Punjab-Haryana High Court
Gurdeep Singh @ Bauji vs State Of Punjab on 22 August, 2013
Author: Anita Chaudhry
Bench: Anita Chaudhry
Criminal Appeal No. D-382-DB of 2012 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No. D-382-DB of 2012
DATE OF DECISION : August 22, 2013
Gurdeep Singh @ Bauji ...Appellant
Versus
State of Punjab ...Respondent
CORAM: HON'BLE MR.JUSTICE M.JEYAPAUL
MRS. JUSTICE ANITA CHAUDHRY
Present: Mr. A.P.S. Deol, Senior Advocate
with Mr. Vishal Rattan Lamba, Advocate for the appellant.
Mr. T.S. Sangha, Senior Advocate
with Mr. Narinder Singh, Advocate for the complainant.
Mr. B.S. Bhalla, Addl. Advocate General, Punjab.
***
1. Whether the judgment should be reported in the digest? Yes
M.JEYAPAUL, J.
1. Accused Gurdeep Singh who was convicted under Section 302 of the Indian Penal Code and Section 27 of the Arms Act has challenged the judgment and conviction recorded by the trial Court. Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 2 Accused Surinder Kumar Changli was acquitted of the charges framed as against him.
2. The brief case of the prosecution is that on 15.08.2003 at about 6.35 P.M. Bhalinder Singh (deceased) was returning from his fields. Bhalinder Singh was the brother's son of complainant Hardev Singh. Hardev Singh and Sukhpal Singh were going from Gurudwara side towards their fields. Accused Gurdeep Singh armed with .315 bore gun came along with Inderjit Singh and Surinder Kumar Changli from the opposite direction. Surinder Kumar raised lalkara that Bhalinder Singh should be taught a lesson for getting his sheller and godowns closed and also for defeating Gurdeep Singh in the election of Sarpanch. Accused Gurdeep Singh fired a shot from .315 bore rifle which hit below the left armpit and crossed the body of Bhalinder Singh after fracturing his ribs. Surinder kumar fired a shot from his pistol towards Bhalinder Singh but the said fire shot did not hit him. Bhalinder Singh fell down and died on the spot. Complainant Hardev Singh and Sukhpal Singh raised hue and cry upon which all the accused ran away from the spot with their respective weapons.
3. Sukhpal Singh was examined as PW1. He supported the case of the prosecution as regards the charges framed against the accused-appellant Gurdeep Singh. Complainant Hardev Singh was examined as PW7 before ever the other accused were summoned under Section 319 Cr.P.C. but unfortunately he died when the case was taken up again and de-novo trial was conducted by the trial Court.
Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 3
4. PW5 Dr. Sheetal Jain conducted post mortem examination on the dead body of Bhalinder Singh on 16.08.2003 at about 10.00 A.M. He found a wound with oval shaped black, greasy, irregular and inverted margins communicating with the left pleural cavity. The wound was present over the frontal aspect of the left side of the chest. He also noted another wound with everted and irregular margins over the right side of the chest communicating with the right pleural cavity. He opined that due to excessive hemorrhage as a result of the above gun shot injury which was sufficient to cause the death in the ordinary course of nature, Bhalinder Singh had died.
5. PW3 Balwinder Singh has spoken to the fact that he contested for the election of Sarpanch in the village. Accused Gurdeep Singh also contested for the said election. PW3 won that election. The deceased Bhalinder Singh helped him in that election he won. PW4 Jagnandan Singh was the father of the deceased Bhalinder Singh. He has deposed that Bhalinder singh was helping PW3 Balwinder Singh for the election of Sarpanch. The accused Gurdeep Singh who contested the said election was defeated by PW3. Therefore, accused Gurdeep Singh nursed a grudge against deceased Bhalinder Singh. PW6 Inspector Balwinder Singh having recorded the statement of complainant Hardev Singh took up the case for investigation. He conducted inquest on the dead body. He arrested the accused Gurdip Singh on 17.08.2003. On the basis of the disclosure statement made by him a rifle kept concealed in his room under the chaff was recovered along with one empty cartridge Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 4 from the chamber of the rifle and four live cartridges. He could not recover any bullet or empty cartridge of pistol from the scene of occurrence.
