Punjab-Haryana High Court
Narinder Singh vs State Of Punjab on 10 February, 2011
Author: Hemant Gupta
Bench: Hemant Gupta
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 629-DB of 2001
DATE OF DECISION: 10.2.2011
***
Narinder Singh.
..APPELLANT
VS.
State of Punjab
..RESPONDENT
with Crl. Appeal No. 36-DB of 2002
Joga Singh & Ors.
..APPELLANTS
Vs.
State of Punjab.
..RESPONDENT
CORAM: HON'BLE MR. JUSTICE HEMANT GUPTA.
HON'BLE MR. JUSTICE ARVIND KUMAR,
Present:- Mr. B.R. Gupta, Advocate and
Mr. Vinod Ghai, Advocate
for the appellants.
Mr. S.S. Dhaliwal, Addl. AG Punjab.
***
ARVIND KUMAR, J.
Judgment dated 15.10.2001 has been impugned in both the criminal appeals referred to above, whereby appellant Joga Singh has been held guilty under Section 302 IPC while the remaining appellants namely Gurdip Singh, Sarbjit Singh, Tarsem Singh and Narinder Singh have been held guilty under Section 302 with the aid of Section 149 IPC and have been sentenced to undergo imprisonment for life with each of them to pay a fine of Rs.5000/-, in default of which the defaulter was required to undergo rigorous imprisonment for six months. Likewise, appellant Joga Singh and Gurdip Singh have substantively been held guilty under Section 307 IPC while the remaining appellants have been held guilty under the same head with the aid of Section 149 IPC and have been awarded rigorous imprisonment for ten years with a fine of Rs.1000/- each and in default, to undergo further rigorous imprisonment for three months. All the appellants have further been held guilty of an offence under Section 148 IPC and sentenced to undergo rigorous imprisonment for two years. Besides, the appellants Joga Singh, Gurdip Singh and Narinder Singh have been held guilty under Section 25 of Arms Act, for which rigorous imprisonment for three years and a fine of Rs.1000/- was imposed. In default of payment of fine, further rigorous imprisonment for three months was provided. The sentences were order to run concurrently. This necessitated the appellants to file the present appeals, which we propose to dispose of by this common order.
The brief facts of the prosecution case are that on 13.1.1998 in the morning at about 7:10 a.m. Inspector Mohinder Pal Singh was present at Adda Talwan Chowk, Nurmahal in connection with patrolling where Kulwinder Singh son of Harbans Singh got recorded his statement (Ex.PN) wherein he apprised the police that on the last night i.e. 12.1.1998 at about 10:00 p.m. when he was sleeping in the room on the top of the house, he heard the noise and after getting up he saw Joga Singh son of Niranjan Singh armed with 22 bore rifle, Narinder Singh @ Ninder @ Nindi son of Malkiat Singh having 12 bore double barrel gun, Gurdip Singh son of Mohinder Singh carrying 12 bore single barrel, Sarbjit @ Sahbi son of Malkiat Singh holding an iron rod and Tarsem Singh @ Sema son of Pritam Singh were standing and abusing his cousin brother Surjit Singh and saying to him to come out of the house because Surjit Singh had stopped them from doing evil deeds. In the meantime, Harbans Singh, father of the complainant came out and he requested them to go and assured that they will not say anything to them in future. On this Tarsem Singh @ Sema exhorted to catch hold of Harbans Singh because he also stopped them from doing bad deeds. On this Joga Singh fired upon Harbans Singh, which hit him on his heart and he fell down. On hearing the noise of gun shot, Darbara Singh, Darshan Singh, uncles of complainant, Gurbax Kaur daughter of Darbara Singh and Daljit Kaur, daughter in law of his uncle came out of the house. Then Narinder Singh @ Ninder fired shot from his 12 bore double barrel gun upon Darshan Singh which hit him on his head, Gurdip Singh fired a shot from his 12 bore single barrel gun which hit on left side jaw of Daljit Kaur, due to which she fell down. Then Joga Singh again exhorted that all the family members have to be killed and while saying so he fired a shot which hit on the stomach of Darbara Singh. When Gurbax Kaur came to his rescue, then Sarbjit Singh @ Sahbi threw her on the ground and then Joga Singh fired which hit her on the stomach. Thereafter, the accused fled away from the spot with their respective weapons. The complainant narrated the occurrence to Gurjit Singh and Anokh Singh Sarpanch. The injured were shifted to the hospital, but Harbans Singh died on the way. After getting the injured admitted at CMC Ludhiana he returned to the home with dead body of his father.
