Punjab-Haryana High Court
Balwinder Singh And Another vs State Of Punjab on 14 November, 2008
Author: Uma Nath Singh
Bench: Uma Nath Singh, A.N.Jindal
Criminal Appeal No.379-DB of 2004 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH
Date of Decision : 14.11.2008
Balwinder Singh and another .....Appellants
versus
State of Punjab .....Respondent
CORAM : HON'BLE MR.JUSTICE UMA NATH SINGH.
HON'BLE MR.JUSTICE A.N.JINDAL.
Present : Mr.R.S.Cheema, Senior Advocate with
Mr.J.S.Mehendiratta, Advocate, for the appellants.
Ms.Gurveen H.Singh, Addl.AG, Punjab.
-.-
UMA NATH SINGH, J.
This Criminal Appeal arises out of a judgment dated 24.3.2004, passed by learned Additional Sessions Judge, Kapurthala in Sessions Case No.67 of 17.10.2000, holding the accused-appellants Balwinder Singh and Charanjit Singh guilty of offence on various counts and sentencing them accordingly, as under:
1) Balwinder Singh U/s 302 IPC : To undergo imprisonment for life and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further rigorous imprisonment for one month.
U/s 307 IPC To undergo rigorous imprisonment for seven years and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further RI for one month.
U/s 323/34 IPC To undergo rigorous imprisonment Criminal Appeal No.379-DB of 2004 2 for nine months and to pay a fine of Rs.500/-; in default of payment of fine, to undergo further RI for one month.
U/s 27 of the To undergo rigorous imprisonment Arms Act for three years and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further RI for one month.
2) Charanjit Singh U/s 302/34 IPC To undergo imprisonment for life and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further rigorous imprisonment for one month.
U/s 307/34 IPC To undergo rigorous imprisonment for five years and to pay a fine of Rs.2000/-; in default of payment of fine, to undergo further RI for one month.
U/s 323 IPC To undergo rigorous imprisonment for one year and to pay a fine of Rs.500/-; in default of payment of fine, to undergo further RI for one month.
However, the learned trial Judge having not found sufficient evidence against co-accused Jaswinder Singh, recorded his acquittal.
Briefly narrated the facts of the prosecution case are that Joga Singh, complainant, has one brother, namely Baldev Singh, younger to him. Jarnail Singh, his father, had two brothers, namely, Teja Singh and Mohinder Singh. Teja Singh, uncle of Joga Singh, has two sons, namely, Criminal Appeal No.379-DB of 2004 3 Manjit Singh and Surjit Singh. Jarnail Singh, father of Joga Singh, and his two brothers alongwith their families were residing in one house. They were also cultivating the land jointly. One of their lands was on the bank of a river, where they had constructed an out-house (Haveli), whereas, their another land was located near river Beas.
About four years prior to 1.3.2000, Parjinder Singh son of Balwinder Singh, accused, was murdered by Joga Singh and others. In that case, Joga Singh, his father Jarnail Singh, Surjit Singh and Manjit Singh, two sons of Teja Singh and his uncle were sentenced to undergo imprisonment for life. Joga Singh, his father Jarnail Singh and Surjit Singh, were on bail in that case. Manjit Singh was still in jail undergoing the sentence. On account of this reason, there was enmity between Joga Singh and his family, on the one hand, and Balwinder Singh and his family, on the other.
On 1.3.2000, at about 1.00 p.m., Joga Singh, Surjit Singh and Mohinder Singh, uncle of Joga Singh, were coming to their out-house on a tractor after cultivating their land located near river Beas, and when they passed near the tubewell of accused Balwinder Singh, they noticed that accused Balwinder Singh was armed with a 12 bore DBBL gun, and his brothers Charanjit Singh and Jaswinder Singh, were standing there (near his tubewell). On seeing Joga Singh and others, Charanjit Singh and Jaswinder Singh gave an exhortation that Balwinder Singh should take revenge of murder of his son Parjinder Singh. Whereupon, Balwinder Singh fired two shots from his 12 bore DBBL gun, towards Joga Singh, Mohinder Singh and others. Those shots hit into the head of Mohinder Singh, who was Criminal Appeal No.379-DB of 2004 4 sitting on the left mudguard of the tractor. On receipt of fire arm injuries, Mohinder Singh fell down on road and died. Surjit Singh, who was driving the tractor, sped it away. However, accused-Balwinder Singh, with an intention to kill, fired another gun shot from his 12 bore DBBL gun at Joga Singh and other members. After leaving the tractor on way, Joga Singh and others ran through fields. In the meanwhile, Balwinder Singh alongwith Jaswinder Singh and Charanjit Singh, came in Jeep No.DDA-2981, to the out-house of Joga Singh. Jeep was being driven by accused-Charanjit Singh. Teja Singh, uncle of Joga Singh and Naranjan Kaur wife of Teja Singh, were present in the out-house. Accused-Balwinder Singh fired two shots from his 12 bore DBBL gun at Teja Singh, which hit into his right biceps. When accused-Balwinder Singh tried to re-load his gun, Teja Singh came forward and caught hold of his gun. Naranjan Kaur also grappled with him and finally snatched his Double Barrel gun. During the grappling, the butt of gun was also broken. Thereafter, Charanjit Singh brought an iron rod from the Jeep and caused injuries on the neck, left ear and other parts of body of Naranjan Kaur. Balwinder Singh and other accused persons thereafter sped away the Jeep from there. Jit Singh was left to guard the dead body of Mohinder Singh, and injured Teja Singh and Naranjan Kaur were taken to Civil Hospital, Dhilwan by their son Surjit Singh. Joga Singh went to Police Station Dhilwan, for lodging a report and produced the DBBL gun, with broken butt, before Gurbachan Singh, Sub Inspector/SHO, P.S. Dhilwan. His statement, Ex.PA, was recorded and after it