takwas and dang emerged from the ganda-nala running parallel to the metalled road and blocked their passage. Amarjit Singh (since deceased) and Sewa Singh accused were carrying gandasas each, while rest of the accused were carrying takwas except Bodhi accused who was armed with dang. On the exhortation of Mukhtiar Singh accused that they should avenge the insult by not sparing Gurinder Singh and Satpal Singh, Amarjit Singh (deceased) dealt a gandasa blow on the head of Gurinder Singh. Satpal Singh alighted from the scooter and ran towards V. Khusropur, raising hue and cry. On hearing his cries, Nirpal Singh deceased along with his companions namely Nathi Singh, Mohinder Singh, Ranjit Singh and Balbir Singh rushed to the rescue of Gurinder Singh. Nirpal Singh also fired two shots from his licensed revolver in the air in order to scare away the accused. Meanwhile, Mukhtiar Singh, Gurcharan Singh and Avtar Singh accused gave more injuries to Gurinder Singh with their respective weapons. Gurinder Singh fell down at the spot. Thereupon the accused surrounded Nirpal Singh, deceased, Mukhtiar Singh, accused, gave a takwa blow on the head of Nirpal Singh, while the other accused also gave injuries to Nirpal Singh with their respective weapons. Nirpal Singh fell down. The above referred companions of Nirpal Singh also gave injuries to all the accused except Bodhi in order to rescue Nirpal Singh. In return, the accused also gave injuries to Nathi Singh, Ranjit Singh, Balbir Singh and Mohinder Singh witnesses. After causing injuries, all the accused ran away with their respective weapons towards the fields. They also took away the licensed revolver of Nirpal Singh, deceased, Satpal Singh (PW 8) then rushed to his house at Patiala on the scooter and apprised the wife of Nirpal Singh as well as Khushminder Singh, Sarpanch (PW. 12) of the occurrence. Thereafter he arranged a taxi-car and removed Gurinder Singh and Nirpal Singh injured to Rajindra Hospital, Patiala. The Doctor on duty in the Emergency Ward, however, declared Gurinder Singh dead on reaching the hospital while Nirpal Singh deceased was admitted for treatment at 7.00 p.m. according to Dr. B. S. Mann (P.W. 6). Satpal Singh (P.W. 8) then instructed Khushminder Singh, Sarpanch (P.W. 12) to return to the spot, while he himself rushed to Police Station Sadar, Patiala and lodged report Exhibit PN at 8-30 p.m. with Inspector Mohinder Singh (P W 19). Inspector Mohinder Singh, while recording the report, deputed Assistant Sub-Inspector Des Raj, Bachittar Singh and Jaswant Singh, Constable, to rush to the spot. Accordingly, these persons went there but failed to locate any injured person and then they went to Rajindra Hospital. A case under Section 302, read with Section 149, IPC and Section 307, read with Section 149, IPC etc. was registered against the accused and its special report was conveyed through Head constable Gurbax Singh (P.W. 20) to the duty Magistrate, during the same night at 11-30 p.m.
9. Inspector Mohinder Singh along with other police officials and Sat Pal Singh, complainant then arrived at Rajindra Hospital, Patiala. Nirpal Singh deceased was being treated in the operation theatre. He then drafted inquest report Exhibit PE/2 on the deadbody of Gurinder Singh in the presence of Sat Pal Singh and Mohan Singh witnesses. The deadbody was entrusted to Head Constable Daljit Singh and Constable Hari Chand for autopsy. The Inspector then went to the Emergency Ward of Rajindra Hospital, Patiala, where A.S.I. Des Raj met him and handed over the statement of Avtar Singh accused recorded by him as by then Avtar Singh accused along with Amru and Mohinder Singh injured PW had arrived Rajindra Hospital. A.S.I. Des Raj was directed to get medical-examination of these persons conducted. Inspector Mohinder Singh also learnt about the death of Amarjit Singh accused in the Rajindra Hospital. He then drafted the inquest report Exhibit PF/2 of his deadbody in the presence Waryam Singh accused and Surjit Kaur. The dead-body of Amarjit Singh was also sent for autopsy.
10. Dr. Parduman Kumar Sharma (PWI) medically examined Mohinder Singh (PW) at 12.20 on 24-1-1986 and found a blunt weapon injury on his right knee besides an incised wound on the left site of his head. The head injury was kept under observation subject to X-ray examination. This doctor also examined Avtar Singh accused during that night at 12-35 a.m. and found eleven simple injuries on his person, out of which three were incised wounds. This doctor also examined Amar Singh accused during the night and found three blunt weapon injuries on his person.
11. Dr. Amarjit Singh Sidhu, Incharge of Civil Dispensary, Rajpura Colony, Patiala (PW 3) conducted autopsy on the deadbody of Gurinder Singh alias pappu at 11 a.m. on 24-1-1986, and found eight injuries on his person, out of which seven injuries were located on the head or fore-head of the victim. On exploration, clotted blood was found under the scalp. The scalp bones were found fractured under injuries Nos. 1, 2, 3 and 4. The brain was also damaged. Clotted blood was present in the cranial cavity. All these injuries were found sufficient to cause death in the ordinary course of nature. This doctor also conducted autopsy on the deadbody of Amarjit Singh, accused, at 2 p.m. on 24-1-1986 and found three injuries out of which injury No. 1 (incised wound) was located on the head while injury No. 2 (lacerated wound) was also located on the right side of the head. Under the head injuries, the skull bone was found fractured and brain matter damaged. The third injury was an abrasion on right iliac fossa. The head injuries were found sufficient to cause death of Amarjit Singh in the ordinary course of nature.
12. Earlier on 24-1-1986, at 6 a.m. Inspector Mohinder Singh along with other police officials arrived at the spot and inspected it in the presence of Khushminder Singh, Sarpanch and Sat Pal Singh (PW). The clothes of the deadbody of Nirpal Singh as well as the license, Exhibit PI of the revolver and holster, Exhibit P. 15 of the revolver were also produced before him by Sat Pal Singh PW and taken into possession, after putting into different sealed parcels. During spot inspection, this Inspector also lifted blood stained bajri from the road as well as from the nearby field after putting these into two sealed parcels. He also took into possession broken frame of spectacles Exhibit P4 and broken pieces of its glasses. He also prepared the visual site plan, Exhibit PJJ of the spot. He found the remaining accused absconding. He then left the spot at about 2-15 p.m. for Rajindra Hospital, Patiala. On reaching there, Nathi Singh, Ranjit Singh and Balbir Singh met him. They were arrested after recording their statements for the murder of Amarjit Singh accused and for injuries to other accused. A.S.I. Hardev Singh was deputed for their medical examination.
13. On 24-1-1985, at 5-30 p.m. Dr. Amarjit Singh Sidhu (PW 3) medically examined Nathi Singh (PW) and found two blunt weapon injuries on his person, besides complaint of pain on the right eye brow. This doctor also found two blunt weapon injuries on the head of Balbir Singh at 5.45 p.m. Ranjit Singh (PW) was examined at 6 p.m. by Dr. Sidhu and four blunt weapon injuries were found on his person.
14. On 25-1-1986, Nirpal Singh injured succumbed to his injuries, in the Rajindra Hospital and on receipt of intimation at 8-30 a.m. in this regard, Sub-Inspector Balbir Singh (PW 18) along with other police officials went to Rajindra Hospital, Patiala. He drafted inquest report Exhibit PG/2 of the deadbody and entrusted it to Head Constable Daljit Singh for autopsy. S.I. Balbir Singh also searched for the accused in the Rajindra Hospital but failed to locate them. He also searched them in the house of Shingra Singh in Tripari Township, but failed to locate them.
15. S.I. Balbir Singh then went to the spot where Shingara Singh produced Mukhtiar Singh, Surjit Singh and Budh Singh before him. They were arrested in this case. Mukhtiar Singh accused on interrogation got recovered takwa Exhibit P5 in the presence of Sardool Singh and Khushminder Singh witnesses from the heap of parali lying in his residential house. Surjit Singh accused also got recovered takwa in pursuance of his disclosure statement from underneath the fuel wood and cow dung cakes. Bodhi accused also got recovered lathi from the heap of paroli lying in the courtyard of his residential house. All these weapons were wrapped in three different parcels and taken into possession.
