Punjab-Haryana High Court
Sarabjit Singh @ Bhola And Others vs State Of Punjab on 5 August, 2009
Bench: Mehtab S. Gill, Jitendra Chauhan
Crl. Appeal No. 608 DB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 608 DB of 2000
Date of Decision: 5.8.2009
Sarabjit Singh @ Bhola and others
...Appellants
Vs.
State of Punjab
...Respondent
CORAM: HON'BLE MR. JUSTICE MEHTAB S. GILL
HON'BLE MR.JUSTICE JITENDRA CHAUHAN
Present: Mr. H.S.Diwana, Advocate
for the appellants
Mr. S.S.Gill, Additional A.G., Punjab
****
JITENDRA CHAUHANL J.
1. This appeal is directed against judgment and order dated 31.10.2000 passed by the learned Additional Sessions Judge, Fatehgarh Sahib, whereby the appellants Sarabjit Singh @ Bhola, Kulwant Singh @ Kala and Babu Singh were convicted and sentenced.
2. Sarabjit Singh, appellant was convicted and sentenced to undergo life imprisonment and pay a fine of Rs.5,000/- under Section 302 of the Indian Penal Code. In default of payment of fine, it was ordered that he would further undergo rigorous imprisonment for one year.
3. The appellants Kulwant Singh and Babu Singh were convicted and sentenced to undergo life imprisonment and pay a fine of Rs.5,000/- each and in default of payment of fine to further undergo rigorous Crl. Appeal No. 608 DB of 2000 2 imprisonment for one year under Section 302 read with Section 34 of the Indian Penal Code.
4. It has been filed in the following circumstances:-
5. Nine killas of land in the area of Bag Sakinder, Police Station Bassi Pathana, allotted to Piara Lal son of Chela Ram and others, was under
the cultivation of accused Babu Singh and his sons . The said land was purchased by the deceased, Rattan Singh, from Piara Lal. The accused and Piara Lal, had litigation regarding the said land as is made out from order dated 9.12.1986 Exhibit D1. The Collector vide its order dated 3.5.1988 held that Babu Singh could remain in possession till equivalent area is allotted to them by the State. On allotment of the land, accused Babu Singh and his brother were to deliver possession of the land held by them. This land was subsequently purchased by Rattan Singh. Therefore, the accused were having grudge on account of fact that they were to part with the possession of the land under their possession. The deceased Rattan Singh also owned adjoining land to the land purchased by him from Piara Lal etc. He had raised a cattle house on the land owned by him. He used to go to the cattle house twice a day to milch them. On 21.2.1997 at about 5.30 p.m., when he was going on the Scooter bearing Registration No. PB23-0049 and reached near the manure heap, Sarabjit Singh @ Bhola, Kulwant Singh @ Kala and their father Babu Singh waylaid Rattan Singh. Babu Singh exhorted that he should be taught a lesson for getting the land allotted to them at a distant place. On that, Kulwant Singh @ Kala stopped the scooter and grappled with him. Sarabjit Singh gave a Kahi (hoe) blow on the head of Rattan Singh. Rattan Singh fell down from the scooter. Thereafter Sarabjit Singh gave another two blows, one on the thyroid and other on the Crl. Appeal No. 608 DB of 2000 3 head of Rattan Singh. Gurbachan Singh, father-in-law of Kuldip Singh, son of Rattan Singh, had come to see Rattan Singh. Finding him not at home, he along with Kuldip Singh went to the fields and witnessed the occurrence. Both of them pleaded not to beat Rattan Singh. Thereafter all the accused ran away from the spot along with their weapons. They tried to save Rattan Singh but he succumbed to his injuries. The motive was stated to be the land dispute.
6. Kuldip Singh, son of Rattan Singh made statement Exhibit PA at about 6.00 p.m., on 21.2.1997 before Sub Inspector Major Singh. After recording the statement endorsement Exhibit PA/1 was made at 7.30 p.m. and was sent to the Police Station. On the basis of this Statement, FIR Exhibit PA/2 was registered in Police Station Bassi Pathana at 7.45 p.m.
