Punjab-Haryana High Court
Hardev Singh And Others vs State Of Punjab on 14 November, 2008
Author: Sabina
Bench: Jasbir Singh, Sabina
Criminal Appeal No.531-DB of 1998 1
In the High Court of Punjab and Haryana at Chandigarh
Criminal Appeal No.531-DB of 1998
Date of decision: 14.11.2008
Hardev Singh and others
......Appellants
Versus
State of Punjab
.......Respondent
CORAM: HON'BLE MR.JUSTICE JASBIR SINGH
HON'BLE MRS. JUSTICE SABINA
Present: Mrs.Baljit Kaur Mann, Advocate,
for the appellant.
Mr.Rajesh Bhardwaj, DAG, Punjab.
****
JUDGMENT
SABINA, J.
Appellant Hardev Singh @ Haiba, Gurdev Singh and Kuldip Singh have filed this appeal challenging their conviction and sentence vide impugned judgment and order dated 22.9.1998 and 25.9.1998 respectively passed by Additional Sessions Judge, Patiala.
Prosecution story, in brief, as noticed by the trial Court in Criminal Appeal No.531-DB of 1998 2 para 2 of its judgment reads as under:-
"On 21.7.1992, Hamira Singh son of Mehma Singh made a statement before Assistant Sub Inspector Darshan Singh, when the police party was proceeding from village Sarala to Jameetgarh etc. in connection with patrol duty. Hamira Singh met the police party near the culvert of village Marrian. Hamira Singh stated that he was resident of village Harpalpur and was illiterate. He was a truck driver. Surjan Singh son of Isher Singh, who was his maternal cousin (father's elder brother's son) got 75 Bighas of land from Harnam Kaur on the basis of a Will. He got possession under the orders of the Court through the revenue department about some months back. The said land was in two portions. On that day at about 4.30 a.m., he, Surjan Singh, Gurmukh Singh son of Attar Singh, resident of Dhangeri, Mohinder Singh son of Sher Singh, resident of Naleena, Jaswant Singh son of Gurdial Singh, resident of Mehmoodpur, Police Station Guhla, Subheg Singh son of Kapur Singh, resident of Talheri, Jagga Singh son of Mehar Singh, Gama son of Harnam Singh, resident of Harpalpur and Mohinder Singh, resident of Naleena, who was his brother-in-law, came on Escort 37 tractor trolly from Harpalpur for ploughing the land of Surjan Singh situated in village Loh Simbli. They had also brought the seed of charri with them. Jaswant Criminal Appeal No.531-DB of 1998 3 Singh son of Gurdial Singh, resident of Mehmoodpur was armed with his licenced gun. They reached in about one hour near the drain of dirty water in the area of Loh Simbli. They trolly was separated from the tractor. Mohinder Singh started ploughing the land with the tractor. They were throwing the seeds of charri in the field. They ploughed about 3 kills of land. At about 7/7- 30 a.m. a group of persons came from the side of Loh Simbli. When they came near, he recognised Balwant Singh son of Waryam Singh, resident of Loh Simbli who was empty handed, Gurdev Singh son of Jagir Singh, resident of Loh Simbli was armed with a gandasi, Hardev Singh @ Haiba son of Jagir Singh was armed with a 12 bore gun, Kesar Singh son of Jagir Singh, Jaswinder Singh son of Kesar Singh, Karamjit Singh son of Kesar Singh, Sukhjit Singh son of Hardev Singh and Kuldip Singh son of Gudev Singh, all residents of Loh Simbli were armed with dangs (sticks). Mohinder Singh son of Gurdev Singh was armed with gandasi. Gurdev Singh and Balwant Singh gave the lalkaras that they should teach them a lesson for ploughing the land of a issueless person. Nobody should escape from there. Hardev Singh fired two gun shots from his 12 bore gun towards Surjan Singh. Surjan Singh received the injuries on his chest, on the left side of his abdomen and other parts of Criminal Appeal No.531-DB of 1998 4 the body. Mohinder Singh, who was armed with a gandasi, gave gandasi blows to Surjan Singh which hit him on his right and left legs and on his left arm. As a result, Surjan Singh fell down. Sukhjit Singh gave many blows with his stick to Gurmukh Singh. Kuldip Singh gave many blows with his stick to Mohinder Singh. Karamjit Singh gave many blows with his stick to Jaswant Singh. Jaswinder Singh gave many blows with his stick to Subheg Singh. Kesar Singh gave many blows with his stick to Jagga Singh successively. Gurdev Singh gave the gandasi blows to Gurnam Singh. Gurnam Singh received many injuries on his person and the blood started coming out of the injuries. During the fight Jaswant Singh son of Gurdial Singh, resident of Mehmoodpur, who was armed with 12 bore gun, fired two shots in self defence which hit Balwant Singh son of Waryam Singh, resident of Loh Simbli. Kesar Singh and his sons Jaswinder Singh and Karamjit Singh snatched the 12 bore gun along with licence and papers from Jaswant Singh. Thereafter, Gurdev Singh caused blows with the gandasi. On the Escort 37 tractor and damaged the tractor and the engine. After throwing the diesel on the tyre of the trolly it was burnt. After the occurrence all the accused ran away towards Loh Simbli along with 12 bore gun of Jaswant Singh. They raised alarm but Criminal Appeal No.531-DB of 1998 5 nobody came to rescue them. Hardev Singh and other accused with an intention to take possession of the land caused to injuries to Surjan Singh and his relatives."