16. The autopsy on the deadbody of Nirpal Singh was conducted by Dr. Amarjit Singh Sidhu (PW3) at 1045 a.m. on 25-1-1986. Eight injuries were observed on his person. On dissection under injuries 1 and 2 skull bone was found fractured. Large quantity of blood was present in the skull cavity. In the opinion of this doctor, injuries 1, 2, 3, 4 and 6 were sufficient to cause death in the ordinary course of nature. All these injuries were ante-mortem. Injuries 6, 7 and 8 were caused with blunt weapon.
17. Dr. Sidhu also medically examined Mukhtiar Singh accused at 3-40 p.m. on 26-1-1986 and found four blunt weapon injuries on his person besides complaint of pain on the left thigh. All these injuries were declared simple in nature. Dr. Sidhu found three simple blunt weapon injuries on the person of accused Surjit Singh alias Jit Singh during his medical examination at 4.30 p.m. on 26-1-1986. This accused also complained of pain on the distal end of his right fore-arm. All these injuries were found simple in nature.
18. On 30-1-1986, Gurcharan Singh accused surrendered in the Court of Sh. H. P. Handa, Chief Judicial Magistrate, Patiala (PW 16) and produced the licensed revolver of Nirpal Singh. It was taken into possession. The accused also moved an application, Exhibit PCC contending that some unknown person had concealed the revolver during the night in his house. The revolver was handed over to Inspector Mohinder Singh. Gurcharan Singh accused was medically examined by Dr. Parduman Kumar Sharma (PW 1) at 5-10 p.m. on 1-2-1986. This doctor found four blunt weapon injuries on his person. Injuries 1 and 4 were declared simple in nature while injuries Nos. 2 & 3 were kept under observation subject to X-ray examination.
19. Gurcharan Singh accused, on interrogation, also got recovered takwa Exhibit P8 by Sub-Inspector Balbir Singh in the presence of Khushminder Singh, Sarpanch and A.S.I. Hardev Singh from underneath Parali in his residential house. It was sealed after putting it into a sealed parcel. Sewa Singh accused got recovered a gandasa, Exhibit P9, in pursuance of his disclosure statement from underneath the heap of parali lying in the courtyard of his house. It was also sealed after putting it into a sealed parcel.
20. Two sealed parcels of the blood lifted from the spot as well as weapons got recovered from the accused were sent to the Chemical Examiner, who vide his report Exhibit PNN found blood thereon and pieces of scrappings therefrom were sent to the Serologist. The Serologist vide report Exhibit POO confirmed the origin of the blood in the lathi got recovered by Bodhi, accused and on the earth taken from two places to be of human. The origin of blood on the takwas and gandasas got recovered from the other accused could not be determined due to its disintegration. The revolver of the deceased Nirpal Singh was also sent to the director, Forensic Science Laboratory, who vide his report Exhibit PPP found that the empty cartridges Exhibit C 1 to C6 found to have been fired from 32 revolver.
21. Nathi Singh, Balbir Singh and Ranjit Singh (PWs) in this case were got discharged in the cross-case under the directions of Sh. Ajit Singh, D.S.P. (PW 22) as they were found innocent.
22. After completion of investigation, all the accused were arraigned for trial on such like allegations for the murder of Gurinder Singh and Nirpal Singh and for causing injuries to Nathi Singh, Ranjit Singh, Mohinder Singh and Balbir Singh witnesses. The version of the accused was found false and no action was taken against the witnesses for the death of Amarjit Singh accused and for the injuries of other co-accused.
23. Before the trial Court, in order to prove its above referred case, the prosecution examined as many as 25 witnesses. Sat Pal Singh (PW 8), Ranjit Singh (PW 10) and Mohinder Singh (PW 11) eye-witnesses supported the above referred version of the prosecution while Balbir Singh, eye-witness was not examined. The reports of the Chemical Examiner, Serologist and Ballistic Expert were also tendered in evidence.
24. The version of the accused-appellants before the trial Court in their respective statements recorded under Section 313, Code of Criminal Procedure was that of self-defence. Mukhtiar Singh, accused, contended that the occurrence had taken place as under:--
On 23-1-1986, at about 6 p.m. Gurcharan Singh along with deceased Amarjit Singh. were coming back to our village after day's work on a bicycle. Amarjit Singh now deceased was plying it and Gurcharan Singh was sitting on its carrier. When they reached near the house of Amar Singh alias Amru on the main road leading from Patiala towards village Main, Nirpal Singh reached there on a scooter from the direction of village. Main towards Patiala and tried to ram it in to his bicycle. Liquor smell was emanating from his breath. Due to this they fell down from the bicycle and a commotion took place in between them and Nirpal Singh challenged "Jara Salio Ei The Kharhe Roho Tohada Ajj Bhog Hee Paa Dinde Hann". Realising danger from the side of Nirpal Singh, Amarjit Singh alighted. Gurcharan Singh from the cycle and plied it fastly towards village Khusropur. He followed him. While running on his feet, Nirpal Singh turned back his scooter towards his tubewell kotha. Gurcharan Singh, Avtar Singh, Jit Singh and Mukhtiar Singh, Sewa Singh and Budh Singh alias Bodhi were working in the field of their father Waryam Singh. Amarjit Singh was raising alarm 'Bachao Bachao, while running towards village Khusropur crossing a bridge on a drain leading parallel to the main road from the direction of Patiala towards village Main. It is known as 'Khusropur village bridge'. At the tubewell kotha of Nirpal Singh, Natha Singh, alias Natha, Ranjit Singh, Balbir Singh, Mohinder Singh, Baldev Singh, Gurinder Singh alias Pappu and Satpal Singh were already assembled. When he crossed the point where a link path leads from the tubewell kotha of Kirpal Singh and joins with the main road, the party men of Nirpal Singh above stated followed him. In the meantime Avtar Singh, Jit Singh, Mukhtiar Singh, Sewa Singh, Budh Singh and Amarjit Singh reached there near the Khusropur bridge holding lathis. I took shelter underneath the side-railing of the said bridge and witnessed that Nirpal Singh was holding a revolver. Satpal Singh was holding a Kirpan and the rest of the accomplices were holding 'gandasas'. Nirpal Singh raised lalkara 'Chuk Deo Enna Churhian Chamaran Noon'. The rescuers were reached at the said bridge and were attacked by Nirpal Singh and his accomplices above noted on the said bridge. Nirpal Singh fired revolver shot at Amarjit Singh but the revolver shot did not hit him. Baldev Singh gave gandasa blow on the head of Amarjit Singh. Amarjit Singh snatched gandasa from Baldev Singh. Nirpal Singh fired another revolver shot which hit Amarjit Singh in his stomach. Amarjit Singh gave gandasa blow which fell on the hand of Nirpal singh. Amarjit Singh was in the process of failing. When Nirpal Singh fired another revolver shot which hit him in his forehead. Gurinder Singh gave gandasa blow from the reverse side of the gandasa on the head of Amarjit Singh. Amar Singh alias Amru also reached the place of occurrence. Satpal Singh wielded kirpan at Amar Singh alias Amru but the kirpan blow fell on the hand of Gurinder Singh. Ranjit Singh then attacked Mukhtiar Singh. Ranjit Singh was wielding gandasa blow at Mukhtiar Singh and Mukhtiar Singh was warding off the blows with sotti. Gurinder Singh gave gandasa blow from reverse side on the back of the head of Mukhtiar Singh. When Gurinder Singh was trying to give another gandasa blow on the person of Mukhtiar Singh. Surjit Singh to save Mukhtiar Singh gave sotti blow on the head of Gurinder Singh. Baldev Singh gave gandasa blow from the reverse side on the head of Mukhtiar Singh. Balbir Singh gave gandasa blow from reverse side on the back bone of Mukhtiar Singh. Baldev Singh gave another gandasa blow on the head of Avtar Singh. Gurinder Singh gave gandasa blow on the right thigh of Avtar Singh. Gurinder Singh gave another gandasa blow on the right flank of Avatar Singh. Ranjit Singh gave gandasa blow from the reverse side on the right thigh of Avtar Singh and Avar Singh fell down. Nathi Singh gave gandasa blow to Surjit Singh on his right shoulder. Satpal Singh gave kick blow to Surjit Singh on his right cheek. Baldev Singh pushed Surjit Singh by holding his right arm on the road. Satpal Singh threw away his kirpan and snatched lathi from the hand of Amar Singh alias Amru. Satpal Singh gave lathi blow on the head of Amar Singh alias Amru. When Amar Singh alias Amru tried to wrest kirpan from Sat Pal Singh, Satpal Singh gave thrust blow with lathi near his right eye. Sat Pal gave another lathi blow on the head of Amar Singh and Amar Singh fell on the ground. Way passers and persons from village Khusropur started coming and converging at the place of occurrence and the accused ran away with their respective weapons towards tube-well kotha of Nirpal Singh. Amarjit Singh died at the spot and Mukhtiar Singh. Avtar Singh, Surjit Singh, Amar Singh sustained injuries by the aggressor Nirpal Singh and his accomplices above stated. Gurcharan Singh had received injuries when he had failed down from the bicycle when I was coming back with my brother deceased. Amarjit Singh after our day's work from Patiala to our village Khusropur. The persons above stated gave lathi blows to the persons of Nirpal Singh party while acting in their right of private defence. A trolley was coming from the side of village Main. We stopped it and requested the driver to take us to police station Saddar taking the deadbody of Amarjit Singh with us. We narrated whole of the story of the above noted occurrence to the Thanedar. Inspector Mohinder Singh who took us all to Rajindra Hospital and admitted Avtar Singh and Amar Singh in Ward No. 4. The body of Amarjit Singh was taken to mortuary for post-mortem examination. The police has done complete favour to the complainant party and has not taken any action on the version lodged by us. The complainant party is aggressor who made an attack with different motive on different persons whereas all the rescuers who were saving Amarjit Singh and themselves are quite innocent.
