Punjab-Haryana High Court
Bikkar Singh vs State Of Punjab on 9 August, 2011
Author: S.S. Saron
Bench: Ss Saron, Jora Singh
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA No. 84-DB of 2005
Date of decision : 9.8.2011
Bikkar Singh
.... Appellant
Versus
State of Punjab
.... Respondent
CORAM : HON'BLE MR. JUSTICE SS SARON.
HON'BLE MR. JUSTICE JORA SINGH.
Present : Mrs. Harpreet Kaur Dhillon, Advocate for the
appellant.
Mr. S.S. Gill, Addl. A.G., Punjab.
***
S.S. SARON, J.
The appellant Bikkar Singh aggrieved against the impugned judgment and order dated 2.12.2004 whereby he has been held guilty for the offence punishable under Section 302 Indian Penal Code ("IPC" - for short) and Section 27 of the Arms Act, 1959 and sentenced to undergo life imprisonment; besides, to pay a fine of `1000/- and in default of payment of fine, to undergo further rigorous imprisonment for 2 months for committing the murder of Kikkar Singh and Gian Kaur and also sentenced to undergo rigorous imprisonment for one year for the offence under Section 27 of the Arms Act 1959, has filed the present appeal.
The FIR (Ex.PA/II) in the case has been registered on the statement (Ex.PA) of the complainant Jaswant Singh (PW1) son of Mukand Singh. The wife's sister of the complainant Jaswant Singh (PW1) namely Gian Kaur (deceased) was married to Kikkar Singh (deceased). It is stated by Jaswant Singh CRA No. 84-DB of 2005 [2] (complainant) (PW1) that he is resident of village Jaurkian and does the work of agriculture. Kikkar Singh (deceased) son of Bhagat Singh resident of Chotian, Police Station Kot Bhai was his wife's sister's husband (Saddu). His wife's sister's husband (Saddu) had a dispute with his brother Bikkar Singh (appellant) for quite sometime. Bikkar Singh (appellant) had sold his share of the agriculture land in village Chotian and had gone to Rajasthan. However, Bikkar Singh (appellant) claimed that he was entitled for more share of land in village Chotian. Bikkar Singh had earlier also on one or two occasions come to village Chotian in connection with the dispute regarding the land. All the relatives had gathered and explained to Bikkar Singh (appellant) that he had taken his share in the land at village Chotian and he was not entitled for any more share. On this account, Kikkar Singh (deceased)-the wife's sister's husband (Saddu) of the complainant had by sending a message called him and Sukhmander Singh (PW3) son of Godha Singh resident of Bath, who is Kikkar Singh's wife's brother's son to village Chotian. A day earlier to the incident i.e. on 1.5.2002 at about 5.00 p.m. Bikkar Singh (appellant) and his son Iqbal Singh (since acquitted), the complainant Jaswant Singh (PW1) and Sukhmandar Singh (PW3) had a discussion at the house of Kikkar Singh (deceased) regarding the share of Bikkar Singh (appellant) in the agricultural land in village Chotian. Kikkar Singh (deceased) informed Bikkar Singh that he had already taken his share in the land and he was not entitled for any more share. On this Bikkar Singh and Iqbal Singh both father and son hurled filthy abuses on Kikkar Singh (deceased)-the wife's sister's husband (Saddu) of the complainant and went away from his house. On the day of the incident i.e. on 2.5.2002 at about 7.00 CRA No. 84-DB of 2005 [3] a.m. in the morning, the complainant Jaswant Singh (PW1) and Sukhmander Singh (PW3); besides, Kikkar Singh (deceased) were sitting in the 'baithak' (a room for sitting in the house) and were talking amongst themselves. Chariman @ Raja (DW1) son of Roop Singh who was kept as a household servant for doing domestic work of Kikkar Singh was roaming around and doing work in the house. Gian Kaur (deceased) wife of Kikkar Singh who is the wife's sister of the complainant was sitting on a cot in the courtyard of the house. In the meanwhile Bikkar Singh (appellant) armed with a 12 bore double barrel gun along with his son Iqbal Singh came there in the 'baithak' (a room for sitting in the house) and Bikkar Singh (appellant) asked the wife's sister's husband (Saddu) of the complainant i.e. Kikkar Singh as to whether the latter would give his share in the land to him (Bikkar Singh) or not. Then Iqbal Singh said to Bikkar Singh that they would not in this manner give the land and he should shoot. The complainant out of fear went outside and Bikkar Singh (appellant) with the 12 bore double barrel gun that he was holding fired at the head of Kikkar Singh - the wife's sister's husband (Saddu) of the complainant, who fell on the cot and died at the spot. Then Iqbal Singh said to his father that his aunt (Chachi) who was the root cause of the fight has been left and Iqbal Singh after taking the 12 bore double barrel gun from his father, fired on the forehead of Gian Kaur who was sitting on the cot in the courtyard who fell down there and died at the spot. The complainant Jaswant Singh (PW1) and Sukhmander Singh (PW3) then went on the roof top and raised an alarm. Bikkar Singh (appellant) and Iqbal Singh along with the gun then ran away from the spot. The cause of the grudge was that there was a dispute between both the brothers regarding distribution of the CRA No. 84-DB of 2005 [4] land, on account of which Bikkar Singh (appellant) and his son Iqbal Singh in connivance with each other had killed the wife's sister's husband and wife's sister of the complainant. Jaswant Singh, complainant (PW1) had left Sukhmander Singh (PW3) and Chairman (DW1) at the spot and was going to report the matter that the police met him on the way. His statement (Ex.PA) was recorded and he requested for taking action in the matter. The statement (Ex.PA) of the complainant was attested by Charan Singh SI/ Addl. SHO, Police Station Kot Bhai (PW6). The Police proceedings (Ex.PA/1) were recorded to the effect that on the day of the incident Charan Singh SI/Addl. SHO, Police Station Kot Bhai (PW6) along with other police officials and officials from the Home guard were present in connection with patrolling at the Dana Mandi Kot Bhai that Jaswant Singh (PW1) aforesaid came to Charan Singh SI/Addl. SHO (PW6) and got his statement (Ex.PA) recorded which after writing was read over and explained to him (Jaswant Singh) who after hearing and accepting the same as correct had signed below it in Punjabi; which was attested by Charan Singh, SI/Addl. SHO (PW6). From the statement that was recorded, offences punishable under Sections 302, 452 and 34 IPC; besides, Sections 25 and 27 of the Arms Act were found to be made out. The statement (Ex.PA) was sent to the Police Station through Constable Baljit Singh for registration of a case (FIR). The Special Report after registration of the case was asked to be sent; besides, information was also asked to be given to the Police Control Room. Charan Singh SI/Addl. SHO (PW6) and his colleagues as also Jaswant Singh, complainant (PW1) proceeded