On the basis of statement of complainant formal FIR No.53 dated 21.7.1992 was registered by police of Police Station Ghanaur.
Assistant Sub Inspector Darshan Singh along with police officials and Hamira Singh came to the place of occurrence. The injured persons were removed to Civil Hospital, Rajpura for medical treatment. Assistant Sub Inspector Darshan Singh prepared the rough site plan of the place of occurrence. The blood stained earth was lifted from the spot. Two empty cartridges of 12 bore from the spot were also taken in possession. Two cartridges and tractor trolly were also taken in possession. Statements of the witnesses were recorded.
Doctor O.P.Goel (PW-1) deposed that on 21.7.1992 at about 11.30 a.m. he examined Balwant Singh and found following injury on his person:-
"Multiple mall lacerated on left side of the chest and left upper arm on back of chest. Margins were irregular and black in colour. Kept under observation subject to X-ray and operation notes of the surgeon. There was swelling of eye lid on left side, there was bleeding from left ear."
The said injury was a result of fire arm.
On the same day he examined Gurmukh Singh at 11.45 Criminal Appeal No.531-DB of 1998 6 a.m. and found following injuries on his person:-
1. Lacerated wound 6 cm x 0.5 cm on the left side of cheek and face. It was bone deep. The wound was bleeding. It was kept under observation subject to X-
ray for evidence of injury to underlying bone.
2. Lacerated wound 3 cm x 0.5cm x 1.00 cm on top of right shoulder, x-ray was advised for evidence of fracture of underlying bone.
3. Abrasion 5 cm x 0.5 cm on front of right shoulder.
4. Lacerated wound 8 cm x 2 cm x 0.3 cm on the left palm and encircling left thenar eminece, x-ray was advised for evidence of fracture of underlying bone and injury to nerves and vessels.
5. Lacerated wound 8 cm x 1.5 cm x 3.00 cm on left thigh upper 1/3rd lateral aspect.
6. Lacerated wound 7 cm x 0.5 cm x 1.00 cm on left parieto occipital region in front of external occipital protuberance. It was bleeding. It was kept under observation subject to x-ray.
7. Lacerated wound 2 cm x 1cm x 1cm on front of left leg lower 1/3rd. It was bleeding. Kept under observation subject to x-ray.
On the next day at about 12.00 noon Gurmukh Singh was again medico legally examined and another injury was found on his person. The said injury was earlier missed as on the earlier day Criminal Appeal No.531-DB of 1998 7 many injured had been admitted in the hospital at the same time. The said injury No.8 found on the person of Gumukh Singh was as under:-
8. Multiple lacerated wounds on the back of upper half of chest varying in size from 0.2 cm x 0.2 cm x 0.2 cm to 0.4 cm x 0.2 cm x0.2 cm. Margins were irregular and some were blackened. Injuries were kept under observation for evidence of foregoing body. Injury No.8 was a result of fire arm. Remaining all the injuries were simple in nature and were result of blunt weapon.
