Punjab-Haryana High Court
Balwinder Singh @ Billu Son Of Amrik ... vs State Of Punjab on 14 January, 2013
Author: S.S.Saron
Bench: S.S.Saron
CRA D-781-DB OF 2005 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA D-781-DB OF 2005
Decided on :- 14.01.2013
1. Balwinder Singh @ Billu son of Amrik Singh,
2. Kulwant Singh @ Katta s/o Ajit Singh,
3. Harjit Singh @ Jiti son of Karnail Singh,
4. Avtar Singh son of Amrik Singh,
5. Karaj Singh son of Karnail Singh,
6. Resham Singh son of Baldev Singh,
7. Baldev Singh s/o Ajit Singh and
8. Satnam Singh son of Ajit Singh,
all residents of village Pakhoke
...........Appellants
Versus
State of Punjab ............Respondent
CORAM HON'BLE MR. JUSTICE S.S.SARON
HON'BLE MR. JUSTICE S.P.BANGARH
Present Mr. APS Deol, Sr. Advocate
with Mr. Vishal Rattan Lamba, Advocate
for the appellants.
Mr.S.S.Dhaliwal, Additional Advocate General, Punjab for respondent.
S.P.BANGARH,J The appellants have assailed the judgment of conviction and order of sentence dated 14.10.2005, passed by the learned Additional Sessions Judge(Adhoc), Amritsar in Sessions Case No. 33 of 2004/FTC, trial No. 42/2004/FTC, emanating from FIR No.175 dated 30.11.2002, under Sections 302/148/149/120-B of the Indian Penal Code (IPC for Short) and 25 and 27 of the Arms Act of Police Station Sadar, Tarn Taran, CRA D-781-DB OF 2005 2 whereby, appellants nos. 7 and 8 were convicted for commission of offences punishable under Sections 302 read with 34 IPC and sentenced to undergo imprisonment for life each and to pay fine of `2,000/- each and in default, thereof, to further undergo rigorous imprisonment for two months each and acquitted of the charge under Section 25 of the Arms Act. The other apellants were acquitted of charge under Sections 302 and 149 IPC, however, they were convicted for commission of offences punishable under Section148 IPC. Appellants nos. 7 and 8 were also sentenced to undergo rigorous imprisonment for six months for commission of offence punishable under Section 148 IPC. However, they were acquitted of the charge under Section 25 of the Arms Act. Other appellants were convicted for commission of offence punishable under Section 148 IPC and sentenced to undergo rigorous imprisonment for a period of six months each. However, they were acquitted of the charge under Sections 302 and149 IPC. However, Gurmeet Singh, accomplice of the appellants, was acquitted of all the charges framed against him.
Case of the prosecution is that Gurmeet Singh, who had his residence at village Wainpuian, went to see his father Parkash Singh and other members at village Pakhoke on 29.11.2002. He originally belongs to village Pakhoke. On 30.11.2002, at about 07:00 a.m, he, his father Parkash Singh and Balbir Kaur wife of his brother were present at their house. Sattu @ Satnam Singh son of Ajit Singh appellant armed with gun, Baldev @ Deba appellant armed with gun, Avtar Singh, Karaj Singh and Resham Singh, all armed with swords came shouting in front of the house of father of the complainant. Out of fear, they went on the roof top of the house. All the appellants hurled brickbats towards them. In the meantime, Kuldeep Singh son of Bakhtawar Singh came driving on a tractor to return it to CRA D-781-DB OF 2005 3 Parkash Singh. When he was still at some distance from the outer gate of their house on the eastern side, Sattu and Baldev Singh appellants, who were standing near the gate on the northern side fired shots from their gun towards him, which hit on his left thigh.