was read over and explained to him, which he admitted to be correct, he put his signatures. This was finally recorded as First Information Report. Aforesaid DBBL Criminal Appeal No.379-DB of 2004 5 gun, which was produced by Joga Singh, before Gurbachan Singh, Sub Inspector, was unloaded and two empties were recovered. Gun and two empties were converted into separate parcels, sealed with the seal impression 'GS' and taken into possession vide memo Ex.PB, which was attested by Joga Singh and ASI Ajit Singh. Thereafter, SI Gurbachan Singh, alongwith complainant and other police officials, proceeded towards the scene of occurrence, in the area of village Butala. Dead body of Mohinder Singh was found lying there and thus, Inquest proceedings of dead body were conducted and a report, Ex.PG, was prepared. The dead body was identified by Jit Singh and Piara Singh and it was entrusted to HC No.717 Gurmel Singh and Constable No.711 Santokh Singh, to be carried for conducting post-mortem examination in Civil Hospital, Kapurthala, vide request letter Ex.PF. Blood stained earth was also lifted from the spot and put into a tin box, which was also sealed with the seal bearing impression 'GS'. It was taken into possession, vide memo Ex.PW11/A, which was attested by Jit Singh, Piara Singh and ASI Ajit Singh. Three empties of 12 bore gun lying on spot, were lifted and converted into a sealed parcel. They were taken into possession vide memo Ex.PW11/B. Scene of occurrence was inspected and a site plan, Ex.PW11/C, was prepared with correct marginal notes. Thereafter, SI Gurbachan Singh, alongwith other police officials and Joga Singh, complainant, proceeded towards the out-house of Teja Singh, near Dhusi Bandh. Blood stained earth was also lifted from that place and converted into a parcel, which was sealed with the seal, bearing impression 'GS'. This was taken into possession, vide memo Ex.PW11/D, attested by Joga Singh and ASI Ajit Singh. Site plan, Ex.PW11/E, of the Criminal Appeal No.379-DB of 2004 6 place of occurrence, in the out-house of Teja Singh, was prepared with correct marginal notes. When SI Gurbachan Singh, alongwith other police officials, was returning and reached near village Mangewal, he noticed a Jeep coming from the opposite direction. The jeep (Mahindra No.DDA- 2981), which was being driven by accused-Balwinder Singh, was stopped and the accused was apprehended, and the jeep was also taken into custody vide memo Ex.PW11/F, alongwith its R.C., Ex.P.2. Arrest memo and information memo, Ex.PG and Ex.PH, of accused Balwinder Singh, were prepared. Thereafter, SI Gurbachan Singh, proceeded towards Civil Hospital, Dhilwan. The attending Doctor and injured Teja Singh, were not found available in the hospital.
On 2.3.2000, a raid was conducted at the house of the other accused persons, but they were not found present. Thereafter, SI Gurbachan Singh, proceeded to Police Station Dhilwan, and recorded the statement of injured Naranjan Kaur. The attending Doctor informed Sub Inspector Gurbachan Singh, that injured Teja Singh, was referred to Civil Hospital, Kapurthala, and hence, SI Gurbachan Singh, reached the Civil Hospital, Kapurthala, and moved an application Ex.PJ to find out the condition of injured Teja Singh for recording his statement. The attending Doctor vide his endorsement, EX.PJ/1, declared injured Teja Singh, fit to make a statement, and thus, his statement was recorded. After post-mortem examination of dead body, HC Gurmel Singh, produced the clothes of deceased Mohinder Singh, before SI Gurbachan Singh, which were converted into a separate parcel and sealed with seal impression GS, and then taken into possession vide memo Ex.PW-11/J. On 3.3.2000, the Criminal Appeal No.379-DB of 2004 7 licence of DBBL gun, Ex.P8, was also taken into possession vide memo Ex.PW11/K, which was produced by Jaswinder Singh, Ex-Sarpanch of village Butala. Accused Charanjit Singh, was arrested on 16.3.2000, and the case property was deposited with the MHC. Statements of witnesses were also recorded during the course of investigation, and after completion of investigation, a challan against accused Balwinder Singh, was presented, whereas, names of accused Charanjit Singh and Jaswinder Singh, were kept in column No.2 of the report, under Section 173 Cr.P.C. Accused Charanjit Singh, was in custody, when the challan was presented. On appearance of accused Balwinder Singh and Charanjit Singh, in the Court of Committing Magistrate, they were supplied with copies of necessary documents, relied upon by the prosecution. Case was finally committed to the Court of Sessions with directions that accused Charanjit Singh be also produced before that Court. On receiving the case on commitment, in the Court of Sessions, charges were drawn against accused Balwinder Singh and Charanjit Singh. However, after some evidence was recorded, an application under Section 319 Cr.P.C., was moved for summoning accused Jaswinder Singh. That application was accepted and accused Jaswinder Singh, was also summoned, for facing trial alongwith other two accused persons.
On appearance of accused Jaswinder Singh, in the Court of Sessions, he was also supplied with copies of necessary documents, relied upon by the prosecution. Thus accused Balwinder Singh was charged with committing offence under Sections 302, 307, and 323/34 of the Indian Penal Code and also Section 27 of the Arms Act, whereas, accused Criminal Appeal No.379-DB of 2004 8 Charanjit Singh was put up for trial on charges under Sections 302/34, 307/34 and 323 of the Indian Penal Code. Similarly, charges under Sections 302/34, 307/34 and 323/34 of the Indian Penal Code, were also framed against accused Jaswinder Singh. When the charges were read over and explained to accused persons, in simple Punjabi language, they pleaded not guilty and claimed trial.
