Punjab-Haryana High Court
Balwan Son Of Zile Singh And Others vs State Of Haryana on 14 August, 2013
Author: Fateh Deep Singh
Bench: Hemant Gupta, Fateh Deep Singh
CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-D-438-DB of 2009
Date of Decision: 14.08.2013
Balwan son of Zile Singh and others ...Appellants
Versus
State of Haryana ..Respondent
Crl. Revision No.1695 of 2009
Date of Decision: 14.08.2013
Kulwant Singh son of Bhagat Singh ...Petitioner
Versus
Balwan Singh and others ...Respondents
CORAM:HON'BLE MR. JUSTICE HEMANT GUPTA
HON'BLE MR. JUSTICE FATEH DEEP SINGH
1.Whether Reporters of local papers may be allowed to see the
judgment?
2.To be referred to the Reporters or not?
3.Whether the judgment should be reported in the Digest?
Present: Mr. R.S. Cheema, Senior Advocate with
Ms. Sumanjit Kaur, Advocate for the appellants.
Mr. Vinod Ghai, Senior Advocate with Mr. Simrandeep
Singh Sandhu, Advocate for the petitioner
(in CRR No.1695 of 2009).
Mr. Sandeep Vermani, Additional Advocate General,
Haryana.
FATEH DEEP SINGH, J.
Since the aforesaid appeal by the convict-appellants as well as the criminal revision preferred by one of the injured are an outcome of same very judgment and order of sentence dated Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -2- 13.3.2009/18.3.2009 therefore, are being disposed off by this common judgment. Through the appeal the convict-appellants have sought setting aside of judgment of conviction and sentence, while in the revision the revisionist has preferred enhancement of fine so awarded and for compensation to the heirs of deceased Yashpal. The grounds which form basis of this invocation by the respective parties have been well enunciated in the respective grounds of appeal and revision.
Accused side consisting of Balwan son of Zile Singh; Surjeet son of Balwan; Hukmi son of Shoran Jogi; Sultan son of Sunder Singh; Lakhmi Chand son of Sarwan Singh Jogi; Rishipal son of Sultan; Kuldeep son of Nafe Singh; Tejbir son of Balwan; Hakikat son of Balwan; Udey Singh son of Nafe Singh; Nafe Singh son of Sunder Singh and Bala wife of Balwan are the offspring of two brothers Sunder Singh and Zile Singh, whereas, the five injured are children of three real brothers Bhagat Singh, Jagat Singh and Manbir Singh. Both the parties are residents of village Sahanpur under Police Station, Safidon. The bone of contention leading to the present incident that has taken place on 25th January, 2008 at about 5 p.m. is regarding a public way that leads to a pilgrimage site and pond in the village. On the fateful day of the occurrence accused Nafe Singh, Sultan, Kuldeep Rishipal, Hakikat, Tejbir, Udey Singh, Surjeet, Hukmi, Lakhmi Chand, Balwan and his wife Bala were constructing a wall over a piece of land and filling the same with sand. Finding this activity going on, PW9 Sanjay complainant met the accused side and tried to convince them not to go ahead with the construction activity. Upon commotion Manbir, Yashpal, Ajmer and Kadam Singh Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -3- reached there and tried to bring about a convincing solution. When Nafe Singh accused was asked not to fill sand in the plot, who did not agree and abused the complainant, in the meanwhile, accused Balwan, Hukmi, and Lakhmi Chand armed with lathis; Kuldeep armed with .32 bore revolver, Nafe Singh armed with .12DBBL gun and Udey Singh with gandasi and Sultan, Hakikat, Tejbir and Bala armed with lathis came there. Both the sides exchanged abuses and hot words.
Accused Kuldeep, who was armed with revolver fired a shot hitting right side of the temple of Yashpal, who fell down followed by .12DBBL gun shot given by Nafe Singh hitting Yashpal on his right flank. Accused Nafe Singh while abusing fired a gun shot from his .12DBBL gun hitting Manbir and Ajmer on the left thigh and right hand. In the meanwhile, accused Udey Singh, who was armed with gandasi gave a blow on the right forehead of complainant Sanjay and similar blow by means of lathi was given by accused Lakhmi Chand on the right elbow of Sanjay. During this melee accused Balwan gave a lathi blow on the right wrist of Sanjay followed by similar blow of lathi by accused Hukami on the left hand of Sanjay. Thereafter, accused Udey Singh caught hold of revolver of accused Kuldeep and fired hitting Manbir on his forehead. Accused Tejbir, Hakikat and Bala also caused injuries by their weapons to Bhup, Nirmal, Kulwant, Manbir and Ajmer.