25. On 29-1-86, at about 11 or 11.15 p.m. Gurcharan Singh was sleeping in my house and the doors of his room were closed. There is boundary wall around the court-yard of his house. Some person with a muffled face scaled over the boundary wall and entered the court-yard. Thereafter he entered his cattle shed holding a small torch in his hand. He could not identify him because his face was muffled. He peeped through the holes of the door of his room and did not come out under fear. The said intruder remained there inside the cattle shed for 10/15 minutes there and thereafter he returned back. He came out in the morning and inspected his cattle shed wherein he found a freshly dug pit covered with earth and on removing the earth he found a revolver lying embedded therein. He took it in his custody and did not go to the police station because he had lost complete faith in the police and surrendered to the Court of the Chief Judicial Magistrate through his counsel Shri H. V. Rai. He also sent application to different police officials including the Deputy Commissioner through registered post. The police did not take any action in to his complaint. At last he sent a notice to the S.S.P. through his counsel giving 15 days' to investigate into the matter but nothing was done. Then he lodged a private criminal complaint in which Sat Pal Singh, Baldev Singh Mohinder Singh, Balbir Singh, Ranjit Singh, Natha Singh have been summoned under Sections 302/307, I.P.C. etc. The same has been committed to this Court and is now under hearing.
26. The motive behind the above stated occurrence is that Nirpal Singh was since beginning inimical to Gurcharan Singh and to family. Accused Ranjit Singh is his partyman and is inimical to Amar Singh alias Amru. Amar Singh filed a civil suit against Nirpal Singh in which Ranjit Singh was also defendant and it was decreed in favour of Amar Singh. Accused Natha Singh is a member of Panchayat and is party men of Nirpal Singh. Accused Balbir Singh is inimical to Amar Singh. Accused Amar Singh had arranged a matrimonial alliance at village Kheri Gujran with his sister. Accused Balbir Singh was resisting the said alliance and lodged a police report with the police station, Saddar against his father and accused Amar Singh including Mohan Singh son of Amar Singh before approximately 3/4 years ago. Accused Satpal Singh is real brother of deceased Nirpal Singh deceased. Gurinder Singh was the real nephew of Nirpal Singh accused Baldev Singh and accused Mohinder Singh are the sorts of accused Natha Singh. Enmity' with Nirpal Singh is that before approximately 15/16 years ago his grandfather Ladha Singh was allotted about 14 killas of land as surplus land margined out from the land of Harshan Kaur the real aunt of Nirpal Singh. Nirpal Singh filed litigation of Hukshufa against his grandfather and at last he lost. Therefore in 1975, round about Nirpal Singh deceased inflicted head injury to his sister Harbans Kaur with a brickbat, who was treated in Rajindra Hospital Patiala and the matter was reported to police Station Saddar. The present Sarpanch of village Khusropur, Khusminder Singh is the PW in the present case also and is cousin brother of deceased Nirpal Singh. He in connivance with Nirpal Singh instigated a lady and filed a false criminal case Under Section 354, I.P.C. against him etc. in which they were acquitted. Nirpal Singh and Khushminder Singh had appeared as PWs in that case. One more false case by deceased Nirpal Singh was lodged with the police station Saddar against Mukhtiar Singh and his wife Surjit Kaur Under Section 429, I.P.C. in which both these persons new have been acquitted, party has claimed in this Hon'ble Court the motive of the present case of mine and the present accused. On 12-5-84 his brother Amarjit Singh deceased lodged a report with police station, Saddar for apprehension of breach of peace against Nirpal Singh and his accomplices Ranjit Singh. Natha Singh, Baldev Singh etc. The dispute arose relating to a piece of land but in this case Nirpal Singh again took the police in their confidence and falsely involved his brother deceased Amarjit Singh, Balkar Singh, Jit Singh, Avtar Singh, Mukhtiar Singh, Babu Singh, Budh Singh, Sewa Singh, Amar Singh, which is now pending. Further a dispute arose in 1984 relating to a small piece of land falling within the Lal Lakir of the village and which was in possession of his father Waryam Singh. He was threatened by deceased Nirpal Singh to be forcibly dispossessed in which a stay order was granted in favour of his father and he was doing Pairvi of this case. This stay order was granted in the month of May, 1984 against Gurinder Singh, deceased. Khushminder Singh PW and Surjit Singh cousin of Nirpal Singh deceased. Due to this Nirpal Singh filed a false civil suit in the Court and obtained a stay order against him and his brother relating to said land thereafter. I including the rescuers Sewa Singh, Avtar Singh, Amarjit Singh, Amar Singh, Budh Singh, Surjit Singh, Mukhtiar Singh are innocent whereas Nirpal Singh and his party men are aggressors.
27. When called upon to enter upon their defence, the accused examined Sh. Amarjit Singh, Clerk, Judicial Record Room, Patiala (DW 1) in order to prove the dismissal of the suit filed by Waryam Singh against Khushminder Singh, Sarpanch and Gurinder Singh, deceased of this case.
28. Sh. Jogdish Chand, clerk, D.C. Office (DW 2) deposed about the promulgation of order under Section 144, Code of Criminal Procedure during the days of this occurrence.
29. Sh. Charanbir Singh, Assistant Municipal Engineer, Municipal Committee, Patiala (DW 3) was examined in order to show that the entire sewerage water of Patiala town was discharged into the same drainage (Ganda Nala), on the spot.
30. Sh. Balwinder Singh, Additional Ahlmad of the Court of Additional District and Sessions Judge, Patiala was examined as DW 4. He deposed about the pendency of the complaint filed by Gurcharan Singh accused of this case against Satpal Singh and other witnesses qua the murder of Amarjit Singh.
31. Head Constable Gurdial Singh was examined as DW 5 in order to establish the deployment of Central Reserve Police at different places.
