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Punjab-Haryana High Court

Jagdev Singh And Others vs State Of Punjab on 26 February, 2009

Author: Jora Singh

Bench: Jasbir Singh

Crl. Appeal No 94-DB of 2000.
& Crl. Revision No 564 of 2000.              1


IN THE HIGH COURT OF PUNJAB AND HARYANA AT
           CHANDIGARH.


                      Crl. Appeal No 94-DB of 2000.
                      DECIDED ON : 26.2.2009


Jagdev Singh and others

                                         Appellants.

                   VERSUS
State of Punjab

                                        Respondent.

                   Crl. Revision No 564 of 2000.
                   DECIDED ON : 26.2.2009


Gurnam Singh

                                         Appellant.

                   VERSUS

State of Punjab and others

                                        Respondents.



CORAM : HON'BLE MR. JUSTICE JASBIR SINGH.
        HON'BLE MR. JUSTICE JORA SINGH

Present: Mr. Vinod Ghai,Advocate, for
         appellants.

         Mr.D.S.Brar, Deputy Advocate
         General,Punjab.

         Mr.Bhupinder Pala Singh Dhillon,
         Advocate, for the revisionist.
             --

JORA SINGH,J.

Jagdev Singh son of Balbir Singh, Avtar Singh son of Lal Singh and Balbir Singh son of Dalip Singh through the Crl. Appeal No 94-DB of 2000.

instant appeal have impugned the judgment and order dated 8.2.2000, passed by Additional Sessions Judge, Barnala, in Sessions Case No. 15 of 1998, under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act, First Information Report No. 60 of 20.3.1998, Police Station Barnala, whereby the appellants-accused were convicted under Sections 302/34 of the Indian Penal Code and 27 of the Arms Act and were sentenced as under:-

"Accused Jagdev Singh was sentenced to undergo imprisonment for life for the commission of offence punishable under Section 302 of the Indian Penal Code and rigorous imprisonment for three years for the commission of offence punishable under Section 27 of the Arms Act.

                         Accused Avtar Singh was sentenced

               to undergo     imprisonment for life            for the

               commission     of    offence     punishable      under

Section 302 read with section 34 of the Indian Penal Code.

                         Accused       Balbir     Singh             was

               sentenced to undergo       imprisonment for life

for the commission of offence punishable under Section 302 read with section 34 of the Indian Penal Code"

Gurnam Singh filed Criminal Revision No. 564 of Crl. Appeal No 94-DB of 2000.

2000 to impugn the judgment/order dated 8.2.2000 that appellants-accused Jagdev Singh, Avtar Singh and Balbir Singh be awarded death penalty, in the interest of justice.

Prosecution story, in brief, is that Gurnam Singh complainant is the resident of village Khudi Kalan. He had three sons; Mitha Singh was the eldest and was residing separately. Jagdev Singh and Sukhdev Singh the other two sons were residing with the complainant. On 20.3.1998 in the morning, Tarlochan Singh of village Phulewal dealing in the trade of wheat chaff, struck a bargain of wheat chaff with the complainant party. He had parked his tractor- trolley near "Rori"near village pond known as kotwala. Mitha Singh and Sukhdev Singh started loading trolley with wheat chaff. Complainant also came near the trolley at about 12.30 P.M. Sukhdev Singh after unloading the bundle of wheat chaff in the trolley came near the complainant and started talking. Mitha Singh also came close to the complainant. In the meantime, Jagdev Singh alias Jag son of Balbir Singh armed with a .12 bore double barrel gun, Avtar Singh alias Tari son of Lal Singh armed with 12 bore single barrel gun and Balbir Singh alias Bira son of Dalip Singh armed with a stick were sighted. They came from the side of the field of Balbir Singh. Balbir Singh raised a lalkara that Sukhdev Singh should not be spared and then Jagdev Singh fired a shot with his .12 bore double barrel gun which hit Sukhdev Singh in his chest. Avtar Singh raised a lalkara Crl. Appeal No 94-DB of 2000.

that Sukhdev Singh be not spared. Jagdev Singh again fired a shot hitting the left arm of Sukhdev Singh. On receipt of fire arm injuries. Sukhdev Singh fell down. Complainant and his son raised raula, then all the accused had fled away from the spot with their respective weapons.