Other appellants caught hold his long hair and dragged him. When Gurmeet Singh and others raised noise, all the accused ran away. Some other persons had also suffered injuries as a result of gun shots. The cause of this occurrence was that 4/5 days prior, when Jitender Singh @ Sona, nephew of Gurmeet Singh, was going on his tractor with trolley to collect beds, Harjeet Singh @ Jiti appellant happened to follow him on the scooter whereon his mother was pillion rider seat and he hurled invectives upon Jatinder Singh and Gurmeet Singh and others had expressed their anguish to the family members of Harjeet Singh @ Jiti. Therefore, this occurrence took place. After the occurrence, Gurmeet Singh was going to the Police Station to lodge the report and on the way in the area of village Bagadia, Krishan Kumar, SI met him and he got recorded his statement Ex.PE, which formed the basis of formal FIR. Krishan Kumar, SI went to Guru Teg Bahadur Hospital, where corpse of Kuldip Singh was lying. He prepared inquest report, thereon, Ex.P2 and sent it to the mortuary for autopsy through Hira Singh, HC and Gurmukh Singh, Constable along with request Ex.PAA. Thereafter, Krishan Kumar, SI along with Gurmeet Singh went to the place of occurrence, collected blood stained earth that was sealed in a small box and that parcel was seized vide memo Ex.PJ.
Tractor No.1813 was seized by SI supra from the place of occurrence vide memo Ex.PH. He also recovered four empties of 315 bore rifle and 5 empties of 12 bore gun, which were sealed into separate parcels and seized those vide memo Ex.PK. Rough site plan Ex.PBB was also CRA D-781-DB OF 2005 4 prepared by Krishan Kumar, SI, who also recorded the statements of witnesses.
Investigation of this case was also conducted by Rachhpal Singh, SI. He arrested Harjeet Singh, Balwinder Singh, Karaj Singh and Kulwant Singh appellants on 03.01.2003. On 06.01.2003, he interrogated Kulwant Singh appellant in the presence of Kuldeep Singh ASI and Gurvinder Singh, HC and he suffered disclosure statement Ex.PN and pursuant, thereto, he got recovered a dang from the chaff in a room of his house that was seized vide memo Ex.PN/1. Avtar Singh appellant was also interrogated by Rachhpal Singh, Inspector and the former also suffered disclosure statement Ex.PD and pursuant, thereto, he got recovered sword lying in a trunk of his house, that was seized vide memo Ex.PD/1. Balwinder Singh appellant also suffered disclosure statement Ex.PP and pursuant, thereto, got recovered a sword from a trunk lying in his house, which was seized vide memo Ex.PP/1.
Harjeet Singh appellant was also interrogated, who also suffered disclosure statement Ex.PQ, pursuant, thereto, he got recovered a knife lying in a trunk in his house, that was seized vide memo Ex.PQ/1. Karaj Singh appellant, on interrogation, suffered disclosure statement Ex.PR and pursuant, thereto, he got recovered a sword from the chaff at his house, that was seized vide memo Ex.PR/1.
Before seizing aforementioned weapons vide recovery memos supra, their sketches Ex.PN/2, Ex.PD/2, Ex.PP/2, Ex.PQ/2 and Ex.PR/2 respectively were prepared. Site plans of their places of recovery Ex.PS, Ex.PT, Ex.PU, Ex.PV and Ex.PX respectively were also prepared. Resham Singh, Baldev Singh, Satnam Singh and Gurmeet Singh appellants could not be arrested.
CRA D-781-DB OF 2005 5
Case against other appellants namely Balwinder Singh, Kulwant Singh, Harjeet Singh, Avtar Singh and Karaj Singh, after completion of investigation, was presented in the Court of learned Illaqa Magistrate by the Station House Officer of Police Station Sadar, Tarn Taran, to the effect that it appeared that these appellants had committed offences punishable under Sections 302/148 and 149 IPC. Case against them was committed to Court of Session by the learned Illaqa Magistrate after supplying copies of documents under Section 207 Cr.P.C.