32. Sh. Baldev Singh, A-hlmad of the Court of Judicial Magistrate 1st Class, Patiala, was examined as DW 5. He on the basis of the record deposed that there was no entry about the receipt of the copy of the F.I.R. of this case in the relevant register.
33. Constable Karamjit Singh was examined as DW 7 in order to show the receipt of the complaint of Gurcharan Singh accused of this case against the complainant party.
34. Mrs. Rekha Rani, Judicial Magistrate 1st Class, Patiala, was examined as DW 8 in order to show that the special report was received by her at 1.30 a.m. on 24-1-1986 and not at 11.30 p.m. on 23-1-1986.
35. Dr. Jagdish Pal Singh, Senior Medical Officer appeared as DW 9 in order to establish the gravity of injuries on the person of Amar Singh and Avtar Singh accused.
36. Sh. Lalit Mohan, Assistant-II, Enquiry clerk, S.S.P. Office, Patiala was examined as DW 10 and on the basis of the record he deposed that notice given by Sh. H. V. Rai, Advocate, learned counsel for the accused for the reinvestigation of this case was received and forwarded to the D.S.P. for inquiry. Certified copies of judgments, Exhibit DX and DY passed by Sh. K. S. Bhullar, Judicial Magistrate 1st Class, Patiala and Sh. Virender Kumar, Judicial Magistrate 1st Class, Patiala, respectively were also tendered.
37. The trial Court also examined Dr. S. B. S. Mann, Associate Professor, Department of E.N.T., P.G.I., Chandigarh, as Court witness in order to ascertain the deafness and dumbness of Amar Singh accused.
38. The trial Court on the basis of the evidence of the injured witnesses as well as Sat Pal Singh (PW 8) coupled with the medical and other circumstantial evidence, convicted and sentenced the appellants except Bodhi and Amru, as referred to above.
39. Bodhi appellant being less than 16 years of age at the time of his commission of offence was considered as child under the provisions of East Punjab Children Act, 1949, was however not awarded any sentence or sent to the Certified School and was released. The trial Court made a reference under Section 318, Code of Criminal Procedure, in the case of Amru appellant, while recording his statement under Section 313, Cr. P.C. found that he was deaf and dumb. The defence version did not find favour with the trial Court.
40. We have heard the learned counsel for the appellants, besides perusing the record.
41. Mr. R. S. Ghai, Senior Advocate, the learned counsel for the appellants, contended that the accused party had no motive to waylay and assault Gurinder Singh (deceased) or Nirpal Singh (deceased). Delay in lodging the F.I.R. was also stressed in order to persuade the Court that the version of the complainant party was concocted after due deliberations and consultations.
42. On the other hand, it was maintained that Nirpal Singh deceased, being an influential person was out to teach a lesson to the accused due to land dispute between Waryam Singh, father of Avtar Singh, Gurcharan Singh, Jit Singh and Amarjit Singh accused (since dead) and due to the snapping of tails of she-buffalo by the wife of Mukhtiar Singh accused. It was contended that Amarjit Singh accused (since dead) and Gurcharan Singh accused were way-laid by Nirpal Singh (deceased) and his partymen on the culvert in the area of village Khusropur and that Nirpal Singh deceased under the influence of liquor struck his scooter against the bicycle of Amarjit Singh accused and that Gurcharan Singh accused tried to escape but Nirpal Singh deceased along with Nathi, Ranjit Singh, Balbir Singh Gurinder Singh, Baldev Singh, Satpal and Mohinder Singh caused injuries to them while the remaining accused were attracted to the spot from the nearby fields and gave injuries to the complainant party in self-defence. It was further contended by Mr. Ghai that the trial Court had wrongly discarded the version of the accused being an after-thought, without taking into consideration that the statement of Avtar Singh accused Exhibit PW 21/B was recorded by A.S.I. Des Raj (PW 21) on the evening of occurrence at Rajindra Hospital, Patiala and that this version figures in the inquest report of Amarjit Singh accused (since dead). It was also maintained that Dr. Bhupinder Singh being son-in-law of Nirpal Singh, deceased had prevailed upon Dr. Amarjit Singh Sidhu (PW 3) in depicting that the head injury of Amarjit Singh accused was not the result of the fire-arm and that the injury on the abdomen of Amarjit Singh with a fire-arm was wrongly depicted as old-healed scar. It was also contended that Sh. Surinder Singh, the then District Attorney, Patiala, was related to S. Narinder Singh, former Advocate-General, Pepsu, who happens to be a close relation to complainant party in this case and he had influenced the Investigating Officer in suppressing the version of the accused and in getting the cross case cancelled. The conduct of the police officer in not getting the accused's injuries x-rayed was also stressed to persuade the Court that one sided investigation was conducted. Mr. Sharma, Deputy Advocate-General, Punjab, assisted by Mr. P. S. Mann, Senior Advocate for the complainant, on the other hand, supported the findings of the trial Court.
43. It is noteworthy that Satpal Singh (PW 8) is the brother of Nirpal Singh, deceased. Their other brother is Gajinder Singh. Gurinder Singh deceased is the son of aforesaid Gajinder Singh. On the other hand, Avtar Singh, Gurcharan Singh, Jit Singh, appellants and Amarjit Singh (since dead) are the sons of Waryam Singh, while Mukhtiar Singh and Amru belong to their party. Both the parties used to reside in the area of village Khusropur.
44. According to Satpal Singh (PW 8) in the year 1984, there was dispute between Nirpal Singh deceased and Mukhtiar Singh accused and his party and a case under Section 307, I.P.C. was registered against Mukhtiar Singh and his companions, wherein Nirpal Singh (deceased of this case) was a witness. He and his brother used to help Nirpal Singh in that case, which is still pending in the Court of Chief Judicial Magistrate, Patiala. The testimony of S.I. Ajit Singh (PW 7), who had got registered that case against Mukhtiar Singh and others, reveals that on 12-5-1984, Amarjit Singh i.e. the accused-appellant of this case had informed him at the police station that there was a dispute between the villagers. He then went to village Khusropur and saw that the two parties had gathered at a place where a wall was being constructed by Nirpal Singh, deceased of this case, whereas Amarjit Singh accused (since dead) of the present case and other persons of the party of Amarjit Singh were trying to prevent Nirpal Singh from constructing the wall. He also stated that in his presence, Nirpal Singh, deceased, was attacked by the other party and he then got registered as case vide F.I.R. (copy Exhibit PL) against Gurcharan Singh, Amarjit Singh deceased, Budh Singh, Sewa Singh, Mukhtiar Singh, Avtar Singh, and Amar Singh accused of this case. The perusal of copy of the F.I.R. Exhibit PL further shows that S.I. Ajit Singh had arrested all the accused except Amru in that case at the spot and a case under Sections 307/506/148/149, I.P.C. was got registered against them. Admittedly, this case was pending at the time of this occurrence in the Court of Chief Judicial Magistrate. Merely because all these accused persons were acquitted in the said case by Sh. K. S. Bhullar, Judicial Magistrate 1st Class, Patiala on 3-4-1989, as is apparent from the certified copy Exhibit DO tendered by the accused before the trial Court, it cannot be said that the accused party had no grouse against Nirpal Singh deceased and Satpal Singh etc. especially when this case was pending at the time of this occurrence. The accused would be feeling more agitated against Nirpal Singh deceased, if it was taken that they were falsely involved in that case.