On 22.7.1992 he examined Gurnam Singh at 1.00 p.m. and found following injuries on his person:-
1. Incised wound 3 cm x 2 cm x 1 cm on front of left leg upper third.
2. Incised wound 4 cm x 2 cm x 2 cm between web space between little and ring finger extending on Palmer and dorsum aspect of hand. It was bleeding.
The said injuries were a result of sharp edged weapon and were simple in nature.
On the same day he examined Mohinder Singh at 12.00 noon and found following injuries on his person:-
1. Lacerated wound on right part of forehead near the outer end of right eye brow 2.5 cm x 1.00 cm x 1.00 cm.
X-ray was advised for evidence of x-ray of underlying bone.
Criminal Appeal No.531-DB of 1998 8
2. Swelling 10 cm x 10 cm on left fore arm middle x-ray was advised for evidence of x-ray of underlying bone.
3. Lacerated wound 2.5 cm x 2.5 cm x 0.5 cm on the right leg lower 1/3rd. It was bleeding.
4. Lacerated wound 3 cm x 1cm x 1cm on right little finger Palmer aspect, x-ray was advised.
5. Complained of pain on dorsum of left foot in middle.. X-ray was advised for fracture of underlying bone.
6. Complained of pain in chest.
7. Lacerated wound 2 cm x 1 cm x 0.5 cm.
The said injuries were a result of blunt weapon. Injuries No. 2 and 4 were declared grievous in nature, whereas, the remaining injuries were declared simple in nature.
On the same day at 12.15 a.m. he examined Jaswant Singh and found following injuries on his person:-
1.Irregular lacerated wound on scalp 12 cm x 2 cm x bone deep wound starting in midline of fore-head running posteriorly and towards right frontal and parietal region. It was bleeding. Advised x-ray for evidence of fracture of underlying bone and injury to brain.
2. Lacerated wound 8 cm x 2 cm x bone deep on right part of scalp and parietal region starting in mid line of skull running downwards and towards right parietal region. It was bleeding. X-ray was advised for evidence of fracture of underlying bone. Criminal Appeal No.531-DB of 1998 9
3. Lacerated wound 1.5 cm x 1cm x 1cm on back of right fore arm in the middle third.
4. Swelling 3 cm in diameter on medical side of right knee. X-ray was advised for evidence of fracture of underlying bone.
5. Reddish blue contusion on front of right elbow and right upper arm 8 cm x 4 cm.
6. Reddish contusion on front of right upper arm 8 cm x 4 cm.
7. Reddish contusion 6 cm x 4 cm on back of right gluteal region.
On 23.7.1992 at 12.00 noon injured Jaswant Singh was again examined and the following injury was also found on his person which was considered as injury No.8:-
"8.Multiple lacerated wounds on the back of chest, back of upper arm left varying in size from 0.2 cm x 0.2 cm x 0.2 cm to 0.4 cm x 0.2 cm x0.2 cm. Injury was kept under observation for evidence of foregoing body or injury to underlying lung and pleura"
All the injuries on his person were declared simple in nature. Injury No.8 was a result of fire arm.
On the same day at 12.30 after noon he medico legally examined Subegh Singh and found following injuries on his person:-
1. Lacerated wound on scalp, more so on right side 12 cm x 3cm x 2.5 cm running antero, posteriorly on top of Criminal Appeal No.531-DB of 1998 10 scalp. It was bleeding.
2. Swelling on left hand. More so on radial aspect X-ray was advised for fracture of underlying bone.
3. Swelling on left elbow joint, more so on lateral aspect.
X-ray was advised for evidence of fracture of underlying bone.
4. Abrasion 2 cm x 0.5 cm on left deltoid region. All the injuries were result of blunt weapon. Injury No.1 was declared grievous in nature, whereas, remaining injuries were declared simple in nature.
On the same day at 12.45 p.m. he examined Jagga Singh and found following injuries on his person:-
1. Lacerated wound 3 cm x 1 cm x 1 cm on left leg.
Lower 1/3rd outer aspect.
2. Lacerated wound 6 cm x 3 cm x 3 cm on left part of scalp, just above left ear. X-ray was advised for evidence of fracture of underlying bone. The bone was bleeding.