to the spot for investigation. The writing was recorded by Charan Singh SI/Addl. SHO (PW6) at the boundaries of village Kot Bhai at 9.30 a.m. On the basis of the CRA No. 84-DB of 2005 [5] said statement (Ex.PA) and endorsement (Ex.PA/1), case FIR No.29 dated 2.5.2002 (Ex.PA/II) was registered at Police Station Kot Bhai. Investigations in the case were conducted by Charan Singh SI (PW6) who was posted as Additional SHO Police Station Kot Bhai. On the date of incident i.e. 2.5.2002, Charan Singh SI/Addl. SHO (PW6) along with ASI Surjit Singh, Head Constable Ram Singh, Head Constable Baljit Singh and others had set up a check-post in the Grain Market, Kot Bhai where Jaswant Singh complainant (PW1) came and got his statement (Ex.PA) recorded, which was signed by him in token of its correctness. The spot was inspected by Charan Singh SI/Addl. SHO (PW6) and inquest proceedings (Ex.PE) of the dead body of Kikkar Singh and inquest proceedings (Ex.PF) of the dead body of Gian Kaur were prepared. The dead bodies were sent for post-mortem examination through Constable Ram Singh vide requests Ex.PC/I and Ex.PD/1. The blood from near the dead body of Kikkar Singh was lifted and made into a parcel and sealed with seal 'CS' of Charan Singh (PW6) and taken in possession vide memo (Ex.PG) which was witnessed by Sukhmander Singh (PW3) and ASI Surjit Singh. Then blood-stained earth from near the dead body of Gian Kaur and simple earth was lifted and made into a parcel and sealed with seal 'CS' of Charan Singh (PW6) and taken in possession vide memo Ex.PH, which was witnessed by Sukhmander Singh (PW3) and ASI Surjit Singh. Four pellets were also lifted from near the dead body of Gian Kaur which were made into a parcel and sealed with seal 'CS' and taken in possession vide memo Ex.PJ, which was witnessed by the said PWs. Two empties of 12 bore cartridges were recovered from the corner of the 'Deodi' (a small enclosure at the entrance of the house) which were made into a parcel and sealed with the CRA No. 84-DB of 2005 [6] seal 'CS'. Separate seal impression was prepared and the seal was entrusted to ASI Surjit Singh. The said parcel was taken in possession vide memo Ex.PK. Rough site plan (Ex.PL) of the place of occurrence with correct marginal notes was prepared by Charan Singh SI/Addl. SHO (PW6). Statements of witnesses were recorded. HC Ram Singh reached at the spot with the post- mortem report. He also handed over to Charan Singh SI/Addl. SHO (PW6) two parcels of the clothes of the deceased and two other vials containing pellets recovered from the dead bodies of the aforesaid deceased were taken in possession vide memo Ex.PM which was attested by HC Ram Singh whose statement was also recorded. On return to the Police Station, the case property was deposited with MHC with seals intact.
Dr. HN Singh, Rural Hospital Gurusar Madhir, Police Station Kot Bhai, District Muktsar (PW2) conducted the post- mortem examination on the dead bodies of Kikkar Singh and his wife Gian Kaur. The death of Kikkar Singh in the opinion of doctor (PW2) was due to multiple injuries leading to shock and hemorrhage which were ante-mortem in nature and were due to fire arm weapon. The death of Gian Kaur it was opined was due to the injuries suffered by her leading to shock and hemorrhage. The injuries were ante-mortem in nature and were due to fire- arm weapon. After completion of the investigation police report (challan) in the case was filed by the police in the Court of the learned Sub-Divisional Judicial Magistrate, Giderbaha on 30.7.2002. The learned Magistrate from the perusal of the report under Section 173 of the Code of Criminal Procedure ("CrPC" - for short) and relevant documents produced along with it, was of the opinion that the accused Bikkar Singh and his son Iqbal Singh appeared to have committed an offence punishable under CRA No. 84-DB of 2005 [7] Section 302 IPC and Section 27 of the Arms Act. The offence under Section 302 IPC was exclusively triable by the Court of Session. Accordingly, the case was committed to the Court of learned Additional Sessions Judge, Muktsar for trial. The learned Additional Sessions Judge, Muktsar vide order dated 29.8.2002 charge-sheeted Bikkar Singh (appellant). In terms of the police report (challan) filed by the Police, Iqbal Singh had been kept in Column No.2 of the said report and was not sent up for trial as he was found innocent during investigation. The statement of the complainant Jaswant Singh during trial was recorded by the learned Additional Sessions Judge, Muktsar on 25.9.2002. Thereafter, the learned Additional Public Prosecutor filed an application under Section 319 CrPC for summoning Iqbal Singh as an additional accused. The learned Additional Sessions Judge, Muktsar in his order dated 25.9.2002 observed that the complainant Jaswant Singh (PW1) in his statement had categorically stated that Iqbal Singh was also present at the time of occurrence and he not only exhorted Bikkar Singh (appellant) to fire at the deceased Kikkar Singh but also took possession of the gun from his father Bikkar Singh (appellant) and fired with the same on the forehead of Gian Kaur which resulted in her death at the spot. Therefore, it appeared that Iqbal Singh had also prima facie committed an offence punishable under Section 302 and Sections 302/34 IPC. It was ordered that he be tried along with Bikkar Singh (appellant) and he was summoned for 16.10.2002 to appear and face trial. Iqbal Singh surrendered in the trial Court on 30.4.2003 and was taken in custody. Accordingly, the charges were framed against both the accused on 7.5.2003. It was alleged that on 2.5.2002 at about 7.00 a.m. in the area of village Chotian, Police Station Kot Bhai, District CRA No. 84-DB of 2005 [8] Muktsar Bikkar Singh (appellant) committed murder by intentionally causing the death of Kikkar Singh and thereby committed an offence punishable under Section 302 IPC. Besides, Iqbal Singh on the same date, time and place committed murder by intentionally causing the death of Gian Kaur and thereby committed an offence punishable under Section 302 IPC. Moreover, both the accused committed criminal house trespass by entering into the residential house of Kikkar Singh (deceased) which was used as a human dwelling in order to commit the offence of murder of Kikkar Singh and his wife Gian Kaur which is punishable with death and thereby they both committed the offence punishable under Section 449 IPC. Lastly, on the same date, time and place, Bikkar Singh (appellant) used his licensed 12 bore double barrel gun No.18648-A/9 manufactured by the Indian Ordnance Factory in an unlawful manner for causing the murder of Kikkar Singh and Gian Kaur and thereby they committed an offence punishable under Section 27 of the Arms Act. The accused pleaded not guilty to the charge and claimed trial.