45. The matter does not rest here as on 7-10-1985, a case under Sections 452, 428 and 506, read with Section 34, I.P.C. was got registered by Nirpal Singh, deceased of this case against Mukhtiar Singh, accused-appellants and the latter's wife Mst. Jit Kaur for snapping the talk of she-buffaloes tethered in his farm house, situate in the area of village Khusropur. In that case, Mukhtiar Singh, accused was released on bail on 18-1-1986, i.e. hardly five days prior to this occurrence. The testimony of Sh. Jarnail Singh, Ahlmad of the Court of Chief Judicial Magistrate, Patiala, on the basis of record shows that Mukhtiar Singh accused was released on bail on 18-1-1986 and lends due assurance to the oral testimony of Satpal Singh (PW 8) that Mukhtiar Singh, accused was released on bail three-four days prior to this occurrence. Keeping in view that the villagers take the implication of their women-folk in criminal cases as an act of extreme dishonour, there is nothing abnormal in the testimony of Satpal Singh, PW, that since the day of his release, Mukhtiar Singh accused was simmering under the insult resulting from the registration of the above referred case against his wife Jit Kaur at the instance of Nirpal Singh deceased. The testimony of Satpal Singh (PW) that since that day Mukhtiar Singh used to keep his companions with him duly armed and had proclaimed that they will teach a lesson to Nirpal singh, deceased, for this episode, sounds truthful under these circumstances. Thus, there is no escape but to affirm the findings of the trial Court that the accused party had motive to assault Nirpal Singh, deceased and his nephew Gurinder Singh, deceased. The factum that the above referred two cases, got registered by Nirpal Singh, deceased were still pending in the Court, it can be well inferred that he was pursuing the legal remedy against the accused and was not prone to take the law into his own hands.
46. In view of the belligerent attitude of Mukhtiar Singh accused and his party after he was released on bail on 18-1-1986, there is nothing abnormal in the conduct of Nirpal Singh, deceased, in keeping with him Natha Singh, Ranjit Singh, Balbir Singh, and Mohinder Singh, etc. for escorting him from village Khusropur to Patiala in the evening. We find no force in the contention of Mr. Ghai that this version was improbable as it is not even alleged by the witnesses that Nirpal Singh used to take any securitymen with him while approaching from Patiala in the morning because the opposite party could not perceive as to when Nirpal Singh would be going to his village from Patiala but they can certainly do so regarding the departure of Nirpal Singh (deceased) for his house at Patiala from village Khusropur after supervising the cultivation of his land in the evening, because fields of Avtar Singh, Gurcharan Singh, Jit Singh and Amarjit Singh (since dead) located along the ganda-nala as well as the metalled road which connects Khusropur from Patiala. The land of Nirpal Singh is located on the other side of this road.
47. We also find no force in the contention of Mr. Ghai that it looks highly improbable that Nirpal Singh, deceased, would walk a distance of 6-8 Kms from his land to Patiala, although he was having a scooter with him or that he could have taken his tractor with him for going to Patiala. In this regard it is noteworthy that house of Amru accused is located along this road near the spot and the fields of Avtar Singh etc. accused are also located along this road: Consequently, there is nothing abnormal in the conduct of Nirpal Singh, deceased, in asking the above referred witnesses to escort him on the return journey from his fields to Patiala. He would certainly be taking his auto-moped along with him as he had to come to the fields on the next day on this vehicle. Keeping in view the high cost of diesel oil, there is nothing abnormal in the conduct of Nirpal Singh deceased in not coming or going to the fields from his house on his tractor.
48. It being a case of cross-versions, wherein Nirpal Singh and Gurinder Singh were killed from the side of the complainant-party and Natha Singh, Ranjit Singh, Balbir Singh and Mohinder Singh witnesses had received the injuries while from the accused party, Amarjit Singh accused was killed and Mukhtiar Singh, Gurcharan Singh, Avtar Singh, Jit Singh, Amru etc. had received injuries, the place of occurrence would play the most crucial part in order to determine as to which party was the aggressor. According to the complainant party, the occurrence took place along the metalled road in the area of village Sher Majra at a distance of 100 yards towards Patiala from the culvert of ganda-nala, known as shermajra culvert while according to the accused party the occurrence took place near the culvert of village Khusropur i.e. in the area of village Khusropur. In this regard, it is noteworthy that broken pieces of the glass and frame of the spectacles of Nirpal Singh, deceased, besides blood stained earth from the bajri lying on the metalled road as well near the potatoes field of Banta Singh was recovered by then Inspector Mohinder Singh (PW 19) in the presence of Satpal Singh (PW 8) and Khushminder Singh (PW 12). He also prepared the visual site plan, Exhibit PJJ of the spot. Simply because the culvert of village Sher Majra was not shown in this plan, it cannot be said that the occurrence had not taken place in the area of village Sher Majra, especially when it is not disputed that the tubewell and the fields of Banta Singh falls in the area of village Sher Majra. The blood stained earth lifted from both these places was found to be stained with human blood by Chemical Examiner and Serologist vide their respective reports, Exhibits PNN and POO. Thus, this evidence lends due support to the version of injured witnesses that occurrence took place near the tubewell of Banta Singh in the area of village Sher Majra.
49. We find no force in the contention of Mr. Ghai that the photographs of the spot were withheld as the same were not favourable to the version of the prosecution, because Sh. Mohinder Singh (PW 19) then Inspector had given plausible explanation that the photographs were not placed on the judicial file as the same were not clear and decipherable, although the scene of the crime was not photographed. Moreover, the perusal of the statement Exhibit PW 21/B of Avtar Singh accused recorded at 11 p.m. on the day of this occurrence by A.S.I. Des Raj in the hospital, shows that the earliest version of the accused was that the occurrence had taken place near the tubewell of Banta Singh. This statement of Avtar Singh, accused, cannot be said to have been wrongly recorded by A.S.I. Des Raj as the latter was deputed by Inspector Mohinder Singh to go to the spot even before the conclusion of the recording of the F.I.R. at the instance of Satpal Singh, PW. Consequently, it can be well inferred that A.S.I. Des Raj was not aware of the case of the prosecution as contained in the F.I.R. before recording the statement of Avtar Singh accused. If that is so, then there was no earthly reason for A.S.I. Des Raj to give twist to the facts disclosed by Avtar Singh, accused. Consequently, in the face of the overwhelming evidence, the belated version of the accused contained in Notice Exhibit DT dated 17-3-1986 given by Sh. H. V. Rai, Advocate to the Senior Superintendent Police, at the instance of Gurcharan Singh, Avtar Singh, Jit Singh, Mukhtiar Singh, accused, contending that the occurrence had taken place near the culvert of village Khusropur, is of no consequence, especially when in his application, Exhibit PCC, Gurcharan Singh, accused at the time of his surrender before the Chief Judicial Magistrate Shri H. P. Handa on 30-1-1986 had not set up any counter version, what to say of alleging that the occurrence had taken place near the Khusropur-culvert. Thus, there is absolutely no doubt that the occurrence had taken place along the metalled road in the area of village Sher Majra and near the fields of Banta Singh, which lends due support of the version of the complainant party that the accused party had way-laid them.
50. The contention of Mr. Ghai that the trial Court had not taken into consideration the first version of Avtar Singh accused contained in his statement Exhibit PW 21/B, but had only taken into consideration the version in Notice Exhibit DT dated 17-3-1986 and the application Exhibit PCC of Gurcharan Singh accused at the time of his surrender, in concluding that the version of the accused was highly belated and after thought, is correct as the perusal of the judgment of the trial Court supports the same, yet all the same it is no consequence as the perusal of statement Exhibit PW 21 / B of Avtar Singh accused recorded at 11 p.m. by A.S.I. Des Raj leaves no doubt that on the evening of occurrence, Avtar Singh accused had set up a different version than the one contained in legal notice Exhibit DT and the statement of the accused recorded under Section 313, Cr. P.C. by the trial Court. This statement of Avtar Singh accused being exculpatory could not be said to be a confession before the police and could be used for ascertaining as to what was the earliest version of the accused. It is noteworthy that A.S.I. Des Raj had recommended the registration of case against the complainant party on the basis of this statement of the accused, but no separate case was registered as the investigation regarding this very occurrence was being already conducted on the basis of the F.I.R. lodged by Satpal Singh (PW 8). The factum that in the inquest report, Exhibit PF/2 of Amarjit Singh accused (since dead) drafted on 23-1-1986 by Inspector Mohinder Singh (PW 19), the statement of Avtar Singh accused has been reproduced in column of 'brief facts of the case' further shows that A.S.I. Des Raj and Inspector Mohinder Singh had conducted the investigation in a fair and above board manner as they had not tried to suppress the cross-version of Avtar Singh.