Lateron, Resham Singh and Baldev Singh, Satnam Singh appellants and Gurmej Singh ( accused since acquitted ) were arrested and separate challan against them was presented by the Station House Officer of concerned Police Station in the Court of learned Illaqa Magistrate, that was committed to the Court of Session. A case under Section 25 of the Arms Act was also registered against Satnam Singh @ Sattu, which was also committed to the Court of Session. All the three cases were consolidated and charge was amended vide order dated 19.08.2004.
All the appellants and Gurmej Singh (accused since acquitted) were charge sheeted under Section 148 IPC, Satnam Singh and Baldev Singh appellants were charge sheeted under Section 302 IPC. Others were charge sheeted under Sections 302/149 IPC. Baldev Singh and Satnam Singh appellants were also charge sheeted under Section 25 of the Arms Act, They pleaded not guilty to the charges and, therefore, prosecution evidence was summoned.
At the trial, the prosecution examined Dr.Ashok Channana PW1, Virsa Singh as PW2, Major Singh as PW3, Rishi Ram Draftsman as CRA D-781-DB OF 2005 6 PW4, Gurmeet Singh as PW5, Balbir Kaur as PW6, Balwinder Singh as PW7, Mukhtiar Singh as PW8, Rachhpal Singh, Inspector as PW9, Kuldip Singh, ASI as PW10, Krishan Kumar, SI as PW11 and Hans Raj, ASI as PW12 and closed the evidence later after tendering in evidence the report of Forensic Sciences Laboratory Ex.PDD.
After the closure of the prosecution evidence, appellants and Gurmej Singh (accused since acquitted) were examined under Section 313 Cr.P.C, wherein, they denied the allegations of prosecution, pleaded innocence and false implications in the case. It was stated by them that they will file written replies of their version, which were not filed.
They were called upon to enter in defence and they examined Santokh Singh as DW1, Dhain Chand as DW2, Mohinder Singh as DW3, Ajaib Singh as DW4, S.P.Kewal Kumar as DW5, Lakhbir Singh, DSP as DW6 and Dr.Ajit Singh as DW7 and closed the defence evidence later.
After hearing both the sides, learned trial Court vide impugned judgment and order of sentence, convicted and sentenced the appellants, as described in the first paragraph of this judgment, while their accomplice Gurmej Singh was acquitted. Aggrieved, thereagainst, the appellants, who were accused before the learned trial Court, have come up in this appeal with prayer for acceptance, thereof, and for acquittal of the charges framed against them.
Learned counsel for the appellants and learned Additional Advocate General for the respondent have been heard and record of the learned trial Court perused with their assistance.
First of all, it is to be seen as to what the prosecution witnesses deposed against the appellants:-
PW1 Dr.Ashok Channana conducted autopsy on the corpse of CRA D-781-DB OF 2005 7 Kuldeep Singh son of Bakhtawar Singh on 01.11.2002, while he was posted as Assistant Professor in the Government Medical College, Amritsar. He found the following injuries on the corpse of Kuldeep Singh.
1. Lacerated wound .5 x .4 cm oval in shape with clotted blood, inverted margins and abrasion collar was present on the outer aspect of left leg, 8 cms below the centre of lateral aspect of knee;
2. An irregular lacerated wound 4.5 x 4 cms with averted margins and clotted blood was present on the antero medial aspect of left thigh in its centre;
3. An irregular lacerated wound 5 x 4.5 cms with clotted blood was present on the antero medial aspect of right thigh in its center. On dissection, injury no.1 communicated with injury no.2 after injuring and fracturing the intervening soft tissues structure, blood vessels and bones. Clotted blood was present in the track, which was of divergent type and directed upwards and medially. Multiple (10) fragmented blood stained metallic pieces of bullet were recovered from the lacerated soft tissue. Structures of right thigh, while doing dissection of injury no.3 clotted blood was present at the site. Dark coloured infiltration of blood was present in the surrounding structures.
4. A dark brownish liner abrasion 3 x 0.5 cm obliquely placed, was present on the outer aspect of right upper limb in its center.