7. SI Major Singh carried out the spot inspection. He prepared the inquest report. Gurbachan Singh and Kuldip Singh also signed the inquest report. Blood stained earth was lifted from the spot. Phihty (ribbon worn under turban) and a pair of shoes were also taken into possession. Rough site plan Exhibit PF was prepared. The said articles were sent to Chemical Examiner, Government of Punjab, Patiala.
8. The dead body of Rattan Singh was dispatched to Civil Hospital, Fatehgarh Sahib for the purpose of post-mortem examination. Dr. Bhupinder Singh, Medical Officer, Civil Hospital, Fatehgarh Sahib carried out the post mortem on 22.2.1997 at 11.55 a.m. The following injuries were observed on the person of deceased Rattan Singh:-
1) Lacerated wound placed on left temporal and prietal region, diffusely placed. Bone was fractured and brain matter was coming out and was lacerated badly.Crl. Appeal No. 608 DB of 2000 4
2) Incised wound present on upper part of front of neck at level of thyroid cartridge. The wound was encircling upto both sides to angel of mendible. The underlying structure up to trachea was cut.
3) Lacerated wound size 1 cm x 1 cm was placed on the
middle of right clavicle..
4) Bruises placed transversely on the front of neck starting
from medial end of left clavicle and was going up to
anterior auxiliary fold on right side.
5) Bruises placed transversely on the medial 2/3rd of left
clavicle.
9. As per opinion of Doctor, Rattan Singh died as a result of shock and hemorrhage due to the injuries given to him and these injuries were sufficient to cause death in the ordinary course of nature.
10. On 27.2.1997, the accused, Sarabjit Singh, was arrested. ASI Narata Ram arrested the accused Babu Singh, on 1.3.1997. On 2.3.1997, Sarabjit Singh @ Bhola during interrogation made a disclosure statement that he had kept concealed the Kahi (hoe) under the grove of mustard crop in the Barsin field located near the canal adjoining his house. In pursuance of the disclosure statement, the same was taken into possession.
11. After completion of the investigation, challan against the accused was presented in the Court. On 11.9.1997, the accused were summoned under Section 302 read with Section 34 of the Indian Penal Code by the Additional Sessions Judge, Fatehgarh Sahib.
12. Kulwant Singh was earlier serving in the Army. Therefore, the trial conducted against him was declared as de novo by the High Court. On Crl. Appeal No. 608 DB of 2000 5 22.3.1999, he was discharged from the Army and therefore, the court proceeded with the trial afresh. A fresh charge sheet was issued to the accused on 16.8.2000. Thereafter the trial commenced against him.
13. To prove its case, the prosecution examined as many as twelve witnesses, namely, Kuldip Singh, PW1, Harbans Singh, PW2, Gurbachan Singh, PW2, Dr. Bhupinder Singh, PW3, Hardip Singh, PW4, ASI Varinderjit Singh, PW5, SI Major Singh, PW6, HC Hans Raj 34, PW7, HC Prithpal Singh 311, PW8, HC Hira Singh 248, PW9, ASI Narota Ram, PW10, Rajinder Kumar, PW11 and Kulwant Singh 186, PW12.
14. Kuldip Singh, PW1 and Gurbachan Singh, PW2, eye witnesses to the occurrence, supported the prosecution version. These witnesses also proved the motive behind the occurrence.
15. SI Major Singh, PW6, Investigating Officer, proved the statement of Kuldip Singh along with the endorsement made by him. He also admitted taking into possession the belongings of the deceased, i.e. phihty and the pair of shoes and blood stained earth from the spot.
