Punjab-Haryana High Court
Amarjit Singh vs State Of Punjab on 21 December, 2011
Author: Jora Singh
Bench: S.S.Saron, Jora Singh
Crl.Appeal No.881-DB of 2007 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Date of decision:21.12.2011
(I) Crl.Appeal No.881-DB of 2007
Amarjit Singh
... Appellant
vs.
State of Punjab
... Respondent
(II) Crl.Appeal No.863-DB of 2007
Baldev Singh
... Appellant
vs.
State of Punjab
... Respondent
(III) Crl.Appeal No.860-DB of 2007
Joginder Singh
... Appellant
vs.
State of Punjab
... Respondent
(IV) Crl.Appeal No.862-DB of 2007
Satnam Singh
... Appellant
vs.
State of Punjab
... Respondent
(V) Crl.Revision No.1453 of 2008
Harnek Singh
... Petitioner
vs.
State of Punjab and others
... Respondents
CORAM: HON'BLE MR. JUSTICE S.S.SARON.
HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr.H.S.Sandhu, Sr.Advocate, with
Mr.Ramandeep Sandhu, Advocate,
for the appellant in Crl.Appeal No.862-DB of 2007
Mr.Vikram Chaudhary, Advocate,
for the appellant in Crl.Appeal No.881-DB of 2007
Mr.P.S.Hundal, Sr.Advocate, with
Crl.Appeal No.881-DB of 2007 2
Mr.Dheeraj Mahajan, Advocate,
for the appellant in Crl.Appeal No.863-DB of 2007
Mr.J.S.Bedi, Advocate,
for the appellant in Crl.Appeal No.860-DB of 2007
Mr.Gautam Dutt, Advocate,
for the petitioner in Crl.Revision No.1453 of 2008
Mr.S.S.Gill, Addl.AG, Punjab.
...
JORA SINGH, J.
By this common judgment, we propose to dispose of Crl. Appeal No.881-DB of 2007 (Amarjit Singh vs. State of Punjab), Crl. Appeal No.863-DB of 2007 (Baldev Singh vs. State of Punjab), Crl. Appeal No.860-DB of 2007 (Joginder Singh vs. State of Punjab) and Crl. Appeal No.862-DB of 2007 (Satnam Singh vs. State of Punjab), as the same have been preferred against the common judgment of conviction and order of sentence dated 14.9.2007 passed by the learned Sessions Judge, Jalandhar, in Sessions Case No. 17 of 2005, arising out of FIR No.23 dated 8.8.2001 under Sections 302/307/323/324/506/149/452/148/120-B of the Indian Penal Code (`IPC for short) and Sections 25/27 of the Arms Act, Police Station Lambra.
By the said judgment, Satnam Singh, Joginder Singh, Amarjit Singh and Baldev Singh were convicted for the offences punishable under Sections 324/34/302 IPC. Appellant Amarjit Singh was also convicted for the offence punishable under Section 27 of the Arms Act. The appellants were directed to undergo imprisonment as under:-
Satnam Singh U/Ss 302/34 IPC Imprisonment for life and to pay a fine of Rs.3,000/-, in default of payment of fine, to further undergo RI for two years.Crl.Appeal No.881-DB of 2007 3
U/s 324 IPC RI for two years, and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months.
Joginder Singh U/Ss 302/34 IPC Imprisonment for life and to pay a fine of Rs.3,000/-, in default of payment of fine, to further undergo RI for two years.
U/s 324 IPC RI for two years, and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months.
Amarjit Singh U/S 302 IPC Imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for three years.
U/Ss 324/34 IPC RI for two years, and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months.
U/s 27 of the RI for three years and to pay a fine 5,000/-, in default of Arms Act payment of fine, to further undergo RI for nine months. Baldev Singh U/S 302 IPC Imprisonment for life and to pay a fine of Rs.10,000/-, in default of payment of fine, to further undergo RI for three years.
U/Ss 324/34 IPC RI for two years, and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for six months.Crl.Appeal No.881-DB of 2007 4
Bhupinder Singh, Harminder Singh @ Ford, Lakhwinder @ Lakha, Taminder Singh @ Kala, and Raju were acquitted of the charges levelled against them.
Crl.Revision No.1453 of 2008 was preferred by Harnek Singh (complainant) to challenge the judgment of acquittal of Bhupinder Singh, Harminder Singh @ Ford, Lakhwinder @ Lakha, Taminder Singh @ Kala, and Raju.
Case of the prosecution, in brief, is that Harnek Singh, complainant, is the resident of Village Miranpur. He lodged a report with the police on the allegation that on 7.8.2001 at about 7.00 PM, he was present in his house along with his wife. Then his nephew Daljit Singh came to his house and reported that when he was coming from Village Lambra towards Village Miranpur and was present near the Village, then Satnam Singh and his servant Raju tried to wrongfully restrain him but he managed to reach his house after saving himself from Satnam Singh and his servant Raju. Daljit Singh was made to understand and was sent to his house. In the meantime, he heard the voice of lalkara and shrieks in front of the house of Darshan Singh. Then he along with his wife Surinder Kaur had gone towards the house of Darshan Singh and sighted Satnam Singh armed with a kirpan, Amarjit Singh armed with a revolver, Harminder Singh @ Ford armed with a gandasi, Bhupinder Singh armed with a datar, Baldev Singh @ Dev and Joginder Singh @ Jindi armed kirpans, Kala armed with a gandasi and Lakha armed with a gandasi. Bhupinder Singh raised a lalkara that they be taught a lesson for taking the land of their brothers on lease and contesting the election of Sarpanch. Amarjit Singh fired a shot hitting the right side chest of Santokh Singh. When he had gone ahead to save Santokh Crl.Appeal No.881-DB of 2007 5 Singh, then Satnam Singh gave kirpan blow which hit on his head. On receipt of injury, he fell down. When he was lying on the ground, then Lakha and Kala gave blows from the reverse side of their respective weapons hitting on his back. The accused had also caused injuries with their respective weapons to Amrik Singh (PW7) and Surinder Kaur (PW6). Raula was raised and on hearing raula, Shaminder Singh and Surinder Kaur came at the spot, who saved them from the clutches of the accused. After causing injuries, the accused had fled away from the spot with their respective weapons. Motive to cause injuries was that land of the uncle of Amarjit Singh was on lease with them. His wife Surinder Kaur was the Sarpanch. Due to this reason, the accused had caused injuries to them.
The injured were shifted to the hospital, where Santokh Singh had succumbed to his injuries.
On receipt of wireless message, while present near Partapra Chowk, Inspector Harjinder Singh had gone to Civil Hospital, Jalandhar. Application (Ex.PT) was moved requesting the doctor to opine as to whether Harnek Singh, injured-complainant, was fit to make statement or not. Doctor opined that Harnek Singh was fit to make statement. Then statement (Ex.PD) of Harnek Singh was recorded at 1.35 AM during night time on 8.8.2001. After making an endorsement (Ex.PD/1), statement was sent to the police station, on the basis of which, formal FIR (Ex.PD/2) was recorded at about 2.25 AM on 8.8.2001. Special report was delivered to the Ilaqa Magistrate at 6.15 AM on 8.8.2001.
Inspector Harjinder Singh, Investigating Officer, along with police officials and Surinder Kaur had gone to the mortuary, where dead body of Santokh Singh was lying. Inquest report (Ex.PC) was prepared. Crl.Appeal No.881-DB of 2007 6 Dead body was identified by Sukhwinder Singh and Gurdial Singh. The Investigating Officer came to know that Amarjit Singh was also lying admitted in the hospital and on his search, four live cartridges of .32 bore, one revolver and two empty cartridges were recovered from the revolver. Same were made into a sealed parcel sealed with the seal bearing impression `HS' and were taken into police possession vide memo (Ex.PF) attested by the witnesses. In view of the application (Ex.PB), dead body was handed over to the police officials for post mortem examination.