The prosecution in order to prove its case examined as many as 11 witnesses; besides, documents were tendered in evidence. The statements of the accused in terms of Section 313 CrPC were recorded. Bikkar Singh (appellant) stated that he was innocent and had been falsely implicated. It is stated that these were blind murders. He had been residing at Sangrana, District Ganga Nagar in the State of Rajasthan since before 1947 along with his family members. He never demanded any land or share in the ancestral property from Kikkar Singh (deceased). He was brought from his village along with his gun. The empties were foisted upon him. Jaspal Singh son of Kikkar Singh CRA No. 84-DB of 2005 [9] (deceased) had died and wife of Jaspal Singh had contracted remarriage with Lakhmir Singh of village Sangrana near Muktsar with the consent of Kikkar Singh (deceased). They both i.e. widow of Jaspal Singh and Lakhmir Singh used to reside in the house of Kikkar Singh (deceased). Gian Kaur (deceased) was not happy with this. The relations between Lakhmir Singh became strained with Kikkar Singh (deceased) as also his wife Gian Kaur (deceased). In defence Raja @ Chairman (DW1) the household servant of Kikkar Singh was examined. He had in fact been given up by the prosecution. Besides, Ajaib Singh (DW2) whose wife Kulwinder Kaur who was Sarpanch was examined. After examination of the defence witness, an application was filed on 1.12.2004 by the learned Additional Public Prosecutor for the State that the charges framed in the case had not been properly framed and as such the charges already framed were liable to be amended. It was submitted that charge under Section 302/34 IPC should have also been framed against both the accused Bikkar Singh and Iqbal Singh. Besides, there was no need for separate charge under Section 449 IPC. The learned trial Court on going through the file found that charge already framed in the case was defective. As per the prosecution, both the accused caused the murder of the deceased in furtherance of their common intention. Bikkar Singh (appellant) had been charged for the murder of Kikkar Singh (deceased) while Iqbal Singh had been charged for the murder of Gian Kaur (deceased). However, Bikkar Singh should have been charged for the offence under Sections 302/34 IPC for the murder of Gian Kaur and Iqbal Singh should have also been charged under Sections 302/34 IPC regarding the murder of Kikkar Singh; besides, there was no need for framing of a separate charge for the offence under CRA No. 84-DB of 2005 [10] Section 449 IPC against the accused when the main charge against the accused was for the offence under Section 302 IPC. As such, it was observed that the charge under Section 449 IPC already framed against the accused was liable to be deleted and the same was ordered to be deleted. An amended chargesheet was framed on 1.12.2004 on the allegations that firstly, on 2.5.2002 at about 7.00 a.m. in furtherance of common intention of both the accused in the area of village Chotian, Police Station Kot Bhai, Bikkar Singh committed murder by intentionally causing the death of Kikkar Singh and thereby he committed an offence under Section 302 IPC, whereas Iqbal Singh committed an offence under Sections 302/34 IPC. Secondly, on the said date, time and place, in furtherance of their common intention of both, the accused Iqbal Singh committed murder by intentionally causing death of Gian Kaur (deceased) and thereby Iqbal Singh committed an offence under Section 302 IPC whereas the accused Bikkar Singh (appellant) committed an offence under Section 302/34 IPC. Thirdly, on the said date, time and place, Bikkar Singh (appellant) used his licenced 12 bore double barrel gun No.18648/A/9 manufactured by Indian Ordnance Factory in an unlawful manner for causing the murder of Kikkar Singh and Gian Kaur and thereby Bikkar Singh (appellant) committed an offence punishable under Section 27 of the Arms Act, 1959. The learned Public Prosecutor made a statement that he was not to recall any witness already examined or any other witness in this case after amendment of the charge. The learned Additional Sessions Judge (Ad hoc) Fast Track Court, Muktsar after considering the evidence and material on record vide his judgment and order dated 2.12.2004 convicted Bikkar Singh (appellant) for the offence under Section 302 IPC and Section 27 CRA No. 84-DB of 2005 [11] of the Arms Act. Iqbal Singh accused was, however, acquitted by giving him the benefit of doubt. Bikkar Singh (appellant) has been sentenced to undergo imprisonment for life for the offence under Section 302 IPC; besides, to pay a fine of `1000/- and in default of payment of fine, to undergo further rigorous imprisonment for 2 months for the commission of murder of Kikkar Singh and Gian Kaur. Besides, he has also been sentenced to undergo imprisonment for one year for the offence under Section 27 of the Arms Act. The arms license of Bikkar Singh (appellant) was ordered to be cancelled and his gun and cartridges confiscated to the State. The other case property was ordered to be destroyed after expiry of appeal/revision or subject to result thereof. Bikkar Singh (appellant) aggrieved against the impugned order has assailed the same to the extent he has been convicted and sentenced.