Motive to commit the crime was that during election of Parliament, complainant party had supported Surjit Singh Barnala, whereas the accused party had pressurised the complainant party to cast their vote in favour of Mann party. One day before the election, accused had manhandled Sukhdev Singh and threatened that if the complainant party supported Surjit Singh Barnala, then they will see him (Sukhdev Singh). Complainant party had supported Surjit Singh Barnala. Mitha Singh was deputed to guard the dead body. Gurnam Singh had gone to lodge report.

Police party headed by Nachhattar Singh, Sub Inspector was present near the Electricity grid of Handiaya where Gurnam Singh had met the police party. Statement of Gurnam Singh was recorded. Statement was read over and explained to Gurnam Singh, who put his thumb mark in token of its correctness.

After making endorsement, statement was sent to the Police Station, on the basis of which, formal First Information Report was recorded at 2.40 P.M. on 20.3.1998.

Special report was received by the Ilaqa Magistrate Crl. Appeal No 94-DB of 2000.

at 5.15 P.M. Police party headed by Nachhatter Singh Sub Inspector along with Gurnam Singh complainant had gone to the spot where dead body was lying. Inquest report was prepared. Blood stained earth was lifted from the spot and made into a parcel sealed with the seal bearing impression "NS" and parcel was taken into police possession vide memo attested by the witnesses. Two empty cartridges were lifted from the spot and made into a parcel sealed with the seal bearing impression "NS" and parcel was then taken into police possession vide memo attested by the witnesses. Rough site plan with its correct marginal notes was prepared. Dead body was sent to Hospital for post-mortem examination. After post-mortem examination, Head Constable Gulzar Singh had produced sealed parcels before Sub Inspector Nachhattar Singh. Parcels were taken into police possession vide separate memo attested by witnesses. On return to the police station, case property was deposited with the MHC.

On 31.3.1998, investigation of the case was with Inspector Harbans Singh who along with the police party had gone to village khudi Kalan in connection of this case but near Railway crossing, Jagdev Singh was sighted, while carrying .12 bore gun. Jagdev Singh was apprehended. Gun along with two live cartridges recovered from Jagdev Singh were separately sealed with the seal bearing impression "HS". Sealed parcels were also taken into police possession Crl. Appeal No 94-DB of 2000.

vide separate memos. Licence and 13 cartridges were also recovered from the accused being carried in jhola. Licence and cartridges were taken into police possession vide separate memo attested by the witnesses. On return to the police station, case property was deposited with the MHC.

After the completion of investigation, Jagdev Singh accused was challaned.

Case was committed to the Court of Session, Barnala, for trial.

After hearing Public Prosecutor for the State and learned defence counsel for the accused and perusal of documents on the file, trial Court opined that a prima facie case under Section 302 of the Indian Penal Code was made out against the accused-appellant to which the accused pleaded not guilty and claimed trial.

After some evidence, prosecution moved an application under Section 319 Cr.P.C. to summon Avtar Singh and Balbir Singh which was allowed. Avtar Singh and Balbir Singh were ordered to be summoned to face trial along with co-accused Jagdev Singh Accused were charged under Sections 302/34 of the Indian Penal Code and 25 of the Arms Act to which they pleaded not guilty and claimed trial.

In order to substantiate the charges, the prosecution examined PW-1 Dr. Tarloki Nath. He had conducted post-mortem examination on the dead body of Crl. Appeal No 94-DB of 2000.

Sukhdev Singh on 20.3.1998 at 6.15 P.M.and found the following injuries on his person:-

1. "Lacerated wounds about 20 in numbers .75 x .75 cm. in size, margins inverted with blackening and were present over an area of left side of chest extending from left nipple to posterior of auxiliary line and from left shoulder to costal margins left side.