The Investigating Officer along with other police officials had gone to the place of occurrence. Rough site plan was prepared with its correct marginal notes. Photographer was summoned at the spot, who took the photographs. An effort was made to apprehend the accused but they were not apprehended. On return to the police station, case property was deposited with the Incharge of the Malkhana. After post mortem examination, Constable Gian Singh had produced the clothes worn by the deceased and the same were made into a sealed parcel sealed with the seal bearing impression `HS'. Sealed parcel was taken into police possession vide memo (Ex.PX).
On 8.8.2001, Investigating Officer was holding nakabandi near Bus Stand, Sangha, where Satnam Singh, Bhupinder Singh and Joginder Singh had surrendered before the police. Satnam Singh was interrogated in the presence of ASI Sarup Singh and Surinder Kaur. He suffered a disclosure statement (Ex.PG). Joginder Singh was also interrogated and suffered a disclosure statement (Ex.PH). Bhupinder Singh on interrogation suffered a disclosure statement (Ex.PJ). In pursuance of his disclosure statement, Satnam Singh got recovered a kirpan from the specified place. Crl.Appeal No.881-DB of 2007 7 Sketch of kirpan was prepared and the kirpan was taken into police possession vide memo (Ex.PG/1). Joginder Singh in pursuance of his disclosure statement got recovered a kirpan from the specified place. Sketch of kirpan was prepared and the kirpan was taken into police possession vide memo (Ex.PH/1). Bhupinder Singh in pursuance of his disclosure statement got recovered a datar from the specified place. Sketch of Datar was prepared and the datar was taken into police possession vide memo (Ex.PJ/1). Statements of the witnesses were recorded. On return to the police station, case property was deposited with the Incharge of Malkhana.
On 12.8.2001, police party headed by Inspector Harjinder Singh along with Surinder Kaur was present near the turning of Village Lallian Khurd. Then Baldev Singh, Lakhwinder Singh, Harminder Singh and Taminder Singh were found present there. They were identified by Surinder Kaur and were apprehended. They were formally arrested in this case. They were produced before the Ilaqa Magistrate. On 12.8.2001, on interrogation, Baldev Singh suffered a disclosure statement (Ex.PK), which was signed by him and attested by the witnesses, Lakhwinder Singh suffered a disclosure statement (Ex.PL), which was signed by him and attested by the witnesses, Harminder Singh suffered a disclosure statement (Ex.PM), which was signed by him and attested by the witnesses and Taminder Singh suffered a disclosure statement (Ex.PN), which was signed by him and attested by the witnesses. In pursuance of his disclosure statement, Baldev Singh got recovered a kirpan from the specified place. Rough sketch of kirpan (Ex.PK/2) was prepared. Kirpan was taken into police possession vide memo (Ex.PK/1). In pursuance of his disclosure Crl.Appeal No.881-DB of 2007 8 statement, Lakhwinder Singh got recovered a gandasi from the specified place. Rough sketch of gandasi (Ex.PL/2) was prepared. Gandasi was taken into police possession vide memo (Ex.PL/1). In pursuance of his disclosure statement, Harminder Singh got recovered a gandasi from the specified place. Rough sketch of gandasi (Ex.PM/2) was prepared. Gandasi was taken into police possession vide memo (Ex.PM/1). After that in pursuance of his disclosure statement, Taminder Singh got recovered a gandasi from the specified place. Rough sketch of gandasi (Ex.PN/2) was prepared. Gandasi was taken into police possession vide memo (Ex.PN/1). Rough site plans of the places from where weapons recovered were also prepared.
On 30.8.2001, Amarjit Singh was arrested. Licence of his revolver was taken into police possession on 31.8.2001 vide memo (Ex.PY). During the course of investigation, statement of Amarjit Singh (Ex.PZ) was recorded and the same was read over and explained to him, which was signed by him in token of its correctness. After making endorsement, statement of Amarjit Singh was sent to the police station but after investigation, his statement was found to be false. After completion of investigation, challan was presented in Court.
As per order dated 22.11.2001 passed by JMIC, Jalandhar, case was committed to the Court of Session for trial.
After hearing learned PP for the State, learned counsel for the accused and from the perusal of documents on the file, learned trial Court opined that a prima facie case is made out to frame charge under Sections 302/323/324/149/148/452 IPC and Section 27 of the Arms Act against the accused and they were charge sheeted accordingly. The accused did not Crl.Appeal No.881-DB of 2007 9 plead guilty and claimed trial.
In order to substantiate its case, prosecution examined 14 witnesses.
PW1 Dr.Surinder Singh on 8.8.2001 had conducted postmortem examination on the dead body of Santokh Singh and found the following injuries on his person:-
"1. Incised wound 5 cm on the left side of skull, bone deep, underline bone fracture, clotted blood was present, at the site of the wound.
2. Incised wound 5 cm on the left side of skull 5 cm posterior to injury No.1. On opening the skull, there was subcutaneous haematoma on the left side of skull. Skull bone was fractured. There was sub dural haemorrhage on the left side. Brain matter was lacerated.
3. A punctured wound 5 cm x 5 cm, oval in shape on the left side of chest, with inverted margin, 3 cm from the midline laterally and 5 cm medial to the left nipple, lying at the 6th costo chondral junction on left side. On opening the chest cavity, the wound after piercing the chest wall enters the pericardial cavity by a piercing wound. Pericardial cavity was full of blood. The wound entered the heart, piercing the right ventricle by 1 cm x 1 cm and coming out of the left ventricle. The wound then piercing the diaphragm on the left side and tear on the upper lobe of spleen was present. A punctured wound of 1 cm x 1 cm was present on the left Crl.Appeal No.881-DB of 2007 10 splenic flexure of the large gut. Haemoperitoneum was present and soiling the peritoneal cavity with faecal matter was seen.
4. A punctured wound 1.5 cm x 1 cm present on the left side with everted margins 5 cm from the mid line laterally in the region of 10th rib. The 10th rib was fractured. Blackening of the skin seen at the site of injury No.3 and injury No.4.
5. A lacerated wound 2 cm x 1 cm present on the left scapular region. On dissection, haematoma was present.
6. Abrasions present on both the knee joint."
Cause of death was due to firearm injury and injury to the head. Injuries were ante mortem in nature and sufficient to cause death in the ordinary course of nature. Probable time between the injuries and death was immediate and between death and postmortem was within 24 hours.
PW2 Harnek Singh is the complainant and has reiterated his stand before the police as per his statement (Ex.PD).
PW3 Surinder Kaur wife of Harnek Singh (PW2) is the eye witness. She has supported the version of Hernak Singh, complainant.
PW4 Dalip Singh has prepared scaled map (Ex.PO).
PW5 Dr.Harjit Singh on 7.8.2001 at 11.15 PM had medico legally examined Amrik Singh and found the following injuries on his person:-
"1. Incised wound of size 5 cm x 1 cm on left parietal region in posterior part. It was bone deep and was running vertically. Fresh bleeding was present. Injury was kept Crl.Appeal No.881-DB of 2007 11 for x-ray examination.
2. Reddish contusion of size 6 cm x 2 cm on posterior surface of right forearm.
3. Lacerated wound of size 1/2 x 1/2 cm on inner surface of lower lip in the middle. Fresh bleeding was present.
4. Complaint of pain in lumber region. No external mark of injury was present. Patient had difficulty in movements and tenderness was present. This injury was kept for x-ray examination."
He had also medico legally examined Surinder Kaur and found the following injuries on her person:-
"1. Incised wound of size 1 cm linear in shape present on lobule of right ear, skin deep. Fresh bleeding was present.