All the injured were thereafter, rushed to General Hospital, Safidon where, Yashpal was declared dead.
On the statement of complainant-injured Sanjay PW9 the present case was got registered by PW16 Inspector, Balwant Singh against 12 accused out of whom accused Udey Singh is reported Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -4- to have died.
After investigations accused were brought before the Court for trial.
The prosecution at the trial examined following witnesses:-
PW1 Dr. Kishan Jangra, PGIMS Rohtak, who conducted X-ray examination of injured Manbir on the basis of his report Ex.PA and X-ray film Ex.PA/1 proved fracture of the skull. He also proved X-ray examination of injured Ajmer and opined that as per his report Ex.PA/2 based on X-ray films Ex.PA/3 to Ex.PA/5 presence of radio opaque metallic shadows in the left thigh.
PW2 Satbir Singh, Licence Clerk, Safidon, has proved arms licence of accused Nafe Singh in respect of .12DBBL gun and .32 bore revolver.
PW3 Dr. Satvir Singh, who has testified having medico legally examined deceased Yashpal on the basis of his affidavit Ex.PH has enumerated five lacerated wounds on the person of deceased Yashpal, which injuries were grievous on account of firearm injuries, proving the MLR Ex.PJ. He further testified having medico legally examined injured Ajmer on the same very day and on the strength of MLR Ex.PK has detailed seven lacerated wounds on the person of injured Ajmer. This witness also established having medico legally examined injured Manbir by way of MLR Ex.PL proving the MLR of injured Sanjay as Ex.PM and of injured Kadam Singh and Kulwant by way of Ex.PN and Ex.PO respectively. He has also proved on record medical ruqas' Ex.PQ, Ex.PQ/1, Ex.PQ/2 and Ex.PQ/3. This witness has stated that on police application Ex.PR he had given his opinion Ex.PR/1 Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -5- to the effect that Yashpal has expired whereas, injured Manbir and Ajmer were not fit to make statement.
PW4 HC Satpal Singh, tendered his affidavit Ex.PC regarding deposit of the case property.
PW5 EHC Rajinder Singh on the basis of his affidavit Ex.PD detailed the deposit of the case property in an intact condition.
PW6 Dr. Gopal Goyal has brought on the record his affidavit Ex.PE having conducted post mortem examination on the dead body of Yashpal on police application Ex.PF, proving copy of post mortem examination report Ex.PG. He also proved bullet Ex.P1 and pellets Ex.P2 to Ex.P4 recovered from the dead body.
PW7 HC Baldev Singh proved delivery of special report having been delivered and the copy of FIR Ex.PE/1.
PW8 ASI Satpal Singh, who received the medical ruqa, proved it as Ex.PF on the basis of which he recorded formal FIR Ex.PE/1 and his endorsement Ex.PF/1.
PW9 Sanjay injured-complainant detailed the manner of occurrence and role of each of the accused in it and proved his statement Ex.PF.
PW10 Kadam Singh son of Jagat Singh injured corroborated on material aspects the occurrence as detailed by the complainant Sanjay. He was also confronted with his earlier statement Ex.DA.
PW11 Ajmer Singh son of Manbir Singh, who has also received injuries in this occurrence testified how the accused caused them injuries resulting in death of Yashpal, attributing role to each of the accused. He was also confronted with his earlier Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -6-
statement Ex.DB
PW12 Manbir Singh son of Sarup Singh, who also
received injuries in this occurrence lend credence and
corroboration to the prosecution's story and role of each of the accused in this incident. He was also confronted with his earlier statement Ex.DC.