51. Avtar Singh, accused, in his statement, Exhibit PW 21/B stated that he along with his brothers Amarjit Singh and Jit Singh was present in his house at about 6 p.m. on the eve of occurrence, when Teji son of Maghi came to his house and informed them that Channi i.e. Gurcharan Singh, accused, had been given injuries near the tubewell of Banta Singh with sotis and gandasas by Nirpal Singh, his nephew Gurinder Singh alias Pappu, Natha Singh alias Nathi, Rajinder Singh, Balbir Singh, Baldev Singh, Satpal Singh and Mohinder Singh and that Nirpal Singh fired shots from his pistol and that Avtar Singh Amarjit Singh, Surjit Singh alias Jit Singh, Mukhtiar Singh, Sewa Singh, Budh Singh and Amar Singh accused armed with sotis and gandasas ran towards the place of occurrence in order to save him (Gurcharan Singh), when the accused persons (i.e. the complainant party) attacked them with lathis gandasas and takwas. Thereafter he has alleged that injuries were given to him and his companions by the other side. He further averred that he and his companions also gave injuries to the other side in order to save themselves. After the recording of this statement of Avtar Singh accused by A.S.I. Des Raj and its inclusion in the inquest report by Inspector Mohinder Singh, it appears that the accused party being satisfied with the investigation conducted by Inspector Mohinder Singh had not set up counter-version in the application, Exhibit PCC, dated 30-1-1986 moved by Gurcharan Singh through his counsel at the time of his surrender before Sh. H. P. Handa, the then Chief Judicial Magistrate, Patiala. Gurcharan Singh accused had also produced the licensed revolver containing six fire-cartridges of Nirpal Singh deceased setting up a cock and bull story that during the previous night some unknown person placed this revolver at his house, which was rightly discarded by the trial Court. Thus it has to be taken that till the Notice, Exhibit DT dated 17-3-1986, the present cross-version set up by the accused in their statements under Section 313, Cr. P.C. did not see the light of the day. It is noteworthy that the notice was given through Sh. H. V. Rai, Advocate, the learned counsel for the accused. So, it can be well inferred that delay of about two months in setting up this version has resulted in giving twist to the real facts. The belated version of the accused is that Gurcharan Singh alias Channi along with his brother Amarjit Singh was returning on a bicycle plied by Amarjit Singh accused to village Khusropur after doing their day's work. When they reached, near the house of Amar Singh accused, Nirpal Singh (deceased) accoasted them while coming on a scooter from the opposite side. Nirpal Singh appeared to be drunk and tried to ram his scooter into the bicycle of Amarjit Singh. Amarjit Singh then fell down. Thereafter a verbal altercation took place between these two accused and the deceased. Then Nirpal Singh deceased challenged them to teach a lesson and went towards" his tubewell on his scooter. Apprehending grave danger, Amarjit Singh and Gurcharan Singh accused rushed towards their tubewell. The remaining accused were working in the nearby fields while Amru, whose house is located nearby also arrived at the spot. When the accused party reached near the culvert in the area of village Khusropur, Nirpal Singh, deceased along with his party men then attacked Gurcharan Singh. Thereafter, the remaining accused came to the rescue of Gurcharan Singh. Thus in the belated version, Amarjit Singh accused has been shown to be accompanying his brother Gurcharan Singh at the inception of Assault whereas according to Avtar Singh accused in his version Exhibit PW 21/B recorded on the eye of occurrence it is mentioned that Amarjit Singh accused was present with Avtar Singh at his house when they learnt about the other side having been injuries to their brother Gurcharan Singh near the tubewell of Banta Singh. Now, the accused alleged that the injuries were given near the tubewell of Nirpal Singh deceased i.e. in the area of village Khusropur. Under these circumstances, the earliest version contained in statement, Exhibit PW 21/B of Avtar Singh accused is of no help to the accused-party to render assurance to the version set up by them in the complaint or in their statements recorded under Section 313, Cr. P.C.
52. The question then arises whether the version of Avtar Singh accused contained in his statement Exhibit PW 21/B referred to above is sufficient to conclude that the complainant party was the aggressor and not the accused party. In this regard it is noteworthy that according to Avtar Singh accused, he learnt at his house from Teji son of Maghi that Nirpal Singh deceased along with his nephew Pappu (Gurinder Singh, deceased), Nathi, Mohinder Singh, Balbir Singh, Ranjit Singh witnesses besides Hans Raj, Pala, and Makhan had given injuries with gandasas and dangs to Gurcharan Singh on the road near the tubewell of Banta Singh and that Nirpal Singh fired shots with his pestol. Thereafter Avtar Singh along with others had rushed to the spot and seen all those persons present there. The complainant party attacked the accused party also. Consequently, according to this version Gurcharan Singh accused was given injuries with takwa gandasas and dangs by at least eight persons, whereas the evidence of Dr. Parduman Singh (PW 1) reveals that on medical examination of Gurcharan Singh accused on 1-2-1986 at 5.10 p.m. he had observed the following four injuries on his person:--
1. Three scabbed wounds 2 cm x 1 cm x 1 cm, 4 cm x 1.5 cm partially healed on the posterior side of right elbow.
2. Swelling 3 cm x 2 cm on the dorsum of right hand on medial side. Tenderness was present patient was referred to Rajindra Hospital, Patiala for X-ray of right hand and treatment.
3. Swelling 4 cm x 3 cm on the left side of chest, just below the middle, 10 cm lateral to the mid-line. Tenderness was present. Patient was referred to Rajindra Hospital, Patiala for X-ray chest and treatment.
4. Infected lacerated wound 4 cm x 1 cm on the head in the mid-line, 8 cm above the occipital protubrance. Patient was referred to Rajindra Hospital, Patiala, for treatment.
One would expect large number of injuries on the person of Gurcharan Singh if he was first surrounded and given injuries by eight-nine persons, including pappu alias Gurvinder Singh and Nirpal Singh, deceased. Consequently, it transpires that the occurrence had not taken place, as alleged by the accused-party, but had taken place as alleged by the complainant-party.
53. To crown it all Amru accused in his statement recorded at the P.G.I. Chandigarh by Head Constable Hira Singh (PW 15) had given different version regarding this occurrence in order to absolve himself. In the statement, Exhibit PY, Amar Singh alias Amru accused had alleged that he had left for Patiala as his son Mohan Singh had failed to return and when he reached near the bridge of Sher Majra, two parties were found fighting with each other and that when he stepped forwarded to see whether his son Mohan Singh was involved therein, then Ranjit Singh son of Harnam Singh and Balbir Singh son of Chuhar Singh of village Khusropur caused him (Amru) injuries. This statement cannot be said to have been fabricated at the instance of the prosecution as Head Constable Hira Singh belongs to the police force of Union Territory, Chandigarh and cannot be said under the influence of Patiala police. This version of Amru also shows that the occurrence had taken place at the culvert of Sher Majra.
54. The factum that Nirpal Singh, deceased, allegedly armed with a licensed revolver, did not cause any injury to the accused-party, although he had opportunity to do so when the accused were assaulting his nephew Gurinder Singh as well as causing injuries to him, but had fired the revolver shots in the air in order to scare away the accused-party also shows that the complainant-party was the aggressor. Faced with this difficulty, Mr. Ghai tried to contend that Dr. Amarjit Singh Sidhu (PW3) had not conducted the post-mortem examination of Amarjit Singh correctly under the influence of Dr. Bhupinder Singh, son-in-law of Nirpal Singh, deceased. Dr. Amarjit Singh Sidhu, when questioned in this regard, refuted this allegation but admitted that the accused party did file a complaint before the District Magistrate, Patiala, against him and other doctors alleging that they had not examined the injured and performed the post-mortem correctly. We find no force in this contention of Mr. Ghai, as there is no evidence on the file that Dr. Bhupinder Singh was senior to Dr. Amarjit Singh Sidhu or was his Controlling Officer. Thus, it cannot be said that Dr. Amarjit Singh Sidhu had suppressed the bullet injury on the deadbody of Amarjit Singh, accused, under the influence of Dr. Bhupinder Singh, especially when it is not even the specific case of Avtar Singh accused in his statement, Exhibit PW 21/B that Nirpal Singh deceased had caused any injury to Amarjit Singh accused (since dead).