He also deposed that tear marks corresponding to injury nos. 1,2 and 3 were present in the pajama. The scalp, membranes and brain, pleurae, larynx, trachea, both lungs, peritoneum, pharynx, oesophagus, stomach, small intestines, liver, spleen and kidneys were pale. He further deposed that the heart, stomach, small intestines and bladders were empty. Largine intestines contained faeces. Injuries were of ante-mortem origin. He further deposed that, in his opinion, cause of death, in this case, was haemorrhage and shock, as a result of injuries nos. 1,2 and 3, which were sufficient to cause death in ordinary course of nature. He further CRA D-781-DB OF 2005 8 deposed that he handed over to the police, a reconstituted corpse after autopsy along with its belongings duly signed by him, a carbon copy of PMR, police papers 1 to 18 duly signed by him, a jar, duly labeled bearing a seal and addressed to SHO / Incharge, Police Station, Sadar, Tarn Taran, containing the ten fragmented blood stained metallic pieces of injuries and death was immediate to within a few hours and time elapsed between death and post mortem examination was about 24 to 26 hours. He brought the original autopsy report and proved carbon copy, thereof, Ex.PA. He also proved pictorial diagram showing the injuries Ex.PA/1.
PW2 Virsa Singh, Constable tendered in evidence his affidavit Ex.PB.
PW3 Manoj Singh, Constable, tendered in evidence his affidavit Ex.PC.
PW4 Rishi Ram, Draftsman prepared scaled site plan Ex.PD. PW5 Gurmeet Singh deposed on the lies of his statement Ex.PE, which according to him, was correctly recorded by SI.
PW6 Balbir Kaur deposed likewise and corroborated the testimony of PW5 by testifying that on 30.11.2002 at about 07:00 a.m, she along with her father-in-law Parkash Singh and Gurmeet Singh, PW5 was present at their house, where Satnam Singh @ Sattu and Baldev Singh appellants armed with rifle, Kulwant Singh appellant armed with dang, Harjit Singh, Karaj Singh, Resham Singh, Balwinder Singh and Avtar Singh also armed with rifles came there along with Gurmej Singh ( accused since acquitted). She further deposed that outside the gate of the house, they hurled invectives upon them and out of fear, all of them went upstairs on the rooftop and the appellants and Gurmej Singh (accused since acquitted) threw brickbats inside their house and in the meantime, Kuldeep Singh CRA D-781-DB OF 2005 9 happened to come outside their house on a tractor and Satnam Singh and Baldev Singh fired gun shots upon them, who suffered gun shots injuries on his right thigh and arm. They raised hue and cries and other appellants pulled Kuldeep Singh while on a tractor and ran away. She further deposed that Kuldeep Singh was later taken to hospital at Amritsar, who succumbed to his injuries, on the way to hospital and her statement was recorded.
PW7 Balwinder Singh, HC tendered in evidence his affidavit Ex.PF.
PW8 Mukhtiar Singh, SI also deposed that on 30/11/2002, he joined investigation with Krishan Kumar, SI and from the place of occurrence, SI supra recovered one tractor that was seized vide memo Ex.PH, which was signed by him. He further deposed that in his presence, SI supra lifted blood stained earth that was sealed in a box with the seal bearing impression KK and that parcel Ex.P1 was seized vide memo Ex.PJ. He further deposed that four live cartridges of 315 bore and 5 empties were also recovered which were sealed in two separate parcels Ex.P2 and Ex.P3 and those were seized vide memo Ex.PK. He further deposed that on 01.12.2000, clothes of the deceased were produced before him by Hira Singh, HC, which were sealed by him in a parcel Ex.P4, that was seized vide memo Ex.PL. He also deposed that Hira Singh, HC also produced before him 10 pieces of bullet which were sealed in a small box and that parcel Ex.P5 was seized vide memo Ex.PM.
PW9 Rachhpal Singh, Inspector conducted investigation of this case and deposed on the lines of investigation conducted by him, which has been reproduced in the earlier parts of this judgment.