6. Accused Gurdeep Singh would set up a plea in his statement under Section 313 Cr.P.C. that he was innocent. He gave statement against one Paramveer Singh who faced a trial under Section 376 of the Indian Penal Code. The said Paramveer Singh was the son of Bharpoor Singh who was the son of complainant Hardev Singh. Therefore, a case was falsely implicated as against him.
7. Accused Gurdeep Singh examined one Parminder Singh as DW4. He would depose that on 18.1.2012 when he was present in the Gurudwara of village Manwala on 15.8.2003 neither Sukhpal Singh nor Hardev Singh visited the Gurudwara.
8. The trial Court having relied upon the evidence of PW1, PW3 and PW4 in the background of the medical evidence and recovery of rifle made in this case recorded the conviction as against the accused as stated supra.
9. We heard the submissions made by learned Senior counsel appearing for the appellant, the learned Senior counsel appearing for the complainant as well the learned Additional Advocate General appearing for the State of Punjab.
10. PW1 Sukhpal Singh who has been cited as one of the eyewitnesses in the First Information Report has cogently spoken to the fact that accused Gurdeep Singh fired a shot from his .315 bore Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 5 rifle on the left side of the chest of Bhalinder Singh who was returning from his fields and as a result of which he fell down and died. He has also spoken to the fact that accused Gurdeep Singh had a grouse against deceased Bhalinder Singh as Bhalinder Singh helped PW3 Balwinder Singh to win the election defeating the accused Gurdeep Singh.
11. PW1 Sukhpal Singh has not only spoken to the fire shot given by Gurdeep Singh on the chest of Bhalinder Singh but also the motive behind the murder.
12. Complainant Hardev Singh was examined as PW7 when the accused appellant Gurdeep Singh originally faced the trial Complainant Hardev Singh was cross examined by accused Gurdeep Singh during the course of trial before ever summons was issued invoking the provision under Section 319 Cr.P.C. as against the other accused by the trial Court. There is no dispute to the fact that complainant Hardev Singh could not appear as a witness during the subsequent de-novo trial proceedings conducted after summoning the other accused by the trial Court invoking the provision under Section 319 Cr.P.C. as he had died on account of his old age.
13. As per Section 33 of the Indian Evidence Act, 1872 the evidence given by complainant Hardev Singh in the earlier judicial proceedings is relevant for the purpose of proving the charge against the accused in the later stage of the judicial proceeding, as complainant Hardev Singh was subjected to cross examination by the accused appellant and he could not be examined during the Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 6 subsequent de-novo trial proceedings as he had died. Further, it is found that the charges framed originally as against accused appellant was substantially the same even in the subsequent judicial proceedings. In our considered view, the evidence of complainant Hardev Singh who was examined as PW7 before the other accused were summoned under Section 319 Cr.P.C. is quite admissible and also relevant for determining the charges framed as against the accused appellant.
14. The learned Senior counsel appearing for the appelalnt would submit that a de novo trial was conducted after the other accused were summoned under Section 319 Cr.P.C. The charges also were reformulated by the trial Court. The evidence of the complainant Hardev Singh was also not brought to the notice of the accused appellant through the questioning under Section 313 Cr.P.C. Therefore, the evidence of the complainant Hardev Singh originally adduced in the same proceedings cannot be relied upon by this Court. He also relied upon a decision of the Hon'ble Supreme Court in Harinarayan G.Bajaj vs. State of Maharashtra and others (2010) 11 Supreme Court Cases 520.
15. Firstly, we find that the above ratio would not apply to the facts and circumstances of this case. The above ratio lays down two propositions. One is that where the court proceeds under Section 319 (1) against any other person not initially arrayed as accused, it must commence de novo proceedings qua such person from the stage of Section 244 Cr.P.C. The second proposition is that the newly arrayed Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 7 accused have right of cross examination of the witnesses even before the Court embarked upon framing the charges against them in order to afford them an opportunity to show before the court that there was no need for a trial as against them. Therefore in our view the above ratio has no relevance to the scope and ambit of Section 33 of the Indian Evidence Act, 1972.
