Punjab-Haryana High Court
Gurcharan Singh And Others vs State Of Punjab on 13 February, 2012
Author: Jasbir Singh
Bench: Jasbir Singh, Sabina
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA No.D-724-DB of 2006
Date of decision: 13.02.2012
Gurcharan Singh and others
.....Appellants
versus
State of Punjab
......Respondent
CORAM: Hon'ble Mr.Justice Jasbir Singh
Hon'ble Mrs.Justice Sabina
Present: Mr.Vinod Ghai, Advocate for the appellants
Mr.Rajesh Bhardwaj, Addl.A.G. Punjab
Jasbir Singh, J.
Gurinder Singh (A2) and Gurbachan Singh (A3) both are the sons of Gurcharan Singh (A1) . They have filed this appeal against judgment and order dated 4.8.2006, convicting A1 and A3 for commission of an offence under Section 302 IPC, A2 was convicted for the above offence with the help of Section 34 IPC. It was allegation against them that they, on 22.6.2005, had committed murder of Harbhajan Singh and Arjan Singh sons of Ajaib Singh.
Vide the impugned order, following sentence was imposed upon them:-
"Keeping in view the circumstances, I sentence Gurcharan Singh and Gurbachan Singh accused u/s 302 IPC and Gurinder Singh u/s 302 IPC to undergo R.I. for life and to CRA No.D-724-DB of 2006 2 pay fine of Rs.2000/- and in default to undergo R.I. for two months for the murder of Harbhajan Singh. I further sentence Gurcharan Singh and Gurinder Singh, accused u/s 302 IPC and Gurbachan Singh accused u/s 302/34 IPC to undergo R.I. for life and to pay fine of Rs.2000/- and in default to undergo R.I. for 2 months for the murder of Arjan Singh."
All the sentences were ordered to run concurrently.
Process of law was set in motion on a statement (Ex.PE) made by PW7 Arjan Singh son of Jarnail Singh. His statement was recorded by SI Nachhatar Singh (PW11). Resultantly FIR (Ex.PE/2) was recorded in police station Goindwal Sahib at 10.45 p.m. on 22.5.2005. Special report reached the concerned magistrate at Tarn Taran at 2.00 a.m. on 23.6.2005.
The trial Judge has noted the following facts regarding case of the prosecution:-
"It was stated by Arjan Singh that he is resident of village and Harbhajan Singh and Arjan Singh sons of Ajaib Singh, residents of V. Dhonda who were living in Malaysia had come to India about nine months before the occurrence and they were residing with him and Baldev Singh @ Sukhdev Singh resident of village Tur as they were related to him and Baldev Singh. Both of them were having a dispute with their cousin Gurcharan Singh accused, regarding the land. There was electric motor installed near the residence of Gurcharan Singh in the name of Harbhajan Singh and Arjan Singh. On 22.6.05 at about 7 PM, he, Harbhajan Singh Arjan Singh and Baldev Singh had gone to check the motor on two motor cycles CRA No.D-724-DB of 2006 3 to find out if the same was being misused by Gurcharan Singh, accused. Gurcharan Singh, accused armed with datar, Gurbachan Singh armed with datar and Gurinder Singh armed with Kirpan were already present at the tubewell. Gurcharan Singh raised lalkara that they be not spared and taught lesson for getting disconnected the motor connection and taking possession of the land. Gurcharan Singh then gave datar blow hitting Harbhajan Singh who resisted blow with his left hand. Gurbachan Singh and Gurinder Singh also gave blows with their respective weapons at the back side of head of Arjan Singh, who fell on the ground. Gurbachan Singh gave datar blow hitting Harbhajan Singh on his head. Gurbachan Singh and Gurinder Singh also gave blows with their respective weapons hitting Harbhajan Singh on his head. Harbhajan Singh fell into the well behind the motor. Baldev Singh @ Sukhdev Singh raised alarm and the accused ran away from the bplace of occurrence with their respective weapons."