PW13 S.I. Suraj Bhan, Investigating Officer, who conducted the investigations brought about the steps that were taken during the investigations, proving lifting of three 12 bore missed cartridges Ex.P5 to Ex.P7; two empty cartridges Ex.P8 and Ex.P9 and blood stained earth which were taken into police possession by way of parcels through memo Ex.PS. He further illustrated that accused Nafe Singh in his presence suffered disclosure statements before Investigating Officer by way of Ex.PT and Ex.PT/1 on the basis of which he got recovered one . 12DBBL gun Ex.P11 with arms licence, whose rough sketch Ex.PT/2 was prepared and after converting into parcel taken into police possession through memo Ex.PT/3. Rough site plan of this place of recovery Ex.PT/4 was prepared. This witness proved disclosure statement of accused Bala made on 27.1.2008 by way of Ex.PU, on the basis of which she got recovered lathi Ex.P12, proving its sketch Ex.PU/1 which was taken into police possession through memo Ex.PU/2. Rough site plan of this place of recovery Ex.PU/3 was prepared. He similarly proved the interrogation of accused Tejbir by way of his disclosure statements Ex.PV and Ex.PV/1 made on 30.1.2008 leading to the recovery of lathi Ex.P13, whose rough sketch Ex.PV/2 was prepared and after converting into parcel the same was taken into police possession Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -7- through memo Ex.PV/3. Rough site plan of this place of recovery Ex.PV/4 was prepared. Similarly, he proved the interrogation of accused Hakikat on 30.1.2008 by way of disclosure statements Ex.PX and Ex.PX/1 leading to the recovery of lathi Ex.P14, whose rough sketch Ex.PX/2 was prepared and which was taken into police possession by way of parcel through memo Ex.PX/3 and rough site plan of this place of recovery Ex.PX/4 was prepared. This witness has brought about disclosure statements made by accused Udey Singh on the same very day by way of Ex.PY and Ex.PY/1 leading to the recovery of a revolver Ex.P15, whose rough sketch Ex.PY/2 was prepared and, thereafter, the same along with six empty cartridges Ex.P16 to Ex.P21 were taken into police possession through memo Ex.PY/3 and the rough site plan of this place of recovery Ex.PY/4 was prepared. The witness has proved disclosure statements made by accused Kuldeep by way of Ex.PZ and Ex.PZ/1. Similarly he has proved disclosure statements of accused Lakhmi Chand Ex.PAA and Ex.PAA/1. The witness established recovery of lathi Ex.P22 at the behest of accused Lakhmi Chand, whose rough sketch Ex.PAA/2 was prepared and taken into police possession by way of parcel through memo Ex.PAA/3 bringing about rough site plan of this place of recovery Ex.PAA/4.
It is further stated by this witness that interrogation of accused Rishipal made on 1.2.2008 whereby, the accused suffered disclosure statements Ex.PBB and Ex.PBB/1 leading to recovery of gandasi Ex.P23 whose rough sketch Ex.PBB/2 was prepared and the same was taken into police possession through memo Ex.PBB/3 and rough site plan of this place of recovery Ex.PBB/4 Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -8- was prepared. The interrogation of accused Hukami made on 1.2.2008 by way of disclosure statements Ex.PCC and EX.PCC/1 leading to recovery of lathi Ex.P24 proving its rough sketch Ex.PCC/2 which was taken into police possession by way of parcel through memo Ex.PCC/3 and rough site plan of this place of recovery Ex.PCC/4 was prepared. Similarly, the witness has proved interrogation of accused Sultan made on 2.2.2008 and disclosure statements Ex.PDD and Ex.PDD/1 and also recovery of a lathi Ex.P25 at his behest, whose rough sketch Ex.PDD/2 was prepared and taken into police possession by way of parcel through memo Ex.PDD/3 bringing on record site plan of this place of recovery Ex.PDD/4. This witness further illustrated interrogation of accused Balwan on the same very day and sufferance of disclosure statements Ex.PEE and Ex.PEE/1 which led to recovery of lathi Ex.P26 at his behest, whose rough sketch Ex.PEE/2 was prepared and was taken into police possession by way of parcel through memo Ex.PEE/3 and the rough site plan of this place of recovery Ex.PEE/4 was prepared.
PW14 Harpal Singh, Draftsman, proved the scaled site plan of the place EX.PFF.
PW15 ASI Ramesh Kumar has brought about the inquest proceedings conducted by the Investigating Officer in his presence and that on the asking of Investigating Officer he had got conducted post mortem examination upon the dead body and proved the handing over of parcels of the articles of the deceased to the Investigating Officer through memo Ex.PGG as well as vial containing bullet and pellets discovered from the dead body of the deceased.
Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -9- PW16 Inspector Balwant Singh, Investigating Officer has detailed the investigations conducted by him in the case. This witness has proved medical ruqas Ex.PQ, Ex.PQ/1, Ex.PQ/2 and Ex.PQ/3 in respect of Yashpal, Ajmer, Manbir and Sanjay. He has also proved an application Ex.PR seeking medical opinion for recording statements of injured and also endorsement Ex.PR/3. The witness has proved recording of statement of injured Sanjay by way of Ex.PF and endorsement thereon Ex.PF/3. He has also proved registration of FIR Ex.PE/1 and inquest report Ex.PG. He also proved an application Ex.PF for conducting post mortem examination on the dead body. This witness has stated that he interrogated accused Nafe Singh on 27.1.2008 who suffered disclosure statements Ex.PT and Ex.PT/1 leading to the recovery of .12DBBL gun Ex.P11, whose rough sketch Ex.PT/2 was prepared and the same was taken into police possession by way of parcel through memo Ex.PT/3. Rough site plan of this place of recovery Ex.PT/4 was prepared. He also proved disclosure statements Ex.PV and Ex.PV/1 made by accused Tejbir leading to the recovery of lathi Ex.P13, whose rough sketch Ex.PV/2 was prepared and taken into police possession by way of parcel through memo Ex.PV/3. Rough site plan of this place of recovery Ex.PV/4 was prepared. The witness has interrogated accused Bala, who made disclosure statement Ex.PU which has led to recovery of lathi Ex.P12, whose rough sketch Ex.PU/1 was prepared and the same was taken into police possession by way of parcel through memo Ex.PU/2. Rough site plan of this place of recovery Ex.PU/3 was prepared. Similarly the witness has proved interrogation and disclosure statements of accused Hakikat Ex.PX Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -10- and Ex.PX/1 and also recovery of a lathi Ex.P14 at his behest whose rough sketch Ex.PX/2 was prepared and taken into police possession by way of parcel through memo Ex.PX/3 bringing on record site plan of this place of recovery Ex.PX/4. This witness has brought about disclosure statements made by accused Udey Singh on the same very day by way of Ex.PY and Ex.PY/1 leading to the recovery of a revolver Ex.P15, whose rough sketch Ex.PY/2 was prepared and, thereafter, the same along with six empty cartridges Ex.P16 to Ex.P21 were taken into police possession through memo Ex.PY/3 and rough site plan of this place of recovery Ex.PY/4 was prepared. The witness has proved disclosure statements made by accused Kuldeep by way of Ex.PZ and Ex.PZ/1. Similarly he has proved disclosure statements of accused Lakhmi Chand Ex.PAA and Ex.PAA/1. The witness established recovery of lathi Ex.P22 at the behest of accused Lakhmi Chand, whose rough sketch Ex.PAA/2 was prepared and taken into police possession by way of parcel through memo Ex.PAA/3 bringing about rough site plan of this place of recovery Ex.PAA/4.
It is further stated by this witness that interrogation of accused Rishipal made on 1.2.2008 whereby, the accused suffered disclosure statements Ex.PBB and Ex.PBB/1 leading to recovery of gandasi Ex.P23 whose rough sketch Ex.PBB/2 was prepared and the same was taken into police possession through memo Ex.PBB/3 and rough site plan of this place of recovery Ex.PBB/4 was prepared. The interrogation of accused Hukami made on 1.2.2008 by way of disclosure statements Ex.PCC and EX.PCC/1 leading to recovery of lathi Ex.P24 proving its rough sketch Ex.PCC/2 which was taken into police possession by way of parcel Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -11- through memo Ex.PCC/3 and rough site plan of this place of recovery Ex.PCC/4 was prepared. Similarly, the witness has proved interrogation of accused Sultan made on 2.2.2008 and disclosure statements Ex.PDD and Ex.PDD/1 and also recovery of a lathi Ex.P25 at his behest, whose rough sketch Ex.PDD/2 was prepared and taken into police possession by way of parcel through memo Ex.PDD/3 bringing on record site plan of this place of recovery Ex.PDD/4. This witness further illustrated interrogation of accused Balwan on the same very day and sufferance of disclosure statements Ex.PEE and Ex.PEE/1 which led to recovery of lathi Ex.P26 at his behest, whose rough sketch Ex.PEE/2 was prepared and was taken into police possession by way of parcel through memo Ex.PEE/3 and the rough site plan of this place of recovery Ex.PEE/4 was prepared.