On dissection there was fracture of 4th rib on left side. The thoracic cavity was full of blood on left side. Left lung was punctured at multiple sides and heart was punctured at left ventricle and left auricle about 14 number of small pellets were removed from the lung and heart and were sealed.

2. Lacerated wound 5 cm x 4 cm size, was present at the left cubical fossa of left upper limb. Margins were inverted at some places irregular, blackening of was present and the underlying tendons and vessels were damaged. It was surrounded by multiple injuries of small pellets . Pieces of khol wads was recovered from the cubical fossa and Crl. Appeal No 94-DB of 2000.

was sealed."

Cause of death as per opinion of the doctor was due to shock and haemorrhage, as a result of injury No.1. Injuries were ante mortem in nature and sufficient to cause death in ordinary course of nature. Probable duration that elapsed between the injuries and death was within minutes and between death and post-mortem was within 12 hours.

           PW-2    Gurnam Singh is the complainant         eye

witness.

PW-3 Mithu Singh is the second eye witness. Both on oath stated that they along with Sukhdev Singh deceased were present near the tractor trolley near the Kot wala pond, then sighted Jagdev Singh armed with .12 bore double barrel gun, Avtar Singh armed with 12 bore single barrel gun and Balbir Singh armed with a stick, Avtar Singh and Balbir Singh raised a lalkara. Jagdev Singh had fired twice from his gun hitting Sukhdev Singh. After committing the crime, when raula was raised then accused had fled away from the spot.

PW-4 Nachhattar Singh is the investigating Officer. He had recorded the statement of Gurnam Singh and after that had prepared inquest report. Rough site plan with correct marginal notes was prepared.

PW-5 Constable Malkiat Singh had delivered special report to Ilaqa Magistrate at 5.15 P.M. PW-6 Inspector Harbans Singh had partly Crl. Appeal No 94-DB of 2000.

investigated the case. He had arrested Jagdev Singh one of the accused on 31.3.1998 while carrying gun and cartridges.

PW-7 ASI Malgar Singh was with the party of Nachhattar Singh at the time of investigation.

PW-8 Sunil Kumar Photographer had taken photographs of the dead body from different angles.

PW-9 MHC Nirmal Singh had tendered his affidavit Ex.PO.

PW-10 Constable Bharpur Singh had tendered his affidavit Ex.PP.

After the close of prosecution evidence, the accused were examined under Section 313 Cr.P.C. to explain the allegations levelled against them. They denied all the allegations and claimed to be innocent. Defence version of the accused was that they are innocent. Mitha Singh was not present at the time of occurrence. There was a function in the house of Pritam Singh son of Jagjit Singh, Balbir Singh and Avtar Singh were present in the function. Function started at 10 A.M. and continued upto 4 P.M. Gurnam Singh came to Barnala in the morning. Intimation was given to Gurnam Singh, then he had gone to Police Station Sadar Barnala where First Information Report was fabricated at about 5 P.M. Defence version of Balbir Singh and Avtar Singh was that they were present in the house of Pritam Singh to attend the betrothal ceremony. Mitha Singh was also in the Crl. Appeal No 94-DB of 2000.

house of Pritam Singh. Function continued upto 4 P.M. After inquiry, they were found innocent.

In defence, Jagjit Singh father of Pritam Singh appeared and stated that there was a function in his house. Function had started at 10 A.M. Bhog ceremony was complete at 11.30 A.M., after Bhog ceremony, there was a Sagan ceremony and Sagan ceremony, was complete at 1 P.M. After Sagan ceremony, liquor was served to the guests. One person came and informed the Sarpanch that one person is lying murdered at some place. Several persons including Mitha Singh and Hardev Singh had gone to that place.

DW-2 Hardev Singh has supported the version of DW-1 Jagjit Singh by saying that there was a function in the house of Jagjit Singh. Function was over at about 1 P.M. After that, liquor was being served to the invitees, there was a cultural programme also. One person dealing in the purchase of chaff came and reported that some person has murdered Sukhdev Singh. He along with Mitha Singh and had some other persons had gone to the spot. Gurnam Singh was not present. He was summoned from Barnala. After one hour, police came.

