Punjab-Haryana High Court
Hardeep Singh And Another vs State Of Punjab on 22 February, 2011
Author: T.P.S. Mann
Bench: T.P.S. Mann
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal S-753-SB of 1998
Date of Decision : February 22, 2011
Hardeep Singh and another
....Appellants
Versus
State of Punjab
.....Respondent
CORAM : HON'BLE MR. JUSTICE T.P.S. MANN
Present : Mr. Daldeep Singh, Advocate
for the appellants.
Mr. P.S.Grewal, Assistant Advocate General, Punjab
Mr. Abhey Pal Singh Gill, Advocate
for the complainant.
T.P.S. MANN, J.
By a common judgment, the Court intends to dispose of the present appeal, i.e. Criminal Appeal S-753-SB of 1998 filed by Hardeep Singh and Darshan Singh convicts, against their conviction and sentence, Criminal Appeal S-1034-SB of 1998 filed by the State of Punjab for enhancement of the sentences of the two convicts and Criminal Revision 1399 of 1998 filed by Sunder Singh complainant for enhancement of the sentences of the convicts as well as for grant of compensation to the tune of Rs.1,00,000/- to injured Jagroop Singh, as the two appeals and the revision have arisen out of the same judgment Crl. Appeal S-753-SB of 1998 -2- and order dated 7.9.1998 passed by Additional Sessions Judge, Faridkot whereby the appellants were convicted under Section 307 IPC and sentenced to undergo rigorous imprisonment for three years and to pay a fine of Rs.2,000/- each and in default of payment of fine, to undergo further rigorous imprisonment for two months. It was also ordered that out of the amount of fine, if recovered, Rs.3,000/- shall be paid to Jagroop Singh-injured as compensation.
During trial, Harbans Singh, co-accused of the appellants, had died and proceedings against him were dropped on 19.3.1996.
According to the prosecution, on 23.5.1993 ASI Bakhtaur Singh, received medico-legal report No. 33/HC/93 of Jagroop Singh injured alongwith a ruqa from Civil Hospital, Jaitu and went there. On reaching there, he learnt that Jagroop Singh had been referred to C.M.C. Hospital, Ludhiana. Accordingly, ASI Bakhtaur Singh went to C.M.C. Ludhiana, where he obtained the opinion of the doctor regarding the fitness of Jagroop Singh but he was declared unfit to make a statement. Sunder Singh, who was present there, got recorded his statement Ex. PJ that he was cultivating the land of his uncle Kirpal Singh, who, before his death in November 1992, had executed a Will in his favour and his brother Kaku Singh. On 23.5.1993 at about 9.30 a.m., the complainant, his brother Kaku Singh, his sister's son Jagroop Singh and Rajinder Singh, who was son of his brother-in-law, went to cultivate the fields of Kirpal Singh. Rajinder Singh started ploughing the fields with the help Crl. Appeal S-753-SB of 1998 -3- of a tractor whereas the complainant, Kaku Singh and Jagroop Singh stood in the corner of the fields adjoining Bajakhana road. In the meantime, appellant Hardeep Singh while armed with a .303 rifle, appellant Darshan Singh armed with a .12 bore single barrel gun and accused Harbans Singh (since deceased) armed with a dang, reached there from the side of the village. On seeing them, accused Harbans Singh raised a lalkara that the complainant party should not be spared and they would see how the complainant party would cultivate the land. On his exhortation, appellant Hardeep Singh fired two shots from his . 303 rifle towards the complainant party with the intention to kill them. The complainant party tried to save themselves but one shot hit Jagroop Singh near his testicles and exited from his right buttock. On receipt of the injuries, Jagroop Singh fell down and raised a raula that he had been hit. Appellant Darshan Singh also fired from his licenced gun twice towards the complainant party with the intention to kill them but none was hit as they saved themselves by lying on the ground. Thereafter, when the complainant party raised an alarm, both the appellants alongwith their co-accused Harbans Singh ran away with their respective weapons.
After recording statement Ex.PJ of the complainant, ASI Bakhtaur Singh sent it to Police Station, Jaitu for registration of the case, on the basis of which, formal FIR Ex. PJ/3 was recorded.