3. Lacerated wound 2 cm x 0.5 cm x 0.5 cm.
All the injuries were declared simple in nature and were result of blunt weapon.
After reaching A.P.Jain Hospital, Rajpura, Assistant Sub Inspector Darshan Singh took in possession M.L.Rs of Gurdev Singh, Mohinder Singh, Jaswant Singh, Subheg Singh, Jagga Singh, Gurnam Singh, Gurmukh Singh and Mohinder Singh son of Sher Criminal Appeal No.531-DB of 1998 11 Singh. Surjan Singh was referred to Rajindera Hospital, Patiala. After reaching Rajindera Hospital, he recorded the statement of Surjan Singh. On 22.7.1992 injured Surjan Singh died in Rajindera Hospital, Patiala. The inquest report with regard to his dead body was prepared. Dead body of Surjan Singh was sent for postmortem examination.
Dr.Deepak Walia (PW-2) conducted the postmortem examination on the dead body of Surjan Singh on 22.7.1992 at 3.30 p.m. and found following injuries on his person:-
1. A stitched wound 20 cms long with 15 stitches on the anterior surface of the trunk in the middle extending from xiphistornum to umbilicus.
2. A stitched wound 6 cm long with four stitched in tact on left side of abdomen 6 cm left of mid line and 10 cms left and above of umbilicus.
3. A lacerated wound 3 mm in diameter on left side of chest 7 cm medical to left nipple at 9-0' clock position.
Clotted blood was present.
4. A lacerated wound 3 mm in diameter on left side of chest 6 cm below left nipple of 6-0' clock position.
5. A lacerated wound 3 mm in diameter on right side of chest 2 cm from right nipple at 2-0' clock position. Clotted blood was present.
6. A lacerated wound 3 cm in diameter on right side of abdomen at right coastal margin 11 cm below right Criminal Appeal No.531-DB of 1998 12 nipple at 5-0' clock position.
7. A lacerated wound 4 mm on front surface of upper 1/3rd of left upper arm. Clotted blood was present.
8. A lacerated wound 3 mm in diameter on anterior surface of left fore-arm in its upper 1/3rd. Clotted blood was present.
9. A lacerated wound 3 mm in diameter 5 cm below injury No.10.
10. A stitched wound 4 cm long within 3 stitched on the back of left thumb.
11. A lacerated wound 4 cm long on back of left little finger within 3 stitched present underlying bone fractured.
12. A lacerated wound 3 mm in diameter on ant-surface of left thigh in its upper third.
13. A lacerated wound 3 mm in diameter on ant-surface of right thigh.
14. An incised wound 4 cm x 2 cm on the anterior surface of right leg in its upper 1/3rd bone deep.
15. An incised wound 3 cm x 2 cm on ant-surface of right leg 12 cm below injury No.14, underlying bones tibia fractured.
16. An incised wound 4 cm x 2 cm on the anterior surface of right leg lower one third.
17. An incised wound 2 cm x 1 cm on upper 1/3rd of left Criminal Appeal No.531-DB of 1998 13 leg bone deep.
18. An incised wound 3 cm x 1 cm on middle 1/3rd of left leg on its ant-surface bone deep.
19. An incised wound 1-1/2 cm x 1 cm on ant-surface of left leg 6 cm below injury No.18.
20. An incised wound 3 cm x 1 cm on right supra scapular region muscle deep.
21. A stitched wound 3 cm long with 3 stitches on the back of right middle finger of right hand. All the injuries were ante mortem in nature and cause of death was a result of multiple injuries suffered by the deceased which were sufficient to cause death in the ordinary course of nature.
The accused were arrested and after completion of investigation all the accused were sent up for trial.
Charge against the accused was framed under Sections 148, 302, 325, 323/149, 427,435 IPC. Charge was also framed under Section 27 of the Indian Arms Act, 1959 (hereinafter referred to as 'the Act') against accused Hardev Singh. Charge was also framed under Section 382 IPC against accused Jaswinder Singh and Karamjit Singh. Accused did not plead guilty to the charge and claimed trial.