After hearing learned Public Prosecutor for the State, the defence counsel and also from the perusal of evidence, were convicted and sentenced, as stated above.

Feeling aggrieved against the judgment/order dated 8.2.2000, the present appeal has been preferred by the Crl. Appeal No 94-DB of 2000.

appellants-accused.

We have heard Mr. Vinod Ghai, Advocate, learned counsel for the appellants, Mr. D.S.Brar, Deputy Advocate General, Punjab and Mr. Bhupinder Pal Singh Dhillon, Advocate for the revisionist and have gone through the file very carefully and thoroughly.

Learned defence counsel for the appellants argued that there was a function in the house of Jagjit Singh. Firstly, there was a bhog ceremony. After bhog ceremony, there was a sagan and ceremony was complete at 1 P.M. After that ceremony, liquor was served to the guests. There was a cultural programme Mitha Singh, PW, Avtar Singh and Balbir Singh appellants had attended the ceremony. They were in the house of Jagjit Singh. Gurnam Singh complainant in the morning had gone to Barnala. One person dealing with the chaff had gone to the house of Jagjit Singh and reported that someone has murdered Sukhdev Singh. On receipt of information Mitha Singh and Hardev Singh had gone to the spot. Presence of Gurnam Singh and Mitha Singh at the time of occurrence is doubtful. There was an enquiry, in which Avtar Singh and Balbir Singh appellants were found to be innocent. Avtar Singh as per story of prosecution was armed with 12 bore single barrel gun and Balbir Singh was armed with a stick, but they did not cause injury either to the deceased or the prosecution witnesses. There was a party faction amongst the parties. If appellants- Crl. Appeal No 94-DB of 2000.

accused with common intention had gone to the spot to murder Sukhdev Singh because the complainant party had supported Surjit Singh Barnala, then Avtar Singh and Balbir Singh should have also caused injuries to the deceased or to the alleged eye witnesses. Gurnam Singh is the father of the deceased. Mitha Singh is the real brother of the deceased. Nothing on the file that appellants-accused were inimical towards the deceased. If there was a party faction as per prosecution story, then Gurnam Singh and Mitha Singh were also inimical towards the appellants-accused because complainant party was supporting Surjit Singh Barnala, whereas appellants-accused were the supporter of Mann group and were pressurizing the complainant party not to support Surjit Singh Barnala group then why only Sukhdev Singh was attacked.

Learned counsel for the appellants-accused argued that only one shot was fired. If prosecution story is correct one, then on receipt of first shot, deceased was not expected to stand. On receipt of first shot, deceased was bound to fall, while lying on the ground second shot was not possible on the left arm. In fact only one shot was fired, if as per story Jagdev Singh had fired twice then no question of empties on the spot. Empties are to fall on the spot in case, gun is re- loaded. Recovery of empties shows that presence of Gurnam Singh and Mitha Singh is doubtful. In-fact, some unknown persons had fired shot hitting Sukhdev Singh but due to Crl. Appeal No 94-DB of 2000.

party faction, appellants-accused were falslely implicated.

Mr. D.S.Brar, Deputy Advocate General, Punjab argued that complainant party was supporter of Surjit Singh Barnala group. Appellants-accused were the supporter of Man group. Before parliament election, appellants-accused had threatened Sukhdev Singh not to support Barnala group. There was a motive to commit the crime Tarlochan Singh dealing in the business of chaff had contacted the complainant party. Tractor-trolley of Tarlochan Singh was parked near the "Rori" of the village. Chaff was being loaded in the trolley by Mitha Singh and Sukhdev Singh. Gurnam Singh was also present near the tractor trolley. Appellants- accused fully armed came near the tractor trolley. On the instigation of Avtar Singh and Balbir Singh, Jagdev Singh had fired twice hitting Sukhdev Singh. Presence of Gurnam Singh and Mitha Singh was natural. According to the defence version, there was a function in the house of Jagjit Singh Function was over at 1 P.M. Photographs on the file no where show that there was a cultural programme after sagan ceremony. According to the defence, someone had reported that Sukhdev Singh was murdered by somebody. On receipt of information, Mitha Singh and Hardev Singh had gone to the spot but Jagjit Singh no where stated that appellant- accused Jagdev Singh was present in his house to attend bethrothal ceremony. DW-2 Hardev Singh had stated that someone informed while coming to the house of Jagjit Singh Crl. Appeal No 94-DB of 2000.