During the course of investigation, ASI Bakhtaur Singh Crl. Appeal S-753-SB of 1998 -4- visited the spot on 24.5.1993 and picked up blood stained earth and dry leaves of eucalyptus tree, which were stained with blood and after converting the same into a sealed parcel, took into possession vide memo. Ex. PO. He also lifted two empties of .303 bore and two empties of .12 bore, which were converted into separate parcels and sealed with his seal bearing impression 'BS' and taken into possession vide memo. Ex.PQ. He also prepared the rough site plan Ex. PR of the place of occurrence and recorded the statements of the witnesses.
Further case of the prosecution was that on 25.5.1993, ASI Bakhtaur Singh obtained the opinion of the doctor regarding the fitness of Jagroop Singh injured and, accordingly, recorded his statement. Appellant Hardeep Singh was arrested on 8.6.1993 from the Court where he had surrendered. On 10.6.1993, ASI Bakhtaur Singh interrogated appellant Hardeep Singh in the presence of Ajmer Singh and Head Constable Mangat Ram in the Police Station, who suffered a disclosure statement Ex. PU that he had kept concealed .303 rifle alongwith 13 cartridges in his residential house underneath wood lying under the iron box, which he could get the same recovered. In pursuance of the disclosure statement, appellant Hardeep Singh led the police party to the place of concealment and got recovered .303 rifle Ex.P22 alongwith 13 live cartridges Exs.P23 to P35 which were converted into a parcel and sealed with his seal bearing impression 'BS'. Recovery memo. Ex.PV in this regard was prepared. ASI Bakhtaur Crl. Appeal S-753-SB of 1998 -5- Singh also prepared the rough site plan Ex. PW of the place of recovery. As Hardeep Singh appellant did not have any licence or permit to keep the rifle, a separate case under the Arms act was registered against him. On return to the Police Station, ASI Bakhtaur Singh deposited the case property with the MHC. On 15.6.1993 appellant Darshan Singh and accused Harbans Singh were produced by Major Singh, Sarpanch of village Sedha Singh Wala before ASI Bakhtaur Singh. Appellant Darshan Singh produced .12 bore single barrel gun Ex. P5 alongwith 15 live cartridges of the same bore and one LG cartridge Exs. P6 to P21 alongwith licence Ex.PM and bag Ex.P4. The gun was converted into parcel, which was sealed with the seal of ASI Bakhtaur Singh bearing impression 'BS'. The sample seal was also prepared. The gun and the cartridges were taken into possession vide memo. Ex.PZ signed by Major Singh and HC Mangat Rai. Their statements were also recorded. On 22.6.1993, ASI Bakhtaur Singh took into possession photostat copy of the Will executed by Kirpal Singh from the possession of complainant Sunder Singh vide memo. Ex.PAA.
Upon completion of investigation and presentation of challan followed by commitment of the case, the trial Court charge- sheeted the appellants and their co-accused Harbans Singh for the offence under Section 307 read with Section 34 IPC, to which they pleaded not guilty and claimed trial.
In support of its case, the prosecution had examined PW1 Crl. Appeal S-753-SB of 1998 -6- Dr.Hukam Chand Garg, PW2 complainant Sunder Singh, PW3 injured Jagroop Singh, PW4 Vijay Kumar Ahlmad, PW5 ASI Bakhtaur Singh, PW6 Jagbir Singh, Patwari Halqa, PW7 Dhansi Ram, Arms Clerk, PW8 Raj Kumar, Document Writer and PW9 Dr. Rajiv Kapoor. Reports Ex.PBB and Ex. PCC of Forensic Science Laboratory, were tendered into evidence.
When examined under Section 313, the appellants denied all the allegations of the prosecution appearing in the evidence against them and pleaded false implication. Both of them pleaded inter-alia that they had been falsely implicated in this case. The story of the prosecution was concocted at the asking of Head Constable Baljinder Singh, who was son of Sunder Singh complainant. Said Head Constable Baljinder Singh took the injured to Ludhiana. All the witnesses were made up witnesses of the prosecution. They further pleaded that Kirpal Singh was their uncle, who executed a Will in their favour and the possession of the land of Kirpal Singh was with them. The litigation between the parties with regards to the land of Kirpal Singh was pending in the High Court and the High Court had passed an order of status quo after admitting the appeal regarding the Will of Kirpal Singh made in their favour. Sunder Singh, Kaku Singh and Rajinder Singh were made up witnesses. The accused had sown Gwara crop in the land of Kirpal Singh. Accused Darshan Singh further pleaded that he alongwith his gun was brought from his house much earlier of the Crl. Appeal S-753-SB of 1998 -7- alleged recovery of the gun. He was detained for some days and lateron falsely implicated in this case.