The statement of the complainant was reduced into writing and sent to the police station for registration of the case. Consequently, case FIR No. 7 dated 13.1.1998 was registered under Sections 302, 307, 148, 149 IPC and 25/27/54/59 of Arms Act at P.S. Nurmahal at about 8:15 a.m. Investigations were started wherein four empty cartridges of 22 bore rifle and 2 empties of 12 bore rifle were recovered and the same were taken into police possession vide recovery memo (Ex.PQ), dead body of Harbans Singh was sent to the hospital for post-mortem examination and inquest proceedings were also carried out.
On 19.1.1998 accused Joga Singh was arrested and pursuant to the disclosure statement made by him, licensed .22 bore rifle was recovered. Likewise, pursuant to the disclosure statement of accused Gurdip Singh, 12 bore single barrel rifle was recovered and taken into police possession. On 20.1.1998 accused Sarbjit Singh @ Sahbi suffered disclosure statement regarding concealing of iron rod used in the commission of offence and further got recovered the same. Thereafter on arrest of remaining accused, final report under Section 173 Cr.P.C. was prepared and forwarded to the Court for their trial.
Charges under Section 148 IPC were framed against all the accused; accused Joga Singh was charged under Section 302 IPC while the remaining accused were charge-sheeted under Section 302/149 IPC; charge under Section 307 IPC was framed against Joga Singh, Gurdip Singh and Narinder Singh while Sarbjit Singh and Tarsem Singh were charge sheeted under the said head with the aid of Section 149 IPC. Accused Joga Singh, Gurdip Singh and Narinder Singh were additionally charged under Sections 25 and 27 of the Arms Act.
PW1 Dr. Abrahm Kurien, Christian Medical College, Ludhiana medically examined Daljit wife of Baljit Singh on 12.1.1998 and proved injury on her cheek as a result of fire arm and grievous in nature.
PW2 Issac Rajesh, Medical officer proved his opinion given with regard to fitness of injured Darshan Singh on 13.1.1998.
PW3 Dr. Sudhir Sidhu proved the gun shot wound, dangerous to life on the person of Gurbax Kaur, which he found during examination on 12.1.1998. During medical examination of Darbara Singh on the same day he also found injuries caused by gun shot and dangerous to life.
PW4 Dr. Harish treated Darbara Singh for an injury on the left flank on 12.1.1998 and operated for the said injury, which was also declared dangerous to life.
PW5 Dr. Levi Mark medically examined Darshan Singh on 12.1.1998. He found 4 cms laceration over left temporal lobe and was declared grievous in nature.
PW6 Dr. Hari Singh conducted the post-mortem examination on the dead body of Harbans Singh on 13.1.1998. He found lacerated wound 0.5 cm x 0.5 cm with inverted margins, collar echymosed (wound of entry) was present in the fourth intercostal space close to the left edge of sternum on the front of the chest on the left side. On probing he found that track of bullet was going obliquely downwards piercing chest wall, left edge of sternum, root vessels, left lung and right lung. In his opinion the cause of death was cardio-pulmonary arrest, resulting from the fire arm injuries, ante- mortem in nature and sufficient to cause death.
PW7 Kulwinder Singh son of Harbans Singh, is the informant. PW8 Darbara Singh son of Bishan Singh, is an injured-eye witness.
