Punjab-Haryana High Court
Jagdev Singh vs State Of Punjab on 7 January, 2009
Author: K.S.Garewal
Bench: K.S. Garewal
Crl. Appeal No. 80 DB of 2001 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No. 80 DB of 2001
Date of decision: January 7, 2009
Jagdev Singh ...Appellant
Versus
State of Punjab ...Respondent
CORAM:- HON'BLE MR. JUSTICE K.S. GAREWAL
HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Vinod Ghai, Advocate,
for the appellant.
Ms. Gurveen Singh, Additional Advocate General, Punjab.
K.S.GAREWAL, J.
Jagdev Singh @ Jangi-appellant herein was tried for the murder of Navdeep Singh who was shot in the face on November 26, 1998 at 6 p.m. outside Jagdev Singh's shop. Navdeep Singh died on the spot. The learned Additional Sessions Judge, Jalandhar, found Jagdev Singh guilty of murder and convicted him under Section 302 IPC as well as under Section 27 of the Arms Act. Gurdev Singh was sentenced to life imprisonment and to pay fine of Rs. 5,000/- there was also a concurrent sentence of 5 years under Section 27 of the Arms Act as well as fine.
Navdeep Singh deceased was a student of M.A. Part-I in Khalsa College, Jalandhar. Apparently, there had been a quarrel between Crl. Appeal No. 80 DB of 2001 2 him and Jagdev Singh-appellant. On November 26, 1998, Navdeep Singh's uncle Nirmal Singh (PW-3) and Sarpanch Pal Singh (PW-4) had come to meet him in the college. He told them about his quarrel with the appellant. Thereupon Navdeep Singh, Nirmal Singh and Pal Singh went to the appellant's shop in Nakodar chowk. The appellant was told that nothing would come out of the quarrel between him and the deceased. But the appellant threatened to kill them. The deceased, Nirmal Singh and Pal Singh came out of the shop. The appellant took out his gun and fired at the deceased. The shot hit the deceased's left cheek, as a result of which he fell down and died.
The matter was reported to the police by Nirmal Singh and the FIR was registered at the Police Station, Division 6, Jalandhar, on the basis of Nirmal Singh's statement concluded at 8.30 p.m., formal FIR was recorded at 8.45 p.m. Investigation was taken up by the Inspector Manjit Singh (PW-
9) who conducted inquest on the dead body and then sent it for the post- mortem examination, which was carried out by Dr. K.S. Bawa at Civil Hospital, Jalandhar, on November 27, 1998 at 11.15 a.m, who found the following injuries on the deceased:-
"1. Circular punctured wound 1 cm in diameter with inverted margins on the left cheek 5 cms below middle of left eye. Blacking around the wound was present. On probing and dissection, underlying bone fractured, underlying muscles nervous and blood vessels were torn. The probe led to the wound on the back of scalp on right side.Crl. Appeal No. 80 DB of 2001 3
2. This wound was lacerated 20 cms x 7 cms 13 cms from the forehead extending upto neck with verted margins. Brain matter was coming out with thick black clotted blood. Dissection of skull revealed brain matter was extensively lacerated.
3. 2 cm x 1 cm lacerated wound on the right hand thumb.
4. 2 cm x 1 cm abrasion on the outer aspect of left arm 10 cm below left elbow."
In the opinion of the Medical Officer the cause of death was shock and haemmorahage due to injuries 1 and 2 which were sufficient to cause death in the ordinary course of nature. Probable time between injuries and death was immediate and between death and post-mortem was within 24 hours.
Investigation at the spot led to the collection of blood stained earth and preparation of a rough site plan of the place of occurrence. The accused was arrested soon thereafter and at the time of his arrest he was carrying his .315 bore rifle, a spent and five live cartridges and his licence. The rifle was taken into possession alongwith spent/live cartridges.
After completion of the investigation, the accused was sent up for trial. At the trial, charge was framed against the accused under Section 302 IPC and under Section 27 of the Arms Act to which he pleaded not guilty and claimed trial. The main witnesses examined by the prosecution were Nirmal Singh (PW-3), Sarpanch Pal Singh (PW-4), Dr. K.S.Bawa (PW-8) and Inspector Manjit Singh (PW-9).