Mrs. Harpreet Kaur Dhillon, Advocate learned counsel appearing for the appellant has contended that the appellant has been falsely implicated in the case. It is submitted that the appellant had been residing at village Sangrana, District Ganga Nagar in the State of Rajasthan since before 1947. He never demanded any share in the ancestral property at village Chotian from Kikkar Singh (appellant). He was brought from his village along with his gun and implicated in the present case. It is also stated that in fact son of Kikkar Singh namely Jaspal Singh had died and his wife had solemnized her re-marriage with Lakhmir Singh of village Sangrana which is near Mukstar and is not village Sangrana in District Ganga Nagar (Rajasthan) where the appellant resides. Lakhmir Singh, it is submitted, is the grand son of the maternal uncle of Kikkar Singh. Lakhmir Singh and his wife namely Jaspreet Kaur (who is the previous wife of Jaspal CRA No. 84-DB of 2005 [12] Singh deceased son of Kikkar Singh and Gian Kaur) started residing in the house of Kikkar Singh and in this regard Gian Kaur was not happy. Therefore, relations between Lakhmir Singh became strained with Kikkar Singh and the wife of Kikkar Singh namely Gian Kaur. It is submitted that all the relations of Gian Kaur had deposed against the appellant to falsely implicate him. It is submitted that in respect of the incident nobody was called from the village to join the investigation. Raja @ Chairman (DW1) servant of Kikkar Singh was not examined by the prosecution but was examined in defence as DW1. He had in fact informed Ajaib Singh (DW2) husband of Kulwant Kaur, Sarpanch regarding the murder. The Sarpanch, Panch and Lambardar of village Chotian were liable to be called by the police and failure to call independent witnesses goes to show that the appellant has been falsely implicated. It is also contended that the evidence in the case is the same regarding Bikkar Singh and Iqbal Singh and the learned trial Court has acquitted Iqbal Singh and, therefore, Bikkar Singh is also liable to be acquitted. It is also submitted that Kikkar Singh had suffered three injuries and only one gun shot is said to have been fired by Kikkar Singh (appellant). It is submitted that three injuries as stated by the doctor could not have been caused by one fire arm shot. Therefore, also the prosecution case is false. Lastly, it is submitted that motive for causing the death of Kikkar Singh i.e. demanding more land in village Chotian is not established. It is also submitted that the recoveries of empties have been shown later on and the fact that empties were lying at the door of the 'Deodi' (an enclosure on entering the house) was not mentioned by Jaswant Singh (PW1) in his statement (Ex.PA) on the basis of CRA No. 84-DB of 2005 [13] which FIR (Ex.PA/II) was registered. The empties were picked up later. Therefore, also the prosecution case is false.
In response, Sh. S.S. Gill learned Additional Advocate General appearing for the State has submitted that the prosecution has proved its case by leading cogent and convincing evidence. It is submitted that it has come on record that the appellant was demanding more share in the land at village Chotian from his brother Kikkar Singh (deceased) whereas he had already taken his due share earlier and had started residing in village Sangrana, District Ganga Nagar in the State of Rajasthan. It is submitted that there is no chance of false implication of the appellant; besides, it is submitted that merely because relations of deceased Gian Kaur are said to be strained with her daughter-in-law was no ground to dislodge the prosecution case. It is submitted that generally in the villages where there is a dispute between two brothers, the others do not interfere for fear of reprisal. It is further submitted that Iqbal Singh has been acquitted by the learned trial Court by taking into account the fact that he was initially placed in column No.2 of the police report (challan) that was filed and the learned trial Court observed that there is a general tendency to involve other relations in the case so that no one can pursue the case. Besides, it was observed that Iqbal Singh was not carrying any weapon. It is submitted that the acquittal of Iqbal Singh does not, in any manner, affect the prosecution case against Bikkar Singh (appellant). The injuries suffered by Kikkar Singh (deceased) in his head, it is submitted, shows that the injuries were caused by a projectile which after entering the body goes in different directions and causes injuries. It is submitted that the doctor found metallic pieces in the head which must have caused CRA No. 84-DB of 2005 [14] the injuries. Therefore, merely because there are three injuries with one gun shot is no ground to discard the prosecution case especially when the FSL (Ex.PR) records that the cartridge marked C1 had been fired from the right barrel of 12 bore double barrel gun of the appellant. The cartridge marked C2 had been fired from the left barrel of 12 bore double barrel gun of the appellant. The fact that Chairman @ Raja (DW1) was given up, it is submitted, is inconsequential as he was given up as he had been won over by the accused. In fact he has been examined thereafter as a defence witness.
We have given our thoughtful consideration to the contentions of the learned counsel appearing for the parties and with their assistance gone through the records. In order to appreciate the contentions of the parties, the following pedigree table as given by learned counsel appearing for the appellant may be noticed:-
Thaman Singh Phuman Singh Nazar Singh
Veer Singh Harnek Singh
Bhagat Singh ( Witnesses in inquest proceedings)
Gian
Bikkar Singh Kikkar Singh Daughter Modha Singh
(appellant) (deceased) married to
Jaswant Singh
(PW1)
complainant
Iqbal Singh Jaspal Singh
(acquitted) (pre-deceased son) Sukhmander Singh
(PW3)
Bhupinder Singh
(son)
A perusal of the above shows that Bikkar Singh
(appellant) and Kikkar Singh (deceased) are brothers. Iqbal