Prosecution, in support of its case, examined as many as 15 witnesses, namely, Joga Singh (PW-1), complainant, Teja Singh (PW-2) and Naranjan Kaur (PW-3) both injured eye witnesses, Balwinder Singh (PW-4), Dr.Ashok Dhingra (PW-5), Dr.H.L.Mehmi (PW-6), Dr.Gurbachan Singh (PW-7), Dr.Rajat Obroi (PW-8), HC Subhash Chander (PW-9), Constable Balwinder Singh (PW-10), SI Gurbachan Singh (PW-11), Nisha Rani (PW-12), HC Gurmail Singh (PW-13), Ajit Singh (PW-14) and HC Jaswinder Singh (PW-15).
Learned trial Judge, while placing reliance on the evidence of aforesaid witnesses, as also on circumstantial evidence placed on record, convicted two accused-appellants herein, while recording the acquittal of co-accused Jaswinder Singh, as the prosecution failed to prove its case against him beyond reasonable doubt.
We have heard learned counsel for parties and perused the record.
Learned Senior counsel Shri R.S.Cheema, appearing on behalf of appellants, submitted that accused-appellants had no motive to commit the murder of Mohinder Singh, who was not their target as in the murder of Parjinder Singh son of accused Balwinder Singh, deceased Mohinder Singh Criminal Appeal No.379-DB of 2004 9 was not made an accused. He further submitted that initially accused Balwinder Singh alone was challaned under Section 302 and two co- accused Charanjit Singh and Jaswinder Singh (since acquitted), were placed in column No.2, being found to be innocent. Learned Senior counsel also questioned the site as well as occurrence of the first incident itself, said to have taken place on a road near the tubewell of accused persons. Learned Senior counsel further submitted that as per the evidence of witness Joga Singh, two co-accused had given lalkara, whereas the third one namely accused Balwinder Singh had fired two gun shots from his 12 bore DBBL gun on the deceased and thereafter, on witnesses. According to learned Senior counsel, looking to the nature of injuries, gun shots should have been fired from point blank range, but the site plan of this case disclosed that the gun shot was fired from a distance of 27-1/2 feet. Further, according to Senior counsel, the complainant side, after leaving their tractor, had run into fields, and the accused side after boarding the Jeep had gone to the Haveli of the complainant, where accused Balwinder Singh fired two gun shots from his 12 bore DBBL gun and caused gun shot injuries to witness Teja Singh and his wife Naranjan Kaur. When he started re-loading the gun, injured Teja Singh caught hold of his gun and his wife Naranjan Kaur grappled with accused Balwinder Singh. During the course of grappling, the butt of gun was also broken. However, this has come on record that the gun was deposited with police by complainant Joga Singh at the time of lodging FIR. Learned senior counsel submitted that in this background, the version given by two injured witnesses that they were shot in the Haveli, look to be more probable than the first one in regard to causing of gun shot injury to Criminal Appeal No.379-DB of 2004 10 deceased Mohinder Singh near the tubewell of Baljinder Singh. Further, the police could not find any pellet mark on the tractor, nor on the person of Surjit Singh, who was driving that tractor and also on the body of Joga Singh who was sitting on the mudguard of tractor. Even if the first occurrence is believed, then the provisions of Section 34 IPC would not be attracted so as to fasten criminal liability on accused Charanjit Singh because he had only given a lalkara and did not participate in the actual occurrence. If at all, Section 34 of IPC is to apply, it would apply only in respect of the second occurrence when accused Charanjit Singh boarded the Jeep with accused Balwinder Singh and also caused injuries to Naranjan Kaur by an iron rod. Thus, according to learned senior counsel, eye witness Joga Singh being the complainant is not a dependable witness. Learned senior counsel also referred to the cross examinations of witness Joga Singh to impeach his credibility.
Learned senior counsel further referred to the charge framed against accused persons to argue that Section 307 IPC would not be attracted. According to him, if first occurrence took place near the tubewell and deceased Mohinder Singh was shot dead, then a charge under Section 307 could not have been framed against accused Balwinder Singh. Witness Joga Singh deposed against this accused only because Joga Singh was also an accused in the murder case of Parjinder Singh, and had been convicted under Section 304-I IPC. According to learned senior counsel, Joga Singh could not have been an eye witness of the second incident, and he also referred to the report of ballistic Expert. According to Doctor, injury No.1 indicated that it was caused by firing from a close range, and moreover, Criminal Appeal No.379-DB of 2004 11 presence of burn injuries are not found explained in the report. Learned senior counsel also referred to the site plan (Ex.PC) prepared by Patwari (PW-4), to argue that the gun shot was fired from a distance of 27½ feet, and thus, pointed out contradictions between the medical evidence and the ocular version. Learned senior counsel, in order to substantiate his submissions, also referred to three judgments of Hon'ble the Apex Court. In the judgment of Santa Singh Versus State of Punjab, AIR 1956 S.C.526, the question of admissibility of site plan has been discussed, as under:-
"If the draftsman is asked to prepare a sketch map of the place of the occurrence and if after ascertaining from the witnesses where exactly the assailant and the victim stood at the time of the commission of the offence and the draftsman measures the distance between the two places thus shown to him and puts it down on the plan, and further, if the witnesses corroborate his statement that they showed him the places, it is somewhat difficult to see how this is not legal evidence and why it is inadmissible."