Report of the Forensic Science Laboratory confirmed the Crl. Appeal No. 80 DB of 2001 4 presence of blood on the sample of earth and also confirmed that .315 cartridge case had been fired from 3.15 rifle 94AB-4694. This was the very rifle that had been recovered from the possession of the appellant on November 26, 1998.
The accused was examined without oath under Section 313 Cr.P.C. He denied the prosecution evidence against him, pleaded innocence and gave his counter-version, which is as under:-
"On the day of occurrence at about 1 p.m. there was altercation between my servant Dalbir Singh and Navdeep Singh deceased in front of my shop. I intervened and there was altercation between me and the deceased and the later warned me that he would teach me a lesson for abusing him and insulting him. At about 5.30 p.m. on the same day, the deceased Navdeep Singh armed with kirpan alongwith Kuldip Singh, Sukhwinder Singh and Gurbinder Singh and others armed with deadly weapons entered my shop and started breaking furniture and other articles lying there. I came down from my chaubara and requested them not to behave in that manner, but they did not accede to my request. The deceased who was armed with kirpan, attempted to give kirpan blow on my head, which I warded off with my hands and the blow struck from the blunt side on my finger. In the meanwhile Navdeep Singh deceased picked up my 12 bore licenced gun from the shop and attempted to fire at me. My servant Dalbir Singh in order to save me took the rifle of .315 bore on which there was scuffle Crl. Appeal No. 80 DB of 2001 5 between deceased and my servant and .315 bore licenced gun went off accidentally and the deceased was injured, Pal Singh and Nirmal Singh were not present there. A number of persons from the locality and shop keepers collected there and witnessed the occurrence. Cross case was registered against Gurbinder Singh, Kuldip Singh and Sukhwinder Singh, which is pending in the lower court. My .12 bore licenced gun was also taken away by Kuldip Singh.
The accused was called upon to enter defence and examined Gurmit Singh (DW-1), a shop keeper whose shop adjoins the shop of the accused. Gurmit Singh corroborated the counter version pleaded by the accused. Dr. Jasbir Singh (DW-2) testified that he had medico legally examined Jagdev Singh @ Jangi on November 27, 1998 at 2.50 p.m. at Civil Hospital, Jalandhar, and found the following injuries:-
"Lacerated wound 1 x .25 x .25 x .25 cms on the back of proximal phalanx of right index finger. Clotted blood was present. "
The injury was simple and had been caused by a blunt weapon. Ahlmad Gurinder Singh (DW-3) of the court of Judicial Magistrate Ist Class, Jalandhar, produced the file entitled State Vs. Gurbinderjit Singh pertaining to the same FIR. Lastly, Shri P.K. Uppal, SP City-I, Jalandhar, appeared as DW-4, who testified regarding the inquiry conducted by him on the basis of an application filed by the appellant's wife Harjinder Kaur. Shri Uppal produced his report exhibit DE dated April 20, 1999 where he found that offence under Sections 324/452/380/148/149 IPC had been committed Crl. Appeal No. 80 DB of 2001 6 by Gurinderjit Singh @ Ruka, Sukhwinder Singh and Kuldip Singh who had gone to the appellant's shop and attacked him.
The learned Additional Sessions Judge rejected the defence version and held as under:-
"There was previous enmity between the parties as according to both the eye witnesses it was disclosed by the deceased that he had been insulted by the accused and in connection therewith they had gone to the accused. It was not a sudden fight and it cannot be held that this offence was caused without any pre- meditation. It was very much clear from the statements of these witnesses that after they lodged a protest they came out of the shop and it was only thereafter that the accused took out a gun from a shop and after coming out fired at the deceased. By no stretch of imagination it can be held that it was the accused party who was the aggressor. The grappling between the parties does not stand proved. It is very much clear from the evidence produced by the prosecution that the accused fired at the deceased with the intention to kill him. His action is not covered by any of the exceptions contained in Section 300 IPC and the offence squarely falls under Section 302 IPC and not under part (2) of Section 304 IPC. Therefore, this point is decided against the accused and in favour of the prosecution."