Singh son of Bikkar Singh (appellant) who was an accused in the CRA No. 84-DB of 2005 [15] case has been acquitted. Kikkar Singh and his wife Gian Kaur died in the incident that occurred on 2.5.2002. The learned trial Court has held that Bikkar Singh (appellant) had murdered Kikkar Singh and Gian Kaur with his 12 bore double barrel gun. Jaswant Singh complainant (PW1) is the sister's husband of Gian Kaur (deceased). Sukhmander Singh (PW3) is the brother's son of Gian Kaur. Veer Singh and Harnek Singh sons of Phuman Singh and Nazar respectively are the father's brothers' sons of Gian Kaur. They are witnesses in the inquest proceedings. Jaswant Singh (PW1) initially appeared in the case when Iqbal Singh had not been sent up for trial and had been kept in column No.2 of the police report (challan) filed by the police. After the statement of Jaswant Singh (PW1) was recorded on 25.9.2002, the learned trial Court vide order dated 25.9.2002 summoned Iqbal Singh. He surrendered in Court on 30.4.2003 and was charge-sheeted along with his father Bikkar Singh on 29.8.2002. Thereafter, Jaswant Singh (PW1) appeared on 29.10.2003 and reiterated the version as given by him in the FIR, which is to the effect that on 1.5.2002 Bikkar Singh and his son Iqbal Singh came from Rajasthan to village Chotian. He had been informed prior to that by Kikkar Singh that they would come on 1.5.2002 and he should also come to his house on that day. Sukhmander Singh (PW3) son of his wife's brother had also come. They had gathered at the house of Kikkar Singh (deceased) at 5.00 p.m. Both the accused demanded their share in the land of villages Kot Bhai and Chotian from Kikkar Singh, otherwise they would cultivate it by force. Kikkar Singh declared that Bikkar Singh had no more share in the land in the said villages. On this, both the accused hurled abuses at Kikkar Singh and left his house. Jaswant Singh (PW1) and Sukhmander Singh (PW-3) stayed for CRA No. 84-DB of 2005 [16] the night at the house of Kikkar Singh. They got up on 2.5.2002 at about 7.00 a.m. and were sitting in the 'Baithak' with Kikkar Singh. Gian Kaur wife of Kikkar Singh was sitting in the courtyard. At that time Bikkar Singh armed with a 12 bore double barrel gun accompanied by Iqbal Singh who was empty handed came there. Bikkar Singh asked Kikkar Singh whether he would give him his share in the land. Kikkar Singh declared that he could not give him any share in the land because he was left with no more share there. Iqbal Singh then asked Bikkar Singh that Kikkar Singh would not give his share in the land easily and that Bikkar Singh should shoot at Kikkar Singh. Out of fear Sukhmander Singh (PW3) and Jaswant Singh (PW1) got up from the cot. Bikkar Singh fired a shot at Kikkar Singh. Jaswant Singh (PW1) and Sukhmander Singh (PW3) had come out in the courtyard by that time. Iqbal Singh then declared that the root cause of the quarrel was Gian Kaur, wife of Kikkar Singh who was not allowing the settlement of the dispute and that he was going to kill her also. Then Iqbal Singh caught hold of the gun of his father Bikkar Singh and fired at Gian Kaur. Sukhmander Singh (PW3) and Jaswant Singh (PW1) then went upstairs of the house for their safety. The shot fired by Iqbal Singh hit the forehead of Gian Kaur and the shot fired by Bikkar Singh had hit the head of Kikkar Singh. They (Sukhmander Singh -PW3 and Jaswant Singh
-PW1) raised an alarm, but no neighbour came there due to fear. Both the accused then left the house of Kikkar Singh and while leaving threw two empties of the cartridges near the door within the house of Kikkar Singh. Jaswant Singh (PW1) left Sukhmander Singh (PW3) and Chairman @ Raju (DW1) to guard the dead bodies and proceeded to the police station to lodge a report. Kikkar Singh (deceased) and Gian Kaur (deceased) had CRA No. 84-DB of 2005 [17] died instantaneously on receiving the gun shot. Near the Dana Mandi of village Kot Bhai, a police party had set up a check post. He got his statement (Ex.PA) recorded before SI/Addl. SHO Charan Singh (PW6) which was read over and explained to him and he signed the same in token of its correctness. Then he returned to the spot with the police party. At about 1.00 p.m. SI/SHO Ranjit Singh came there and took him in his Gypsy to make a round of the village. When they reached near the Bus Stop of village Chotian near the Chhapriwala Kothas road, accused Bikkar Singh (appellant) was standing there and was looking for a Bus. He was arrested by SI Ranjit Singh. A 12 bore double barrel gun with two live cartridges of the same bore and arms licence, a licence for keeping poppy husk and `200/- were recovered from him; besides, a HMT watch was also recovered. These were taken in possession vide memo Ex.PB and Ex.PB/1 which were attested by Jaswant Singh (PW1). The gun was sealed by SI Ranjit Singh with seal bearing letters 'RS'. A supplementary statement of Jaswant Singh (PW1) was also recorded by the Police. Jaswant Singh (PW1) was cross- examined at considerable length. The contradictions in the statement (Ex.PA) and his statement in the Court were got confronted. Besides, questions were put to shake his testimony regarding the manner in which the incident had occurred. He denied the suggestion that he or Sukhmander Singh (PW3) were not in village Chotian either on 1.5.2002 or on 2.5.2002 or that they had not witnessed the incident in which the death of Kikkar Singh and his wife Gian Kaur had taken place. He denied that Chairman @ Raja (DW1) gave information about the blind murders to the lady Sarpanch of the village and her husband Ajaib Singh (DW2) and that Ajaib Singh (DW2) intimated the CRA No. 84-DB of 2005 [18] police about the incident on telephone at about 6.00 a.m. and the police came to the spot on the information received from Ajaib Singh (DW2). He also denied the suggestion that Chairman @ Raja (DW1) gave information on telephone to PW Sukhmander Singh (PW3) or that Sukhmander Singh (PW3) then informed him (PW1). Jaswant Singh (PW1) also denied that Sukhmander Singh (PW3), Veer Singh and Harnek Singh came to the spot for the first time on 2.5.2002 at 11.00 a.m. and it was thereafter that his (PW1) statement (Ex.PA) was concocted after due deliberations and consultations or that the accused had been falsely implicated under misguided suspicion. The deposition of Jaswant Singh (PW1) is corroborated by Sukhmander Singh (PW3) who has deposed on the same lines as Jaswant Singh (PW1). Sukhmander Singh (PW3) was also cross-examined at some length. The contradictions in his statement made in the Court and in his statement (Ex.DA) made before the police were got confronted. The discrepancies that were there are not such which can be said to affect the prosecution case. The contention of Mrs. Harpreet Kaur Dhillon, Advocate learned counsel appearing for the appellant that the appellant has been falsely implicated, as in fact he had settled in village Sangrana District Ganga Nagar in the state of Rajasthan and he was brought from there and implicated in the present case is not tenable.
It has come in the depositions of Jaswant Singh (PW1) and Sukhmander Singh (PW3) that Bikkar Singh (appellant) was demanding and claiming that he was entitled to more share of land in village Chotian and also in village Kot Bhai. It is with the said motive that Bikkar Singh (appellant) came to the house of his brother Kikkar Singh (deceased) and asked whether he (Kikkar Singh) was going to give him his due rightful CRA No. 84-DB of 2005 [19] share. It is on the refusal of Kikkar Singh (deceased) that Bikkar Singh (appellant) fired at the head of Kikkar Singh who died at the spot. Dr. H.N. Singh, Rural Hospital Gurusar Madhir, Police Station Kot Bhai, District Muktsar (PW2) who conducted the post- mortem examination found the following injuries on the dead body of Kikkar Singh:-
"1. Lacerated wound measuring 2.5 cm X 2 cm on the left external ear in its lower third, the wound was 2cm above the lower end of left external ear and was reddish in colour.