In the second judgment, namely, Subhash and another Versus State of U.P., AIR 1976 S.C.1924, the question of appreciation of evidence has been elucidated as:
".....13. While we are on the medical evidence it would be appropriate to mention that there was no tatooing or charring on any of the firearm injuries which, according to the doctor, shows that the firing was done from a distance of more than 4 feet. In the First Information Report Bal Kishore has stated that as soon as he, his father and sister reached the culvert, Subhash touching the chest of Criminal Appeal No.379-DB of 2004 12 Ram Sanehi with the barrel of his gun, said that he shall not leave him alive. Shyam Narain thereupon exhorted Subhash not to delay and fire immediately; Subhash then fired three shots in quick succession, one of which misfired. The trend of the F.I.R. is that Subhash fired the first two shots at Ram Sanehi from a point blank range, in which event, indisputably there would have been tatooing and charring around the injuries. Bal Kishore has attempted to offer an explanation that what he mean to say in his complaint was that Subhash trained his gun towards Ram Saheni's chest and not on his chest. This explanation is an after thought and in the circumstances difficult to accept. Thus, in another important respect, the medical evidence falsifies the case of the prosecution."
In the third case also, namely Bahal Singh versus State of Haryana, AIR 1976 S.C.2032, in para 13 of the judgment, the above aspect of appreciation of medical and ocular evidence has been discusssed as:
"......13. Coming to the 9th and the last reason mentioned above it would be noticed that the shirt of the deceased was found to be torn at two places. His dhoti was also torn and kachha was found torn at some places. It was not Manphool's evidence that Ram Sarup while going with him was wearing torn and tattered clothes. He was, therefore, obliged to give an explanation for their being found torn. The explanation was that while putting Ram Sarup on the bullock cart the clothes got torn. The trial Judge found it difficult to swallow this explanation. In our opinion, the High Criminal Appeal No.379-DB of 2004 13 Court was wrong in accepting it. In the circumstances of the case, the probability of the clothes being torn and especially of the kachha in the manner suggested by the prosecution, was not there at all. On the other hand, it was quite legitimate to think that Ram Sarup had a scuffle with his assailant and the clothes got torn in that scuffle. Neither Manphool nor PWs 4 and 5, perhaps, saw the occurrence. It is also clear that the gun was fired by the assailant at Ram Sarup's thigh from a very close range. The muzzle of the gun at the time of fire must not be more than a foot away from the thigh. The Doctor who did post mortem examination found a piece of card board torn in four parts and a metallic pellet in the left thigh of Ram Sarup. There was burning of the margins of the wound of entry. The Doctor was not quite right in saying that it was due to heat of the bullet or the pellet. And this showed that the gun was fired from a close range. The High Court was also of the same view. The ocular version of the occurrence given by the prosecution witnesses 2, 4 & 5 does not indicate that the gun was fired by the respondent after he had come very close to the deceased. Rather, according to the evidence of Manphool it was fired from a distance of about 1½ pondas i.e., about 7½ ft."
Learned senior counsel also pointed out certain improvements in the evidence of witness Joga Singh, who was examined twice. According to him, this witness has deposed according to his convenience. Learned senior counsel also took us through the testimony of investigating Officer Criminal Appeal No.379-DB of 2004 14 Gurbachan Singh (PW-11) who has stated that he had not found any pellet mark on the body of tractor.
Thus, according to learned senior counsel, witness Joga Singh is not a dependable witness and further there is no corroboration to his evidence. Learned senior counsel further argued that the incident took place in a broad day light at 1.00 p.m. On 1.3.2000, and FIR was lodged at 3.30 p.m. on 1.3.2000, but the special report was sent after 7 hours at 10.30 p.m., to the Area Magistrate. Thus, there was a delay in sending the special report. According to him, three witnesses, 2 from public, i.e., Jeet Singh and Piara Singh, and one from police i.e., Ajit Singh, have not been examined and the empties were also sent for examination after an inordinate delay, on 23.3.2000, as per the evidence of HC Jaswinder Singh vide his affidavit Ex.PC.
On the other hand, learned State Counsel tried to justify the impugned judgment. Learned State counsel submitted that the testimony of complainant Joga Singh (PW1), injured Teja Singh (PW2) and Naranjan Kaur (PW3), support the prosecution case in material particulars and their conducts also inspire confidence.
On a careful consideration of rival submissions and perusal of record, we notice that testimonies of complainant Joga Singh (PW1), injured witnesses Teja Singh (PW2) and Naranjan Kaur (PW3), would be relevant for disposal of this appeal.