16. Under Section 313 Cr.P.C., the trial Court shall after the witnesses of the prosecution have been examined and before the accused is called for his defence question the accused generally on the case for the purpose of enabling him personally to explain any circumstances appearing in the evidence against him. It is not necessary for the trial court to draw the attention of each and every version of a witness who spoke against the accused. The incriminating circumstances can be put to the accused in general so as to invite him to come out with an explanation to meet such incriminating circumstances. In view of the above procedures contemplated under Section 313 Cr.P.C., we find, on a careful scrutiny of the questionnaire put to the accused under Section 313 Cr.P.C. that the trial court has sufficiently brought to the notice of the accused the material incriminating circumstances surfaced in the evidence let in by the prosecution. Just because there is no specific reference to the evidence of the complainant Hardev Singh, which is admissible and relevant as per Section 33 of the Evidence Act, 1872 the testimony of Hardev Singh cannot be discarded.
17. Hardev Singh who was examined originally as PW7 before Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 8 ever the other accused were summoned under Section 313 Cr.P.C. had categorically deposed that the accused appellant fired a shot from his .315 bore rifle and caused a through and through gun shot injury on the left side of the chest of deceased Bhalinder Singh. He has also spoken to the motive for the murder.
18. PW3 and PW4 also have supported the evidence of PW1 and complainant Hardev Singh as regards the motive attributed to the accused appellant.
19. The eyewitnesses account completely corroborates the medical evidence on record. We also find that on the basis of the disclosure statement suffered by the accused appellant .315 bore rifle was recovered with an empty cartridge from the chamber of the rifle and four live cartridges. There is no explanation for the empty cartridge found in the chamber of the rifle recovered from the accused appellant. The recovery of the .315 bore rifle with an empty cartridge in its chamber would also lend corroboration to the case of the prosecution.
20. The learned Senior counsel appearing for the appellant would vehemently submit that the evidence of PW1 Sukhpal Singh does not conspire confidence, inasmuch as he has come out with a modulated version. Inasmuch as he has partly supported the case of the prosecution and partly disowned the case of the prosecution his evidence requires corroboration, he would further submit.
21. It is true that PW1 Sukhpal Singh gives a go bye to the role of the other accused but the fact remains that he has stuck to the Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 9 original stand as regards the prime role attributed to the accused appellant. Further, we find that it is the consistent case of the prosecution that accused appellant played a pivotal role by delivering a shot on the chest of deceased Bhalinder Singh causing his death. As PW1 has not supported the case of the prosecution as regards the role of the other accused, the other accused had been acquitted by the trial Court. As there is telling evidence on record as against accused appellant, the accused appellant cannot pray for acquittal on the ground that PW1 Sukhpal Singh failed to support the case of the prosecution as regards the role of the other accused.
22. We find that the evidence of PW1 Sukhpal Singh as regards the role of the accused appellant supports the consistent case of the the prosecution that it was only the accused appellant who fired a shot from his .315 bore rifle and caused the death of Bhalinder Singh. The evidence of PW1 lends corroboration to the evidence of complainant Hardev Singh who was originally examined as PW7. The evidence of complainant Hardev Singh corroborates his original version in the First Information Report as regards the role of the accused appellant. Therefore, we find that there is no reason to reject the evidence of PW1 just because he has given a clean chit to the other accused.
23. In Karunakaran vs. State of Tamil Nadu 1976 CAR 46 (SC) the Hon'ble Supreme Court has held as follows :-
"Apart from that we find that the High Court has not considered the intrinsic quality of the evidence of PW4. It Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 10 failed to notice certain broad facts which should definitely weigh with the court while appreciating ocular testimony. From the medical evidence it is clear that there were more than one assailant and yet from the F.I.R. it appears that there was only one assailant. This may not, in a given case, be considered as a very serious infirmity since the witness may not not have seen the other assailants when he came running to the place of occurrence. But the fact that the witness has stated in the First Information Report that the deceased was only mentioning the name of accused Karunakaran as his assailant, this earlier version appears to be contradicted by the medical evidence. Besides, he has deliberately changed his own stand in court when he deposed that he saw two other persons running ahead of Karunakaran being chased by his two brothers and Ramaswamy."