In their defence, the appellants had examined Major Singh son of Jarnail Singh as DW1, Raj Kumar, Election Tehsildar as DW2 and Ashok Kumar, Inspector Food & Supplies Department as DW3. They had also tendered in their defence copy of stay order dated 13.10.1997 passed by the High Court as Ex. D1, copy of jamabandi for the year 1983-84 as Ex.D2, copy of jamabandi for the year 1988-89 as Ex.D3, copy of jamabandi for the year 1956-57 as Ex.D4 and copy of khasra girdawari as Ex.D5. Appellant Hardeep Singh had also tendered into defence evidence copy of order dated 29.3.1993 as Ex.D6 and copy of FIR as Ex.D7.
After hearing learned counsel for the parties and going through the evidence available on the record, the trial Court believed the prosecution version and convicted and sentenced the appellants, as mentioned above.
I had heard learned counsel for the parties and scanned the evidence with their able assistance.
Learned counsel for the appellants had submitted that the FIR was lodged after an unexplained delay of more than 13 hours and on that ground alone, the prosecution case deserves to be rejected outrightly.
Crl. Appeal S-753-SB of 1998 -8- The occurrence had taken place on 23.5.1993 at about 9.30 a.m. in the revenue estate of village Sedha Singh Wala. Both the appellants had fired shots. One of the shot fired by Hardeep Singh appellant hit Jagroop Singh injured on his private parts. The bullet pierced the body of the injured and exited through his right buttock. Immediately after the occurrence Jagroop Singh was rushed to Civil Hospital, Jaitu where he was medico-legally examined by PW1 Dr.Hukam Chand Garg. The doctor found two injuries on his person. One was an entry wound above the left mid inguinal point, going deep towards the right down and backwards whereas the other was the exit wound on the right buttock. The probable duration of the injuries was of six hours. After conducting medico-legal examination, PW1 Dr.Hukam Chand Garg sent the copy of the medico-legal report pertaining to Jagroop Singh to the Police Station. On receipt of the same, PW5 ASI Bakhtaur Singh reached Civil Hospital, Jaitu at 1.30 p.m. and moved an application Ex. PC to the Medical Officer to find out as to whether Jagroop Singh was fit to make a statement. However, vide his endorsement Ex. PC/1 made at 1.35 p.m., PW1 Dr. Hukam Chand Garg informed the police that the patient had already been referred to CMC, Ludhiana. Accordingly, ASI Bakhtaur Singh went to CMC, Ludhiana and moved application Ex. PK before the Medical Officer on 23.5.1993 at 5.45 p.m. to seek an opinion regarding the fitness of Jagroop Singh to make a statement. The concerned doctor gave his report Ex. PK/1 on 23.5.1993 at 5.45 p.m. that the patient was unfit to Crl. Appeal S-753-SB of 1998 -9- make a statement as he was under shock. At that time, ASI Bakhtaur Singh came across Sunder Singh in CMC, Ludhiana and recorded his statement Ex. PJ on 23.5.1993 at 7.00 p.m. which was, thereafter, sent to Police Station, Jaitu where FIR Ex. PJ/3 came to be recorded on 23.5.1993 at 10.45 p.m. It may also be mentioned here that village Sedha Singh Wala was at a distance of four miles from Jaitu whereas Jaitu is at a distance of more than 100 kilometers from Ludhiana. Under these circumstances, it cannot be said that the delay in the lodging of the FIR had not been explained. Mere fact that Police Station Jaitu was at a distance of 150/200 yards from Civil Hospital, Jaitu and, therefore, Sunder Singh, who claimed to be an independent witness and was not injured could have reported the matter to the police, does not carry any weight as Jagroop Singh had suffered a fire arm injury on a vital part and his condition was serious for which he was required to be shifted to CMC, Ludhiana. Had Sunder Singh approached the police by going to Police Station Jaitu, he would have wasted crucial time in undertaking urgent removal of the injured to CMC, Ludhiana. Similarly, the criticism qua Kaku Singh and Nirmal Singh's not lodging the report with the police does not deserve any credence as both of them had stayed behind and did not accompany injured Jagroop Singh and complainant Sunder Singh to Jaitu. Even otherwise, the delay, if any, by itself is not sufficient to reject the prosecution case in its entirety. Therefore, the argument on behalf of the appellants regarding the delay in lodging of the FIR is rejected.