PW9 Gurbax Kaur daughter of Darbara Singh is again an eye- witness/ injured.
PW10 Daljir Kaur is again an injured/ eye witness.
PW11 Dalip Singh Draftsman prepared the scaled site plan. PW12 Const. Devinder Singh tendered his affidavit.
PW13 Resham Singh, Record Clerk, CMC Ludhiana proved the bed head ticket of Daljit Kaur.
PW14 CII Varinder Mohan and PW15 HC Harjinder Singh also tendered their affidavits in the evidence.
PW16 ASI Balwinder Singh proved the recoveries of 22 bore rifle from accused Joga Singh; .12 bore SBBL gun from accused Gurdip Singh and an iron rod from accused Sarbjit Singh, pursuant to their disclosure statements. This witness also proved the investigations carried out by Inspector Mohinder Singh since he died prior to stepping into the witness box.
PW17 Const. Mohan Singh tendered his affidavit into the evidence.
PW18 Balbir Singh proved the arms licence issued to accused Joga Singh for keeping non prohibited bore rifle.
PW19 Dr. Sunil Kumar Singh proved the signatures and hand writing on MLRs Ex.PE and Ex.PH, issued by Dr. Sudhir Sighu, who since left the job of the CMC Hospital.
Witnesses namely Surjit Singh, Darshan Singh, Lakhbir Singh and Sukhwinder Kaur were given up by the prosecution and after tendering report of chemical examiner (Ex.PJJ) and that of FSL(Ex.PKK) the prosecution closed its evidence.
When examined under Section 313 Cr.P.C. the accused pleaded their false implication on account of party faction in the village and denied that any recovery was effected from them. Accused Sarbjit Singh further denied his presence at the spot.
In defence Dr. Jasbir Singh was produced as DW1 who proved the treatment record of Narinder Singh. According to this witness Narinder Singh came to the hospital on 13.1.1998 with injury on the right fore-arm and then visited the hospital on 15.1.1998 with fracture of radius of right forearm, for which operation was done on 17.1.1998 and discharged on 31.1.1998.
The learned trial court, on appreciation of evidence, vide judgment dated 15.10.2001 held the accused guilty and sentenced in the manner indicated above.
We have heard learned counsel for the appellants as well as learned State counsel and with the assistance rendered by them, have carefully gone through the records of the case.
The FIR in this case had been lodged by PW.7 Kulwinder Singh, son of the deceased on 13.1.1998 at about 7:00 a.m. in the morning and the occurrence took place at about 10:00 p.m. on 12.1.1998. What mainly has been assailed is that there is delay of about 8 hours in lodging the FIR and this time has been used for concocting a false case against the accused-appellants. There is no doubt that the FIR has been lodged after about 8 hours of the occurrence, however, if there is plausible explanation furnished by the witnesses for lodging the first information report at a later stage, the delay alone cannot be then pressed into service for getting an order of acquittal. In the instant case, it has come in the statement of eye witnesses and injured and from village Cheema Khurd, where the occurrence had taken place, Harbans Singh (since deceased) and other injured namely Darbara Singh, Gurbax Kaur and Daljit Kaur were taken firstly to CMC Ludhiana, having about 45-60 minutes journey in two vehicles by the complainant Kulwinder Singh and others. On reaching the hospital they learnt that Harbans Singh has succumbed to the injuries and thus, after getting the injured admitted there, Kulwinder Singh brought the dead body of his father Harbans Singh in the village. It were certainly odd hours when the complainant returned back to the village and element of fear in the mind of complainant cannot be ruled out. Furthermore, the mental situation of the complainant can be gathered from the fact that in his lap he is having the dead body of his father besides, other family members were admitted in the hospital with serious injuries and it was their first priority to save the alive. Thus, the delay, if any, in getting the case registered has satisfactorily been explained. No doubt the special report reached the Illaqa Magistrate, Jallandhar at 1.00 p.m. of 13.1.1998 but it can also not be over- looked that in the present set up no police station is having only one case to looked into. Furthermore, it is evident from the record that immediately after the registration of the FIR, the investigating officer reached the spot and started the investigation. In this backdrop of the sequence of the events it cannot be said that the delivery of the special report was delayed, to say that it has affected the case of the prosecution.