that Sukhdev Singh was murdered by somebody. Then, he along with Mitha Singh had gone to the spot where dead body was lying. Gurnam Singh was summoned from Barnala, After about one hour, police came whereas the appellants- accused when examined under Section 313 Cr.P.C. stated that Mitha Singh, Balbir Singh and Avtar Singh were in the function in the house of Jagjit Singh and function continued upto 4 P.M. Gurnam Singh had gone to Barnala and on receipt of information, he had gone to Police Station Sadar, Barnala, where First Information Report, was fabricated. No witness in defence appeared to state that he had seen Gurnam Singh in Barnala city in the morning on the day of occurrence. Murder during day time so, there was no idea to leave the real culprits.

First submission of the learned defence counsel for the appellants-accused was that complainant party had no motive to commit the crime because there was a party faction amongst the complainant party and the appellants-accused. Jagdev Singh appellant-accused was armed with .12 bore double barrel gun, Avtar Singh was armed with 12 bore single barrel gun and Balbir Singh was armed with a stick, but only Jagdev Singh had fired shot with his gun. If appellants-accused had the motive, then Avtar Singh and Balbir Singh should have caused injuries to the deceased or to the eye witnesses, but we are not in a position to agree with the submission of learned defence counsel. Allegation of Crl. Appeal No 94-DB of 2000.

the complainant party is that they were supporting Barnala group but the accused party had supported Mann group and was pressurising the complainant party not to support Barnala group. Before the parliament election. Sukhdev singh deceased was threatened by the appellants-accused not to support Barnala group. No suggestion to any witness that appellant-accused were the supporters of Mann group and the complainant party was the supporter of Barnala group. DWs while appearing in the Court did not state a word that there was party faction amongst the parties. Evidence on the file shows that complainant party was the supporter of Barnala group. Appellants-accused were supporting Mann group. There was enmity. Enmity is a double edged weapon. Due to previous enmity, there was possibility to implicate the appellants-accused. At the same time, there was possibility to commit the crime. When there is a direct evidence, then motive is not material. Sometime without motive, serious crimes are committed. In case, there was no previous enmity, then question is why the appellants-accused were named because the complainant party and the appellants-accused are from the same village.

Second submission of the learned defence counsel was that presence of Gurnam Singh complainant and Mitha Singh PW at the time of occurrence is doubtful. In fact, in the morning of 20.3.1998,Gurnam Singh had gone to Barnala. Mitha Singh was in the house of Jagjit Singh to attend Crl. Appeal No 94-DB of 2000.

function. Avtar Singh and Balbir Singh were also in the house of Jagjit Singh, who appeared as DW-1. If intention of the appellants-accused was to murder, then some injuries were expected to have been caused by Avtar Singh and Balbir Singh. Only two shots were fired by Jagdev Singh hitting the deceased. If Gurnam Singh and Mitha Singh were near the deceased then some pellets should have hit the alleged eye witnesses. Secondly, after first shot had hit the deceased then deceased was bound to fall second shot in the left arm was not possible while lying on the ground. All this shows that occurrence was not witnessed by Gurnam Singh and his son Mitha Singh.