Crl. Appeal S-753-SB of 1998 -10- Learned counsel for the appellants had then submitted that the appellants on the one hand and the complainant on the other were staking claim to the agriculture land left by Kirpal Singh, who was related to both the parties. The appellants were in actual possession of the land. They had obtained an order of status-quo regarding possession from the High Court. Under these circumstances, the complainant party had no right to plough the land in question. Their going to the place of occurrence was with the sole objective of dispossessing the appellants.
It is true that both the parties had been fighting over the land belonging to Kirpal Singh. Both of them were basing their claims on the basis of the respective Wills said to have been executed by Kirpal Singh in their favour. A suit was filed by Sunder Singh complainant and his brother Kaku Singh wherein they sought an injunction against the appellants and others for restraining them from interfering in their possession. The prayer made by the complainant and his brother for ad- interim injunction was not granted as they had not filed any document to prima facie show their possession over the suit land. Only a notice on the application for ad-interim injunction was issued. Aggrieved of the same, Sunder Singh and Kaku Singh filed an appeal in which it was directed that both the parties would maintain status-quo regarding possession. Even thereafter, the accused party approached the High Court but were only granted the relief of status quo. Under these circumstances, it cannot be said that the appellants were in possession of Crl. Appeal S-753-SB of 1998 -11- the land in question.
Learned counsel for the appellants further submitted that the presence of PW2 Sunder Singh at the time of occurrence was highly doubtful as he had not received any injury on his person despite the fact that four shots were said to have been fired towards him and others.
It was the consistent case of PW2 Sunder Singh and PW3 Jagroop Singh that immediately after coming to the spot, Hardeep Singh had fired his .303 rifle twice towards the complainant party with the intention to kill them. One of the shots hit Jagroop Singh injured near his testicles. The remaining members of the complainant party saved themselves by lying on the ground. When Darshan Singh appellant fired from his licensed gun twice towards the complainant party with the intention to kill them, none was hit as they saved themselves once again by lying on the ground. Mere fact that PW2 Sunder Singh had not received any injury on his person is no ground to doubt his presence. At the same time, the Court has the benefit of the testimony of PW3 Jagroop Singh, who had received a bullet injury hitting him near his private parts. Going by the description of the injuries received by PW3 Jagroop Singh, it cannot be said that such an injury could be self suffered or fabricated. Rather, his presence at the time of the occurrence stands established. For the sake of arguments, even if the presence of Sunder Singh at the time of occurrence is doubted, the Court can rely upon the testimony of PW3 Jagroop Singh to fix the presence of the Crl. Appeal S-753-SB of 1998 -12- appellants at the time of the occurrence and their act of firing towards the complainant party.
Coming to the recovery of rifle Ex. P22 at the instance of appellant Hardeep Singh pursuant to his suffering disclosure statement Ex. PU, it may be noticed that only PW5 ASI Bakhtaur Singh supported the said fact. Ajmer Singh, who was a public witness was cited as a witness by the prosecution but was given up lateron as having been won over by the accused. His non-examination would not cause any dent in the prosecution case.
Learned counsel for the appellants also submitted that the recovery of two empties of .12 bore was a padding as ASI Bakhtaur Singh had deposed that empty cartridges of .12 bore do not fall out of the gun unless it was unloaded or reloaded. As there was no evidence that the gun had been reloaded, no empty could have fallen on the ground.
From the perusal of the statement of PW5 ASI Bakhtaur Singh, it stands established that the gun belonging to Darshan Singh appellant had a single barrel and according to PW2 Sunder Singh and PW3 Jagroop Singh, Darshan Singh had fired twice. Under these circumstances, it was a case of reloading and, therefore, empties of .12 bore had fallen at the spot. Therefore, there is no merit in the argument of the defence that the recovery of empties of .12 bore was merely a padding.
Crl. Appeal S-753-SB of 1998 -13- Learned counsel for the appellants had also submitted that the appellants had been falsely implicated. Major Singh, who according to the prosecution, had produced Darshan Singh appellant and Harbans Singh accused before the police had appeared as DW1 and had stated that he never produced them before the police. Further, complainant Sunder Singh alongwith his wife and son used to reside at Bathinda and, therefore, he could not have been present in village Sedha Singh Wala on the day of the occurrence.