PW17 ASI Ram Phal was examined lastly by the prosecution, who on the basis of daily diary register proved deposit of the case property proving entries Ex.PJ, Ex.PKK and Ex.PLL.
The prosecution has tendered reports of the Forensic Science Laboratory Ex.PB, Ex.PB1 and Ex.PB/2 and closed the evidence.
The evidence oral as well as documentary was put to each of the accused in their individually recorded statements under Section 313 Cr.P.C. who denied the allegations taking a plea of false implication. Accused Kuldeep and Nafe Singh also took a stand that it was the complainant side who assaulted them. Accused Udey Singh died during the trial and the proceedings against him abated vide order dated 20th February, 2009. Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -12- Accused in their defence tendered revenue documents Ex.DX and Ex.DY.
It was through judgment and order of sentence dated 13.3.2009/18.3.2009 the Court of learned Additional Sessions Judge (1), Jind convicted all the accused for commission of offences under Sections 302/323/325/148/149 IPC besides, which accused Nafe Singh and Kuldeep were also convicted under Sections 27/30 of the Arms Act and sentenced them as follows:-
Under Section 148 IPC All 11 accused were sentenced to undergo rigorous imprisonment for one year each and to pay a fine of `500/- each and in default of payment of fine to further undergo rigorous imprisonment for one month.
Under Section 302 read with All the accused were sentenced to Section 149 IPC. undergo rigorous imprisonment for life each and to pay fine of `10,000/- each and in default of payment of fine to further undergo rigorous imprisonment for one year.
Under Section 325 read with All the accused were sentenced to Section 149 IPC undergo rigorous imprisonment for two years each and to pay fine of `1000/-each and in default of payment of fine to further undergo rigorous imprisonment for two months.
Under Section 323 red with All the accused were sentenced to
Section 149 IPC undergo rigorous imprisonment for
six months each and to pay fine of
`200/- each and in default of
payment of fine further undergo
rigorous imprisonment for 15
days.
Under Sections 27/30 of Arms Act. Accused Nafe Singh and Kuldeep were sentenced to undergo rigorous imprisonment for seven years each and to pay fine of `1000/- each and in default of payment of fine to further undergo rigorous imprisonment for two months.
Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -13- It is against these findings the eleven convicts have come up in this appeal against their conviction.
We have heard learned senior counsel Mr. R.S. Cheema, and Mr. Vinod Ghai, assisted by Ms. Sumanjit Kaur and Mr. Simrandeep Singh Sandhu respectively and learned State counsel Mr. Sandeep Vermani and perused the record of the case.
From the intense arguments that have been vociferously made by the contesting sides it clearly permeates that the two sides admit that an occurrence has taken place on the date, time and place in which Yashpal has died, whereas, Ajmer PW11, Sanjay, PW9, Kadam PW10 and Kulwant were injured. Even in the suggestions put to PW9 complainant Sanjay, it is admitted that Sanjay, Yashpal, Ajmer and Manbir tried to illegally stop the accused side and attacked them. Further a suggestion has been put that in this occurrence Kuldeep accused has received injuries. Thus, the contention of the appellant's counsel that it is an exercise of right to private defence of the property of Nafe Singh and Kuldeep needs to be adjudicated.