We have considered the submission of learned defence counsel and are of the opinion that submission of defence counsel carries little weight. Gurnam Singh is the father of the deceased. Mitha Singh is the brother of the deceased. On the day of occurrence, Tarlochan Singh had contacted the complainant party to purchase chaff. Tractor trolley of Tarlochan Singh was parked near the pond. Mitha Singh and Sukhdev Singh were loading chaff in the trolley. No witness in defence appeared to state that in the morning on 20.3.1998, Gurnam Singh was seen in City Barnala. City Barnala is about seven kilometer from the place of occurrence. If we presume that Gurnam Singh came to City Barnala in the morning then at about 12.30 P.M., Gurnam Singh was expected to be in his village. Mitha Singh was in Crl. Appeal No 94-DB of 2000.

the village as per defence version, but at the time of occurrence, he was in the house of Jagjit Singh but presence of Gurnam Singh and Mitha Singh at the time of occurrence is natural. According to the defence version one person dealing in the sale purchase of chaff came to the house of Jagjit Singh and reported that Sukhdev Singh was murdered by someone. That means on the day of occurrence, Tarlochan Singh was in the village. Story qua purchase of chaff from the complainant party is natural. If Tarlochan Singh was not in the village to purchase chaff then how he had gone to the house of Jagjit Singh to report that Sukhdev Singh was murdered by some one. Tarlochan Singh could easily be produced in defence to state that Sukhdev Singh was not murdered by the accused party. DW1 Jagjit Singh and DW2 Hardev Singh no where stated that at the time of occurrence, Jagdev Singh was in his house to attend function. They simply stated that Avtar Singh and Balbir Singh were present in his house to attend function. From the complainant side, Mitha Singh was attending the function. Jagdev Singh when examined under Section 313 Cr.P.C. then failed to state where he was at the time of occurrence. When Tarlochan Singh had purchased chaff from the complainant party then complainant party was expected to load the chaff in the trolley. No suggestion to the PWs that someone- else were loading chaff in the trolley. If Mitha Singh and Sukhdev Singh were not loading chaff in the Crl. Appeal No 94-DB of 2000.

trolley then in defence some respectable persons from the village could easily appear to state that such and such persons were loading chaff in the trolley and not Mitha Singh and Sukhdev Singh. Occurrence was in the residential area of Khudi Kalan at about 12.30 noon. Very strange that some un-known person after murder had fled away from the spot and no one noticed. No respectable from the village appeared in defence to state that Jagdev Singh did not fire hitting the deceased. According to the story, first shot fired by Jagdev Singh had hit in the chest of Sukhdev Singh; second fire had hit the left arm, but no evidence on the file that Gurnam Singh and Mitha Singh were at a distance of only few inches from the deceased. Gurnam Singh was near the tractor, chaff was being loaded in the trolley. Distance of the front tyres of the tractor from the rear portion of the trolley cannot be less than ten feet. If Gurnam Singh was near the tractor that he was not expected to receive pellets, when there was close range firing by Jagdev Singh. Mitha Singh had also gone near the complainant when chaff was being loaded but again nothing on the file that Mitha Singh was at a distance of one or two feet from Sukhdev Singh when there was a firing. When eye witnesses were at a distance of few feet from the victim then eye witnesses were not expected to receive pellets when there was firing hitting the victim. Two empties were lifted from the spot. Jagdev Singh had fired twice from his double barrel gun. Empties are to fall on the ground when Crl. Appeal No 94-DB of 2000.

there is an effort to re-load the gun, but nothing on the file that gun was not re-loaded by Jagdev Singh. After firing, accused party had fled away from the spot with their respective weapons. Presence of two empties on the spot was natural because with double barrel gun shot was repeated. If no injury on the person of eye witnesses and there is recovery of two empties from the spot, then nothing to presume that presence of Gurnam Singh and Mitha Singh is doubtful. If we presume that Mitha Singh had attended function in the house of Jagjit Singh. Photographs no where show that after sagan ceremony there was cultural programme. According to the defence version Sagan ceremony was over at about 1 P.M. According to the story, occurrence was at about 12.30 P.M. Time was approximately given. Dr. Tarolk Nath had categorically stated that injuries on the person of Sukhdev Singh cannot be with one shot. Presence of Gurnam Singh and Mitha Singh at the time of occurrence was natural because as per contract with Tarlochan Singh, chaff was being loaded in the trolley.