PW10 Kuldip Singh, ASI deposed that on 30.11.2002, he recorded the FIR Ex.PY.
CRA D-781-DB OF 2005 10
PW11 Krishan Kumar, SI deposed on the lines of investigation conducted by him , which has been reproduced in the earlier parts of this judgment.
PW12 Hans Raj, ASI deposed that on 17.01.2003, he joined the investigation of this case with Rachhpal Singh, Inspector and in his presence, photographs and negatives were produced by Nirmal Kumar and those were seized vide memo Ex.PCC. Report of the Forensic Science Laboratory Ex.PDD was also tendered in evidence.
DW1 Santokh Singh, ASI deposed that on 19.11.2002, he was posted at Police Station Sadar, Tarn Taran and he came to know that fight had taken place at village Pakhoke and the case was registered..
DW2 Dhian Chand, Chief Section Officer, Post and Telegraph Department deposed that Ex.DA, DB, DC, DD, DE and DG are the copies of the diagram issued from the Head Office under the signatures of J.K.Gautam, Sub Divisional Engineer.
DW3 Mohinder Singh deposed that about 2¾ years ago, he was present at his house, when he heard the noise and went to the house of Parkash Singh, father of complainant Gurmeet Singh. He saw Gurmeet Singh, Kanwaljit Singh, Nirvail Singh and Jitender Singh firing gun shots while standing on the roof of the chobara of Parkash Singh and he suffered injuries, in front of his right shoulder. Ajaib Singh also suffered injuries as a result of fire arm. He also deposed that Harjit Singh @ Jiti was also known to him, who, at that time, had been forcibly taken to the mansion by Gurmeet Singh, PW5 and, thereafter, Kuldeep Singh came there on tractor while shouting that they be not spared and he suffered gun shot injuries fired by Gurmeet Singh. He was medico legally examined.
DW4 Ajaib Singh deposed like DW3.
CRA D-781-DB OF 2005 11DW5 S.P Kewal Kumar was posted at Tarn Taran, who also conducted the investigation and deposed that inquiry in this case was held by him and he proved photograph Ex.DH.
DW6 Lakhbir Singh, DSP, Rural I, Amritsar deposed that inquiry in this case was marked to him by DIG and Ex.D7 is the photocopy of the inquiry report.
DW7 Dr.Ajit Singh deposed that medical examination of Mohinder Singh was conducted by him on 25.01.2003 at the order of the Court and x-ray was advised and injury was found to be simple in nature. He proved medicolegal report Ex.PK. He also deposed that he medicolegally examined Ajaib Singh also and found small scar of 0.5 cm above the nipple and this injury was kept under observation and after x-ray was declared simple in nature. He deposed that Ex.DL is the copy of the medicolegal report.
On the basis of evidence of the aforementioned witnesses, learned Additional Advocate General for the respondent contended that the learned trial Court rightly convicted and sentenced the appellants vide impugned judgment and order of sentence, which may be upheld and affirmed.
Learned counsel for the appellants, on the other hand, contended that Harjeet Singh @ Jiti appellant no.3 was wrongfully confined by the complainant party in their house, therefore, in order to get him emancipated from the wrongful confinement, appellants went towards the house of the complainant party, wherein, appellant no.3 was wrongfully confined and that advancement of the appellants towards the place of confinement of Harjeet Singh @ Jiti-appellant no.3 frightened complainant party and they mounted on the roof top of their house and fired from the fire CRA D-781-DB OF 2005 12 arms, which instead of hitting the appellants, hit Kuldip Singh, who was driver on tractor, resulting into his death.
Learned counsel for the appellants also contended that pronto after the occurrence, latter were arrested by the police and detained illegally, in respect whereto, they sent telegram to the higher authorities. So, it was also contended that the occurrence took place as Harjeet Singh @ Jiti - appellant no.3 had a dispute with Jitender Singh, nephew of Gurmeet Singh PW5 4/5 days prior to the occurrence. When he happened to pass by the side of house of Parkash Singh while going to the Gurudwara of the village.