24. That was a case where the medical evidence established that there were more than one assailant who participated in the occurrence but the First Information Report was lodged as though only one accused committed the murder. But during the course of trial, the material witness, in order to support the medical evidence has come out with a version that two other persons also were found running after the commission of the crime. Such a contradictory version spoken to by one of the material witnesses was disbelieved. But in the instant case, we find that the prosecution has come out with a consistent version as regards the role of the accused appellant through the First Information Report, eyewitnesses account and the medical evidence on record. In view of the above, the evidence of Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 11 PW1 Sukhpal Singh cannot be rejected on the ground that he did not support the case of the prosecution as regards the role of the other accused.
25. In Badri vs. State of Rajasthan 1976 CAR 52 (SC) the Hon'ble Supreme Court has held as follows :-
"Further, there was difference of opinion between the two Medical Officers examined in the case. The trial Court refused to accept the evidence of the first doctor and summoned as a court witness another doctor who disagreed with the previous one and gave evidence before the court after perusing the postmortem report. The trial court has noted that Patram was 'compelled to change his version a little' because of doctor's opinion after the postmortem examination was held on the spot the following morning. If a witness who is the only witness against the accused to prove a serious charge of murder, can modulate his evidence to suit a particular prosecution theory for the deliberate purpose of securing a conviction such a witness cannot be considered as a reliable person and no conviction can be based on his sole testimony."
26. That was a case where one of the material witnesses chose to change his version to suit a particular theory projected by the prosecution. The Hon'ble Supreme Court has held that no conviction can be based on the sole testimony of such a prime witness. In the instant case, we find that PW1 Sukhpal Singh had not chosen to dance to the tune of the prosecution. Therefore, his evidence per se establishes the charges as against the accused Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 12 appellant. Hardev Singh who lodged the complaint has also supported the case of the prosecution. Under such circumstances, the above ratio would not apply to the facts of this case.
27. In Chuhar Singh vs. State of Haryana 1976 SCC (Crl.) 215 the Hon'ble Supreme Court chose to reject the evidence of a solitary witness on three grounds. Firstly, it was found that a solitary witness was examined nearly three weeks after the incident. Secondly, his testimony was found discrepant. Thirdly, his evidence was found contradictory to the version in the First Information Report. In our considered view, the above ratio has no connection with the fact situation in this case.
28. It was submitted that PW1 Sukhpal Singh and complainant Hardev Singh were closely related to the deceased and that they could not have been natural witnesses as well. We find that the occurrence had taken place on 15.08.2003 at about 6.35 P.M. In other words, the occurrence had taken place in a broad day light. PW1 Sukhpal Singh and complainant Hardev Singh were returning after their prayer at Gurudwara. Both their names do find a place in the First Information Report. Infact Hardev Singh had lodged the complaint without any loss of time. Though, they are related to the deceased, they are found to be natural witnesses and, therefore, their evidence cannot be rejected.
29. Of course, PW1 would depose that the clothes of Hardev Singh and his clothes were stained with blood and that those clothes were also shown to the Investigating Officer the next day of the Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document Criminal Appeal No. D-382-DB of 2012 13 occurrence. If such blood stained clothes had been shown by PW1 Sukhpal Singh and complainant Hardev Singh, to the Investigating Officer, there was no reason for him not to take cognisance of such material objects. Even assuming that the blood stained clothes were shown to the Investigating Officer and the same were not recovered by him, we may at best construe that there was some lapse on the part of the Investigating Agency. But at any rate non recovery of the blood stained clothes of PW2 Sukhpal Singh and complainant Hardev Singh did not in any way weaken the case of the prosecution.
30. In view of the above, the judgment of conviction and sentence passed by the trial Court as against accused appellant Gurdeep Singh @ Bauji stands confirmed. Consequently, the appeal stands dismissed.
(M.JEYAPAUL) JUDGE (ANITA CHAUDHRY) JUDGE August 22, 2013 p.singh Singh Parvinder 2013.08.27 16:02 I attest to the accuracy and integrity of this document