Last submission of learned defence counsel for the appellants-accused was that presence of Avtar Singh and Balbir Singh at the time of occurrence is doubtful because they were armed but they did not cause injury either to the deceased or to the eye witnesses. Weapons were not recovered from them. After investigation, they were found innocent and were not challaned. Submission of learned defence counsel Crl. Appeal No 94-DB of 2000.

for the appellants-accused seems to be correct one.

As discussed earlier, Avtar Singh was armed with 12 bore single barrel gun and Balbir Singh was armed with stick. Balbir Singh is father of Jagdev Singh appellant- accused. Avtar Singh is the nephew of Balbir Singh. If Avtar Singh and Balbir Singh fully armed came to the spot with Jagdev Singh, then why they did not cause injury to the deceased or the eye witnesses. Party faction was amongst the appellants-accused and Sukhdev Singh. Sukhdev Singh is the real brother of Mitha Singh son of Gurnam Singh complainant. If Sukhdev Singh had enmity with the appellants-accused then Avtar Singh and Balbir singh had also enmity with the complainant party. Due to enmity, if intention was to commit the crime, then Avtar Singh and Balbir Singh were expected to cause injuries to the deceased or the PWs. As per evidence, there was a lalkara by Avtar Singh ,then Jagdev Singh fired a shot hitting Sukhdev Singh. Then Balbir Singh raised a lalkara then second shot was fired by Jagdev Singh hitting the deceased. In case, Avtar Singh and Balbir Singh were very much present at the spot and had raised lalkara, then Avtar Singh and Balbir Singh could easily cause injuries. There was no idea to instigate Jagdev Singh to fire. If Jagdev Singh had fired shots hitting the deceased then Avtar Singh and Balbir Singh could cause injury either to Gurnam Singh and Mitha Singh. As per defence, Avtar Singh and Balbir Singh were in the house of Crl. Appeal No 94-DB of 2000.

Jagjit Singh DW. Mitha Singh was also in the house of Jagjit Singh to attend the function. There was no suggestion to the DWs that Avtar Singh and Balbir Singh were not present in the house of Jagjit Singh. Suggestion was given to Jagjit Singh DW1 and Hardev Singh DW-2 that they were pressurizing Sukhdev Singh to support Mann group. Last suggestion to DW1 was that function was over at 10.30/ 11 A.M. Photographs on the file show that Avtar Singh and Balbir Singh were in the house of Jagjit Singh to attend function. Photographs and the evidence on the file shows that there was a function in the house of Jagjit Singh and the function was attended by Avtar Singh, Balbir Singh and Mitha Singh. There was an enquiry, Avtar Singh and Balbir Singh were found innocent. But later on, they were summoned in view of the application under Section 319 Cr.P.C. If we presume that Avtar Singh and Balbir Singh were present at the time of occurrence, even then they are not to be convicted under Sections 302/34 of the Indian Penal Code because story qua raising of lalkara one after the other for causing injuries by Jagdev Singh seems to be not natural one. Avtar Singh and Balbir Singh had not caught hold of the deceased, in case, they were really present at the time of occurrence. Avtar Singh and Balbir Singh were implicated being related to Jagdev Singh main accused.

Under Section 302 of the Indian Penal Code, Jagdev Singh was ordered to undergo imprisonment for life. Present Crl. Appeal No 94-DB of 2000.

case is not rarest of the rare case, where death penalty is to be awarded.

In view of all discussed above, appeal on behalf of Avtar Singh and Balbir Singh is accepted. They are acquitted of the charge levelled against them.

Appeal on behalf of Jagdev Singh is dismissed. Criminal Revision No. 564 of 2000 to enhance punishment is also dismissed.

( JORA SINGH ) JUDGE ( JASBIR SINGH ) 26.2.2009 JUDGE Anoop