After giving our thoughtful consideration to the contentions raised on behalf of both the parties, we are of the view that according to the appellants themselves, they had gone towards the house of the complainant party. So, in this manner, forming of unlawful assembly by the appellants is admitted. It is their case that Harjeet Singh @ Jiti appellant no.3 was wrongfully confined by the complainant party. If it was so, in that event, it was required of the appellants to report the incident to the police instead of themselves settling the score. It is also not in dispute that a verbal duel took place between Harjeet Singh @ Jiti appellant no.3 and Jitender Singh, nephew of Gurmeet Singh PW5. If the police would have been informed, the alleged emancipation of appellant no.3 had taken place at the instance of the police from the custody of the complainant party.
Place of occurrence is also not disputed. It is also the case of both the sides that gun shot injuries were suffered by Kuldip Singh deceased. It is the case of the appellants that these fire arm injuries were caused by complainant party while, on the contrary, it is the case of the respondent that these were given to Kuldip Singh deceased by the CRA D-781-DB OF 2005 13 appellants. Even, the learned trial court held that Baldev Singh and Satnam Singh - appellants nos.7 and 8 respectively had caused fire arm injuries to Kuldip Singh resulting into his death. So, when the appellants themselves have not denied forming of unlawful assembly by them, as also, when they have not led any evidence that Gurmeet Singh PW5, who allegedly caused fire arm injury, was holding any fire arm, it becomes arduous to believe their version.
Fact, thus, remains that the appellants formed unlawful assembly and committed the offence of rioting while they were armed with brickbats. So, learned trial Court, in these circumstances, rightly came to the conclusion that the appellants are guilty of commission of offence punishable under Section 148 IPC.
There is no gain-saying about the occurrence having taken place outside the house of Parkash Singh. Indubitably Gurmeet Singh PW5 is son of Parkash Singh and Balbir Kaur PW6 is the daughter-in-law of Parkash Singh. There is no gain saying about the presence of Gurmeet Singh PW5 and Balbir Kaur PW6 at the place of occurrence according to their own version of appellants. According to version of the respondent, appellants were throwing brickbats in the house of Parkash Singh, when Kuldip Singh deceased with tractor of Parkash Singh happened to come there for returning the same.
It is the case of the respondent that Baldev Singh and Satnam Singh appellants nos.7 and 8 respectively fired gun shots, which hit Kuldip Singh. It is the case of the respondent that after Kuldip Singh was hit with gun shots given by Satnam Singh and Baldev Singh appellants ibid, other appellants caught hold of his hair and dragged him. Gurmeet Singh PW5 deposed that Kuldip Singh deceased was hardly at a distance of 8/10 yards CRA D-781-DB OF 2005 14 from the gate of the house, when Baldev Singh appellant no.7 fired gun shots. Sequelly, Kuldip Singh deceased suffered injuries on right and left thighs, as also on his arms, who was later dragged by the appellants. Gurmeet Singh PW5 deposed during cross examination that 8/10 shots were fired on Kuldip Singh by the accused, but he could not say as to how many hit him. He further deposed that shots were fired from the .12 bore gun and rifle of 315 bore. He also deposed that gun shots fired by Satnam Singh appellant no.8 hit Kuldip Singh deceased. Gurmeet Singh PW5 was confronted with his statement Ex.PE, wherein, it was not found mentioned that Satnam singh, appellant no.8 was having rifle of 315 bore. In this statement Ex.PE, Gurmeet Singh PW5 simply stated before the police that Baldev singh and Satnam Singh appellants nos. 7 and 8 respectively were carrying guns and shots were fired by them.