2. Linear abrasion of size 5 cm on right angle of mandible.
3. Linear abrasion of size 3 cm on right cheek oozing of blood was present.
4. Complaint of pain in right shoulder joint on posterior surface. No external mark of injury was present and there was difficulty of movements. Injury was kept for x- ray examination."
On the same day, he had medico legally examined Harnek Singh and found the following injuries on his person:-
"1. Incised wound of size 6 cm x 1 cm on right fronto parietal region running vertically. Injury was bone deep. Fresh bleeding was present. Injury was kept for x-ray Crl.Appeal No.881-DB of 2007 12 examination and surgical opinion.
2. Diffused swelling of right shoulder joint. Pain and tenderness was present. Injury was on posterior surface. Injury was kept for x-ray examination.
3. Complaint of pain in epigastric region. No external mark of injury was present but tenderness was present. So injury was kept for surgical opinion."
In cross-examination, Dr. Harjit Singh stated that Amarjit Singh was medico legally examined on 7.8.2001 and noticed the following injuries on his person:-
"1. Incised wound of size 10 cm x 3 cm on dorsal surface of the left hand extending from 2 cm above wrist joint obliquely towards the index finger and middle finger. The wound was muscle deep, cutting the index finger which was attached with skin and also cutting the base of middle finger. 1/ 2 depth underlying structures were cut. Fresh bleeding was present. Injury was kept for x-ray examination and ortho. opinion."
PW6 Surinder Kaur wife of Baldev Singh is the injured eye witness. She has supported the version of Harnek Singh, complainant.
PW7 Amrik Singh is the third injured eye witness. He has also supported the version of Harnek Singh, complainant.
PW8 Constable Gian Singh tendered his affidavit (Ex.PU). PW9 Sunil Kumar, Photographer, stated that on the request of police, he had gone to the place of occurrence and had taken photographs (Ex.P1 to Ex.P7). Ex.P8 to Ex.P14 are the negatives.
Crl.Appeal No.881-DB of 2007 13
PW10 Inspector Harjinder Singh is the Investigating Officer. PW11 M.F. Faruqi stated that on 18.9.2001, he was SP (HQ), Jalandhar. Application (Ex.PAA) of Harnek Singh was marked to him for enquiry and after enquiry, submitted report (Ex.PBB).
PW12 Sukhwinder Singh stated that inquest report (Ex.PC) was prepared in his presence.
PW13 Amrik Chand stated that firearm licence (Ex.PCC) was issued in the name of Amarjit Singh. Entry of licence is proved at Sr.No.13166.
PW14 MHC Saudagar Singh tendered his affidavit (Ex.PDD). After close of the prosecution evidence, statements of the appellants were recorded under Section 313 of the Code of Criminal Procedure (Cr.P.C. for short). They denied all the prosecution allegations and pleaded to be innocent.
Defence version of Satnam Singh was that there was a land dispute. Harnek Singh got the land transferred in his name and the suit was pending. Jagir Singh, Sarpanch, got the matter settled for an amount of Rs.1,50,000/-. Brother of Harnek Singh resides in Village Johal. Jagir Singh had filed a suit for recovery of Rs.1,50,000/- against Harnek Singh. Being cousin brothers of Jagir Singh, Sarpanch, they were falsely implicated in this case.
Defence version of Amarjit Singh was that his father Jagir Singh got the matter settled with Harnek Singh. Rs.1,50,000/- was to be paid by Harnek Singh and he was to give possession but he did not give possession and got the land transferred in his name. One person of village Johal filed a suit for recovery and in that suit, Jagir Singh appeared as a Crl.Appeal No.881-DB of 2007 14 witness. Case is false. Earlier, Harnek Singh, Amrik Singh and Santokh Singh had attacked him while he was returning from his motor. He sustained injuries and was shifted to the hospital.
Defence version of Baldev Singh was that he got visa and was falsely implicated in this case.
Defence version of Joginder Singh was that Surinder Kaur came with the police. He was in his house. Case is false.
Defence version of Harminder Singh was that Harnek Singh was inimical towards his family and due to this reason, he was falsely implicated.
Defence version of Bhupinder Singh and Taminder Singh was that case is false. They were falsely implicated.
Defence version of Lakhwinder Singh @ Lakha was that he was not present in the village on the day of occurrence. Case is false.
Defence version of Raju was that he is a poor man. Case is false.
In defence, DW1 Dr.Baldev Singh stated that on 8.8.2001 at about 12.40 PM, he had medico legally examined Raju and following injury was noticed on his person:-
"1. Incised wound 13 cm x 1 cm x bone deep present on left temporo parietal region of head. The wound was bleeding to touch."
DW2 Dr.Ashok Bhagat on 8.8.2001 had x-rayed the injuries of Amarjit Singh. Ex.DD is the x-ray report prepared by him.
DW3 Charanjit Singh stated that FIR No. 135 dated 28.11.1996 was registered at the instance of Rom Singh son of Lehmber Singh under Crl.Appeal No.881-DB of 2007 15 Sections 419/465 IPC against Harnek Singh and others. Ex. DJ is the copy of the FIR.
DW4 Dr.H.S. Kahlon stated that on 24.5.1990, he had issued disability certificate (Ex.DK) of Bhupinder Singh. Disability was 80% due to amputation of right thigh.
DW5 DSP Dharam Singh Uppal stated that enquiry was marked to him by SSP, Jalandhar. He had gone to the spot. Statements of the parties were recorded. After enquiry, Bhupinder Singh, Taminder Singh and Lakhwinder Singh were ordered to be placed in Column No.2. He had further recommended for filing charge sheet under Sections 326/324/34/506 IPC against Harnek Singh and Amrik Singh as a cross case.
DW6 ASI Sarup Singh stated that Amrik Singh was arrested on 14.9.2001. In pursuance of his disclosure statement (Ex.DL), kirpan was recovered.
DW7 Inspector Harjinder Singh stated that Harnek Singh was arrested by him on 1.10.2001, who is the prosecution witness in this case.
Copies of decree sheets (Ex.DO and Ex.DO/1), plaint (Ex.DQ), written statement (Ex.DQ/1), Statement of Jagir Singh (Ex.DQ/2), statement of Harnek Singh (Ex.DQ/3), agreement (Ex.DQ/4), judgment dated 28.10.1998 (Ex.DQ/5), decree sheet dated 28.10.1998 (Ex.DQ/6), execution petition (Ex.DQ/7), statement of Baldev Singh (Ex.DQ/8) and statement of Harbhajan Kaur (Ex.DQ/9) were also tendered into evidence.
After hearing learned PP for the State, learned counsel for the appellants and from the perusal of the evidence on the file, the appellants were convicted and sentenced as stated aforesaid.
We have heard learned counsel for the appellants, learned State Crl.Appeal No.881-DB of 2007 16 counsel and learned counsel for the revisionist, and with their assistance have gone through the evidence on the file.