Besides Arjan Singh (PW7), occurrence was also witnessed by Baldev Singh (PW8). As per case of the prosecution, after noting that both Harbhajan Singh and Arjan Singh were dead, the above named PWs went to their village to inform the respectables and thereafter, went to the police station to intimate the police. PW11 SI Nachhatar Singh met the complainant at chowk attarian Goindwal Sahib. After recording statement of PW7, the investigating officer went to the place of occurrence. Dead body of Harbhajan Singh was taken out from the well. Inquest proceedings were prepared with regard to both the dead bodies and those were sent for CRA No.D-724-DB of 2006 4 post-mortem examination, which was conducted by Dr.Jaspal Singh (PW1) on 23.6.2005 at 11.15 p.m. and 11.30 p.m. Above witness found the following injuries on the person of Harbhajan Singh:-
"1. A cut fracture present on skull bone in the centre which is 15 x 5 cm in the shape of open V, brain matter is lacerated out.
2. Sharp cut on left wrist joint was present which is about 7.5 x 5 cm. Bone deep partially attached to remaining part of arm.
3. A lacerated wound was present on the right side of chest wall about 5 x 5 cm.
4. A multiple lacerated wound was present on detoid area (left)
5. Multiple lacerated wound under cuts were present on the right shoulder area."
Rigor mortis was found present in the extremities. Postmortem staining was present. Cause of death as per opinion of the witness was due to hemorrhage and shock on account of injury No.1. Probable time that had elapsed between injury and death was within one our and between death and postmortem was about 12 to 24 hours.
On the dead body of Arjan Singh son of Ajaib Singh following injuries were found:-
"There is multiple cuts and fractures on the head. Brain is oozing out of cuts. Fractures on the occipital areas. Scalp kull and vertebras as described in inj. No.1 and brain and spinal cord in the same inj. Oozing out."CRA No.D-724-DB of 2006 5
Shock and hemorrhage due to above injury was found to be cause of death. Probable time that had elapsed between injury and death was immediately and between death and postmortem was about 12 to 24 hours. Rigor mortise was found present on the extremities.
During investigation, the investigating officer recovered an identify card, spectacles, one diary from near to the dead body of Harbhajan Singh. Above articles were taken in possession against recovery memo. Motorcycle of the deceased was also taken into possession. A1 was arrested on that very day. On interrogation, he suffered a disclosure statement, which led to recovery of a Datar, which was taken in possession against a recovery memo. A2 and A3 were arrested on 2.7.2005. A2 produced a sword which was taken into possession against recovery memo (Ex.PH). A3 Gurbachan Singh produced a Datar, which was also taken into possession against recovery memo (Ex.PG).
On completion of investigation, final report was put in Court. Case was committed to the Court of competent jurisdiction for trial. Copies of the documents were supplied to the accused as per provisions of Section 207 Cr.P.C. They were charge sheeted vide order dated 17.9.2005, to which they pleaded not guilty and claimed trial. The prosecution produced eleven witnesses and also brought on record documentary evidence to prove its case. On conclusion of prosecution's evidence, statements of the appellants-accused were recorded under Section 313 Cr.P.C. Incriminating material existing on record was put to them, which they denied, claimed innocence and false implication. They also led evidence in defence.
DW1 Sukhjinder Singh brought on record an FIR No.41 dated 12.4.2005 registered under Sections 447/420 IPC against A2 and A3. Both CRA No.D-724-DB of 2006 6 the accused were arrested in that case on 18.4.2005 and final report was put in Court against them on 4.6.2005. Defence also tendered into evidence certified copy of the proceedings under Section 145 Cr.P.C. pending qua the land in dispute owned by the deceased. Certified copy of the proceedings taken by the local police under Section 107/151 Cr.P.C. was also brought on record. Copy of a plaint in Civil Suit No.218/2001 filed by the deceased against the appellants was also brought on record. A copy of the criminal complaint filed by A1 against both the decease and PW7 and PW8 was also taken on record.
The trial Judge on appraisal of evidence found the appellants guilty of the offences with which they were charged, they were convicted and sentenced as found mentioned in earlier part of this order. Hence, this appeal.
Counsel for the appellants has vehemently contended that the prosecution has failed to prove delay in lodging the FIR. It was further stated that presence of PW7 and PW8 was not proved on record. There is nothing on record to show that both the deceased were residing with them, as alleged. By making reference to the medical evidence on record, it was argued that the death may have occurred at noon, on 22.6.2005. In the alternative, it was stated that the deceased along with PW7 and PW8 and others were the aggressors. They had come to take possession of the land in dispute and in the right of defence of property A1 has caused injuries to both the deceased. A2 and A3 have falsely been implicated being sons of A1. It is prayed that appeal be allowed and appellants-accused be acquitted of the charges framed against them.