From this evidence, it is made out that PW5 was not very much certain if Satnam Singh appellant no.8 was armed with rifle of 315 bore. Learned trial court wrongly concluded that this variation was not material to discredit the testimony of PW5 Gurmeet Singh especially when Balbir Kaur PW6, during her cross examination, deposed that she could not say, how many shots hit Kuldip Singh. She further deposed that gun shots fired by Satnam Singh hit him. She further deposed that she could not say if shot fired by Baldev Singh appellant no.7 also hit Kuldip Singh deceased. She did not depose about the deceased being dragged by the other appellants. On the contrary,she did not ascribe any role to the other appellants for causing fire arm injury to Kuldip Singh. The complicity of Baldev Singh, appellant no.7 is not proved from the testimony of Balbir Kaur PW6 for commission of murder of Kuldip Singh. Testimony of PW5 CRA D-781-DB OF 2005 15 Gurmeet Singh, thus, remained uncorroborated on the point of complicity of Baldev Singh appellant no.7 in commission of murder of Kuldip Singh.
So, the sole testimony of PW5 Gurmeet Singh qua the complicity of Baldev Singh appellant having not been corroborated by PW7, was wrongly relied upon by the learned trial Court for holding him guilty of murder of Kuldip Singh knowing full well that no fire arm was recovered from him during investigation. Even, no evidence was produced that this appellant no.7 was holding any licence for keeping the fire arm of any kind. If he was carrying un-licenced armament, in that event, the police would have recovered the same from him and only then his complicity in the occurrence would have been proved. However, the entire testimony of PW5 Gurmeet Singh cannot be discarded as the principle of 'Falsus in uno falsus in omnibus' is not applicable in India. So, the testimony of PW5, holding appellant no.7 Baldev Singh guilty for commission of murder of Kuldip Singh deceased must be repelled and in view of the testimony of PW6 Balbir Kaur, it must be held that Baldev Singh was not carrying any fire arm and, therefore,his complicity is proved only to the extent of commission of offence punishale under Section 148 IPC.
The appellants, no doubt, had come to the place of occurrence but it is not proved that they had formed common intention to kill Kuldip Singh. Indeed Kuldip Singh deceased emerged on the place of occurrence suddenly when he came to return tractor. From the unanimous testimony of PW5 and PW6, however, it is established that Baldev Singh appellant no.7 did not carry any fire arm at the time of occurrence. That being so, he could not kill the deceased. He has been held guilty of commission of murder of Kuldip Singh, on the basis of having given fire arm shots towards Kuldip Singh. When it has not been proved on the record that he was CRA D-781-DB OF 2005 16 holding any fire arm (licenced or unlicenced) at the time of occurrence, he could not cause injuries, therewith, to Kuldip Singh resulting into his death. Only, Satnam Singh appellant no.8 was carrying fire arm and only he could be held responsible for causing injuries to Kuldip Singh resulting into his death.
Learned trial Court, thus, wrongly convicted and sentenced Baldev Singh appellant no.7 for commission of murder of Kuldip Singh. So, Baldev Singh appellant no.7 is entitled for benefit of doubt, which ought to be and is, hereby, accorded to him and he is acquitted of the charge of commission of offence punishable under Section 302 read with Section 34 IPC. He was convicted for commission of offence punishable under Section 148 IPC and sentenced to undergo rigorous imprisonment for a period of six months. This sentence he has already undergone. He is on bail in this case and, therefore, bonds furnished by him pursuant to the order under Section 389 Cr.P.C are discharged.
So far as, Satnam Singh-appellant no.8 is concerned, it is proved on the record that he was carrying .12 bore gun at the time of occurrence and he caused fire arm injuries, therewith, upon Kuldip Singh resulting into his death. If the injuries would have been caused by the complainant party upon the deceased by standing on the roof top of the house,then these would not have hit the thighs of the deceased. While, these would have hit the upper body of the deceased. So, it is Satnam singh-appellant no.8, who is responsible for the death of Kuldip Singh deceased. From the facts and circumstances, it appears that Kuldip Singh deceased was not the member of complainant/prosecution party. He seems to be outsider and in this case appellant no.8 has caused the death of outsider.