The prosecution case rests upon the testimonies of PW7 Kulwinder Singh, the eye-witness/ informant and injured namely Darbara Singh, Gurbax Kaur and Daljit Kaur. Although, it is not disputed that all of them are closely related to each other so as to the deceased, but it is not the absolute law that the evidence of relation witnesses is not entitled to any weight but this very circumstance would add to the value of their evidence because they would be interested in ensuring that the real culprit responsible for the murder be punished and not the innocent person. Their statements are corroborative on material particulars. They were subjected to cross- examination. They stood firm to their stand. Some minor contradictions, so referred in their statements, do not carry any significance as it cannot be expected from a witness to give photographic version of the events which had taken place about ten months prior to their deposition in the Court.
The next question arises as to whether Section 149 IPC has applicability in the case in hand or not? The essential ingredients to drive the case within the ambit of Section 149 IPC are (i) Commission of offence by any member of unlawful assembly and that the said offence was committed in prosecution of the common object of unlawful assembly. To determine the common object of unlawful assembly, the conduct of each member of the assembly is very material. It is to be seen that at which point of time they have the common object and to what extent and the time beyond which they may differ in their common object and knowledge possessed by each accused/ member of unlawful assembly of what is likely to commit in prosecution of the common object. Time is the essence of offence and there must be close nexus between the offence and the common object. The connection must be proximate and not remote.
In the instant case, the story put forth by the prosecution is that the appellants armed with deadly weapons, except Tarsem who was empty handed had come in the street and exhorted to teach a lesson to Surjit Singh, who stopped them from doing ill-deeds. However, Harbans Singh came out and was given shot injury by Joga Singh appellant. There is nothing on record which is suggestive of the fact that at any point the appellants shared common intention to commit the murder of Harbans Singh. Hence, there was no nexus between the common object and the offence actually committed. Therefore, the provisions of Section 149 IPC cannot be invoked in the present case and we have to examine the overt act attributed to the individual accused as well as their participation in the commission of offence.
Firstly, we take the case of Joga Singh. The witnesses of fact namely PW.7 Kulwinder Singh complainant, PW8 Darbara Singh, PW9 Gurbax Kaur and PW10 Daljit Kaur, the injured to the occurrence, in one voice have stated that Joga Singh firstly fired upon Harbans Singh when he comes out in the street and requested the accused to go away therefrom. The fired shot hit right on the chest of Harbans Singh, which injury, in the opinion of PW6 Dr. Hari Singh, who conducted the post mortem on the dead body, was sufficient to cause death in the ordinary course of nature. These witnesses have further stated that Joga Singh further fired a shot which hit on the stomach of PW8 Darbara Singh and another shot hit by this appellant hit on the abdomen of PW9 Gurbax Kaur. Darbara Singh and Gurbax Kaur were medically examined by PW3 Dr. Sudhir Sidhu and the injuries on their person were found dangerous to life caused by gun shots on the flank region and chest area respectively. It is not that he stopped firing after giving fatal blow to Harbans, but kept on firing repeatedly and inflicted injuries to Darbara Singh and Gurbax Kaur. The ocular testimonies of these witnesses are in consonance with the medical evidence on record. Not only this, the scientific evidence i.e. the report of FSL also corroborates the prosecution version. As per report of FSL the empties recovered from the spot were found fired from the rifle recovered from the accused Joga Singh. Thus, the participation of the accused Joga Singh in the commission of offence is proved beyond reasonable doubt.