Joga Singh (PW1) has supported his statement given in FIR. He has given a vivid description as to why and how the incident took place. According to him, on 1.3.2000, he alongwith Surjit Singh and Mohinder Criminal Appeal No.379-DB of 2004 15 Singh (deceased) were returning from their fields to their Haveli after cultivating their lands. When they reached near tubewell of accused persons, accused Balwinder Singh was seen standing with his 12 bore DBBL gun. Co-accused Charanjit Singh and Jaswinder Singh were also present there, but they were empty handed. Charanjit Singh and Jaswinder Singh are real brothers. They raised a lalkara that complainant's side should not escape and the revenge of killing Parjinder Singh son of Balwinder Singh be taken. Thereupon, accused Balwinder Singh opened fire on complainant's side hitting deceased Mohinder Singh, uncle of complainant Joga Singh, on his head. He was sitting on the left mud guard of Tractor while Surjit Singh was driving it and witness Joga Singh (PW1) was sitting on the tillers. Mohinder Singh fell down and succumbed to the injuries instantaneously. According to this witness, they were carrying fodder on tiller of the Tractor. Thereafter, accused Balwinder Singh continued firing further gun shots at them with the intention to kill them. Hence, accused Joga Singh and Surjit Singh left the Tractor and ran away. However, accused Balwinder Singh, Charanjit Singh and Jaswinder Singh reached their Haveli in a jeep (No.DDA-2981), and accused Charanjit Singh was driving that jeep. By the time the accused persons reached the Haveli, witnesses Joga Singh and Surjit Singh also reached there. Uncle of Joga Singh, namely, Teja Singh and his wife Naranjan Kaur (aunt of Joga Singh) were present in the Haveli. Accused Balwinder Singh then fired two shots on Teja Singh hitting him on his left and right shoulders. However, witness Teja Singh and his wife Naranjan Kaur grappled with accused Balwinder Singh and in the process of said scuffle, the butt of gun of accused Criminal Appeal No.379-DB of 2004 16 Balwinder Singh was also broken. Accused Charanjit Singh then took out a rod from the jeep and caused injuries to Naranjan Kaur on her left ear and neck. Thereafter, all three accused persons sped away the jeep from the spot but witness Teja Singh (PW2) had already snatched the gun from accused Balwinder Singh. Both injured persons Teja Singh and his wife Naranjan Kaur were carried to Civil Hospital, Dhilwan, and complainant Joga Singh went to police station, Dhilwan to lodge a report. He gave the statement to SI Gurbachan Singh, S.H.O. He also deposited the snatched gun in police station, which had been given to him by injured Teja Singh. The gun was unloaded and three empty cartridges were found by the police. In cross- examinations, complainant Joga Singh admitted that Parjinder Singh was the only son of accused Balwinder Singh in whose murder case, he (Joga Singh) was convicted under Section 304 Part-I IPC. He has also admitted that during investigation of the case, accused persons Charanjit Singh and Jaswinder Singh were found to be innocent. However, he has not denied the fact that the complainant side had not committed the murder of Parjinder Singh and they were falsely implicated. In that case, witness Joga Singh and his brother Baldev Singh, and his cousins Surjit Singh and Manjit Singh and his father Jarnail Singh were convicted and sentenced to life imprisonment. In his further cross-examinations, witness Joga Singh admitted that the accused persons had not made any attempt to assault him and his cousin Surjit Singh at the time when injuries had been caused to Teja Singh and his wife Naranjan Kaur. However, this witness has also admitted that he and his cousin Surjit Singh had not intervened when Naranjan Kaur and Teja Singh had been assaulted. They also did not help the couple in snatching the gun Criminal Appeal No.379-DB of 2004 17 from accused Balwinder Singh. The gun snatched from accused Balwinder Singh was handed over to complainant Joga Singh in the Haveli itself. This witness further stated that he had parted company with injured Teja Singh, his wife Naranjan Kaur and cousin Surjit Singh only at Civil Hospital, Dhilwan, as the Police Station was close to Civil Hospital. He has clarified that his cousin Surjit Singh, injured persons, namely, aunt Naranjan Kaur and uncle Teja Singh had not accompanied him to police station before going to Civil Hospital, Dhilwan. He also denied the defence suggestion that deceased Mohinder Singh and injured Teja Singh and Naranjan Kaur did not receive injuries in his presence. He has clearly mentioned that he and his cousin Surjit Singh had jumped from the tractor at the place where his uncle Mohinder Singh was shot dead. He also stated that there were blood stains on the body of tractor when he had seen it in the evening at his residence. Blood stains were noticed on the left mud guard which he had also told to the police. According to this witness, police had visited his house in the village and noticed the presence of blood stains on the mud guard of tractor. The tractor was lying near the place of first occurrence when he had visited that place with police and the police had also noticed the presence of blood stains on tractor. He also stated that the police left that place at 3.00 p.m. and the tractor was still standing there. He has clarified that before the High Court enhanced their sentence in the murder case of Parjinder Singh, they had been released after undergoing the sentence imposed upon them by the trial Court and thereafter, they were released on bail by the Supreme Court. He has denied all the defence suggestions and his statement recorded under Section 161 Cr.P.C., which were contrary to Criminal Appeal No.379-DB of 2004 18 the prosecution case. He also stated that his cousin Surjit Singh, who had accompanied him till Civil Hospital, did not meet him again on 1.3.2000. He met him only on next day in the Civil Hospital, Kapurthala, at 11.00 a.m, where injured Teja Singh was admitted. According to him, police was also present. He has repeatedly denied the defence suggestions that his cousin Surjit Singh, his aunt injured Naranjan Kaur and uncle injured Teja Singh were also with him when he went to police station. He also denied the defence suggestion that injured Naranjan Kaur and Teja Singh were sent to Civil Hospital by the police from police station. Thus, in the statement of this witness, no such material has come on record so as to impeach his credibility nor is there any improvement in his evidence. He has categorically denied all such defence suggestions which were contrary to the prosecution case and his statement given to the police leading to recording of FIR. Thus, it cannot be alleged that the FIR was lodged after prior deliberations.