Learned counsel for the appellants argued that according to the prosecution story, occurrence had taken place on 7.8.2001 at 7.00 PM. Statement of Harnek Singh (Ex.PD) was recorded at 1.35 AM during night time on 8.8.2001 but statement of Harnek Singh (Ex.PD) cannot be treated as an FIR because Surinder Kaur, one of the eye witnesses, while appearing as PW3, stated that when Santokh Singh was declared dead by the doctor, then she came to her village at 8.30 PM. At 9.00 PM, she was present at the spot. At that time, police was also present at the spot. Statement of Surinder Kaur was recorded on 7.8.2001 but her statement dated 7.8.2001 is not on the file. Further argued that place of occurrence was also changed from street to the house of Darshan Singh. Appellants party had no motive to commit the crime because complainant party was in possession of the land owned by the uncle of Amarjit Singh, appellant. Civil suit was filed. In fact, Jagir Singh, father of Amarjit Singh, had appeared as a witness in a civil suit filed against the complainant party. At the time of civil litigation, Jagir Singh was the Sarpanch. On account of appearance of Jagir Singh as a witness against the complainant party, the appellants were falsely implicated in this case. Daljit Singh, Shaminder Singh and Pargat Singh were not examined for the reasons best known to the prosecution. All male members, except those who are in foreign country, were named as the accused and this fact is clear from the statement of PW2 Harnek Singh. There are number of improvements and contradictions in the statements of injured eye witnesses, which cannot be reconciled. Injuries were noticed on the person of Amarjit Singh, one of the appellants, and Raju, who was acquitted by the trial Court, Crl.Appeal No.881-DB of 2007 17 but the injuries on their person were not explained by the complainant party. Recoveries of weapons were shown in the presence of Surinder Kaur simply to strengthen the prosecution story. When independent witnesses were present, then they should have been joined at the time of disclosure statements and recovery of weapons. On 9.8.2001, weapons were recovered from Satnam Singh, Joginder Singh and Bhupinder Singh, as per their disclosure statements. Surinder Kaur and ASI Sarup Singh were the recovery witnesses. On 12.8.2001, weapons were recovered from Baldev Singh, Lakhwinder Singh, Harminder Singh and Taminder Singh as per their disclosure statements. But all the recoveries were in the presence of Surinder Kaur, who is very much interested in the success of this case. Bhupinder Singh, acquitted by the trial Court, was handicapped. Disability is 80% due to amputation of right thigh but story is to the effect that after causing injuries, all the appellants, including the accused, who were acquitted by the trial Court, had fled away from the spot. Learned trial Court while acquitting 5 of the accused, observed that statement of Harnek Singh (Ex.PD) cannot be termed as an FIR. Place of occurrence was also changed from street to the house of Darshan Singh. At the time of recovery of weapons, Surinder Kaur should not have joined as a witness. There are number of improvements and contradictions in the statements of the eye witnesses.
Learned counsel for Baldev Singh, appellant, argued that challan was presented against 9 accused but 5 were acquitted. Substantive charge under Section 302 IPC was not framed against Baldev Singh, appellant, on the allegation that he had given kirpan blow on the head of Santokh Singh. When Baldev Singh was examined under Section 313 Crl.Appeal No.881-DB of 2007 18 Cr.P.C., then specific question was not put to him that when armed with a kirpan, he had given blow on the head of Santokh Singh. When 5 accused were acquitted, then Baldev Singh cannot be convicted under Section 302 IPC because charge was framed that he along with Amarjit Singh, Harminder Singh and Bhupinder Singh had caused death of Santokh Singh. So, they are liable for punishment under Section 302 read with Section 149 IPC.
Learned counsel for Joginder Singh, appellant, argued that according to the prosecution story, Joginder Singh armed with kirpan gave blow on the head of Amrik Singh. Bhupinder Singh armed with datar also gave blow on the head of Amrik Singh. Only one injury was found on the head of Amrik Singh. Prosecution is not clear who had caused the injury on the head of Amrik Singh. Firstly, case of Joginder Singh was taken up. In para 43 of the judgment, learned trial Court opined that Joginder Singh gave kirpan blow on the head of Amrik Singh. Injury was noticed on the head of Amrik Singh by Dr. Harjit Singh. So, Joginder Singh is liable for punishment but in para 45, case of Bhupinder Singh was discussed then learned trial Court opined that Bhupinder Singh armed with datar gave blow on the head of Amrik Singh. Only one injury on the head of Amrik Singh was noticed and that injury was attributed to Joginder Singh as per para 43 of the judgment. Bhupinder Singh was acquitted of the charge levelled against him. Joginder Singh and Bhupinder Singh were armed with sharp edged weapons. Both had given blows with their respective weapons on the head of Amrik Singh but only one injury was noticed on the head of Amrik Singh. Acquittal of Bhupinder Singh shows that prosecution is not clear as to who had caused injury on the head of Amrik Singh, i.e., either by Crl.Appeal No.881-DB of 2007 19 Bhupinder Singh, who was acquitted by the trial Court, or by Joginder Singh, one of the appellants.
Learned State counsel argued that land of the uncle of Amarjit Singh was on theka with the complainant party. Wife of the complainant was Sarpanch. Earlier, there was civil litigation. Jagir Singh, father of Amarjit Singh, appeared as a witness. There was a motive to cause injuries. Appellants had caused injuries to the complainant party. Injuries on the person of Santokh Singh, Harnek Singh, Amrik Singh and Surinder Kaur cannot be self suffered or self inflicted. Presence of Santokh Singh, Amrik Singh and Harnek Singh was admitted by Amarjit Singh, one of the appellants, in view of his statement (Ex.PZ) dated 8.8.2001. Allegation of Amarjit Singh, one of the appellants, was that on 7.8.2001 when he was near the house of Satnam Singh, then Satokh Singh, Amrik Singh and Harnek Singh were sighted. They raised lalkara to teach him a lesson because his father had appeared as a witness in favour of second party in a civil suit. Santokh Singh gave kirpan blow hitting his left hand. Then in defence, he fired a shot hitting Santokh Singh. According to the statement of Amarjit Singh when he fired a shot with his revolver hitting Santokh Singh, at that time, Harnek Singh and Amrik Singh were present. Amarjit Singh did not state a word that he had caused injuries to Harnek Singh and Amrik Singh. According to the doctor, injuries were noticed on the person of Amrik Singh, Harnek Singh and Surinder Kaur wife of Baldev Singh. Evidence on the file was rightly scrutinized by the trial Court. Minor discrepancies were bound to occur with the passage of time. Occurrence is an admitted fact but only dispute is whether the complainant party or the appellants were the aggressors. In view of the statement (Ex.PZ) of Amarjit Crl.Appeal No.881-DB of 2007 20 Singh, complainant party was not challaned. In case cross case was not registered against the complainant party, then appellants should have filed private complaint. Appellants cannot wriggle out of the statement dated 8.8.2001 (Ex.PZ) of Amarjit Singh, one of the appellants.
Ex.PD is the statement dated 8.8.2001 of Harnek Singh, complainant, recorded at about 1.35 AM. According to the complainant, appellants had a motive to commit the crime because land of uncle of Amarjit Singh, one of the appellants, was on theka with them. FIR No.135 dated 28.11.1996 was registered against Harnek Singh and others in view of the statement of Rome Singh. Secondly, the appellants were not happy because his wife was Sarpanch of the Village. Defence version of the appellants is that earlier, Jagir Singh, father of Amarjit Singh, was Sarpanch of the Village. There was civil litigation amongst the complainant party and Harbhajan Kaur widow of Lehmber Singh and before Civil Court, Jagir Singh had appeared as a witness in favour of Harbhajan Kaur. Due to this reason, the appellants were falsely implicated in this case. No doubt, there was civil litigation amongst Harbhajan Kaur and complainant party and this fact is clear from the copies of plaint (Ex.DQ) and written statement (Ex.DQ/1). In the civil suit filed by Harbhajan Kaur, Jagir Singh, father of Amarjit Singh, had appeared as a witness in favour of Harbhajan Kaur. Ex.DQ/2 is the copy of statement of Jagir Singh. Ex.DQ/3 is the copy of statement of Harnek Singh. In that case, there was a compromise amongst the parties. Ex.DQ/4 is the copy of the agreement. As per agreement, a sum of Rs.1,50,000/-, which was taken from Harbhajan Kaur with regard to the land, shall be given to the Sarpanch of Village Meeranpur and from the land measuring 19 kanals, Harbhajan Kaur will reap the wheat crop of 7 kanals Crl.Appeal No.881-DB of 2007 21 of land, whereas Harnek Singh and others shall reap wheat crop of remaining area and shall also pay Rs.2,000/- as expenses of wheat to Harbhajan Kaur. Total Rs.1,52,000/- was payable to Harbhajan Kaur.