PW1 Dr. Kishan Jangra, who conducted X-ray examination of injured Manbir and Ajmer on the basis of his reports Ex.PA, Ex.PA/1, Ex.PA/2 and X-ray films Ex.PA/3 to Ex.PA/5 has categorically stated that there was fracture of skull of Manbir and vide his report Ex.PA/2 has opined presence of radio opaque shadows in the left thigh. Thus, irrefutably it is clear that injured Ajmer has received firearm injury being pellets embedded in his body. PW3 Dr. Satvir Singh, by way of his affidavit Ex.PH who had initially medico legally examined deceased Yashpal has illustrated having observed five lacerated wounds on his person Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -14- bearing from right temporal region, right side of lower chest, right elbow area and posterior aspect of right arm. This witness has also medico legally examined injured Ajmer and had detailed seven lacerated wounds in aspect of little finger of right hand and left thigh. He has further illustrated the injuries discovered on the person of injured Kadam Singh by way of six contusions and one abrasion lending from left side of vertex, left shoulder, right shoulder, lower chest wall, right wrist joint, left leg and left hand. He has further proved injuries on the person of injured Kulwant Singh consisting of an abrasion on the right forearm. He also proved injuries on the person of injured Sanjay, detailing five lacerated wounds out of which two are lacerated wounds on the right frontal area, right parietal area and three contusions on the right arm and left arm. He has also proved injuries on the person of injured Manbir by way of lacerated wounds on the right frontal side of the head and blackening of right eye and base of nasal bone. This witness has also proved MLRs of Yashpal Ex.PJ; Ajmer Ex.PK; Manbir Ex.PL; Sanjay Ex.PM; Kadam Ex.PN and Kulwant Ex.PO and has serialised medical ruqas of these injured as Ex.PQ, Ex.PQ/1, Ex.PQ/2, Ex.PQ/3, Ex.PR and Ex.PR/1. It has been rightly pointed out on behalf of the State that in his cross- examination PW3 Dr. Satvir Singh has categorically stated that all the seven injuries on the person of injured Ajmer can never be caused by lathi or gandasi and were from close range being firearm injuries and there is mention of blackening on the margins of these injuries. There is positive averment that injury No.1 on the person of injured Manbir being lacerated is possible by blunt weapon. Therefore, by that evidence the use of weapon like Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -15- firearm and blunt weapon is certainly established. Another medical witness is PW6 Dr. Gopal Goyal, who has conducted post mortem examination on the dead body of Yashpal and has detailed the same by way of affidavit Ex.PR proving the police application for post mortem examination by way of Ex.PF and the post mortem report Ex.PG. He has also proved inquest report by way of Ex.PG. This witness has brought about fact that he found one bullet Ex.P1 and three pellets Ex.P2 to Ex.P4 in the body of deceased Yashpal, which were taken out, sealed and handed over to the police. Thus, ascribed the cause of death on account of injuries to vital organs comprising of brain which were ante mortem in nature and sufficient to cause death in ordinary course of nature. Thus, by this unrebutted evidence it clearly ensues that there was use of two types of firearms one which is akin to a .12 bore gun and other akin to a revolver/pistol. In the light of this stand of the defence, though, it is not of material consequence but the Forensic Science Laboratory's reports Ex.PB, Ex.PB/1 and Ex.PB/2 bear out that the shirt, baniyan, pants, underwear and cotton wool swab in respect of deceased Yashpal were stained with human blood. The Forensic Science Laboratory's report Ex.PB/1 further makes it clear that the clothes of Yashpal had firearm discharged residue and there were lead detected on the holes of the clothes and the weapons consisting of .12 bore DBBL gun and .32 bore revolver contained products of combustion of smokeless powder in their barrels and both the weapons were in a working condition and has further illustrated that missed fired cartridges and fired cartridges were used in these weapons. Thus, this evidence certainly lends credence to the arguments of the Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -16- prosecution that both these weapons have been used during the commission of this crime. The contention of the learned State counsel that these are not licenced weapons of accused Nafe Singh having been refuted by the appellant's counsel and which is well elaborated by PW2 Satbir Singh, Licence Clerk.
In the light of this admitted stand of the defence, testimonies of PW14 Harpal Singh Draftsman; PW15 ASI Ramesh Kumar; PW8 ASI Satpal Singh; PW7 HC Baldev Singh; PW5 EHC Rajinder Singh; PW4 HC Satpal Singh and PW17 ASI Ram Phal have not much relevance except the formality that these articles which were recovered during the course of investigations remained intact and that the post mortem examination was got conducted on the police request.
It has been forcefully submitted by the learned counsel for the appellants that the version given by the complainant Sanjay as to the injuries on the person of Manbir have not been proved to be caused by firearm as medical evidence contradicts it. Though, this submission appears to be highly inviting but delving deep into the evidence it has very well come in the statement of injured Manbir PW12 that accused Sultan and Bala gave him lathi blows and which is reiterated in the deposition of PW11 Ajmer son of Manbir as well as in the testimony of Kadam Singh PW10 and which fact is duly reiterated by complainant Sanjay PW9. However, PW1 Dr. Kishan Jangra, who conducted X-ray examination of injured Manbir had detailed on the basis of his report Ex.PA that there was fracture of the skull as reflected in the X-ray film Ex.PA/1 and there is nothing suggestive in his cross- examination as to the weapon by which this injury was caused. Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -17- PW3 Dr. Satvir Singh, who conducted medico legal examination of injured Manbir, the only semblance that has sought to be expounded by the appellants is that in his cross-examination this witness states that there is no history of firearm injury in respect of Manbir. However, that does not mean or can be construed so as has sought to be put forth on behalf of the appellants. All that has been detailed by PW3 Dr. Satvir Singh in the MLR Ex.PL of injured Manbir shows that this injury has been caused by a blunt weapon and, therefore, nothing suggests that it cannot be caused by a pellet/bullet, if it has just sneaked on the body of Manbir Singh. Moreover, it is humanly not possible to give detailed eye-witness account of such an occurrence minutely when there are large number of persons in two groups armed with different weapons.