Teja Singh (PW2) is an injured witness. He is uncle of complainant Joga Singh (PW1) and father of Surjit Singh. In his examination- in-chief, he has stated that on 1.3.2000 at about 1.30 p.m., he and his wife Naranjan Kaur were present in Haveli. All three accused persons came there in jeep which was being driven by accused Charanjit Singh. Accused Balwinder Singh was carrying a .12 bore DBBL gun, and fired two gun shots at them and both these shots hit him on his right shoulder. The accused persons did not utter anything to them before accused Balwinder Singh opened fire. Accused Charanjit Singh also participated in committing offence as he had brought a rod from the jeep and caused a blow on the left ear and neck of his wife Criminal Appeal No.379-DB of 2004 19 Naranjan Kaur. This witness Teja Singh had also grappled with accused Balwinder Singh and so had his wife Naranjan Kaur. When accused Balwinder Singh was trying to re-load his gun, they snatched the gun from him and in the process, the butt of gun had been broken. At that time, witness Joga Singh and Surjit Singh also reached the place of occurrence and witnessed the commission of offence. Thereafter, accused persons fled away from the scene of occurrence in their jeep. He and his wife Naranjan Kaur were taken to Civil Hospital, Dhilwan, where they were medically examined. Later, this witness was referred to Civil Hospital, Kapurthala, where his son Surjit Singh and nephew Joga Singh (PW1) informed him that the accused persons also committed murder of his brother Mohinder Singh. His statement was recorded by police in the hospital. He also identified the jeep used in the incident by the accused when it was standing outside the Court. In his cross-examinations, witness Teja Singh has admitted that during the grappling, he had also snatched the gun from accused Balwinder Singh and grappled with him. He testified that his son Surjit Singh and nephew Joga Singh had not come to their rescue but they had witnessed the incident from a distance. Joga Singh (PW1) contacted him only on 3rd day of incident in Civil Hospital, Kapurthala, after he had parted with his company at Dhilwan. Witness Teja Singh also denied the defence suggestion that he had not received any injury and there was no grappling with accused Balwinder Singh. He also denied further defence suggestion that he and his wife fabricated the injuries noticed on their person and thereafter set up a false story to implicate the accused persons on account of the past enmity. Witness Naranjan Kaur (PW3) has also supported the prosecution case and has corroborated the statement of her husband Teja Criminal Appeal No.379-DB of 2004 20 Singh (PW2). She categorically stated that about 2 years prior to the incident, at about 1.30/2.00 p.m., she along with her husband Teja Singh was staying in their Haveli when all the three accused persons came there in a jeep being driven by accused Charanjit Singh. One of the accused persons namely Balwinder Singh, who was armed with a gun, started firing from the gun with an intention to kill her husband. The fire shots hit on the right shoulder of her husband Teja Singh and when accused Balwinder Singh tried to re-load his gun, she and her husband Teja Singh grappled with him and in the scuffle, the butt of gun was also broken. Thereafter, accused Charanjit Singh brought a rod from the jeep and caused a rod blow to her hitting on the left ear and other parts of body. She has further deposed that the occurrence was witnessed by witness Joga Singh (PW1) and her son Surjit Singh. Thereafter, accused persons fled away from the spot in their jeep. She has also stated that her husband Teja Singh was later referred to Civil Hospital, Kapurthala, whereas, she was medically examined in local Civil Hospital, Dhilwan, and her statement was also recorded by the police. She has specifically stated that deceased Mohinder Singh was killed by accused persons in a prior incident as informed to her by witness Joga Singh and her son Surjit Singh. In her cross- examinations, she has further deposed that perhaps the attending Doctor had seen her injuries on 2.3.2000 after sun rise. She stated that her husband Teja Singh had been immediately referred to Civil Hospital, Kapurthala, without giving any medicine at Dhilwan, and only a bandage was applied there. She denied the defence suggestion that her sons Surjit Singh and Manjit Singh with her brother-in-law Jarnail Singh and nephew Joga Singh had committed the murder of Parjinder Singh son of accused Balwinder Singh. She asserted Criminal Appeal No.379-DB of 2004 21 that her sons were convicted and sentenced on being falsely implicated in that case. She denied the defence suggestion that she had not suffered any injury in the manner as depicted by her and also denied that the accused persons had not come to her Haveli in the jeep. She also denied the defence suggestion that her husband had not suffered any gun shot injury at the hands of accused Balwinder Singh and they have falsely implicated him in this case. She also denied the defence suggestion that her son Surjit Singh and nephew Joga Singh had not returned to Haveli and witnessed the incident.