At the trial, in order to prove its case, prosecution examined 17 witnesses. After the close of prosecution evidence accused Hardev Singh, when examined under Section 313 Cr.P.C., prayed as under:-
Criminal Appeal No.531-DB of 1998 14
"I am innocent. I and my son Sh.Sukhjit Singh had no concern with the land in dispute in July, 1992. My brother Sh.Gurdev Singh and his sons Sh.Harminder Singh @ Mohinder Singh and Sh.Kuldip Singh along with my brother Sh.Kesar Singh and his sons Sh.Jaswinder Singh, Karamjit Singh and Sh.Jagjit Singh were in possession of the land in dispute and they were in its physical cultivating possession since long. Civil litigation regarding land in dispute was going on between Smt.Jangir Kaur w/o Sh.Mehma Singh and Smt.Kartar Kaur w/o Sh.Ishar Singh since long. The complainant party suspected that I was helping my brothers Sh.Gurdev Singh and Kesar Singh and their sons in the said litigation. I and my son Sh.Sukhjit Singh have been falsely implicated in the case on that account.
I was working as Gunman in Allahabad Bank at village Loh Simbli. My lincenced Gun was taken away by the police from the said Bank and the same has been falsely planted in the case. I was arrested by the police on 22.7.1992, but my arrested was shown later on according to the suitability of the police. I and my son Sh.Sukhjit Singh are innocent and have been falsely implicated in the case."
The other accused also took up the similar pleas when examined under Section 313 Cr.P.C.
Criminal Appeal No.531-DB of 1998 15
In their defence accused examined Rajinder Kumar (DW-
1) and Navdeep Gupta (DW-2).
Learned trial Judge believed the prosecution version so far as accused Hardev Singh @ Haiba, Gurdev Singh and Kuldip Singh are concerned and convicted and sentenced them under Sections 302/325/34 IPC. Accused Hardev Singh @ Haiba was also convicted under Section 27 of the Act. The remaining accused were acquitted of the charge framed against them. Hence, the present appeal.
In appeal, learned counsel for the appellants has argued that the trial Court had erred in convicting and sentencing the accused vide the impugned judgment and order. Accused were in possession of the property in question. In fact, it was the complainant party, who had come to the spot and had fired two shots. Balwant Singh from the accused party had suffered injuries. The complainant party had suffered injuries in the exercise of self defence by the accused.
Learned State counsel, on the other hand, has argued that six persons had suffered injuries from the complainant side and one person had died. It was evident from Exhibit PW9/A that possession of the land had been handed over to Surjan Singh in the presence of the SHO Police Station Ghanaur, Patwari Halqa Lohsimbli, Chowkidar Harpalpur by the Field Kanoongo Ghanaur. Complainant party was cultivating the land in question on the alleged day of occurrence, when the accused came to the spot armed with Criminal Appeal No.531-DB of 1998 16 deadly weapons and attacked the complainant party.
Present case rests on an eye witness account. Case of the complainant party is that while they were sowing seeds of charri, accused party armed with respective weapons came to the spot and opened their attack. Hardev Singh fired two shots, whereas, other accused armed with their respective weapons inflicted injuries on the person of the complainant party. Case of the accused party on the other hand is that, in fact, they were in possession of the suit property and had been attacked by the complainant party.
Exhibit PW9/A is the material document as per which possession of the land in question was handed over to the complainant party in the presence of police on 13.3.1992. A perusal of the same reveals that price of the standing crop was assessed and it was ordered by the Field Kanoongo Ghanaur that Rs. 27,000/- will be paid as compensation to Harminder Singh and others. In case the compensation was not deposited then Harminder Singh and others would be entitled to their share in the crop. However, possession at the spot was delivered to Jagir Kaur and Kartar Kaur through Surjan Singh. Munadi was effected through chowkidar of the village with regard to possession and the possession was delivered peacefully. From this it is evident that complainant party was in possession of the property in question on the alleged day of occurrence. The fact that compensation amount was not paid by the complainant party regarding the standing crop does not lead to the Criminal Appeal No.531-DB of 1998 17 inference that the possession of the land remained with the accused party as the same had been handed over to Jagir Kaur and Kartar Kaur on 13.3.1992, whereas, the occurrence in this case had taken place on 21.7.1992. Exhibit DGG is a copy of an application in execution proceedings initiated on 7.11.1991 wherein it was prayed that the amount of mesne profits as mentioned in the application be recovered from the judgment debtors by attachment and sale of their properties. It was also prayed that delivery of actual physical possession of the land along with crop standing on it may be got delivered to the decree holders. The said application is only signed by the counsel for Jagir Kaur and others and is not signed by the decree holders. Apparently, the said application was filed before the standing crop had been harvested. This application might have been filed by the counsel under misapprehension that the possession of the land had not been given to the decree holders vide order dated 13.3.1992, whereas, in fact, possession had been given to the decree holders vide order Exhibit PW9/A dated 13.3.1992 and only compensation qua the standing crops had been assessed in favour of Harminder Singh and others. The pendency of the execution proceedings on the day of occurrence would also not lead to the inference that the actual possession on the day of occurrence with regard to the property in question was not with the complainant party. Hence, we are not impressed with the argument raised by learned counsel for the appellants that the accused were in possession of the property in question.