16. ASI Narata Singh, PW10 proved recovery of the weapon of offence from the accused Sarabjit Singh.
17. After completion of prosecution evidence, the accused were examined under Section 313 of the Code of Criminal Procedure. All the accused pleaded not guilty and made statement that no such occurrence as narrated in Exhibit PA ever took place. Rattan Singh died in mysterious circumstances. After the death of Rattan Singh, complainant Kuldip Singh after due deliberations and consultations with his father-in-law Gurbachan Singh, brother-in-law Hardip Singh and close relative Kala Singh and in active connivance of the police concocted a false story contained in Exhibit Crl. Appeal No. 608 DB of 2000 6 PA implicating them. They, the complainant party, also connived with Dr.Bhupinder Singh of Civil Hospital, Fatehgarh Sahib. The recovery of Kahi (hoe) was planted upon them and the story of suffering of disclosure statement by Sarabjit Singh @ Bhola was made up one. The accused further claimed themselves to be innocent and pleaded false implication with an ulterior motive to take the possession of the land under their possession as protected tenants by pressurizing them.
18. On behalf of the prosecution, it was argued before the trial Court that there existed land dispute between the parties. The accused nursed grudge against the deceased. The accused gave injuries on the vital parts of the deceased. The occurrence was witnessed by Kuldip Singh, PW1 and Gurbachan Singh, PW2. These witnesses had no reason to substitute the accused person in place of the real culprits. The weapon of offence was recovered in pursuance of the disclosure statement of the accused, Sarabjit Singh. It was further argued that common intention to kill the deceased also stood established from the participation by all the accused and manner in which the crime was perpetrated facts on record. Further argument was that the ocular version was in consonance with the medical evidence.
19. On behalf of the defence, it was argued that prosecution failed to prove the motive against the accused. The presence of Kuldip Singh, PW1 and Gurbachan Singh, PW2, at the place of occurrence was doubtful. Both the witnesses made contradictory statements with regard to the role of the accused. Kuldip Singh stated that it was Babu Singh who first raised Lalkara and Kulwant Singh @ Kala stopped the scooter of Rattan Singh from the front and grappled with Rattan Singh whereas, Gurbachan Singh, PW2 stated that Kulwant Singh first stopped the scooter then Babu Singh Crl. Appeal No. 608 DB of 2000 7 raised Lalkara and thereafter all the three accused grappled with Rattan Singh.
20. Further discrepancy pointed out was that Kuldip Singh, PW1 stated that he parked the scooter in the pahi because there were ditches ahead and they could not proceed further on scotter. But as per the statement of Gurbachan Singh they took the scooter near the place of occurrence and they had passed the scooter through the ditches. Kuldip Singh, PW1, stated that on hearing raula, the accused ran away with the kahi (hoe), whereas Gurbachan Singh, PW2 stated that accused ran away with their respective weapons.
21. Kuldip Singh, PW1 and Gurbachan Singh, PW2 were interested witnesses. No independent witness was joined. It was also argued that Kuldip Singh, PW1 stated in his statement that two injuries were given on the head of Rattan Singh, but only one head injury was noticed by the Doctor.
22. The trial court observed that the dispute regarding the land was going on. The accused had motive to eliminate the deceased. As regards the presence and discrepancies in the statements of Kuldip Singh, PW1, and Gurbachan Singh, PW2, the learned court observed that such discrepancies were bound to occur and no parrot like version could be expected from the witnesses.
23. As regards common intention, the learned trial Court observed that for the purpose of common intention, the participation in the commission of the offence need not be proved in all cases. The common intention can develop during the course of an occurrence or at the spur of moment as well.
Crl. Appeal No. 608 DB of 2000 8
24. As regards non-joining of independent witness, the court observed that as per evidence, none was present at the time of occurrence. The learned trial court further rejected the submission of the defence in regard to the injuries suffered by the deceased. Though as per the eye witnesses account two injuries were given on the head of Rattan Singh, however as per post-mortem report, only one injury was noticed. The trial court observed that as they witnessed from the distance, therefore, precision was not possible.