S.I. Gurbachan Singh (PW11), Incharge, PP, Maksudan, Jalandhar, is the Investigating Officer of this case. He conducted the investigation of this case and has supported the prosecution case on all material points. He deposed that on 1.3.2000, he was posted S.H.O. at Police Station Dhilwan. On that day, Joga Singh, complainant, came to the police station and got recorded FIR (Ex.PA). He further deposed that witness Joga Singh produced a .12 bore gun before him, which was unloaded and two empties were recovered from it. The gun and empties were made into separate parcels and sealed with his seal `GS' and then taken into possession vide memo (Ex.PB), which was signed by witness Joga Singh and ASI Ajit Singh. Thereafter, SI Gurbachan Singh alongwith complainant Joga Singh and other police officials, went to the scene of occurrence and found the dead body of Mohinder Singh lying there. He prepared the inquest report (Ex.PG) and the dead body of deceased Mohinder Singh was entrusted to HC Gurmel Singh for being carried to hospital for post-mortem examination. Blood stained earth lifted from the place of occurrence was sealed by him with his seal impression `GS' and taken into possession vide Ex.PW11/A. He collected three empties Criminal Appeal No.379-DB of 2004 22 of .12 bore cartridges from the spot and took into possession vide memo (Ex.PW/B). He inspected the place of occurrence and prepared a rough site plan (Ex.PW11/C) with correct marginal notes. He also inspected the place of second occurrence namely Haveli and lifted the blood stained earth also from there and sealed it into a parcel with his seal impression `GS' and took it into possession vide Ex.PW11/D. The site plan of Haveli is exhibited as Ex.PW11/C with correct marginal notes. He also recorded the statements of witnesses and conducted raids in order to search the accused persons and when he was returning with other police officials to police station, he saw a jeep coming from the opposite direction which was being driven by accused Balwinder Singh, who tried to slip away. But accused Balwinder Singh was apprehended and jeep Mahindra No.DDA-2981 was also taken into possession vide memo Ex.PW11/F. Registration Certificate of the jeep was not available at that time and it was seized on the next day vide memo Ex.P.2. Thereafter the case properties were deposited with MHC with seals intact. On 2.3.2000, SI Gurbachan Singh proceeded to Civil Hospital, Dhilwan, and recorded the statement of Naranjan Kaur and thereafter also recorded the statement of injured Teja Singh and Surjit Singh at Civil Hospital, Kapurthala. On 3.3.2000, licence of gun was also taken into possession vide Ex.PW/K, which was produced by Jaswinder Singh, Sarpanch of village Butala. This witness (PW11) identified the gun as Ex.P-1 and also other materials in the Court. In his cross-examinations, he has denied the defence suggestion that he had prepared the F.I.R. at 8.30 p.m. after visiting the village. He admitted that after recording the FIR, he had come to know that injured Teja Singh and Naranjan Kaur were admitted in Civil Hospital, Dhilwan. He has clarified that he might Criminal Appeal No.379-DB of 2004 23 have seen the blood stains on tractor. He denied the defence suggestion that he fabricated the documents showing the presence of tractor standing at the place of occurrence and recovery of empties from near the dead body in the inquest report. He has stated that he had gone to hospital only after visiting the spot where he found that injured Naranjan Kaur was present in Primary Health Centre, Dhilwan. He denied the defence suggestion that injured Naranjan Kaur was conscious and he intentionally avoided to record her statement. He also denied the defence suggestion that accused Balwinder Singh was brought from his house alongwith jeep and licenced gun. The witness has further denied that the gun was fired in the police station before sending it to the Forensic Science Laboratory. He also denied the defence suggestion that accused Balwinder Singh was implicated in this case on account of prior enmity with Joga Singh.
Other witnesses are formal witnesses. However, it is pertinent to mention that Balwinder Singh (PW4 ), who was Halqa Patwari of Boolpur, Tehsil Sultanpur Lodhi, had prepared a scaled site plan (Ex.PC and PD) with correct marginal notes, at the instance of complainant Joga Singh and SI Gurbachan Singh. PW4 denied the defence suggestion that he had prepared the site plan while sitting in his office. HC Subhash Chander (PW9) delivered the Special Report to learned area Judicial Magistrate on the same day at 10.30 p.m. and to other higher authorities. Constable Balwinder Singh (PW-10), deposited the parcels in the office of Chemical Examiner at Patiala for testing. Nisha Rani (PW12) was a junior Assistant in the office of S.D.M. Kapurthala, who proved the entry of arm licence (Ex.PB) in the register pertaining to Arms Licences issued by the Licencing Authority. According to the register, the arm Criminal Appeal No.379-DB of 2004 24 licence in question was renewed at Kapurthala and was valid upto 31.12.2001. HC Gurmail Singh (PW13) tendered his evidence on affidavit (Ex.PW13/A). He stated on affidavit that he got the post-mortem examination of dead body of deceased Mohinder Singh conducted in Civil Hospital, Kapurthala. Ajit Singh (PW14) is an Assistant in the office of D.T.O., Kaputhala, who proved the ownership of jeep No.DDA-2981 in the name of Surjit Kaur wife of accused Balwinder Singh. HC Jaswinder Singh (PW-15) tendered his evidence on affidavit (Ex.PL), and stated that he deposited the case properties with Forensic Science Laboratory, Chandigarh, on 22.3.2000.
Learned public prosecutor tendered the report of F.S.L. (Ex.PM and Ex.PN) in the Court. Deputy Director (Ballistic), Forensic Science Laboratory, Punjab, Chandigarh, opined that two .12 bore K.F. Astram Cartridge cases marked C/1 and C/2 contained in parcel `A' have been fired from right barrel of .12 bore DBBL gun No.8293-D/8.
Thus, the testimonies of complainant Joga Singh (PW1) stands fully corroborated by the ocular version of his wife Naranjan Kaur (PW2). Besides, Investigating Officer Gurbachan Singh (PW11) has supported the investigation part of the case. Testimony of Dr. H.L.Mehmi, S.M.O., Civil Hospital, Kapurthala, (PW6) also lends credible support to the prosecution case. He along with Dr.B.S.Multani, constituted a Board and conducted the post mortem examination on body of deceased Mohinder Singh. They noticed the following injuries on the dead body:
"1) A lacerated wound measuring 25 cm x 22 cm on face and scalp right side. Right frontal and temporal bones were missing.
Facial bone (Maxillary) were also missing. Cranial cavity only contains small amount of brain which was torn along with brain Criminal Appeal No.379-DB of 2004 25 membranes. Cranial cavity was containing blood, pieces of bone along with brain matter. Few metallic pieces (11) removed from the cranial cavity.
2) A lacerated wound with inverted margin with no charring on right supra scapular region. There was torn area in shirt corresponding to injury No.2.
3) There were superficial burns with peeling of skin on back (number and dorsal) region in patches of 4 cm x 3 cm.