55. Dr. Amarjit Singh Sidhu (PW 3) during autopsy of Amarjit Singh on 24-1-1986 at 2 p.m. had observed the following injuries:--
1. An incised wound 7 cm x 1/2 over head, near the mid-line on the right side of it. It is 4 cm behind anterior hair line. Clotted blood was present. The hairs were cut over the wound. It was longitudinal in direction.
2. Lacerated wound 10 cm x 1 cm on the right side of mid-line just behind 2 cm from injury No. Clotted blood was present. It was longitudinal in direction. On dissection of the above injuries, clotted blood was present beneath the scalp and the skull bone was under injury No. 1 and brain was also damaged. Under injury No. 2, on dissection, the skull bone was found fractured into pieces and some of fractured pieces were found in the brain. The clotted blood was present in the skull cavity.
3. Abrasion 1 cm x 1 cm on right iliac fossa. The organs of thorax were healthy. In the abdomen there was one old surgical scar present on the right side of the abdomen.
56. A bare glance through injury No. 2 and the old surgical scar on the right side of the abdomen observed by Dr. Amarjit Singh Sidhu during autopsy, leaves no doubt that none of these injuries could be possible as a result of bullet of 32 bore as the old surgical scar is altogether a different thing than the bullet injury. During cross-examination of Dr. Sidhu, it was suggested that the lacerated wound described as injury No. 2 could be the result of a blunt weapon striking at the site where earlier the bullet injury was caused. He had refuted this suggestion. On the other hand, this suggestion of the defence clearly shows that the counsel was not himself sure whether it was a bullet injury or not.
57. From the mere factum that all the six cartridges in the chamber of the revolver had already been fired when Gurcharan Singh accused produced the same before the Chief Judicial Magistrate on 30-1-1986, it cannot be said that Nirpal Singh deceased, had fired more than two shots, as stated by the witnesses because after the revolver was taken by the accused, there was no empediment in firing the remaining four cartridges, especially when Gurcharan Singh, accused, had produced it afterwards i.e. on the 7th day of this occurrence.
58. Mr. Ghai also laid much stress on the non-seizure of the auto-moped of Nirpal Singh deceased contending that this fact was deliberately suppressed by Satpal Singh (PW 8) in the F.I.R. Exhibit PN to rule out the possibility of Nirpal Singh having tried to strike it against the bicycle of Amarjit Singh and Gurcharan Singh accused. In this regard it is noteworthy that Satpal Singh PW was not expected to state in the FIR that Nirpal Singh, deceased, was walking along with his moped, as this auto-moped was not brought to the spot by Nirpa'l Singh while rushing to rescue his nephew. Moreover, the present version of the accused that Nirpal Singh tried to hit his scooter in the bicycle of Amarjit Singh and Gurcharan Singh accused is conspicuously missing from the first version of Exhibit PW 21/B of Avtar Singh accused. Consequently, the investigating officer rightly did not attach much importance to the auto-moped of Nirpal Singh, deceased, or that of scooter of Satpal Singh.
59. We find no force in the contention of Mr. Ghai that the delay in lodging the F.I.R. had resulted in giving twist to the real facts. The occurrence took place at about 6 p.m., wherein Gurinder Singh, nephew of Satpal Singh and Nirpal Singh, brother of Satpal Singh had received injuries at the hands of at least eight accused persons. In this incident, Natha Singh, Ranjit Singh and Mohinder Singh PWs were also injured besides Balbir Singh witness. The plight of Satpal Singh P W after visiting such a ghastly crime can be well imagined. Thus there is nothing abnormal in the conduct of Satpal Singh PW rushing and appraising his family members of this episode and mustering help of Khushminder Singh Sarpanch (PW 12), who happened to be his real uncle. Thereafter he and Khushminder Singh Sarpanch procured a taxi-car and removed Nirpal Singh and Gurinder Singh, deceased, from the spot to Rajindra Hospital, Patiala. Keeping in view the anxiety of the close relations to save the life of Nirpal Singh and Gurinder Singh, there is nothing abnormal in the conduct of this witness in looking after the injured and procuring prompt medical-aid rather than rushing to the police station for reporting the matter. The spot falls five kilometres away from Patiala as is apparent from the mile-stone decpicted in the rough site plan, Exhibit PJJ, of the spot. Unfortunately, Gurinder Singh was found dead on reaching the hospital while Nirpal Singh was still alive and admitted in Rajindra Hospital for treatment. After leaving these two persons in the hospital, Satpal Singh PW rushed to police station Sadar, Patiala and lodged the report at 8.30 p.m. with Inspector Mohinder Singh. This report is quite lengthy. Thus, there is nothing abnormal in Inspector Mohinder Singh having taken full one hour in concluding the same at 9.30 p.m. Its copy by way of special reports were then entrusted to Head Constable Gurbux Singh (PW 20). This police officer in his affidavit, Exhibit PW 20/A, had stated that he was directed to deliver the special reports of this case to the higher officers and the ilaqa Magistrate. He then went to the residence of Chief Judicial Magistrate and found him on leave. Being not aware of the particular of the Duty Magistrate, he consulted the Assistant Public Prosecutor who told him that Mrs. Rekha Rani was the then duty Magistrate, Patiala. He then went to her residence and delivered the special report at 11.30 p.m. When cross-examined about the contents of this affidavit, Head Constable Gurbux Singh admitted that Sh. H. P. Handa, Chief Judicial Magistrate was then the ilaqa Magistrate of Police Station Sadar and his house falls at a distance of 4 Kms. from the police station. He reached there at 10.30 p.m. and the servant informed him that the Chief Judicial Magistrate was on leave. Merely because the prosecution did not establish this fact from Sh. H. P. Handa, Chief Judicial Magistrate, Patiala (PW 16) during his examination regarding the surrendering of Gurcharan Singh, accused along with the revolver of Nirpal Singh, deceased, it cannot be said that Mr. Handa was available at his residence on that day, especially when the Head Constable had nothing to doubt the statement of servant of Sh. Handa. Thereafter, this Head Constable went to the residence of Mrs. Rekha Rani, then duty Magistrate and delivered the special report at 11.30 p.m. The Head Constable refuted the suggestion of the defence during cross-examination that it was delivered at 1.30 a.m. on 24-1-1986.
60. Mr. Ghai tried to contend on the basis of overwriting of 'P.M.' over the word 'A.M.' that it was received at 1.30 a.m. by Mrs. Rekha Rani. Mrs. Rekha Rani was examined in defence as DW 8. She also rightly refuted this suggestion of the defence contending that had the report been received at 1.30 a.m. she would have given the date as 24-1-1986 and not 23-1-1986. It cannot be said that Mrs. Rekha Rani has deposed falsely under the influence of the then District Attorney who happened to be a distant relation of the deceased as the District Attorney had nothing to do with the working of the Judicial Magistrate. No doubt, Head Constable Gurbux Singh had failed to jott down the reason for delay in conveying the special report on its cover itself, as required under Rule 24.5 of the Punjab Police Rules (Vol. III), yet under the circumstances of this case, the above referred lapse on the part of Head Constable Gurbux Singh is of no consequence. Thus, the delay in lodging the F.I.R. stands cogently explained and it cannot be said that the delay had resulted in giving twist to the real facts. The facts given in the F.I.R. thus give due assurance to the testimony of Satpal PW in particular and to the case of the prosecution as both versions are substantially the same.