In appeal, it has been argued that the place of occurrence was the shop of the accused, therefore, until the deceased and the two witnesses reached there, the accused cannot be said to be the aggressor. Nirmal Singh Crl. Appeal No. 80 DB of 2001 7 (PW-3) and Pal Singh (PW-4) belonged to a village nearly 40 km away. They had come to Jalandhar and accompanied the deceased to the shop with an aggressive intent and must be held to be the aggressors.
A cross case was registered against the three persons on the basis of the complaint filed by Harjinder Kaur, wife of the accused. Furthermore, the wound on the cheek of the deceased revealed that there was blackening which indicated that it was a contact wound from close range. There had been some grappling between the deceased and the person who fired the shot. The offence was not murder but at best manslaughter punishable under Section 304 IPC.
We are unable to agree with the defence version putforth in the appeal. If the appellant had acted in exercise of his right to private self- defence of his person and property then it was for him to prove his defence because law places the burden of proof on him. The appellant never pleaded self-defence in the first instance, soon after the occurrence. Once the appellant had been arrested there were many opportunities for him to accept that he had shot the deceased in the face when the deceased had attacked him.
The accused may take contradictory or false pleas but no court can accept a defence plea which is an afterthought. Private self-defence was not even pleaded during the trial. This defence was also not taken during the cross-examination of the eye witnesses, no suggestion was put to them that the accused had fired in his self-defence. Even in the statement under Section 313 Cr.P.C., the accused did not not accept that he had fired the shot in his defence. In this statement the accused had said that his servant Crl. Appeal No. 80 DB of 2001 8 Dalbir Singh had taken up the rifle in order to save him and it was during the scuffle between Dalbir Singh and the deceased that the gun had gone off accidentally. Such a plea is not a plea of self-defence but a counter version. Even this counter version was never pleaded during the trial, it was revealed when the statement of the accused under Section 313 Cr.P.C. was recorded.
We are not convinced that the accused had acted in self defence or that the deceased was the aggressor who was accidentally shot by Dalbir Singh during a scuffle. Much stress was laid on the cross-case registered by the appellant's wife Harjinder Kaur @ Baby against Gurinderjit Singh @ Ruka, Sukhwinder Singh and Kuldip Singh. Harjinder Kaur's version was that 10-12 persons had come to the shop armed with swords. There was a scuffle in which the appellant received a kirpan blow on his hand. During this scuffle the appellant took out his rifle which was snatched by the assailants. He took out a second rifle and fired in the air. The second bullet hit a young man among the assailants who died on the spot. This version seems to show that the appellant had fired in the self-defence which is quite different from the counter-version pleaded by him fixing liability on his servant Dalbir Singh. It may be noted that the appellant examined four witnesses in defence including Gurmit Singh (DW-1), a neighbouring shopkeeper and Shri P.K. Uppal, S.P. Jalandhar (DW-4) but he did not examine either his wife Harjinder Kaur @ Baby or servant Dalbir Singh in his defence.
The appellant did not come forward with a clean, clear-cut and precise defence. He kept on pleading different stories which naturally diminish the veracity of the defence version. On the other hand, the Crl. Appeal No. 80 DB of 2001 9 prosecution case was quite clear and credible. The deceased had come to the shop with his uncle and another person. There was an argument and the deceased was shot in the face. There was no doubt that some form of struggle took place which resulted in simple injury to the appellant which was described by Dr. Jasbir Singh who medico-legally examined him on the following day. The prosecution is not required to explain how this injury was inflicted. The prosecution witnesses appear to be reliable and the prosecution story is acceptable.
We find no merit in this appeal. The appeal is hereby dismissed. If the appellant is on bail he shall be taken in custody forthwith to undergo the remaining sentence.
(K.S. GAREWAL)
JUDGE
January 7, 2009 (SHAM SUNDER)
prem JUDGE
Note:- Whether refer to reporter No