4) There were superficial burns on back of right leg. On dissection of chest; right side plural cavity contained blood, right side lung was collapsed and torn alongwith pleurae, one metal piece was removed from right lung. Left lung was healthy.
On dissection of chest: no abnormality detected."
In the opinion of doctors, the cause of death was injury to brain which was sufficient to cause death in ordinary course of nature. All the injuries as aforesaid were found to be ante-mortem in nature and injuries No.1 & 2 in particular could have resulted from gun shots of firearm. In his cross-examination, Dr. H.L.Mehmi (PW6) has answered the defence suggestions relating to postmortem examination and nature of injuries as under:-
"I do not know at what time, the dead body was received in the hospital. We received the police papers at 2.30 p.m. on 2.3.2000 and thereafter, at 3.p.m., we started the postmortem after getting the X-ray done. I cannot give the distance between the victim and nozzle of the gun when it was fired. Injury No.2 could be with independent fire, whereas, I cannot say if injuries No.3 and 4 are fire arms injuries as they were superficial burns as such I cannot say whether the same are the result of fire arm. These No.3 and 4 injuries could be the result of some hot object. No pallets were found at the site of injuries No.3 and 4. As injury No.2 was communicating with the chest cavity on right side, one pallet was Criminal Appeal No.379-DB of 2004 26 removed. It has not been specifically mentioned that injury No.2 was communicating with the chest cavity from where a pallet was recovered. As the shirt was torn corresponding to injury No.2 on that basis, I state that it was a fire arm injury and there was clotted blood. The margins of injury No.2 were inverted. The death in the present case could have been resulted at about 6/7 a.m. on 1.3.2000. It is wrong to suggest that I am deposing falsely."
On 1.3.2000, Dr.Rajat Obrai (PW8), conducted medico-legal examinations of injured Teja Singh (PW2) and Naranjan Kaur (PW3). He referred injured Teja Singh to Civil Hospital, Kapurthala, and noticed the following injuries on his person:
"1) An irregular wound in shape on posterior surface of right upper arm, upper and of which was 2 cm from posterior auxiliary fold and 14 cm below the tip of right shoulder and was 6 cm on its largest proximal-distal direction and 3 cm in longest across diameter. The margins were irregular and contused, some tags of skin were inverted and hanging from upper margins which were showing contusion. Fresh clotted haemorrhage present. On probing found to be communication with wound No.2. An X-ray of right shoulder joint upper arm was advised.
2) A wound on lateral and anterior surface of right upper arm which was irregular in shape and 3.6 cm in front of wound No.1 was 9 cm across in its widest diameter and 6 cm in longest proximal distal direction. Fresh clotted haemorrhage was present.
Margins were irregular and tags were averted.
3. Abrasion of spindle shape 2 cm x 2 cm in shape of rombus 2 cm above wound No.2 with loss of epidermous, bright red in colour.
4. An abrasion 3 cm across x 1.5 cm in proximal distal 3 cm 3 cm below wound No.2, bright red in colour.
5. Wound of size 3 cm x 2 cm across, 2 cm medial to posterior auxiliary fold on right side of upper chest on posterior Criminal Appeal No.379-DB of 2004 27 surface. Margins irregular, inverted and contused. On probing found to be in continuity of wound No.6.
6. Irregular wound 4 cm in longest diameter in superic medial to inferic lateral direction and 2.5 cm across. It was 15 cm below the right tip of shoulder on back and 7 cm was medial to wound No.5. Fresh clotted haemorrhage margins irregular, averred and underlying swelling 7 x 7 cm.
7. Blackening and tenderness of left nails medial portions of middle finger."
In the midnight on the same day, i.e., 1/2.3.2000, injured Naranjan Kaur was also medico-legally examined and the following injuries were noticed on her person:
"1. Tear on posterior lateral surface of neck of size 2 x 2 cm, 4 cm below the occipital and 5 cm lateral to midline, 15 cm medial to tip of left shoulder i.e. on left posterior side of neck. Margins were irregular, fresh clotted blood was present and wound was dirty containing earthen particulars. Patient complained of head ache and complained pain in neck. X-ray left shoulder and neck was advised.
2. Abrasion 2 cm x 1 cm on dorsum of left forearm 15 cm behind left wrist joint, 12 cm in front of lateral epicondyle of humorous. Margins were irregular, fresh clotted blood was present.
3. Laceration 1 cm x 0.5 cm on palm of left hand 2 cm below the base of index finger.
4. Scratch linear 1.5 cm long on left pinna only on anterior surface running vertically downward upto inferior margin from point of hole for ear ring. However, this hole was found already closed.
5. Abrasion 2 cm x 2 cm over lateral middle portion of left Criminal Appeal No.379-DB of 2004 28 knee 7 cm in front of lateral condyle of femur, red in colour. X-ray left knee was advised.
6. Abrasion 2 cm x 2 cm on inferior margin of right knee joint, red in colour."
Board of Doctors declared injury Nos.1 & 2, located on person of Teja Singh, as dangerous to life, whereas injuries on the person of Naranjan Kaur were found to be simple in nature.
Thus, in view of the preponderance of evidence, we do not find any ground to interfere with the impugned judgment which has been recorded in right perspective for causing murder of deceased Mohinder Singh and causing attempt to death of Teja Singh and causing simple injuries to Naranjan Kaur. Hence, this impugned judgment is confirmed and present Criminal Appeal No.379-DB of 2004 is dismissed.
(UMA NATH SINGH)
JUDGE
14-11-2008 (A.N.JINDAL)
*mohinder JUDGE