It has come in the evidence of the Investigating Officer, Inspector Balwant Singh PW16 as to the arrest of accused Nafe Singh on 26th January, 2008 and on the basis of his disclosure statements Ex.PT and Ex.PT/1 which has led to recovery of .12DBBL gun Ex.P11 whose rough sketch Ex.PT/2 has been proved and was taken into police possession through memo Ex.PT/3 and is corroborated by site plan of place of recovery Ex.PT/4. Similarly, recovery of lathi Ex.P12 from accused Bala on 27.1.2008 on the basis of her disclosure statement Ex.PU, whose rough sketch Ex.PU/1, recovery memo Ex.PU/2 and site plan of place of recovery Ex.PU/3 were proved. This witness has proved the recovery of lathi Ex.P13 from the conscious possession of accused Tejbir on 30.1.2008 after this accused made disclosure statements Ex.PV and Ex.PV/1 and has proved its rough sketch Ex.PV/2 which was taken into police possession through memo Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -18-
Ex.PV/3 and has also proved site plan of this place of recovery Ex.PV/4. Similarly recovery of lathi Ex.P14 is proved at the behest of accused Hakikat on the basis of his disclosure statements Ex.PX and Ex.PX/1 through documents, Ex.PX/2, Ex.PX/3 and Ex.PX/4. Though, subsequently accused Udey Singh is reported to have died but on 30.1.2008 on the basis of his disclosure statements Ex.PY and Ex.PY/1 got recovered revolver Ex.P15 and six fired cartridges Ex.P16 to Ex.P21 which have been proved through documents Ex.PY/2, Ex.PY/3 and Ex.PY/4. The arrest of accused Lakhmi Chand, Kuldeep and Rishi Pal on 1.2.2008 has led to the recoveries of their weapons i.e gandansi Ex.P23 on the basis of disclosure statements Ex.PBB and Ex.PBB/1 of accused Rishipal proved through documents Ex.PBB/2, Ex.PBB/3 and Ex.PBB/4. Accused Lakhmi Chand on the basis of his disclosure statements Ex.PAA and Ex.PAA/1 got recovered lathi Ex.P22 brought about and proved by means of documents Ex.PAA/2, Ex.PAA/3 and Ex.PAA/4. It is on 2nd February, 2008 accused Hukmi and Sultan got recovered lathies Ex.P24 and Ex.P25 respectively on the basis of their disclosure statements Ex.PCC, Ex.PCC/1 and Ex.PDD, Ex.PDD/1 respectively and proved the same by way of documents Ex.PCC/2, Ex.PCC/3, Ex.PCC/4 and Ex.PDD/2, Ex.PDD/3, Ex.PDD/4 respectively. Lastly on the same very day while in police custody accused Balwan gave information by way of his disclosure statements Ex.PEE and Ex.PEE/1 and got recovered lathi Ex.P26 from his conscious possession proved on the record by way of documents Ex.PEE/2, Ex.PEE/3 and Ex.PEE/4. These weapons certainly are corelated to the injuries of all the injured. Though, in the initial stand of the complainant Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -19- Sanjay PW9 no role could be attributed to accused Sultan, Tejbir, Hakikat and Bala but subsequently, in the evidence it has clearly detailed that they had caused injuries to Manbir, Ajmer, Bhup and Nirmal with their lathies and it could not be controverted in the arguments or during the cross-examination of PWs. Thus, from this evidence of the Investigating Officer and that of attesting witness of the investigations, S.I. Surajbhan PW13 together with the ocular versions spelled out by PW9 to PW12 establishes beyond any doubt as to the presence and role of each of the accused in this occurrence. Mere submission that the autopsy report does not reflect on the body of Yashpal entry wound of firearm does not cuts much ice for the appellants and such death by firearm is well established by Dr. Gopal Goyal PW6, who conducted post mortem examination on the dead body of deceased Yashpal and had recovered bullet/pellets from his body which have been proved as Ex.P1 to Ex.P4 and which pellets have been corelated by the Forensic Science Laboratory's reports Ex.PB, Ex.PB/1 and Ex.PB/2 with the recovered ammunition and the firearms. Thus, the defence cannot avail of any benefit out of such an argument.