Regarding recovery of Rs.1,52,000/-, Harbhajan Kaur filed suit for recovery against Harnek Singh and others and this fact is clear from the copy of judgment (Ex.DQ/5). Ex.DQ/6 is the copy of decree sheet dated 28.10.1998. In view of decree sheet dated 28.10.1998, execution application was filed and this fact is clear from the copies of interim orders (Ex.DQ/7, Ex.DQ/8 and Ex.DQ/9) in the execution application.
Harnek Singh as PW2 in cross-examination admitted that Rome son of Lehmber Singh got one case registered against them bearing FIR No.135 dated 28.11.1998 under Sections 419/467/471 etc. IPC and as per agreement with Harbhajan Kaur, they were to pay Rs.1,52,000/- and to vacate the land. Civil suit for recovery was filed by Harbhajan Kaur and the same was decreed on 28.10.1998. Jagir Singh had appeared as PW against them. So, all this shows that prior to the present occurrence, there was litigation amongst the complainant party and Harbhajan Kaur widow of Lehmber Singh. Jagir Singh father of Amarjit Singh, appellant, had appeared as a witness in favour of Harbhajan Kaur. There was enmity amongst the parties but previous enmity amongst the parties was the motive either to commit the crime or to name the appellants. Motive is a double edged weapon. According to the agreement, payment was to be made by Harnek Singh to Harbhajan Kaur. After payment, complainant party had no idea to self suffer or self inflict the injuries simply to name the appellants. Jagir Singh had appeared as a witness in favour of Harbhajan Kaur and if the complainant party was to name the appellants, then Jagir Singh could Crl.Appeal No.881-DB of 2007 22 easily be named as one of the accused. At the time of civil litigation amongst Harbhajan Kaur and the complainant party, Jagir Singh was Sarpanch of the Village but wife of Harnek Singh was elected Sarpanch unopposed. If as per prosecution story, accused had a motive to commit the crime but no cogent and convincing evidence in support of this allegation is on the file, even then on this short ground, prosecution story is not to be ignored. When the prosecution fails to prove that there was motive to commit the crime, then Court is required to scrutinize the evidence with great care and caution. Motive looses significance when there is a direct evidence. Injured, namely, Harnek Singh, Amrik Singh and Surinder Kaur in Court categorically stated that the appellants had caused injuries to them and Santokh Singh (deceased). In view of previous enmity amongst the parties when injuries on the person of Santokh Singh (deceased) and the injuries cannot be self suffered or self inflicted and Jagir Singh was not named as accused, then we are of the opinion that the appellants had a motive to commit the crime.
Learned counsel for the appellants argued that statement of Harnek Singh, complainant (Ex.PD) cannot be treated as an FIR because PW3 Surinder Kaur wife of Harnek Singh, complainant, stated that she came back to her village at about 8.30 PM. At about 9.00 PM, she was present at the spot. Statement of Surinder Kaur was recorded by the police but there is no statement dated 7.8.2001 of Surinder Kaur on the file. FIR was recorded in view of the statement of Harnek Singh (Ex.PD) recorded at about 1.35 AM on 8.8.2001. After going through the evidence on the file, we are of the view that submission of learned counsel for the appellants carries no weight because evidence on the file shows that at about 7.00 PM Crl.Appeal No.881-DB of 2007 23 on 7.8.2001, Daljit Singh son of Baldev Singh while coming to Village Meeranpur was near the Village, then Satnam Singh, appellant, and his servant Raju had stopped him. They tried to give him beatings but he escaped himself and came to the house of Harnek Singh. Daljit Singh was made to understand and was sent to his house. In the meantime, Harnek Singh and his wife Surinder Kaur heard a raula from the house of Darshan Singh son of Amar Singh. On hearing raula, Harnek Singh and his wife Surinder Kaur had gone towards the house of Darshan Singh, then sighted the appellants fully armed. Appellants had caused injuries to Santokh Singh (deceased), Harnek Singh, Amrik Singh and Surinder Kaur wife of Baldev Singh. After causing injuries, the appellants had fled away from the spot. Injured were shifted to Civil Hospital, Jalandhar, but in the hospital, Santokh Singh had succumbed to his injuries. Police party headed by Inspector Harjinder Singh, Investigating Officer, while present near Partapra Chowk received wireless message from Moharrir Head Constable, PS Lambra, regarding the present occurrence and admission of the injured in Civil Hospital, Jalandhar. On receipt of wireless message, Investigating Officer had gone to Civil Hospital, Jalandhar. Then statement of Harnek Singh (Ex.PD) was recorded at 1.35 AM during night time on 8.8.2001. Dead body of Santokh Singh was lying in the dead house. Then Investigating Officer along with PW3 Surinder Kaur had gone to the dead house. After that, Investigating Officer came to the place of occurrence. PW3 Surinder Kaur also came to the place of occurrence. That means, after recording the statement of Harnek Singh at 1.35 AM, date has been changed during night time. That is why, no statement of Surinder Kaur dated 7.8.2001 is on the file. In fact, statement of Surinder Kaur is dated Crl.Appeal No.881-DB of 2007 24 8.8.2001. Investigating Officer as PW10 stated that Surinder Kaur, Sarpanch, had met them in the hospital at about 11.45 PM on 7.8.2001 and her statement was recorded at about 2.15 AM during night time on 8.8.2001. If the police was to concoct the prosecution story, then the Investigating Officer could easily state that on receipt of wireless message while present near Partapra chowk he had gone to the place of occurrence, where Surinder Kaur had met them. After recording the statement of Surinder Kaur, same was sent to the police station. Then police party had gone to the civil hospital, where Harnek Singh was lying admitted. Then statement of Harnek Singh was recorded and after that, inquest report was prepared. All this shows that statement of Harnek Singh (Ex.PD) was rightly recorded, on the basis of which, formal FIR was recorded.
Next submission of learned counsel for the appellants was that place of occurrence was changed from street to the house of Darshan Singh. So, prosecution was not clear where the occurrence had taken place, as observed by learned trial Court. But in view of the evidence on the file, we are not in a position to agree with the submission of learned counsel for the appellants. Complainant along with his wife Surinder Kaur was present in his house at about 7.00 PM on 7.8.2001 when Daljit Singh came and reported that while coming to Village Meeranpur and was near the Village, then Satnam Singh, appellant, and his servant Raju had stopped him and tried to cause injuries to him. After making him to understand, Daljit Singh was sent to his house. In the meantime, they had heard raula from the house of Darshan Singh. In front of the house of Darshan Singh, the appellants were present armed with different weapons. Bhupinder Singh had raised a lalkara to teach them a lesson for taking the land of their uncle and to Crl.Appeal No.881-DB of 2007 25 contest election of Sarpanch. Then Amarjit Singh fired shot from his revolver hitting in the chest of Santokh Singh, who was already present there. He tried to save Santokh Singh, then Satnam Singh gave kirpan blow on his head. On receipt of kirpan blow, he fell down. Then Lakha and Kala gave blows from the reverse side of their gandasis. Baldev Singh gave kirpan blow to Santokh Singh. Injuries were also caused to Amrik Singh and Surinder Kaur. Raula was raised. Then his wife Surinder Kaur and Shaminder Singh came at the spot. Amrik Singh and Surinder Kaur ran inside the house. Appellants followed them and caused injuries to them.
Suggestion was given to Harnek Singh, complainant, that they had caused injuries to Amarjit Singh and Raju. Amrik Singh gave kirpan blow to Raju. Last suggestion to Harnek Singh was that from the side of appellants, only Amarjit Singh and Raju were present. No suggestion to the injured that when the complainant party had caused injuries to Amarjit Singh and Raju, then in defence, Amarjit Singh and Raju had caused injuries to the complainant party.