While appearing as DW1, Major Singh did state that he never produced Harbans Singh and Darshan Singh before the police. At the same time, he conceded that the officials of Police Station Jaitu had obtained his signatures on two papers, which were already written. He even admitted his signatures on personal search memo. Ex. PX and recovery memo. Ex. PZ. He was initially cited as a prosecution witness but was given up as having been won over by the accused. As regards the factum of Sunder Singh residing at Bathinda, the appellants had examined DW2 Raj Kumar, Election Tehsildar, Bathinda and DW3 Ashok Kumar, Inspector, Food and Supply Department, Bathinda. However, PW2 Sunder Singh had stated that he belonged to village Sedha Singh Wala. During his cross-examination he deposed that after serving in Jail Department, he retired from Bathinda in 1991 and shifted to his village. He denied that he had been residing at Bathinda for the last 28/29 years. He went on to add that his son Baljinder Singh was Crl. Appeal S-753-SB of 1998 -14- working as a Wireless Operator in the police department and had been residing in the Government quarter at Bathinda. He specifically denied the suggestion that he did not own any residential house in village Sedha Singh Wala. He went on to state that he was not a registered voter previously but at the time of his making statement, he was a registered voter in the village. Therefore, the Court finds it difficult to hold that PW2 Sunder Singh was not a resident of village Sedha Singh Wala at the time of the occurrence.
Learned counsel for the appellants finally submitted that the offence under Section 307 IPC was not made out. The appellants had no intention to kill Jagroop Singh as he belonged to a different village. In case they had any such intention, they would have fired at complainant Sunder Singh and Kaku Singh with whom they had enmity regarding civil litigation.
It is the prosecution case that both the appellants had fired towards the complainant party with an intention to kill them. It was sheer luck of PW2 Sunder Singh as well as of Kaku Singh and Rajinder Singh that none of them was hit on account of the firing in question. Only Jagroop Singh was hit and, that too, on his private parts. Moreover, mere firing from a .303 rifle and .12 bore gun is sufficient to hold the appellants liable for the offence under Section 307 IPC as they fired with such an intention and under such circumstance that if they by that act had caused the death, they would have been guilty of murder.
Crl. Appeal S-753-SB of 1998 -15- From the report Ex. PBB of Forensic Science Laboratory, Punjab, it stands established that the 2 empties of .303 bore had been fired from the rifle recovered from Hardeep Singh appellant and the two empty cartridges of .12 bore have been fired from .12 bore single SBBL gun produced by Darshan Singh appellant. The recoveries of the empties confirm the factum of firing resorted to by the appellants. It is another thing that out of the four shots fired in all, only the one fired by Hardeep Singh from his .303 rifle had hit Jagroop Singh injured.
As regards the quantum of sentence imposed upon Hardeep Singh, the surviving appellant, no case is made out for its reduction as the said appellant had fired twice from a rifle and hit Jagroop Singh injured. At the same time, no case is made out for its enhancement for the reason that the said appellant was about 55 years of age on 31.3.1998 when he was examined under Section 313 Cr.P.C. and by now he must be about 68 years of age. Moreover, the occurrence in question had taken place about 18 years earlier. However, the fine of Rs.2,000/- imposed upon him by the trial Court can be enhanced to Rs.25,000/- so as to adequately compensate Jagroop Singh injured.
In view of the above, the conviction of Hardeep Singh appellant under Section 307 IPC and his sentence of imprisonment are maintained. The sentence of fine of Rs.2,000/- is enhanced to Rs.25,000/- and in default of the same, he is required to undergo rigorous imprisonment for one year. Out of the enhanced fine, to be Crl. Appeal S-753-SB of 1998 -16- recovered from Hardeep Singh appellant, an amount of Rs.20,000/- be disbursed to Jagroop Singh injured, as compensation. As regards Darshan Singh appellant, no orders are required to be passed as his appeal already stands disposed of on 6.8.2010 as having abated on account of his death during the pendency of the appeal.
Resultantly, Criminal Appeal S-753-SB of 1998, Criminal Appeal S-1034-SB of 1998 and Criminal Revision 1399 of 1998 are disposed of in the above terms.
( T.P.S. MANN )
February 22, 2011 JUDGE
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