Though, on behalf of the appellants it has been astutely fortified that the revenue record by way of jamabandi Ex.DY shows the ownership and possession of accused Nafe Singh and his sons but the contention put forth on behalf of the State that it is a joint undivided/unpartitioned property could not be refuted and going through this document it clearly reflects that even the complainant side consisting of Manbir and others are also in occupation of part of this disputed land and there is no Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -20- comprehensive evidence led on the record by any of the sides as to the title to this plot of land or established legal succession over it which has led to this skirmish.
No doubt, in their stand the defence has taken up the plea of exercise of right of private defence but the overall evidence and the own stand of the complainant side shows that the accused side was raising construction on this disputed property and it was to stop them, the complainant side had come that too in large number and, therefore, goes to show and establish to the satisfaction of the Court that it was at this juncture has led to a sudden fight and there is no semblance of evidence that this unlawful sudden assembly of persons had all shared common object of causing death and injuries. There is nothing to even suggest that the members of this unlawful sudden assembly had any plan or meeting of mind to cause such an offence and it is at the spur of the moment has led to this occurrence. There was nothing unlawful prior to this assemblage and therefore, each of the individual is responsible for his individual acts except accused Kuldeep, who along with his father accused Nafe Singh had brought from their home a .12DBBL gun and a revolver both licenced weapons of accused Nafe Singh and out of which accused Nafe Singh has used .12DBBL gun and his son Kuldeep has used revolver directly hitting deceased Yashpal leading to his death. Thus, even if it is established that accused Kuldeep had received injuries in this occurrence where large number of persons have entered into a brawl, armed with weapons the prosecution is not always under the burden to prove the injuries on the person of an accused.
Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -21- The submission that it was in the exercise of right of private defence of the body and property of Nafe Singh is certainly off the tangent. Section 100 of IPC list the eventualities and occasions where such an exercise of the right can be made. Learned counsel for the appellants could not satisfy this Court by any evidence or otherwise that the accused harboured a reasonable cause of apprehension that by the assault of the opposite side death or other such consequences arise out of such an assault or likelihood of grievous hurt etc. as enumerated therein. More so, even the defence failed to establish cogently its legitimate possession or ownership on this disputed property. Therefore, to the mind of this Court right to private defence to cause death of Yashpal and injuries to other does not sustain and each of the person is responsible for his individual act. Since the firearm shot given by accused Kuldeep and Nafe Singh has led to the death of Yashpal, thus, they both are responsible for this murder and their conviction for the murder of Yashpal stands sustained. Both these accused having used licenced weapons to attain a sinister designed by committing such a heinous offence of murder are also liable for commission of an offence in terms of Section 27/30 of the Arms Act.
Since accused Udey Singh who has proved to have caused a fracture on the head of injured Manbir has died and other injuries on the person of injured are proved to be simple in nature, therefore, all the other accused are guilty of inflicting simple injuries to the injured Manbir, Ajmer, Sanjay, Kadam and Kulwant.
Keeping in view that all these accused are already in Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document CRA-D- 438-DB of 2009 & Crl. Revision No.1695 of 2009 -22- custody since the pronouncement of judgment, therefore, this Court to subserve ends of justice deem it essential to order that all these remaining accused shall suffer imprisonment already undergone by them. The appeal by convicts, thus, stands disposed off accordingly.
Since learned trial Court has exercised its discretion vested under Section 357 Cr.P.C. and the learned counsel for the revisionist could not show any illegality or perversity in these findings together with the circumstances detailed in the foregoing paras does not call for any indulgence by this Court. Moreover, revisionist is at liberty to invoke civil remedy to seek compensation if so advised. Consequently, the criminal revision preferred by the injured Kulwant Singh for enhancement of fine and for compensation to the heirs of deceased Yashpal also stands dismissed.
(HEMANT GUPTA) JUDGE (FATEH DEEP SINGH) 14.08.2013 JUDGE aarti Sharma Aarti 2013.12.17 15:29 I attest to the accuracy and integrity of this document