Amarjit Singh when examined under Section 313 Cr.P.C., then stated that his father Jagir Singh got the dispute settled with Harnek Singh. Rs.1,50,000/- was to be paid by Harnek Singh and Harnek Singh was to vacate the possession. Possession was not left. Rather, land was got transferred in his name. One boy of Village Johal filed suit for recovery. In the civil suit, Jagir Singh appeared as PW. Earlier, Harnek Singh, Amrik Singh and Santokh Singh had attacked him when he was returning from his motor. He received injuries at the hands of Harnek Singh and others and was rescued by the neighbours, who shifted him to the hospital.
PW5 Dr.Harjit Singh in cross-examination stated that Amarjit Crl.Appeal No.881-DB of 2007 26 Singh was also medico legally examined on 7.8.2001 at 11.50 PM. One injury was noticed on his person. Probable duration of the injury was within four hours.
DW1 Dr. Baldev Singh stated that on 8.8.2001 at 12.40 PM, Raju was medico legally examined and one injury was noticed on his person but in cross-examination admitted that possibility of injury by fall cannot be ruled out.
DW2 Dr. Ashok Bhagat had x-rayed the injury on the person of Amarjit Singh and fracture of first metacarpal and index finger was noticed.
DW5 DSP Dharam Singh Uppal stated that enquiry was marked to him and after enquiry, he recommended to file challan under Sections 326/324/34/506 IPC against Harnek Singh and others.
DW6 ASI Sarup Singh stated that Amarjit Singh was arrested on 14.9.2001. Kirpan was recovered from him.
DW7 Inspector Harjinder Singh stated that Harnek Singh was arrested on 1.10.2001. Inspector Harjinder Singh is the Investigating Officer and earlier appeared as PW10, then stated that statement of Amarjit Singh (Ex.PZ) dated 8.8.2001 was recorded. Amarjit Singh, appellant, when examined under Section 313 Cr.P.C., then did not state a word that his statement (Ex.PZ) dated 8.8.2001 was not recorded by the police to register cross case against the complainant party. Ex.PZ is to the effect that Amarjit Singh, appellant, on 7.8.2001 at 7.30 PM while coming from his tubewell was near the house of Satnam Singh, then sighted Satokh Singh, Harnek Singh and Amrik Singh while raising lalkara that he should not be spared because his father Jagir Singh has deposed against them in their land Crl.Appeal No.881-DB of 2007 27 cases as Sarpanch of the Village. Then Santokh Singh gave a kirpan blow and when he tried to save himself, then kirpan blow hit on his left hand. After that, Harnek Singh gave a datar blow, then he moved back. After that, Amrik Singh again raised lalkara to eliminate him. He (Amarjit Singh) raised alarm `Mar Ditta Mar Ditta'. On hearing raula, Satnam Singh son of Bhag Singh armed with kirpan and Raju, servant of Satnam Singh, came there. In the meantime, Santokh Singh again gave a kirpan blow. Then he fired a shot from his licenced revolver in self defence hitting Santokh Singh. In the meantime, his father-in-law Harchand Singh and neighbours Joginder Singh, Baldev Singh and Harminder Singh @ Ford came there and rescued him. After vehicle was arranged, then Baldev Singh, Harchand Singh and Paramjit Singh got him admitted in the civil hospital. 6-7 years earlier, his father was Sarpanch of the Village and as Sarpanch deposed against Santokh Singh in a civil suit pending in the Court.
Statement of Amarjit Singh (Ex.PZ) is dated 8.8.2001 recorded by Inspector Harjinder Singh, Investigating Officer, but according to Ex.PZ, no injury was caused to Raju by the complainant party. Secondly, Raju has not caused injuries to the complainant party but suggestion was given to Harnek Singh that complainant party caused injuries to Amarjit Singh and Raju and only Amarjit Singh and Raju were present at the time of occurrence. In view of the statements of Harnek Singh, Amrik Singh and Surinder Kaur, injured, and Amarjit Singh, appellant (Ex.PZ) dated 8.8.2001, occurrence is an admitted fact. As per Ex.PZ, Amarjit Singh fired a shot hitting Santokh Singh. Not a word in Ex.PZ that Amarjit Singh had caused injuries to Harnek Singh, Amrik Singh or Surinder Kaur. As per Ex.PZ, Amarjit Singh had fired shot hitting Santokh Singh but Amarjit Crl.Appeal No.881-DB of 2007 28 Singh when examined under Section 313 Cr.P.C., then failed to state that Raju was also present with him at the time of occurrence. When Santokh Singh gave a kirpan blow hitting him, then he had fired a shot hitting Santokh Singh. Complainant party had also caused injuries to Raju. According to PW1 Dr. Surinder Singh, while conducting post mortem examination on the dead body of Santokh Singh, then six injuries were noticed on his person. Firearm injury and injury on the head were the cause of death.
PW5 Dr. Harjit Singh on 7.8.2001 at 11.15 PM had medico legally examined Amrik Singh and noticed four injuries on his person. On the same day, he had also medico legally examined Surinder Kaur and Harnek Singh and found four injuries on the person of Surinder Kaur and three injuries on the person of Harnek Singh.
The doctors nowhere stated that the injuries on the person of Santokh Singh, Harnek Singh, Amrik Singh or Surinder Kaur could be self suffered or self inflicted. Injuries on the person of Harnek Singh, Amrik Singh, Surinder Kaur and Santokh Singh were not firearm injuries, whereas, as per Ex.PZ, Amarjit Singh had fired a shot with his revolver hitting Santokh Singyh. That means, occurrence is an admitted fact. Only dispute amongst the parties is whether the appellants had caused injuries with their respective weapons to Santokh Singh (deceased) and injured Harnek Singh, Amrik Singh and Surinder Kaur or Amarjit Singh in self defence had caused injuries to the complainant party. Initially, the appellants were found present in front of the house of Darshan Singh when caused injuries. Amrik Singh and Surinder Kaur, injured, ran inside the house. Appellants followed them and caused injuries to them. No dispute regarding the place of Crl.Appeal No.881-DB of 2007 29 occurrence.
Next submission of learned counsel for the appellants was that Daljit Singh, Shaminder Singh and Pargat Singh were not examined for the reasons best known to the prosecution. Due to non-appearance of the above said witnesses to support the prosecution story, prosecution story is doubtful, but submission of learned counsel for the appellants carries no weight because when there are number of eye witnesses, then all are not required to be examined by the prosecution. Quality of evidence is to be seen and not quantity of evidence. At about 7.00 PM on 7.8.2001, Daljit Singh was present near Village Meeranpur when Satnam Singh and his servant Raju had stopped him and tried to cause injuries. Daljit Singh escaped himself and had gone to the house of Harnek Singh, complainant. Then Daljit Singh was made to understand and was sent to his house. At the time of occurrence in front of the house of Darshan Singh, Daljit Singh was not present. Occurrence was witnessed by Surinder Kaur wife of Harnek Singh and Shaminder Singh. As discussed earlier, injuries were noticed on the person of Harnek Singh, Amrik Singh and Surinder Kaur and they had appeared as prosecution witnesses. As per Ex.PZ, Harnek Singh and Amrik Singh were also present at the time of occurrence. Failure to examine Daljit Singh or Shaminder Singh, then statements of the injured eye witnesses are not to be discarded because occurrence is an admitted fact as per Ex.PZ, statement of Amarjit Singh, appellant.