25. The present appeal was admitted on 20.11.2000 by this Court.
26. Learned counsel for the appellants submits that the deceased was a retired Sub Inspector of the Punjab Police. He had a .12 bore gun in his name. As per the statement of Kuldip Singh, PW1, that the deceased had enmity with a number of people. There were civil as well as criminal cases going against him. The deceased was also involved in a criminal case for firing upon one Hazur Singh, who was the owner of the adjacent land. The deceased had also expressed apprehension at the hands of Sh. Sihota, SSP, Fatehgarh Sahib. In this regard, he had moved an application to DGP, Punjab, Chief Minister, Punjab and Hon'ble Chief Justice. In these circumstances, it is not expected from him that he would go all alone to the fields located at the distance of 3-4 kms for milching the cattle without arms. The appellants did not have any common intention to kill the deceased as they were not carrying any weapon with them. It is further submitted that Babu Singh is 87 years of age. Only a Lalkara has been attributed to him. The appellant Babu Singh has been convicted with the aid of Section 34 of the Indian Penal Code. This is also clear from the Exhibit D1 that an application for impleadment as respondents in suit for Crl. Appeal No. 608 DB of 2000 9 recovery was rejected by the Assistant Collector First Grade, Fatehgarh Sahib. Motive is not established. The appellants were still in possession of the land. As per judgment dated 3.3.1988 mark `B' passed by the Collector, Patiala, the appellant could be ejected from the suit land only in case they are allotted an equivalent area by the State and if the appellants refused to accept the land allotted to them, only in that eventuality the possession could be taken from the appellants.
27. Moreover, as per prosecution case, the deceased had gone to the cattle house for milching the cattle, however, neither spilled milk was noticed nor any milk container was recovered from the spot.
28. On behalf of the State, it was argued that two eye witnesses Kuldip Singh, PW1 and Gurbachan Singh, PW2, have supported the case of the prosecution. Weapon of offence was recovered in pursuance of disclosure statement of accused, Sarabjit Singh. As per report of Chemical Examiner, blood was found on the above referred articles. The minor discrepancy in the statements of PW1 and PW2 do not in any way demolish the prosecution case.
29. We have heard the learned counsel for the parties and perused the record.
30. From the evidence, it emerges that the deceased had litigation with many people. The deceased had a .12 bore gun in his name. He had also made an application to the DGP, Punjab, Chief Minister, Punjab and Hon'ble Chief Justice apprehending threat to his life at the hands of Sh.Sahota, SSP, Fatehgarh Sahib. The deceased had purchased land in question after fully knowing well that land was under cultivation of the accused/appellants. The accused could be dispossessed only after handing Crl. Appeal No. 608 DB of 2000 10 over the possession of the alternate land allotted to appellants. It is established that parties had dispute in regard to the land in possession of the accused,. The same land was subsequently purchased by the deceased. It is made out from the statement of Kuldip Singh, PW1 that the deceased also had litigation with Hazur Singh, who owned the adjacent land. On 26.6.1994, the deceased, his son Jasdev Singh and two others allegedly fired at Hazur Singh. An FIR No. 32 dated 25.6.1994 under Sections 307/34 IPC and Section 25 of the Arms Act was registered.
31. Another question emerges for consideration is that whether the accused had common intention to kill the deceased?
32. The weapon of offence Kahi (hoe) was recovered in pursuance of disclosure statement of Sarabjit Singh. The statements rendered by Kuldip Singh, PW1, and Gurbachan Singh, PW2, with regard to the manner of occurrence, are at variance. From the record, it is clear that appellants were not carrying any weapon. Sarabjit Singh was carrying Kahi (hoe). If the accused had any intention to kill the deceased, the accused would not have come empty handed.
33. The accused Babu Singh has been stated to be 87 years of age. Only a Lalkara has been attributed to him. He has been convicted with the aid of Section 34 of the Indian Penal Code.