CRA No.D-724-DB of 2006 7
Prayer made has vehemently been opposed by the State counsel, who by making reference to the statements of PW7 and PW8, the eye witnesses, argued that their testimony inspires confidence. They were present at the time of occurrence. There is nothing on record to show that they were known to anybody in village Dhonda, where occurrence had taken place. They went to their village informed the respectables/ relations and then went to intimate the police. The time consumed in getting the FIR recorded is natural. It was further stated that at the time of cross- examination of above PWs, the occurrence had virtually been admitted by the defence though only by stating that injuries were caused by A1 alone, which version is not possible to believe. He further argued that weapons of offence were recovered on statements made by the appellants-accused. For the last more than many decades, the appellants were in possession of land owned by the deceased. Despite best efforts made by the owners, they were not vacating the same. The owners had started legal proceedings by filing a suit against them. The version that one of the deceased caused injuries with a knife and another with a stick to A1 on that day was not proved on record. He prayed that appeal having no substance be dismissed.
A vivid eye witness account has been given by Arjan Singh (PW7), stating mode and manner in which injuries were given to deceased Harbhajan Singh and Arjan Singh by the appellants. Both the appellants along with PW7 and PW8 had gone to the tubewell owned by the deceased. The appellants-accused were present there, they caused injuries to the deceased with their respective weapons. On hue and cry being raised by PW7 and PW8, they fled away from the spot with their respective weapons. A1 was arrested on that very day. Others were arrested much later, CRA No.D-724-DB of 2006 8 thereafter. On disclosure statements made by A1 weapons of offence Datar was recovered and kirpan and another datar was produced by A2 and A3 at the time of their arrest. It has been proved on record that the deceased were owners of a huge tract of land, in possession of the appellants for the last so many decades. The appellants were not agreeing to leave the land, which compelled the deceased to file a civil suit in the year 2001 against them. On an application moved by the deceased, proceedings under Section 145 Cr.P.C. were also initiated by the competent officer. Appellants were also bound down to keep peace under the provisions of Section 107/151 Cr.P.C. When PW7 was cross-examined, following suggestion was put to him:-
"It is incorrect that on 22.6.05, at about noon time, both the deceased alongwith some electrician and other persons went to the tubewell and after disconnecting the motor started removing the electric motor of the tubewell from the behak. It is incorrect that some one informed Gurcharan Singh about the facts when he was present at his behak. On hearing the news, Gurcharan Singh rushed to the tubewell and objected to the removing of the electric motor from the tubewell by the deceased. It is incorrect that at that time, Harbhajan deceased had a khunda with him and he started inflicting blows on Gurcharan Singh. It is incorrect to suggest that Gurcharan Singh who had a kulhari in his hand gave one or two blows with it to Harbhajan Singh on receiving one of the blow on his head and he fell into tubewell. It is incorrect that thereafter Arjan Singh deceased who was also having sota in his hand attacked Gurcharan Singh accused. It is incorrect that in the exercise of the right of private defence Gurcharan Singh gave 2/3 blows from the reverse side of Kulhari to Arjan Singh, deceased and he also fell there. It is also incorrect to suggest that there after the companions of both the deceased who had gone to remove electric motor and to take possession of the land also fled away from the spot. It is incorrect that after the CRA No.D-724-DB of 2006 9 occurrence, Gurcharan Singh himself went to ps and report the matter to police."
The defence taken appears to be false. At at the time of investigation, PW11 had not recovered any electric motor. Further the time of arrest of A1, neither sharp edged injuries nor blunt weapon injuries were found on his person. Alleged knife in possession of Harbhajan Singh deceased and stick in possession of Arjan Singh deceased was not found available at the place of occurrence. It was case of the defence that both the deceased along with others had come to remove the electric motor and take possession of the land in dispute. If it was so, it could not have been possible for A1 to cause injuries to both the deceased. Both the deceased as per evidence on record, were unarmed. They have not caused any injury to A1, as alleged by the defence. In view of above, there is no question of causing their death in the right of defence of the property as argued by counsel for the appellants. The injuries were caused on vital part of the body of the deceased, which resulted into their death.