Learned counsel for the appellants further argued that as per statement (Ex.PD) of Harnek Singh dated 8.8.2001, Baldev Singh was armed with a kirpan but he had not caused injuries to Santokh Singh (deceased) or the injured. Baldev Singh was not substantively charged for Crl.Appeal No.881-DB of 2007 30 committing the offence punishable under Section 302 IPC. He was charge sheeted along with Amarjit Singh, Harminder Singh and Bhupinder Singh in prosecution of common object with the co-accused for causing the death of Santokh Singh. When Baldev Singh was examined under Section 313 Cr.P.C., then specific question was not put to him that on 7.8.2001 at about 7.00 PM, he armed with kirpan gave blow on the person of Santokh Singh. Nine accused were challaned. Five accused were acquitted by the trial Court. The appellants were not convicted and sentenced under Sections 148 and 149 IPC. With the acquittal of the appellants under Sections 148 and 149 IPC, Baldev Singh cannot be convicted under Section 302 IPC. When the charge is defective and specific question was not put to Baldev Singh, appellant, when examined under Section 313 Cr.P.C., then he was materially prejudiced but after going through the evidence on the file, we are of the opinion that submission of learned counsel for the appellants carries little weight. No doubt, as per Ex.PD, statement of Harnek Singh dated 8.8.2001, Baldev Singh was armed with kirpan but he had not caused injuries to Santokh Singh or any of the injured. Supplementary statement of Harnek Singh was recorded. In view of the supplementary statement of Harnek Singh and statements of other injured under Section 161 Cr.P.C., Baldev Singh armed with kirpan gave blow on the person of Santokh Singh. Eye witnesses while appearing in Court, then specifically stated that Baldev Singh armed with kirpan gave blow on the person of Santokh Singh. On 7.1.2002, charge was framed to the effect that on 7.8.2001 at 7.00 PM in the area of Meeranpur, Amarjit Singh, Baldev Singh, Harminder Singh and Bhupinder Singh in prosecution of common object with the above said co-accused did commit the murder by intentionally causing the Crl.Appeal No.881-DB of 2007 31 death of Santokh Singh. So, Amarjit Singh, Baldev Singh, Harminder Singh and Bhupinder Singh committed an offence punishable under Section 302 IPC, whereas co-accused, namely, Raju, Satnam Singh, Lakhwinder Singh, Joginder Singh and Taminder Singh committed an offence punishable under Section 302 read with Section 149 IPC. Baldev Singh when examined under Section 313 Cr.P.C., then question No.8 was put to him that you, Baldev Singh gave kirpan blow to Santokh Singh. From the very beginning, allegation of the prosecution was that Baldev Singh armed with kirpan gave a blow on the person of Santokh Singh. Injured eye witnesses were cross-examined that Baldev Singh was not present at the spot and he had not caused injuries to Santokh Singh or other injured but Ex.PZ is the statement of Amarjit Singh dated 8.8.2001 and as per this statement, Baldev Singh was present at the spot and had shifted Amarjit Singh, injured, to the civil hospital. With the acquittal of five accused when the appellants were not convicted under Sections 148 and 149 IPC, then it does not mean that Baldev Singh is not liable for punishment under Section 302 IPC for giving blow with kirpan on the person of Santokh Singh. As per Section 464 Cr.P.C., trial is not to vitiate if charge is defective when the Court is of the opinion that no prejudice was caused to the accused. Section 464 Cr.P.C. is reproduced as under:-
"464. Effect of omission to frame, or absence of, or error in, charge- (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder or charges, unless, in the opinion of the Court of Crl.Appeal No.881-DB of 2007 32 appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby.
2. If the Court of appeal, confirmation or revision is of the opinion that a failure of justice has in fact been occasioned, it may,-
(a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommended from the point immediately after the framing of the charge;
(b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit:
Provided that if the Court is of the opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction."
Secondly, if the statement of the accused under Section 313 Cr.P.C. is not correctly recorded and has been recorded in a defective manner, then the accused is not to be acquitted as held in 2011(4) RAJ 418, Satyavir Singh Rathi vs. State through Central Bureau of Investigation. Hon'ble Supreme Court observed that statement of accused under Section 313 Cr.P.C. recorded in a defective manner does not entitle the accused to acquittal. Prejudice must be shown by accused to claim acquittal.
In the present case also, allegation of the prosecution was that Baldev Singh, appellant, was armed with kirpan and had caused injuries to the deceased. Injury with sharp edged weapon was noticed on the person of Santokh Singh as per post mortem report. In case, specific charge was not Crl.Appeal No.881-DB of 2007 33 framed under Section 302 IPC against Baldev Singh for causing injuries on the person of the deceased and with the acquittal of five accused when the appellants were not convicted under Sections 148 and 149 IPC, then no prejudice was caused to Baldev Singh and he is not to be acquitted.
Next submission of learned counsel for the appellants was that all male members, except those who are in foreign countries, were arrayed as accused. There are number of improvements and discrepancies in the statements of the injured eye witnesses. So, prosecution story is not genuine one. Undisputedly, PW2 Harnek Singh, complainant, admitted that all male members, except those who are in foreign countries, are the accused. Trial Court also observed that there are certain improvements and discrepancies but on this short ground, the prosecution story is not to be ignored because the occurrence was on 7.8.2001. Eye witnesses appeared in Court in the year 2005. Minor discrepancies were bound to occur with the passage of time. In case, there is no discrepancy, then the witnesses are criticized as tutored one and if there are certain discrepancies, then again the witnesses are criticized. Discrepancies are not material which goes to the root of the case. Minor improvements/discrepancies rather show that the prosecution story is genuine one. If all male members, except those who are in foreign countries, has committed the crime, then on this ground, prosecution story is not be ignored.
Next submission of learned counsel for the appellants was that the injuries were noticed on the person of Amarjit Singh and Raju. Injury on the person of Amarjit Singh was found to be grievous in nature as per the statement of DW2 Dr.Ashok Bhagat. DW1 Dr. Baldev Singh had noticed one injury on the person of Raju but no explanation by the prosecution qua Crl.Appeal No.881-DB of 2007 34 the injuries on the person of Amarjit Singh and Raju. After going through the evidence on the file, submission of learned counsel for the appellants seems to be not correct one. Occurrence is an admitted fact in view of the statement (Ex.PZ) of Amarjit Singh dated 8.8.2001. Suggestion was given to Harnek Singh that the complainant party had caused injuries to Amarjit Singh and Raju but Ex.PZ nowhere shows that injury was caused to Raju. Amarjit Singh when examined under Section 313 Cr.P.C., then did not state a word that Raju was present at the spot and the complainant party had caused injuries to him and Raju and in defence, they had caused injuries to the complainant party. As per Ex.PZ, Amarjit Singh armed with revolver fired a shot hitting Santokh Singh but as discussed earlier, all injuries on the person of Santokh Singh (deceased), Harnek Singh, Amrik Singh and Surinder Kaur were not firearm injuries. Immediately after the occurrence, Amarjit Singh was also admitted in the hospital and was medico legally examined. Injury noticed on the person of Amarjit Singh was found to be grievous in nature. Probable duration was within four hours. But no defence version of the appellants that the complainant party had caused injuries to Amarjit Singh and Raju, then in defence, they had caused injuries to the complainant party. According to the defence version, only Amarjit Singh and Raju were present at the spot but two persons cannot cause six injuries on the person of Santokh Singh, four injuries on the person of Amrik Singh, four injuries on the person of Surinder Kaur and three injuries on the person of Harnek Singh, particularly when the injuries were with different weapons and were not firearm injuries with a revolver. Prosecution was required to explain the injuries on the person of the appellants if the defence version of the appellants was that in defence, they had caused injuries to the Crl.Appeal No.881-DB of 2007 35 complainant party. No suggestion to the injured that they had attacked the appellants, then the appellants in defence had caused injuries to the complainant party. If Raju was present at the time of occurrence as per statement of Amarjit Singh (Ex.PZ), then Amarjit Singh when examined under Section 313 Cr.P.C. should have stated that Raju was also present with him when the complainant party had attacked them then in defence, he along with Raju had caused injuries to the complainant party. As per defence version of Amarjit Singh, appellant, Santokh Singh had attacked him when he was returning from his motor. Then he received injuries and the neighbours had saved him and shifted to the hospital. As per Ex.PZ dated 8.8.2001, Amarjit Singh, appellant, had caused injuries to Santokh Singh only. So, failure to explain injuries on the person of Amarjit Singh and Raju, prosecution story is not to be ignored.