34. As regards the role of the accused/appellants Babu Singh and Kulwant Singh, there are material discrepancies in the statements of Kuldip Singh, PW1 and Gurbachan Singh, PW2. Kuldip Singh stated that it was Babu Singh who first raised lalkara and Kulwant Singh @ Kala stopped the scooter of Rattan Singh from the front and grappled with Rattan Singh, whereas Gurbachan Singh, PW2, stated that Kulwant Singh first stopped the Crl. Appeal No. 608 DB of 2000 11 scooter then Babu Singh raised lalkara and thereafter all the three accused grappled with Rattan Singh.
35. Another discrepancy noticed by us is with regard to the manner Kuldip Singh and Gurbachan Singh reached the spot. Kuldip Singh, PW1 stated that he parked the scooter in the pahi because there were ditches ahead and the scooter could not proceed further, whereas as per the statement of Gurbachan Singh they took the scooter near the place of occurrence through the ditches. Kuldip Singh, PW1 stated that on hearing raula, the accused ran away with the kahi (hoe), whereas Gurbachan Singh, PW2 stated that accused ran away with their respective weapons.
36. Further discrepancy pointed out was that as per statement of Kuldip Singh, PW1, two injuries were given with kahi (hoe) on the head of the deceased by Sarabjit Singh. However, as per post-mortem report, only one injury was noticed on the head of the deceased.
37. In the circumstances, we feel that these discrepancies are material discrepancies, particularly in view of the fact that Babu Singh and Kulwant Singh were empty handed and had not caused any injury to the deceased. As no role has been attributed to Babu Singh except raising a Lalkara and, no injuries have been attributed to Kulwant Singh their presence become doubtful. He is stated to be 87 years of age. Moreover, it is a common tendency in these days to rope in all the family members in criminal cases. In the circumstances, common intention is not proved. Weapon of offence Kahi (hoe) was recovered from accused Sarabjit Singh. Only Sarabjit Singh caused injuries to the deceased. Therefore, the guilt against the appellants, Babu Singh and Kulwant Singh is not established beyond reasonable doubt. Hence, they are given benefit of doubt. Crl. Appeal No. 608 DB of 2000 12
38. Another aspect which attracts our attention is that the cattle shed was located at the distance of 3-4 kms from the residence of the deceased. As per the statement of Kuldip Singh, his family had not employed any servant during the days of occurrence. That means that cattle remain unattended and unguarded. It is difficult to reconcile the aforesaid version and it indicates that the prosecution is trying to conceal the real genesis of the occurrence.
39. Therefore, it is only in respect of Sarabjit Singh that the murderous assault on the deceased is established by the statements of eye witnesses i.e. Kuldip Singh, PW1 and Gurbachan Singh, PW2, which in our opinion is a cogent and reliable evidence. In view of the fact that there is eye witness version, we do not deem it necessary to look for the motive behind the commission of offence.
40. In view of above, the appeal qua Sarabjit Singh is dismissed, whereas qua Kulwant Singh and Babu Singh is accepted. The Judgment and order dated 31.10.2000 passed by the Additional Sessions Judge, Fatehgarh Sahib is modified to the extent indicated above. Bail bonds of Kulwant Singh and Babu Singh stand discharged. In case accused, Sarabjit Singh is on bail, he be taken into custody forthwith to serve remaining part of his sentence.
(JITENDRA CHAUHAN)
JUDGE
5.8.2009 (MEHTAB S. GILL)
mk JUDGE
Crl. Appeal No. 608 DB of 2000 13
Learned counsel for the appellants has argued that
deceased was a retired Sub Inspector from Punjab Police. SI Major Singh, PW has stated in his statement that the deceased had litigation with number of people. As per statement of Kuldip Singh, the deceased had .12 bore gun. Kuldip Singh also denied filing of complaint with DGP, Punjab, Chief Minister and to the Hon'ble Chief Justice apprehending danger to his life at the hands of Gurdial Singh Sehota, SSP during his life time. He admitted pendency of a criminal complaint against his father Rattan Singh. The deceased Rattan Singh also got registered an FIR No.32 dated 11.5.1998 in Police Station Bassi Pathana against Gurnam Singh and others and the same was still pending.