2. Lacerated wound measuring 2.8 cm X 2 cm in posterior auricular region left side margins of the wound were inverted. The wound was reddish in colour. Depth of the wound was 11 cms.
On dissection meninges of the brain were covered with blood, reddish blood was scattered in this brain matter, more so on the left side, clotted blood was present at base of the brain, base of the brain was fractured, cerebellum was lacerated and was having reddish blood clots and bone pieces. Two soft pieces (wad) and three metallic piece of different sizes were recovered during dissection of injury No.2.
3. Lacerated wound measuring 1 cm X 0.5 cm on the right side of the face, 4 cm lateral to outer canthus of right eye.CRA No. 84-DB of 2005 [20]
On dissection reddish blood clots were present in the wound. Underlying facial bone was fractured, one soft piece (wad) and two metallic pieces of different size were recovered during dissection of injury No.3.
Death in the opinion of Dr. H.N. Singh (PW2) was due to multiple injuries leading to shock and hemorrhage which were ante-mortem in nature; besides, were due to firearm weapon. The probable time between injuries and death was instantaneous and the probable time that elapsed between death and post- mortem examination was within 24 hours. After post-mortem examination, Dr. H.N. Singh (PW2) handed over to the police, the post-mortem report, body of the deceased, police inquest papers and one sealed jar containing three soft pieces (wad) and five metallic pieces of different size sealed at two places, one sample seal and belongings of the deceased. The post-mortem report (Ex.PC) of Kikkar Singh was in his hand.
On the same date, Dr. H.N. Singh (PW2) at 4.25 p.m. conducted the post-mortem examination on the dead body of Gian Kaur wife of Kikkar Singh. The following injuries were found on the dead body:-
"1. Lacerated wound measuring 6 cm X 2 cm on the frontal aspect of head right side, anterior end of the wound was at the level of right eyebrow and 3 cm from the midline, reddish in colour, margins of the wound were inverted.CRA No. 84-DB of 2005 [21]
2. Lacerated wound measuring 8 cm X 5 cm in the occipital region left side, medial end of the wound was in the midline, lower end of the wound was 6 cm above the posterior hairline. Margins of the wound were inverted.
On dissection brain box was fractured into multiple pieces, brain cavity was full of reddish blood clots, brain matter was lacerated at places, one soft piece (wad) and one metallic piece was recovered during dissection of head for injury No.1 and 2.
Death in the opinion of Dr. H.N. Singh (PW2) of Gian Kaur was due to the said injuries leading to shock and hemorrhage. The said injuries were ante-mortem in nature and were due to fire-arm weapon. The probable time that elapsed between injuries and death was instantaneous and the probable time that elapsed between death and post-mortem examination was within 24 hours. After post-mortem examination, the post- mortem report, body of the deceased, belongings of the deceased, police inquest papers initialled by the doctor (PW2), one sealed jar containing one soft piece wad and one metallic piece sealed at two places and one sample seal were handed over to the police. The post-mortem report (Ex.PD) of the dead body of Gian Kaur was in the hand writing of doctor (PW2). In cross-examination it is stated by Dr. H.N. Singh (PW2) that he had gone through the book known as Dr. Modi's Jurisprudence. Injuries No.1 and 2 of Kikkar Singh (deceased) were on the left CRA No. 84-DB of 2005 [22] side of his head and injury No.3 is, however, on the right side of the face. It is stated that injuries No.1 and 2 could be possible only if the assailant was either on the left side of Kikkar Singh or on his front. It is stated that it was wrong to suggest that injury No.2 could not be caused if the assailant was facing the victim. Besides, injury No.3 could be caused if the assailant was either on the right side or on the front of the deceased. It was wrong to suggest that the assailant could not cause the injury by facing the victim. The possibility of injury No.1 of Kikkar Singh being caused with a blunt weapon could not be ruled out. It is stated that all the three injuries on the person of Kikkar Singh could possibly occur with two shots. It is stated by the doctor (PW2) that in the post-mortem report he had not mentioned that the 'parna' of Kikkar Singh had any pellets marks or blood-stains. Since he was not a ballistic expert, he could not tell the distance from which the assailant might have caused injury No.2 or other injuries on the person of Kikkar Singh or on the person of Gian Kaur. He could not tell the distance from which Gian Kaur had been fired at.
It may be noticed that the Forensic Science Laboratory ("FSL" - for short) report (Ex.PR) shows that two 12 bore K.F. special cartridge cases were marked a C1 to C2 in the laboratory which were contained in parcel 'A'; one 12 bore double barrel gun No.18648-A/9, Y-1976 was marked W1 in the laboratory and was contained in parcel 'B' and ten 12 bore test cartridges were contained in parcel 'C'. These had been sent to the Forensic Science Laboratory, Punjab Chandigarh and were examined by Dr. S.N. Sharma, Deputy Director (Ballistic), Forensic Science Laboratory, Punjab Chandigarh. The results of the examination are as follows:-CRA No. 84-DB of 2005 [23]
1. one 12 bore K.F. special cartridge case marked C/1 contained in parcel 'A' had been fired from right barrel of 12 bore double barrel gun No.18648-A/9, Y-1976.
2. one 12 bore K.F. special cartridge case marked C/2 contained in parcel 'A' had been fired from left barrel of 12 bore double barrel gun No. 18648-A/9, Y-1976.