Learned counsel for the appellants argued that recoveries of weapons were in the presence of Surinder Kaur. Surinder Kaur is wife of Harnek Singh. Trial Court observed that when independent witnesses were available, then Surinder Kaur should not have been joined at the time of recoveries of weapons. Admittedly, on 9.8.2001, weapons were recovered from Satnam Singh, Joginder Singh and Bhupinder Singh. On 12.8.2001, weapons of offence were recovered from Baldev Singh, appellant, and three other accused, who were acquitted by the trial Court. Recoveries were effected in the presence of Surinder Kaur and ASI Sarup Singh. But evidence on the file shows that there was party faction in the village. Earlier to the present occurrence, there was civil and criminal litigation amongst the parties. So, when there is party faction in the village, then no one comes forward to witness the recovery to avoid enmity with the accused Crl.Appeal No.881-DB of 2007 36 party. If the story was to be manipulated and recoveries were to be planted, then the Investigating Officer could easily show that the recoveries were effected in the presence of police officials only. There was no idea to join Surinder Kaur. Recoveries could easily be effected in the presence of ASI Sarup Singh only. There is no provision that recovery should be effected in the presence of at least two or more than two witnesses. If the recoveries of weapons were in the presence of Surinder Kaur wife of Harnek Singh, complainant, then the appellants are not to be acquitted. Court is simply required to scrutinize the evidence with great care and caution when the recoveries are in the presence of eye witnesses.
Learned counsel for Joginder Singh, appellant, argued that Joginder Singh was armed with kirpan and gave blow on the person of Amrik Singh. Injuries on the person of Amrik Singh were found to be with sharp edged weapon. Bhupinder Singh armed with datar also gave blow on the head of Amrik Singh. Eye witnesses stated that Joginder Singh and Bhupinder Singh armed with sharp edged weapons gave blows on the head of Amrik Singh but as per MLR, only one injury was found on the head of Amrik Singh. Prosecution is not clear who had caused the injury on the head of Amrik Singh. Case of Joginder Singh was discussed in para No.43 of the judgment. Learned trial Court opined that one injury on the head of Amrik Singh with sharp edged weapon was noticed and the injury was caused by Joginder Singh. So, Joginder Singh is liable for punishment but in para No.45 of the judgment, case of Bhupinder Singh was discussed and learned trial Court opined that Bhupinder Singh armed with datar gave blow on the head of Amrik Singh. Only one injury on the head of Amrik Singh was noticed and that injury was attributed to Joginder Singh as per Crl.Appeal No.881-DB of 2007 37 para No.43 of the judgment. Bhupinder Singh was acquitted of the charge levelled against him. Argued that only one injury with sharp edged weapon was noticed on the head of Amrik Singh. Joginder Singh and Bhupinder Singh were armed with sharp edged weapons. When the prosecution is doubtful as to who had caused injury on the head of Amrik Singh, then either Joginder Singh and Bhupinder Singh both should have been convicted or both should have been acquitted of the charge levelled against them. Submission of learned counsel for Joginder Singh, appellant, seems to be correct one. According to the story, Bhupinder Singh was armed with datar, whereas Joginder Singh was armed with kirpan. Weapons are sharp edged weapons. Bhupinder Singh armed with datar gave blow on the head of Amrik Singh. Joginder Singh armed with kirpan gave blow on the head of Amrik Singh but according to the MLR of Amrik Singh, only one injury was noticed on his head. Injury was with sharp edged weapon. When Bhupinder Singh and Joginder Singh were armed with sharp edged weapons and gave blows on the head of Amrik Singh and only one injury with sharp edged weapon was noticed, then the prosecution is not clear as to who had caused injury on the head of Amrik Singh, found to be grievous in nature with sharp edged weapon. If case of Bhupinder Singh would have been discussed in para No.43 of the judgment, then Joginder Singh was expected to be acquitted of the charge levelled against him because role of Joginder Singh was to be discussed after Bhupinder Singh. But in the present case, role of Joginder Singh was discussed first, then he was convicted on the ground that he armed with kirpan gave blow on the head of Amrik Singh and injury was found to be with sharp edged weapon. Bhupinder Singh was acquitted of the charge levelled against him because his role was discussed Crl.Appeal No.881-DB of 2007 38 lateron. Then the trial Court observed that only one injury on the head of Amrik Singh with sharp edged weapon was noticed and that injury was attributed to Joginder Singh. When no second injury with sharp edged weapon on the head of Amrik Singh, so Bhupinder Singh is not liable for punishment.
In 2006(3) RCR (Crl.) 85, Ram Dhari and others vs. State of Haryana, case was under Section 302 IPC and as per medical evidence, there was only one injury on the head. PWs stated that all the four accused inflicted one head injury each. Conviction was set aside.
In AIR 1980 Supreme Court 1873, Purshottam and another vs. State of Madhya Pradesh, Hon'ble Supreme Court held that when there are contradictions between medical testimony and alleged eye witnesses regarding fatal injury of deceased, then medical testimony is to be preferred.
In AIR 2005 Supreme Court 1271, Mukati Prasad Rai @ Mukti Rai and others vs. State of Bihar, Hon'ble Supreme Court observed that evidence of two eye witnesses that two accused persons attacked victim with lathis- Victim sustaining only one lathi injury- No evidence as to who amongst the two accused caused that injury- Both of them liable to be exonerated.
In view of all discussed above, we are of the view that when only one injury with sharp edged weapon was found on the head of Amrik Singh and the prosecution is not clear as to whether injury was caused by Joginder Singh or Bhupinder Singh and Bhupinder Singh was acquitted of the charge levelled against him by the trial Court, then benefit of doubt should also be given to Joginder Singh. Joginder Singh is acquitted of the charge levelled against him.
Crl.Appeal No.881-DB of 2007 39
Harminder Singh @ Ford was armed with gandasi and as per prosecution story, gave blow on the head of Amrik Singh, but only one injury was noticed on the head of Amrik Singh. Lakhwinder Singh was armed with a gandasi and gave blow on the neck of Santokh Singh. Taminder Singh @ Kala was armed with gandasi and gave blow on the person of Harnek Singh but no injury alleged to be caused by Lakhwinder Singh was noticed on the person of Santokh Singh. As per FIR, Lakhwinder Singh @ Lakha and Taminder Singh @ Kala armed with gandasis gave blows from the reverse side of the gandasis to Harnek Singh but the eye witnesses stated that they gave blows with the help of gandasis. That means, gandasis were used from sharp edged side.
Raju was not challaned and according to the prosecution story, he had not caused injuries either to the deceased or the injured. After going through the evidence on the file, learned trial Court rightly opined that presence of Harminder Singh @ Ford, Bhupinder Singh, Taminder Singh @ Kala, Lakhwinder Singh @ Lakha and Raju at the place of occurrence is doubtful. They were rightly acquitted of the charges levelled against them.
For the reasons recorded above, Crl.Appeal No.881-DB of 2007 preferred by Amarjit Singh, Crl. Appeal No.863-DB of 2007 preferred by Baldev Singh, and Crl. Appeal No.862-DB of 2007 preferred by Satnam Singh and Crl. Revision No. 1453 of 2008 preferred by Harnek Singh are dismissed, whereas Crl. Appeal No.860-DB of 2007 filed by Joginder Singh is allowed.
Satnam Singh, appellant in Crl. Appeal No.862-DB of 2007 is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by the trial Court, failing which, Crl.Appeal No.881-DB of 2007 40 concerned authority/CJM, Jalandhar, to issue re-arrest warrants to undergo the remaining period of sentence.
( JORA SINGH )
JUDGE
21.12.2011 ( S.S.SARON )
pk JUDGE