Criminal Appeal No.531-DB of 1998 18
Appellants had come to the spot armed with deadly weapons on the day of occurrence and had inflicted injuries on the person of complainant party. Appellant Hardev Singh was armed with 12 bore gun, whereas, appellant Gurdev Singh was armed with a gandasi and appellant Kuldip Singh was armed with a dang. Seven persons suffered injuries from the complainant side and out of them Surjan Singh succumbed to his injuries on 22.7.1992.
Appellant Gurdev Singh had allegedly inflicted injuries with the gandasi on the person of Gurnam Singh. The trial Court had erred in holding that Gurdev Singh had inflicted injuries on the person of deceased Surjan Singh, whereas, as per the ocular evidence Gurdev Singh had only inflicted injuries on the person of Gurnam Singh. Injured Gurnam Singh was given up at the trial by the learned public prosecutor as having been won over by the accused. As such an adverse inference is liable to be drawn against the prosecution. As per the medical opinion injuries on the person of Gurnam Singh were declared simple in nature. In these circumstances, the presence of appellant Gurdev Singh at the spot is doubtful and he is liable to be acquitted of the charge framed against him.
As per the ocular version appellant Hardev Singh had fired two shots from his gun which had hit Surjan Singh on his chest, abdomen and other parts of his body. Appellant Kuldip Singh gave dang blows on the person of Mohinder Singh (PW-6). So far as both these appellants are concerned, prosecution had been successful in proving its case against them. The prosecution version against them Criminal Appeal No.531-DB of 1998 19 is supported by the ocular evidence which is duly corroborated by the medical evidence. Mohinder Singh (PW-6) has duly proved the injuries inflicted on his person by appellant Kuldip Singh. As per the medical evidence the injuries on the person of Mohinder Singh (PW-
6) were a result of blunt weapon and two out of seven injuries suffered by him were declared grievous in nature. Both the appellants had come to the spot armed with their respective weapons and had used them at the time of occurrence. This leads to the inference that they had come to the spot sharing a common intention to commit the alleged crime. The statements of the eye witnesses with regard to the involvement of appellants Hardev Singh and Kuldip Singh inspire confidence. Presence of eye witness Mohinder Singh cannot be doubted at the spot as he had suffered injuries in the occurrence. In a case of an eye witness account motive more or less loses its significance. There is no un-explained delay in lodging the FIR. The occurrence had taken place at about 7/7.30 a.m. on 21.7.1992. It was natural for the eye witnesses to get the injured treated first and, thereafter, lodge the FIR. The statement of the complainant was recorded at 9.50 a.m. on 21.7.1992. Thus, there is no unexplained delay in lodging of the FIR.
We have gone through the entire evidence on record and are of the opinion that appellants Hardev Singh and Kuldip Singh were rightly convicted and sentenced by the trial Judge vide impugned judgment and order, whereas, appellant Gurdev Singh is liable to be acquitted by giving him benefit of doubt. Criminal Appeal No.531-DB of 1998 20
Accordingly, this appeal is partly allowed qua appellant Gurdev Singh and he is acquitted of the charge framed against him. So far as appeal qua appellants Hardev Singh and Kuldip Singh is concerned, the same is dismissed and their conviction and sentence as ordered by the trial Judge vide impugned judgment and order are upheld.
(SABINA) JUDGE (JASBIR SINGH) JUDGE November 14, 2008 anita