A perusal of the above shows that one 12 bore K.F. special cartridge case marked C/1 contained in parcel 'A' had been fired from the right barrel of 12 bore double barrel gun No. 18648-A/9, Y-1976. The 12 bore double barrel licenced gun and two live cartridges as also the arms licence were recovered from Bikkar Singh (appellant) in pursuance of recovery memo (Ex.PB) by SI Ranjit Singh SHO, Police Station Kot Bhai on 2.5.2002. The arms licence was valid upto 11.6.2002. The two empty cartridges marked C/1 and C/2 in the laboratory were fired from the 12 bore double barrel gun that was recovered from Bikkar Singh (appellant) vide recovery memo (Ex.PB). The two empty cartridges were recovered by Charan Singh SI/Addl. SHO, Police Station Kot Bhai (PW6) on 2.5.2002 vide recovery memo (Ex.PK) from the porch of the residential house of deceased Kikkar Singh which were taken in possession by the police. It may also be noticed that Charan Singh SI/Addl. SHO, Police Station Kot Bhai (PW6) vide recovery memo (Ex.PJ) had recovered pellets from the courtyard of residential house of deceased Kikkar Singh from near the Margosa (Neem) tree where the dead body of Gian Kaur CRA No. 84-DB of 2005 [24] wife of Kikkar Singh was lying on a cot. Four pellets were lifted from the ground and put in a separate plastic 'dabi' (small box) and sealed with the seal 'CS' which was taken in possession by the police. A rough site plan (Ex.PL) depicts the place mark 'A' where the dead body of Kikkar Singh was lying on a cot and mark 'B' is the place where the dead body of Gian Kaur was lying in the courtyard of the house on the cot. Mark 'C' is the place from where the witness Jaswant Singh (PW1) witnessed the occurrence. Mark 'D' is the place from where Sukhmander Singh (PW3) witnessed the occurrence. Mark 'E' is the place from where Chairman @ Raja (DW1) had witnessed the occurrence.
Mark 'F' is the place from where the blood-stained earth was lifted from near the dead body of the deceased (Kikkar Singh). Mark 'G' is the place from where in the passage of the courtyard (porch) from where two empty cartridges were found from the door. Mark 'H' is depicted as the place from where the blood- stained earth and simple earth were lifted from near the dead body of Gian Kaur and were prepared in parcel.
In the circumstances, the prosecution witnesses particularly Jaswant Singh (PW1) and Sukhmander Singh (PW3) have clearly narrated the manner in which the incident had occurred and they have proved that Bikkar Singh (appellant) had fired at Kikkar Singh and his wife Gian Kaur and they died due to fire arm injuries. Jaswant Singh (PW1) and Sukhmander Singh (PW3) had come to the house of Kikkar Singh a day earlier as they were called by Kikkar Singh to settle the matter regarding the demand raised by Bikkar Singh (appellant) claiming more entitlement than his share in the land at village Chotian. The contention of the learned counsel for the appellant that the witnesses are close relatives of the deceased and their presence CRA No. 84-DB of 2005 [25] at the time of the incident is doubtful is not borne out from the record and the depositions of Jaswant Singh (PW1) and Sukhmander Singh (PW3). Their depositions are not liable to be ruled out of consideration merely because they happen to be relatives of both the deceased. The prosecution witnesses Jaswant Singh (PW1) and Sukhmander Singh (PW3) have given sufficient and reasonable explanation regarding their presence in village Chotian a day earlier to the occurrence as Kikkar Singh (deceased) had called them there on that day. They have deposed that they had come to the house of Kikkar Singh on 1.5.2001 when Bikkar Singh (appellant) was claiming that he was entitled to more share in the ancestral land in village Chotian. They had stayed over night at the house of Kikkar Singh and on 2.5.2002 they were sitting with Kikkar Singh when Bikkar Singh came and asked Kikkar Singh whether he was giving his share. Threafter, Bikkar Singh fired at Kikkar Singh and his wife Gian Kaur.
The mere fact that Chairman @ Raja (DW1) had appeared in defence does not, in any manner, dislodge the eye witness account given by Jaswant Singh (PW1) and Sukhmander Singh (PW3). It is stated by Chairman @ Raja (DW1) in his deposition in Court that about two and a half years back at about 6 a.m., he was present at the house of Kikkar Singh (deceased). He was working as a private servant at his house for the last about 8 years. It is stated that an unidentified person with muffled face came to the house of Kikkar Singh. First, he fired at Kikkar Singh and then he fired at Gian Kaur. Thereafter, he ran away. Both of them had died. He informed the village Sarpanch who was a lady. Her husband Ajaib Singh (PW2) was also present. He had informed both of them. Ajaib Singh (PW2) and CRA No. 84-DB of 2005 [26] others, it is stated, had come at the spot from the village. He informed Sukhmander Singh (PW3) of village Bathan. The police had come at the spot at about 9.00 a.m. Sukhmander Singh (PW3) and Jaswant Singh (PW1) had come at the spot at about 11.00 a.m. Chairman @ Raja (DW1) was cross-examined by the prosecution in which he stated that one of his brothers is Raja @ Pehlwan and again stated that Pehlwan was only known by the name of Phelwan and not by any other name. It was denied as in correct that the said Pehlwan was known as Raja @ Chairman and he was living at the house of the deceased; besides, he (DW1) was not servant of the deceased. He did not know if his statement was recorded by the police. He had come on that day since he had received summons. He stated as incorrect that he never worked as 'Seeri' (agricultural worker paid through a share in the produce) with the deceased. It is stated that assailant had fired at Kikkar Singh inside the room and Gian Kaur was in the courtyard when she was fired at. The assailant, it is stated, had fired from a distance of 3-4 'karams' (land measurement equal to two paces, about 5.5 feet). It was a double barrel gun. It is stated that no empty was thrown at the spot. He could not give the height or age of the assailant. Besides, he did not know when the accused were arrested by the police. He did not make any statement before anybody till the day (i.e. till 24.11.2004) he deposed in Court. Ajaib Singh (DW2) stated that his wife Kulwinder Kaur was Sarpanch of the village at the time of the incident. Raja @ Chairman (DW1) was working as a labourer with Kikkar Singh and had come to him (Ajaib Singh). He had come at about 6.15 a.m. and informed that a person had come and he had killed Kikkar Singh and his wife. Ajaib Singh (DW2) along with some other persons had gone to CRA No. 84-DB of 2005 [27] the spot and found that Kikkar Singh and Gian Kaur were lying dead there. He informed the police Kot Bhai on telephone. Police had come to the spot at about 9.00 a.m. on the next day. No relative of Kikkar Singh (deceased) was present at the house when Ajaib Singh (DW2) went to the house of Kikkar Singh. Jaswant Singh (PW1), Sukhmander Singh (PW3) and other relatives, it is stated, had come at about 11.00 a.m. In the cross- examination it is stated that Bhupinder Singh was the grandson of Kikkar Singh (deceased). He (DW2) had cultivated his land at Kot Bhai after the occurrence. It was incorrect that he (DW2) did not give him the share and as such, the police had come in that connection. It was also stated that his (Dw2) wife had not passed any resolution in the Panchayat. It was incorrect that Jaswant Singh (PW1), Sukhmander Singh (PW3) and other relatives were present in the house since morning when he (DW2) reached there. It was incorrect that he had made false statement in order to help the accused.