Further contention of counsel for the appellants that there is delay in recording the FIR is also liable to be rejected. The occurrence is stated to have taken place at 7.00 p.m. in village Dhonda. There is nothing on record to show that PW7 and PW8 were known to any Panch or Sarpanch of that village. All the appellants were the residents of that village. Under the circumstances, it was natural for PW7 and PW8 to rush to their village and to inform the respectables and relations.
Occurrence also, may have lasted for sometime. As per case of the prosecution when appellants had fled away from the place, both the PWs went to the tubewell and saw the dead bodies of Harbhajan Singh and Arjan Singh. This process also may have consumed sometime. Thereafter, the CRA No.D-724-DB of 2006 10 PWs went to their village and then to the police station. Statement (Ex.PE) of Arjan Singh (PW7) was recorded at 10.15 p.m. Special report reached the concerned magistrate at 2.00 a.m. on 23.6.2005. The gap of about three hours in between the occurrence and the recording of statement (Ex.PE) of Arjan Singh (PW7) was bound to occur under the given facts and circumstances.
Both the PWs have specifically stated that both the deceased were residing with them. To controvert this fact, nothing has been brought on record to show that the deceased were owning any house in village Dhonda and residing there.
PW7 and PW8 have given vivid description of the manner in which occurrence had taken place. Each and every injury given to both the deceased has been explained. Despite lengthy cross-examination, the prosecution has failed to shatter testimony of above witnesses.
In view of facts recorded above, presence of PW7 and PW8 at the spot cannot be doubted.
Further contention of counsel for the appellants that medical evidence does not support case of the prosecution is liable to be rejected. It is his contention that at the time of postmortem which was conducted on 23.6.2005 at 11.15 p.m., rigor mortis was found present only on the extremities. It means it was in the passing off stage. It is stated that generally rigor mortis to develop takes 12 hours, it will stay at the body for further 12 hours, then it will recede within next 12 hours. Both the dead bodies were put to postmortem examination within 16/17 hours. Rigor mortis was in the passing off stage, which shows that the version given by the defence that the occurrence had taken place at noon was correct. CRA No.D-724-DB of 2006 11
The Court is of the opinion that on this score alone, no benefit can be extended to the appellants. Regarding this aspect PW1 Dr.Jaspal Singh was thoroughly cross-examined, however, this witness has stood test of cross-examination and nothing favourable to the defence could be extracted from him. As per Modi's Book on Medical Jurisprudence (23rd edition Page 432), in northern India, the usual duration of rigor mortis is 24 to 48 hours in winter and 18 to 36 hours in summer. The murders were committed in the month of June. It was hot whether. At the time of post mortem, rigor mortis on the extremities were still present and had not passed off completely. Furthermore, development, stay and vanishing of rigor mortis depends upon many factors like, health condition of the deceased and the mode and manner of death. Merely because after about 16/17 hours, rigor mortis was found only at the extremities, it cannot be said that the prosecution has shifted the time of occurrence from noon to 7.00 p.m. on 22.6.2005.
It is contended by counsel for the appellants that probably, PW7 and PW8 were the persons who were to purchase the land in dispute from the deceased and on account of that they were projected as eye witnesses. Above argument has no legs to stand. There is nothing on record to show that at any time, both the deceased had entered into an agreement to sell the land in favour of PW7 and PW8. Both the deceased were the residents of a foreign country and to retrieve their land from unauthorized possession of the appellants, they had started process in the year 2001. On account of that and also on account of a fact that at their instance, A2 and A3 were arrested by the police on 18.4.2005, bailed out on 20.4.2005, the appellants were nursing a grudge against them, to teach a lesson to the CRA No.D-724-DB of 2006 12 deceased and to retain the land with them they had committed murders of Harbhajan Singh and Arjan Singh sons of Ajaib Singh.
No case is made out for interference.
Consequently, the appeal fails and is dismissed.
(Jasbir Singh)
Judge
13.02.2012 (Sabina)
gk Judge