CRA D-781-DB OF 2005 17
As already held, Kuldeep Singh suddenly emerged on the place of occurrence, when he came to the house of prosecution/complainant party to return tractor. If he had not come to place of occurrence to return tractor, then his death could be averted. Thus, appellant no.8 had no intention to kill Kuldip Singh deceased. In Kashiram and others v. State of M.P 2002 Supreme Court Cases (Crl.) 68, it was held by the Hon'ble Supreme Court of India that even after right of private defence ceased to be available to accused persons, one of them fired gun shot at one of the members of the prosecution party, but that accidentaly hit an outsider causing his death. It was held that act of the accused was covered by Section 304 IPC and in view of the accidental injury caused to outsider, doctrine of transferred malice under Section 301 IPC is attracted. Court should lean in favour of convicting the accused under Part II of Section 304 IPC, if it is in doubt, as to which one of the two parts of Section 304 IPC would be attracted, as this would be consistent with the basic tenet of extending benefit of doubt in criminal jurisprudence. Accordingly, accused was held guilty under Section 304-II IPC.
The principle laid down in the judgment supra is applicable in the case in hand for absolving Satnam Singh appellant no.8 from the liability of commission of offence punishable under Section 302 IPC. Even otherwise, if he had intention to kill the deceased, he would have given gun shot injury on the vital part of the body of the deceased. As already held, the injuries are on the thighs of the deceased.
Even, it is the case of the appellants that two members of their party were also injured. It is their case that there was firing from both sides. So, it can be safely held in the facts and circumstances of the case that the act of appellant no.8 Satnam Singh was covered by Section 304 IPC CRA D-781-DB OF 2005 18 and in view of the judgment supra, court should lean in favour of convicting such accused under part II of Section 304 IPC.
So, it is a case where Satnam Singh appellant no.8 did not have intention to kill Kuldip Singh deceased, but he had knowledge that Kuldip Singh could succumb to fire arm injuries. Thus, Satnam Singh appellant no.8 was wrongly convicted and sentenced by the learned trial Court for commission of offence punishable under Section 302 IPC, while, on the contrary, he was guilty of commission of offence punishable under Section 304-II IPC. Therefore, he is acquitted of the charge under Section 302 IPC and in its place, is convicted for commission of offence punishable under Section 304-II IPC.
Regarding imposition of sentence, suffice it to say that Satnam Singh appellant no.8 has been facing trial since the year 2002. Facing of protracted trial for more than a decade would have brought tremendous mutation in his behaviour towards his fellowmen. He has been on bail on the basis of order dated 15.05.2007. It is not the case of the respondent that appellant no.8 Satnam Singh after his release on bail by the order of this Court has indulged in some criminal activity. When appellant no.8 was released on bail, he had already undergone actual sentence for a period of three years and eight months. He is, therefore, sentenced to imprisonment for the period supra, already undergone by him in jail, during investigation, trial and pendency of his instant appeal. Besides, he is sentenced to pay fine of `10,000/- and in default, thereof, to further undergo rigorous imprisonment for six months. Fine, if realized, shall be paid to the legal heirs of Kuldip Singh deceased.
Resultantly, appeal is partly allowed. Conviction of all the appellants under Section 148 IPC is maintained and appeal for setting CRA D-781-DB OF 2005 19 aside their conviction and sentence for commission of offence under Section 148 IPC is dismissed.
Appeal on behalf of appellant no.7 is allowed and he is acquitted of the charge under Section 302/34 IPC.
Appeal of Satnam Singh appellant no.8 is partly allowed and he is acquitted of the charge under Section 302 read with Section 34 IPC and in its place, he is convicted for commission of offence punishable under Section 304-II IPC and sentenced to the period already undergone by him during investigation, trial and pendency of instant appeal. He is, however, sentenced to pay fine of ` 10,000/- and in default, thereof, he shall undergo rigorous imprisonment for a period of six months. Fine, if realized be paid to the legal heirs of Kuldip Singh deceased.
(S.P. BANGARH) (S.S.SARON)
JUDGE JUDGE
January 14,2013
mamta