It may be noticed that Raja @ Chairman (DW1) does accept the position that Kikkar Singh (deceased) and his wife Gian Kaur were killed due to fire arm injuries caused by a double barrel gun from a distance of 3-4 karams. He only says that the person who fired was an unidentified person with a muffled face. However, the double barrel gun has been recovered from Bikkar Singh (appellant) vide recovery memo Ex.PB. Therefore, the gun used at the time of the incident is linked to that of Bikkar Singh (appellant). As such the mere fact that Raja @ Chairman (DW1) had stated that the firing had been done by an unidentified person is inconsequential as the firing from 12 bore double barrel gun is admitted and accepted fact and the gun that was used in the incident has been recovered from Bikkar Singh (appellant) CRA No. 84-DB of 2005 [28] which stands established on the record. As such the mere fact that Ajaib Singh (DW2) states that Raja @ Chairman (DW1) had informed him that a person had come and had killed Kikkar Singh and his wife Gian Kaur is inconsequential and of no relevance in the face of the gun being recovered from Bikkar Singh (appellant). In fact a reading of the deposition of Raja alias Chairman (DW1) shows that an endeavour has been made to cover up the circumstances which have been established by the prosecution. This is evident from the fact that he says and accepts that a person had shot and killed Kikkar Singh and his wife Gian Kaur, however, it is stated that the assailant was an unidentified person with a muffled face. Besides, he states no empty was thrown at the spot. This was stated with a view to dispute the recovery of two empty cartridges in pursuance of the recovery memo (Ex.PK). Besides, Raja alias Chairman (DW1) with a view to show that Jaswant Singh (PW1) and Sukhmander Singh (PW3) were not present at the time of occurrence states that they came to the spot at 11.00 a.m. after the police had come at 9.00 a.m. He is also not able to give the height or the age of the assailant. Besides, he does not know when the accused were arrested by the police. Therefore, the deposition of Raja alias Chairman (DW1) is not such that the prosecution version can be totally ruled out of consideration.
The appellant Bikkar Singh is the elder brother of deceased Kikkar Singh. He had migrated to village Sangrana in Rajasthan in 1947. The appellant was claiming that he had more share in the land in village Chotian and he had raised a dispute with his brother Kikkar Singh. The Panchayats had been convened to settle the disputes. On 1.5.2002 Bikkar Singh had come to village Chotian and a Panchayat was held in which CRA No. 84-DB of 2005 [29] Jaswant Singh (PW1) and Sukhmander Singh (PW3) had also participated in the deliberations upon the demand raised by Bikkar Singh (appellant). Bikkar Singh (appellant) was claiming that he was entitled to more land in village Kot Bhai and village Chotian which was denied by Kikkar Singh (deceased). It is in consequence of the said denial that Bikkar Singh (appellant) shot his brother Kikkar Singh and his brother's wife namely Gian Kaur on 2.5.2002 in the morning. The empty cartridges were recovered from the place of incident vide recovery memo (Ex.PK) and the gun used in the incident was recovered from the appellant vide recovery memo (Ex.PB) which clearly goes to show the involvement of Bikkar Singh (appellant). It has also come in evidence that son of Kikkar Singh namely Jaspal Singh had died and his wife Jaspreet Kaur had solemnized her remarriage with Lakhmir Singh who, it is stated, is the grand son of the maternal uncle of Kikkar Singh. Kikkar Singh therefore had a grandson namely Bhupinder Singh and his property is to go to him. The prosecution witnesses were, therefore, not entitled to the property of Kikkar Singh. As such there was no reason for them to falsely implicate Bikkar Singh (appellant).
Insofar as Iqbal Singh, son of the appellant Bikkar Singh is concerned, the learned trial Court noticed that the investigation had found him innocent and he was not sent up for trial or charge-sheeted (challaned) by the police along with Bikkar Singh. He was placed in column No.2 of the police report (challan) and he was summoned as an additional accused in terms of Section 319 CrPC after the initial deposition of Jaswant Singh (PW1). The SHO and DSP had found Iqbal Singh innocent. According to the statements of Jaswant Singh (PW1) and Sukhmander Singh (PW3), Iqbal Singh was also involved in the CRA No. 84-DB of 2005 [30] incident. However, it may be noticed that Bikkar Singh (appellant) was apprehended while he was waiting for a bus at village Chotian. At that time Iqbal Singh was not with Bikkar Singh (appellant). Had Iqbal Singh also come with Bikkar Singh then he would have been arrested along with Bikkar Singh at the Bus Stand of village Chotian. Therefore, his presence in village Chotian on the date of the incident is indeed doubtful. Besides, Iqbal Singh was not carrying any weapon with him. The prosecution case is that he got the gun from his father Bikkar Singh and then fired at Gian Kaur. However, it has been held by the learned trial Court that when Bikkar Singh had a gun, he first fired at Kikkar Singh and then he could easily fire at Gian Kaur. It was observed that the father would not hand over the gun to his son to fire another shot so that he may also become a murderer and got involved in the case. It may be noticed that chances of false implication of Iqbal Singh could not be ruled out so that there was no one left to pursue the case. As such the presence of Iqbal Singh at the time of incident was held to be doubtful and he was given the benefit of doubt. The said findings and conclusions of the learned trial Court have not been assailed by the State or the complainant. Nevertheless, the same does not diminish the role attributed to Bikkar Singh (appellant) and the case against him is fully proved and established on basis of eye witness account and other intending circumstances.
In the aforesaid facts and circumstances, there is no merit in this appeal and the same is accordingly dismissed.
(S S SARON)
JUDGE
9.8.2011 (JORA SINGH)
amit JUDGE