61. We find no force in the contention of Mr. Ghai that non-citing and non-examination of Mukhan Singh and Hans Raj, eyewitnesses (who during the course of inquiry were found by D.S.P. Ajit Singh (P.W. 22) having witnessed the occurrence), would prove fatal to the prosecution case, as the evidence of these two persons cannot be said to be essential for unfolding the prosecution case, especially when we have the evidence of Satpal Singh (PW 8), Natha Singh, Ranjit Singh and Mohinder Singh, injured-witnesses, whose presence is also admitted at the time of the occurrence by the accused. Thus, the failure of S.I. Balbir Singh in not citing Makhan Singh and Hans Raj, eye-witnesses, although specific instructions were given by D.S.P. Ajit Singh (PW 22) in this regard, is of no consequence, especially when during the cross-examination of D.S.P. Ajit Singh, it was not elicited as to how he felt the necessity of arraigning Makhan Singh and Hans Raj, eye-witnesses, for the murder of Gurinder Singh.
62. Mr. Ghai also contended that the discharge of Natha Singh, Ranjit Singh and Balbir Singh witnesses, who were arrested in the cross-case after recording the statement of Avtar Singh accused and not getting the accused x-rayed for determining the gravity of their injuries, shows that the concerned officials had conducted one-side investigation. We find no force in this contention because it is not a case of that type where the investigators had not inquired into the version of the accused-party. On the other hand, as already discussed, A.S.I. Des Raj (PW 21) had recorded the statement Exhibit PW 21/B of Avtar Singh on the night following the day of occurrence at Rajindra Hospital and on the basis of this statement, aforesaid Natha Singh, Ranjit Singh and Balbir Singh, eyewitnesses of this case, were arrested but thereafter during inquiry, D.S.P. Ajit Singh (PW 22) found these persons to be innocent and instructed S.I. Balbir Singh to get them discharged. Consequently, under these circumstances, it cannot be said that the investigating agency had suppressed or ignored the version of the accused-party. Merely because the injuries of some of the accused were not got subjected to x-ray examination, it cannot be said that the prosecution had tried to suppress the gravity of those injuries, especially when the accused had not applied to the concerned Court for procuring orders to get their injuries subjected to x-ray examination. Moreover, the mere gravity of injuries on the persons of the accused would not have played material part in concluding whether the accused party was the aggressor or the complainant party under the circumstances of this case.
63. Mr. Ghai also tried to contend that withholding of the medico-legal report of Nirpal Singh, deceased, shows that the possibility of Nirpal Singh being drunk at the time of the occurrence cannot be ruled out. This contention is devoid of any force as it appears that Nirpal Singh, deceased was not at all medico-legally examined and there is no question of suppressing this report simply because Inspector Balbir Singh (PW 18) admitted during cross-examination that he had asked the doctor on duty to supply him the medico-legal report qua the injuries of Nirpal Singh, deceased, but the doctor did not supply the same, it cannot be said that Nirpal Singh deceased was medically examined while alive as this witness simply asked the doctor to verify the medico-legal report of the injuries of Nirpal Singh, if any, keeping in view the fact that Dr. Amarjit Singh (PW 3) during autopsy had found eight injuries on the deadbody of Nirpal Singh, out of which injuries Nos. 1, 2, 3, 4 and 6 located on the head and face were found sufficient to cause death in the ordinary course of nature. It can be well inferred that the medico-legal examination of Nirpal Singh was not conducted due to his precarious condition at the time of his admission in Rajindra Hospital, Patiala, at about 8 p.m. on 23-1-1986 and his succumbing to the injuries on 25-1-1986 without regaining consciousness. This omission on the part of the concerned doctor is not of much significance, especially when in the earliest version, Exhibit PW 21/B of Avtar Singh, accused, there is no indication that Nirpal Singh, deceased, had indulged in aggression under the influence of the liquor.
64. Lastly, Mr. Ghai contended that large number of injuries suffered by Mukhtiar Singh, Avtar Singh, Gurcharan Singh, Jit Singh, Amarjit Singh and Amru accused than that of the complainant party would show that the complainant party was the aggressor. We fail to subscribe to this proposition as number of injuries suffered by the members of the opposite faction in a fight is not always the safe criteria to judge as to which party was the aggressor because the party indulging in aggression, may suffer more injuries, if while retaliating, the other the other party over whelms the aggressor. In this case, Dr. Amarjit Singh Sidhu had found eight injuries on the deadbody of Gurinder Singh, deceased as also eight injuries on the person of Nirpal Singh, deceased. Both these deceased had suffered injuries with two types of weapons i.e. sharp edged and blunt weapons. Nathi Singh (PW 9) suffered three injuries while Ranjit Singh (PW) had suffered four injuries with blunt weapons. Mohinder Singh (PW) had suffered two injuries and Balbir Singh one injury. Thus in all the complainant party had suffered 26 injuries. The accused party on the other hand, in all, had suffered 28 injuries. Avtar Singh, Mukhtiar Singh, Gurcharan Singh, Jit Singh, Amarjit Singh (since dead) and Amru (also since dead) accused had suffered 28 injuries. Thus, the number of injuries suffered by both the factions is almost equal. Under the circumstances of the case, discussed above, the number of injuries is of no help to the accused party to come to the conclusion that the complainant party was the aggressor especially when four injuries were found on the person of Gurcharan Singh accused, who according to the version of the accused was first assaulted by the complainant party.
65. The question then arises whether the trial of Bodhi alias Budh Singh, appellant, who was certainly less than 16 years of age at the time of occurrence along with other accused by the Additional learned Sessions Judge and not by the juvenile Court will vitiate the entire proceedings. In this regard, it is noteworty that Under Section 60 of the East Punjab Children Act, 1949, the Central Government in consultation with the High Court has been given power to establish juvenile Courts in any area for the conduct of the proceedings under this Act, but the proviso to Sub-section (1) of Section 60, clearly provides that where a child is accused of an offence triable jointly with any other person not being a child, nothing in this sub-section shall affect or be deemed to affect the powers of the court, to try such other person under any other law for the time being in force. Thus, the joint trial of Bodhi alias Budh Singh, appellant, would not vitiate the trial of the other appellants. Sub-section (2) of Section 60 provides that where no such separate court has been established the court before which a child is brought shall, even if the child is tried jointly with any other person not being a child whenever practicable, sit either in a different building or room from that in which the ordinary sittings of the court are held or on different days or at different times from those at which the ordinary sittings are held. The Legislature so provided to hold trial of the child in a camera in order to save publicity of any child facing trial so that the same may not be an impediment in rehabilitating such child later on. There is no provision in the Juvenile Justice Act, 1986, for the trial of a child less than 16 years of age on a charge for murder. Consequently it cannot be said that the trial of Bodhi, appellant, by the learned Additional Sessions Judge in a murder case has vitiated for non-compliance of provisions of Sub-section (2) of Section 60, as the wording therein leave it to the discretion of the Court, if practicable to hold such trial of a juvenile in a separate building room other than the one where Court is usually held. Moreover, the trial Court had not awarded any sentence to Bodhi alias Budh Singh for the above referred offences, obviously keeping in view the reformatory trend of the provisions of East Punjab Children Act, 1949 and Section 22 of the Juvenile Justice, 1986.
66. For the reasons recorded above, there is absolutely no doubt that the accused-appellants had indulged in preplanned assault upon Gurinder Singh and Nirpal Singh, deceased, after arming themselves with deadly weapons like takwa, gandasa and dang and that the appellants were the aggressors. Thus, there is no scope to interfere with the findings of the trial Court as it cannot be said that it has awarded more sentence for the above referred offences to each of the accused than the one required under the circumstances of the case. We, therefore, find no merit in this appeal (No. 258-DB of 1989) and dismiss the same. The reference Under Section 318, Code of Criminal Procedure and Criminal Appeal No. 328-DB of 1989 have abated due to the death of Amru alias Amar Singh, appellant.
67. Criminal Revision No. 940 of 1989, filed by Sat. Pal Singh (complainant) also fails as there is no justification in awarding more severe sentence or fine than the one awarded by the trial Court.