Coming to the case of appellant Gurdeep Singh, the perusal of the testimonies of injured as well as complainant, it is evident that he has specifically been attributed gun shot injury on the jaw of Daljit Kaur and this fact is corroborated from the evidence of PW1 Dr. Abrahm Kurien, who treated her and proved the injury. This injury was also declared grievous in nature. Even .12 bore SBBL gun was recovered from the possession of this appellant, pursuant to his disclosure statement and the empties recovered from the spot were found to have been fired from the same, as per the report of the FSL. Hence, the prosecution witnesses, so far as involvement of appellant Gurdeep Singh in the offence is concerned, cannot be doubted.
However, the case of appellants Tarsem @ Sema, Narinder @ Ninder and Sarbjit Singh @ Sahbi is on different footing. Although in the FIR appellant Tarsem had been attributed Lalkara to catch hold of Harbans Singh, right in the beginning of attack i.e. prior to firing the shot on Harbans Singh by appellant Joga Singh, but a perusal of testimony of PW7 Kulwinder reveals that this fact was put into his mouth during his examination-in-chief and was objected to by the counsel. Likewise, the factum of exhortation made by this appellant is conspicuously missing in the statement of PW8 Darbara Singh, the injured. Although PW9 Gurbax Kaur and PW10 Daljit Kaur claimed that said exhortation was made by the appellant in their presence, but the tenor and manner of their deposition clearly reveals that they had come to the spot on hearing the noise of fire shot by Joga Singh. In that eventuality it is not believable that they had heard the exhortation made by appellant Tarsem Singh. That apart, no other overt act has been attributed to this appellant and he was empty hand. So, far as appellant Sarbjit @ Sahbi is concerned, he was shown to have carry an iron rod at the time of occurrence, but he was not attributed any injury to any person from it. The only allegation was that during scuffle he pushed Gurbax Kaur, due to which she fell down. But it cannot be believed that instead of giving assault with the holding iron rod, an assailant would only pushed the other side. The conduct and attribution to this appellant speaks volume about the fact that he was not an accomplice of other accused in the commission of offence. Coming to the case of appellant Narinder Singh @ Ninder, the prosecution case is that he was armed with .12 bore DBBL gun and fired therefrom upon Darshan Singh, which hit on his head. However, it is a matter of record that the said weapon was never recovered by the prosecution. Not only this, it is a matter of surprise that said injured Darshan Singh was not examined by the prosecution, rather given up being won over by the accused. Furthermore, it has come on record that Darshan Singh was examined by PW5 Dr. Levi Mark and prior thereto he was examined Dr. Mukesh K. Ram and in the case history it was written on the information of the injured that he received the injury with unidentified sharp object at 9:00 p.m. PW5 also reiterated the aforesaid fact which he gathered on the information given by the injured. Hence, it can also not be safe to conclude that this appellant had participated in the crime. The maxim falsus in uno falsus in omnibus cannot come in the way of this Court because it is settled that even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate the grain from the chaff. Where the chaff can be separated from the grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. Thus, the involvement of appellants Narinder @ Ninder, Sarbjit Singh @ Sahbi and Tarsem @ Sema is not free from doubts and they are entitled for the benefit of doubt.
The plea that the motive was not strong is not sustainable as the variation in human nature, being so vast, murders are known to have been actuated by much lesser motive. How the mind of an assailant react is not possible to fathomed from a detached reflection.
In view of the discussion above, Crl. Appeal No.36-DB of 2002 to the extent of appellants Joga Singh and Gurdip Singh is dismissed, however, the same in respect of appellants Sarbjit Singh and Tarsem Singh as well as Crl. Appeal No. 629-DB of 2001 filed by appellant Narinder Singh @ Ninder are allowed and they are acquitted of the charges after giving benefit of doubt. They are discharged of their bonds for appearance.
A copy of this order be sent to the CJM concerned for compliance qua appellants Joga Singh and Gurdip Singh.
(HEMANT GUPTA) (ARVIND KUMAR)
JUDGE JUDGE
February 10,2011
Jiten